chapter  5
32 Pages

THE CONSTITUTION OF THE COMPANY

Unfortunately, exactly which shareholder decisions and agreements fall into the final sub-bullet point is not clear. This is an important issue because all constitutional documents, decisions and agreements must be registered with the registrar of companies, are available for public scrutiny (s 30) and must be sent to a member on request (s 32) with criminal liability for the company and every officer in default arising in the event of non-compliance. Some shareholders’ agreements fall within s 29 and therefore must be registered and some do not. Shareholders’ agreements are discussed at section 5.6. For the purposes of supplying members with copies, the meaning of constitutional documents is extended to include a current statement of capital (or, in the case of a company limited by guarantee, the statement of guarantee), and the current (as well as any past) certificate of incorporation (s 32). Today, the most important constitutional document of a company is its articles of association. The articles may or may not be supplemented by a shareholders’ agreement. Before focusing on the articles (at sections 5.3-5.5), and considering shareholders’ agreements (at section 5.6), it is helpful to consider the background to the Companies Act 2006 regime, thereby enabling you to understand the position of companies registered under an earlier companies act, and, in particular, the effect the 2006 Act has had on the constitutions of those companies. Additionally, many company law cases that are of continued relevance under the 2006 Act are difficult to understand without a basic understanding of the concepts of the objects and capacity of a company and the doctrine of ultra vires.