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Special resolutions and other resolutions requiring 75 per cent member approval under the Companies Act 2006—checklist

Special resolutions and other resolutions requiring 75 per cent member approval under the Companies Act 2006—checklist Special resolutions The Companies Act 2006 (CA 2006) sets out certain matters that must be passed by the members (or by a class of members) of a company as a special resolution (ie by a majority of not less than 75%) or by the holders of at least 75% of shares or of a class of shares. If a written resolution is to be passed as a special resolution, to be effectively passed as a special resolution, it must state that the resolution was proposed as a a special resolution. See Practice Notes: Member resolutions and Written resolutions for more details about shareholder resolutions and written resolutions. Note that: • anything done by ordinary resolution may also be done by special resolution, and • in addition to complying with the requirements of CA 2006, it may be necessary to comply with the requirements of any shareholders' agreement (or other governing document) as...

How to place a company into MVL—checklist and timeline

How to place a company into MVL—checklist and timeline Where it is proposed to wind up a solvent company voluntarily, the directors may at a board meeting make a statutory declaration of solvency that having made a full inquiry into the company’s affairs they have formed the opinion that the company will be able to pay its debts in full, together with interest at the official rate, within a period not exceeding 12 months from the commencement of the winding-up. See Practice Notes: • What is a members’ voluntary liquidation and when is it typically used? • MVL—the information and documents to be provided to the liquidator by the company It should be noted that where the directors have made a statutory declaration, the company enters into members’ voluntary liquidation (MVL). If no such declaration is made, the company enters into creditors’ voluntary liquidation. See Practice Notes: • Placing a company into MVL • What is a statutory declaration of solvency and what happens if a false declaration of solvency...

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Written resolution procedure—flowchart

Written resolution

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Development capital investment

Development capital investment Development, or growth, capital investment refers generally to an investment in a mature company that is earning revenue and has operating profits, but is not able to generate sufficient cash to fund a restructure or growth. Background to development capital investment Why seek investment? A company may seek this type of private equity investment to: • expand its business • restructure its operations • finance a major acquisition, or • restructure its balance sheet, eg by reducing debt Such companies are usually unable to take on additional debt either due to existing debt levels or market conditions. Private equity investment is seen as a realistic alternative. An investment of this nature will not normally lead to a change in control of the business as investors take a minority stake in the company. In addition, unlike other forms of private equity investment, investors do not significantly intervene in management affairs. Existing shareholders are not looking to exit and existing management is settled. Types of investors...

Failure to re-appoint an auditor—financial years beginning before 1 October 2015 [Archived]

Failure to re-appoint an auditor—financial years beginning before 1 October 2015 [Archived] ARCHIVED: This archived Practice Note summarised the statutory provisions of the Companies Act 2006 (CA 2006) that applied in the event of a company’s failure to re-appoint an auditor in relation to financial years beginning before 1 October 2015. Section 18 and Schedule 5 of the Deregulation Act 2015, which came into force on 1 October 2015, made a number of changes in relation to auditors, which include provisions dealing with a company’s failure to re-appoint an auditor. These provisions have effect in relation to financial years beginning on or after 1 October 2015. For details of the statutory provisions in relation to financial years beginning on or after 1 October 2015, see Practice Note: Failure to re-appoint an auditor. There may be other rules relating to the removal and resignation of an auditor that apply to a listed company, an AIM company or a company with securities that are listed on one of...

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Directors’ statement—payment out of capital for a redemption of shares

Directors’ statement—payment out of capital for a redemption of shares Company number: [insert number] [insert company name] Limited Payment out of capital to redeem shares in the company Directors’ statement We, the undersigned, [enter name of director] of [enter address] [enter name of director] of [enter address] [enter name of director] of [enter address] being all the directors for the time being of the Company, hereby state in accordance with section 714 of the Companies Act 2006 that the amount of the permissible capital payment for [insert number] [redeemable] shares of £[insert nominal value] proposed in the [Notice of General Meeting dated [insert date] OR Written Resolution dated [insert date]] to be redeemed by the Company is £[insert amount]. We also confirm that, having made full inquiry into the affairs and prospects of the Company, we have formed the opinion: 1 as regards the Company’s initial situation immediately following the date on which the payment out of capital is proposed to be made, that there...

