Companies Act: Focus on admin - August 2009
As the 1 October looms nearer, the practical implications of the changes in the legislation,
particularly where they impact on company administration, are becoming clearer. This bulletin looks at some of the things that the company secretary or other person entrusted with administrative duties will need to do.
Register of directors and secretaries
We have highlighted in previous bulletins some of the changes which need to be made to the company registers, including:
- the need to record both a directors residential address, which is protected information, and a service address, for service of documents
- changes to the information required to be kept on the register
KEY ACTION POINTS:
• Split register of directors and secretaries into 2 discrete registers
• Include the information on the register as regards the country or part of the UK in which the director is usually resident, and married women’s former names
• Remove details of shadow directors
• Establish from each director where they want their service address to be. If it is not to be the usual residential address, amend the register, and file Form CH01
• Create and complete new register of directors’ residential addresses
• Make sure residential addresses are kept confidential. Ensure that when displaying directors’ service contracts at the registered office that the addresses are removed.
From 1 October, anyone will be able to ask to inspect a company’s register of members (free to members and on payment of a prescribed fee for others). They can also request a copy, on payment of a fee. Those making a request will have to give the company information about themselves and the purpose for which they will use the information. If the company does not think the purpose is proper, it may apply to the court for, and the court may grant, an order that the company need not comply with the request. Unfortunately, proper purpose is not defined in the act, although ICSA has produced some guidance on what it might mean.
KEY ACTION POINTS:
• Ensure that procedures are in place to handle requests promptly within the five day deadline
• Protect shareholders’ data and ensure that a request for information has a ‘proper purpose’. Be aware that you may need to refer the matter to court in some cases
• Make sure residential addresses are kept confidential. Ensure that when displaying directors’ service contracts at the registered office that the addresses are removed
Location of company registers and records
Depending on the nature and situation of the company it may be obliged to keep up to 13 possible registers or records, including the company’s registers of members, directors, secretaries, charges, debenture holders; directors’ service contracts; and records of member resolutions. These registers must either be held at the registered office address, or from 1 October at a single alternative inspection location (SAIL).
Companies must notify Companies House when they initially set up a SAIL address or if the SAIL address is moved. Once the SAIL address is set up the company can move some or all registers to the SAIL address by notifying Companies House.
KEY ACTION POINTS:
• If some or all of the registers are kept other than at the registered office, file forms AD02 and AD03 to notify the Registrar of the SAIL. This is required even if a Form 353 has previously been filed.
Companies House forms
Companies House has now published (in draft) the new forms which are to be used from 1 October. Directors and company secretaries who are familiar with the current forms will have to get used to an entirely new numbering system. The new form codes will have three elements: function (e.g. “appointment”), number, and a location suffix for forms that are particular to Scotland or Wales. For example Form AP01 will be used for the appointment of a director (replacing Form 288a) and TM01 for the termination of a director’s appointment (instead of Form 288b).The annual return, which from October will be called an AR01, requires some additional information:• directors residential address and service address
• existence of a SAIL and details of which records or registers which are held there
• every company with a share capital must complete a statement of capital. This includes the total number of shares of the company; the aggregate nominal value of the shares and for each class of shares
- the voting rights attached to the shares
- the total number of shares; and
- the aggregate nominal value of that class;
- the amount paid up or unpaid on each share
From 1 October the memorandum of association of an existing company will be deemed to form part of its articles. In itself this requires no action by the company. Where members of an existing company (or anyone else entitled to a copy of the articles) request a copy of the articles on or after 1 October 2009, the company can either
• append a copy of the old style memorandum to the articles; or
• send a copy of the old style memorandum with the articles indicating the provisions that are deemed to be provisions of the articles
However, BIS has recently issued guidance stating that the first time existing companies amend their articles by special resolution after 1 October they will have to include the relevant parts of their existing memorandum and objects as part of their articles filed at Companies House.
KEY ACTION POINTS:
Review articles (see our previous bulletin). If any changes are made by special resolution, make sure that the version filed at Companies House contains the provisions of the memorandum of association.
If you have any queries regarding the issues raised in this or any of our previous bulletins, please contact:
Caroline Williams
0115 934 3986
caroline.williams@freethcartwright.co.uk
or your usual contact at Freeth Cartwright
Whilst every effort has been made to ensure the accuracy of this bulletin, it does not provide complete coverage of the subjects referred to, and it is not a substitute for professional legal advice and should not be relied upon as such.
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