(This note is not part of the Order)
This Order makes provision in relation to shares and share capital for the purposes of various provisions of the Companies Act 2006 (c 46) (“the Act”).
The Act requires companies, in various circumstances, to deliver a statement of capital to the registrar of companies. It also requires a company to send a current statement of capital to any member of the company on request. A statement of capital must (among other things) state, for each class of the company's shares, such particulars of the rights attached to shares as are prescribed by order or regulations. Article 2 prescribes these particulars. Where the company is a limited company, the shares are redeemable and the directors (duly authorised) determined the terms, conditions and manner of redemption, section 685(3)(b) of the Act also requires a statement of capital to state the terms, conditions and manner of redemption.
Article 2 does not apply to the statement of capital in a company's annual return, the contents of which are regulated by section 856(2) of the Act as amended by the Companies Act 2006 (Annual Return and Service Addresses) Regulations 2008 (SI 2008/3000).
Where an unlimited company allots shares of a class with rights that are not in all respects uniform with shares previously allotted, section 556 of the Act requires the company to deliver a return of the allotment to the registrar of companies for registration. The return must contain such particulars of the rights attached to the shares as are prescribed by order or regulations. Article 2 prescribes these particulars.
Article 3 prescribes the information that must be included in a return of an allotment of shares delivered to the registrar of companies under section 555 of the Act by a limited company.
Section 583 of the Act provides that a share in a company is deemed paid up (as to its nominal value or any premium on it) in cash, or allotted for cash, if the consideration received for the allotment or payment up is a cash consideration. “Cash consideration” is defined in subsection (3), which lists a number of methods of payment and provides also that “cash consideration” is constituted by payment by any other means giving rise to a present or future entitlement (of the company or a person acting on the company's behalf) to a payment, or credit equivalent to payment, in cash. The definition may be supplemented by order providing that particular means of payment are to be regarded as falling into that last category. Article 4 provides that “cash consideration” includes a settlement bank's obligation to make a payment in respect of the allotment or payment up of shares under the CREST system, which is the settlement system operated by Euroclear UK & Ireland Limited (see www.euroclear.co.uk). The CREST system is regulated by the Uncertificated Securities Regulations 2001 (SI 2001/3755, as amended).
Article 4 also supplements, in the same way, the definition of “cash consideration” which applies for the purposes of section 727(1)(a). That section permits a company to sell for a cash consideration any shares which it holds as treasury shares.
Section 713 of the Act provides that a payment out of capital by a private company for the redemption or purchase of its own shares is not lawful unless, among other things, the company's directors make a statement in accordance with section 714. The statement must be in the form prescribed by order or regulations and must contain (among other things) such information with respect to the nature of the company's business as may be so prescribed. Article 5 prescribes both the form of a directors' statement under section 714 and the information as to the nature of the company's business which such a statement must contain.
An impact assessment in respect of this Order has been produced and copies are available from the Company Law and Governance Directorate, Department for Business, Enterprise and Regulatory Reform, 1 Victoria Street, London SW1H 0ET or from www.berr.gov.uk.