Ireland—Written resolution of members of a private company limited by shares

Ireland—Written resolution of members of a private company limited by shares [ PRIVATE COMPANY LIMITED BY SHARES ] WRITTEN RESOLUTION of [COMPANY NAME] (the “Company”) (Company Number [*]) [ Unanimous resolution Use this text if the resolution is passed unanimously as per section 193 of the Companies Act 2014 (Ireland) (CA 2014 (IRL)). A unanimous written resolution is one in writing, signed by all the members of a company that are for the time being entitled to attend and vote. It will pass immediately once signed by all members. Note: A resolution to remove an auditor or director cannot be passed by unanimous or majority written resolution. In accordance with the Company’s constitution and as permitted by section 193 of the Companies Act 2014, we, the undersigned, being all members who alone or together, represent all of the total voting rights of all the members of the Company for the time being entitled to receive notice of, attend and vote at general meetings, hereby pass the following resolution(s) and agree...

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Can a member of a private company limited guarantee have more than one membership in that company?

Can a member of a private company limited guarantee have more than one membership in that company? It is assumed that the private company limited by guarantee does not have a share capital (as it has not been possible to form a company limited by guarantee with a share capital since 22 December 1980). Companies limited by guarantee and without a share capital have members who, instead of holding shares in the company, give a guarantee to pay a certain amount in the event of the company being wound up. A member’s liability is limited to the amount of that guarantee, which is usually a nominal amount (eg £1 to £10). A further key distinction between companies limited by shares and companies limited by guarantee is that a shareholder has the right to share in the profits of the company by way of receiving dividend payments. There is no such right for the members of a guarantee company to share in the profits of the company. However, the members still...

How will charities ensure that they are properly governed if trustees and staff are not able to work or meet in light of coronavirus (COVID-19)?

How will charities ensure that they are properly governed if trustees and staff are not able to work or meet in light of coronavirus (COVID-19)? Many charities will have board or general meetings scheduled over the coming months and be wondering what steps should be taken to observe social distancing measures and protect attendees, particularly those more at risk from coronavirus (COVID-19). Special rules apply to these meetings and will need to be taken into account. Formal meetings are, of course, only one (albeit an important) aspect of a charity’s operations. Outside formal meetings, staff may be able to work and meet remotely in order to keep services going. Where this is not possible, difficult decisions may have to be made about how best to protect a charity’s beneficiaries and reputation until restrictions around movement are eased. This Q&A is principally directed to charities which are structured as companies. Board decisions: one-off decisions where a meeting cannot be held If a decision is needed at short notice on...

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Restructuring & Insolvency weekly highlights—29 August 2024

This week's edition of Restructuring & Insolvency weekly highlights includes: a look at whether the register of members is conclusive in the context of resolutions to appoint liquidators (Bland v Keegan), the use of a passport order and an injunction restraining the respondent from leaving the jurisdiction (Raja (a bankrupt)), plus a round-up of other news and cases for restructuring and insolvency professionals.

Company’s register of members | Conclusive or not for voting rights? (Bland and another v Keegan)

Restructuring & Insolvency analysis: In the case concerning JDK Construction Ltd (JDK), the Court of Appeal considered the challenge against the validity of a written resolution to appoint joint liquidators and an alleged unauthorised stock transfer form. The Appellant contended that her shares in JDK had been illicitly transferred, which subsequently invalidated the resolution appointing the joint liquidators. The core issue was whether a company’s register of members, showing the Appellant’s shares transferred to another, was conclusive for validating the resolution. Upholding the decision of His Honour Judge Hodge KC, the Court of Appeal concluded that the register is prima facie evidence of the members and the validity of resolutions passed by members unless rectified by the court. Despite the alleged forgery, there was no authority directly addressing the removal of a member’s name due to forgery affecting voting rights. The Court of Appeal’s decision referred to the general principles set out in Enviroco Ltd v Farstad Supply A/S [2011] UKSC 16 and underscored the principle that the person listed...