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16 Memorandum of association

1 Introduction

1.1 The memorandum defines the company's relationships with third parties.

Specimens are in the Companies Act.

There are six principal clauses:?

1.2 (a) name

(b) registered office

(c) objects

(d) limited liability

(e) share capital

(f) association.

NB: Plc’s will also have a clause declaring their status.

2 Name clause

2.1 This obviously sets out the company's name.

Refusal to register

2.2 By S.26 the Registrar may refuse to register a name which is:

(a) offensive (in the opinion of the Secretary of State)

(b) constitutes an offence (ie, prohibited by statute: Banks must be registered under the Banking Acts)

(c) the same as an existing corporation (although a person can use his/her own name)

(d) where the words require permission and this has not been provided. There are two types of such words:

(i) those which imply a connection with the government or civil service.

(ii) those mentioned in the list in the Business Names Act 1985 and The Company and Business Names (Amendments) Regulations 1992.

Passing?Off

2.3 (a) There is a tort (called passing?off) where a person carries on a business under a name that would mislead the public into believing the business is conducted by another person.

(b) The most common method is to trade under a similar name.

(c) The injured party must prove that there is a genuine possibility of confusion.

(d) Remedies:

(i) an injunction to prevent further violation.

(ii) damages.

(e) The court tends to allow the use of a person's name who is directly involved with the company.

Changes of name

2.4 (a) The name clause can be changed by special resolution.

(b) The Secretary of State can order a company to change its name

(i) Within 12 months if the company has been inadvertently issued with a name similar to that of an existing company. s.28(2)

(ii) Within 5 years if misleading information was supplied. s.28(3)

(iii) At any time if the use of the name is likely to cause harm to the public. s.32

(c) Action of company (whether acting voluntarily or by direction).

A copy of the special resolution and the revised memorandum must be sent to the Registrar within 15 days.

(d) Action of Registrar:

(i) He alters the register.

(ii) He issues a new certificate of incorporation.

(iii) He advertises issue of the certificate of incorporation in the London Gazette.

(e) Two further points:

(i) The change of name does not affect rights or obligations under the old name.

(ii) The change of name takes effect from the date of issue of the new certificate.

Publication of the name

2.5 (a) The name must appear legibly and conspicuously:?

(i) outside the registered office and all place of business. s.348

(ii) on the common seal. s.350 (if the company has one).

(iii) on all business letters, notices and official publications.

(iv) on all bills of exchange, cheques, promissory notes, orders, receipts and invoices signed or issued on the company's behalf. s.349

(b) Penalties:

(i) a fine for every officer wilfully authorising or permitting it.

(ii) personal liability for any person issuing any bill of exchange, promissory note, cheque or order for money/goods without the company name: Penrose v Martyr

Limited Liability

2.6 (a) The name of a private company limited by shares must end with 'Limited' or Ltd'. (s.25)

(b) The name of a public company must end with the words 'public limited company' or p.l.c. (s.25)

(c) 'Limited', 'Ltd', 'public limited company' or 'plc' must not appear anywhere except at the end of the name. (s.26)

3 Registered office clause

3.1 (a) To be registered, the company's registered office must be in England and Wales or Scotland and the memorandum must say so.

(b) No alteration of a company's memorandum re (a) above is permitted except by Act of Parliament.

Location – Precise

3.2 (a) Address of the registered office must be notified to the Registrar on registration. It is the company's official address. it is not unlike domicile, contained in the memorandum.

(b) The address must be within the country of domicile given in the memorandum.

(c) The Registrar must be told of any changes.

(d) The change takes effect upon the notice being registered by the Registrar, but until the end of the period of 14 days beginning with the date on which it is registered a person may validly serve any document on the company at its previous registered office.

(e) The choice of location is the directors' responsibility (unless the articles say otherwise).

(f) All business forms of the company must state the address of the registered office in legible characters.

Function of the registered office

3.3 (a) As the company's official address it is where legal documents, notices, and other communications may be served.

(b) The following statutory books must be kept at the registered office:

(i) register of charges affecting the company's property together with copies of instruments creating the charges

(ii) minutes of general meetings

(iii) register of directors and secretaries.

(c) The Register of Members (and index) need not be kept at the registered office if it is made up elsewhere (e.g. at professional registrars).

(d) The following books must be kept at either the registered office or with the register of members:

(i) register of debenture holders

(ii) register of directors' interests in shares/debentures of the company.

(iii) copies of directors' service contracts.

(iv) register of substantial shareholdings.

(e) All the registers and other documents must be kept open for inspection for at least 2 hours on every business day.

(f) Members can inspect the registers free of charge and obtain copies for a 'reasonable' fee.

4 Objects clause

4.1 (a) This sets out the objects (ie purpose) of the company and defines the company's contractual capacity.

(b) This was designed to protect shareholders.

(c) Prior to the Companies Acts 1985 and 1989, if a company entered into a contract which was outside its objects ("ultra vires") that contract was void and unenforceable by either party to it.

(d) This rule could operate unfairly on third parties entering into transactions with the company since they were deemed to have 'constructive notice' of the memorandum.

Companies Act 1989

4.2 (a) A company may in effect opt out of the ultra vires rule all together by stating that the object of the company is to carry on business as 'a general commercial company' (s .3A).

(b) However, many companies still have "traditional" objects clauses, and therefore the rules as to "ultra vires" transactions are still relevant.

Remedies for an ultra vires transaction – S 35 CA '85

4.3 (a) Remedies for shareholders

(i) Shareholders can restrain an ultra vires act by seeking an injunction. This can only be done before the act becomes binding

(ii) They can sue directors for breach of duty

(iii) They can ratify the ultra vires act by special resolution (NB. they require a separate special resolution to absolve the directors from liability for breach of duty)

(b) Remedies for third parties

(i) The doctrine of ultra vires has effectively been abolished

(ii) 'The validity of an act done by a company shall not be called into question on the grounds of lack of capacity by reason of anything in the company's memorandum'.

(iii) Constructive notice no longer applies.

Alteration of the objects clause

4.4 (a) The objects can be altered by a special resolution (s.4)

(b) A copy of the resolution must be sent to the Registrar within 15 days of its adoption; he will publish it in the London Gazette.

(c) Minority protection (s.5)

(i) Persons eligible: Dissenting members

Holding 15% of NV of any issued share

(ii) Procedure: Application to court

21 days from SR to do so

(iii) Outcome: Court does “as it thinks fit”

(d) A copy of the amended memorandum must be sent to the Registrar after the 21 day period has expired.

5 Limited liability clause

5.1 This serves as a general notice to those dealing with the company.

5.2 The liability of the members is limited to the amount unpaid on their shares.

If a member's shares are fully paid up he or she has no further liability.

6 Capital clause

6.1 This must state:?

(a) the amount of the share capital in ￡'s.

(b) The number of shares into which the share capital is divided.

(c) The nominal value of each share.

7 Association clause

7.1 This is a record and it cannot be altered. The subscribers simply sign to say that they are taking up a share in the company.

8 Other clauses

8.1 Plcs must state that they are plcs in the memorandum.