Corporate Governance: Board of Directors, Board Committees & Board of Directors
. In relation to a company, a director is an officer of the company charged with the conduct and management of its affairs. The directors collectively are referred to as a board of directors. Sometimes the board will appoint one of its number to be the chairman of the board. Theoretically, the control of a company is divided between two bodies: the board of directors, and the shareholders in general meeting. In practice, the amount of power exercised by the board varies with the type of company. In small private companies, the directors and the shareholders will normally be the same people, and thus there is no real division of power. In large public companies, the board tends to exercise more of a supervisory role, and individual responsibility and management tends to be delegated downward to individual professional executive directors who deal with particular areas of the companies affairs (such as a finance director, a marketing director, etc.).
Powers of the Board of Directors: Introduction. The power to manage a company's business is usually delegated to the board of directors. In practice, the board of directors takes those decisions which are not specifically reserved to the shareholders under the company's articles of association or the Companies Acts. Shareholder approval would be required, for example, for the issue of shares, changes to the memorandum or articles of association or the winding up of the company.
Consequences of Exceeding Authority. A director may exceed his authority if he acts beyond the powers of the company or his own actual or ostensible authority. Such acts will generally bind the company and the director may incur personal liability to the company and/or the third party. To avoid the risk of personal liablity, a director should ensure that his authority is clearly established in writing. The Chairman of the Board of Directors: the articles usually provide for the election of a chairman of the board. They empower the directors to appoint one of their own number as chairman and to determine the period for which he is to hold office. If no chairman is elected, or the elected chairman is not present within five minutes of the time fixed for the meeting or is unwilling to preside, those directors in attendance may usually elect one of their number as chairman of the meeting. We supply expert advice in navigating English legal and business systems helping you to incorporate your business in England, Scotland, Northern Ireland and/or the Republic of Ireland. If you have an idea for a business, we can also assist you to register a new business directly in the UK from the ground up. In the UK, you must register your business, which we can do for you. Let us know how we can help.
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The board resolves to appoint the new director. The secretary writes to the newly appointed director confirming his appointment by the board and dealing with the following: requesting personal particulars, including date of birth, which are required to complete Form 288a and to make the necessary entry in the register of directors and secretaries. The date of birth is required for all directors and not just those subject to Section 293 (Section 289 as amended by Companies Act 1989, Schedule 19, para. 2 (2) (b)); asking him to sign the consent section on Form 288a; if the director will sign cheques on the company's behalf, requesting a specimen signature to be sent to the company's bank. Informing the director of any share qualifications which he must acquire under the articles and the time allowed in which to do this; informing the director of his obligations to disclose his interests in shares and debentures of the company and ask him to provide the necessary information regarding such interests so as to make the relevant entry in the register of directors' interests in shares and debentures.
Inviting the director to give a general notice of his interests in contracts with the company; giving dates of forthcoming board meetings; enquiring how the director wishes his emoluments to be paid, e.g. sent to his home address or paid direct into his bank account, including information regarding his PAYE coding and National Insurance contributions (if he is already paying the maximum contributions in connection with another employment, he should obtain and submit to the company a certificate of exemption from contributions). Providing general information about the business of the company if the newly appointed director is not already involved in the company. Copies of the Memorandum and Articles, reports and accounts for recent years and interim reports and circulars should be made available if required; providing a copy of the company's rules for securities transactions based on the Model Code and asking him to acknowledge receipt.
Every company is legally obliged to keep certain specified registers, books and records to reflect the operation of its business. It is the company secretary's PRIMARY RESPONSIBILITY to see that they are properly maintained and kept up to date. To help you avoid this we provide a UK company nominee secretarial service to ensure that these important statutory requirements are fulfilled, leaving the day to day running of the company to the directors. We ensure that all the company's statutory requirements are met, including the filing of the accounts and annual returns (subject to the receipt of all requisite documents). As your company secretary, we will prepare other documents in respect of changes to the company structure as and when they occur. Such matters will include allotment of shares, transfer of shares and appointments and resignations of officers.
Information about company director, residents management company, company secretary, sole director company, first directors company, incorporation company, residential address, alternate directors, alternate director, shadow directors, shadow director, appointment directors, managing directors, executive directors, company registration, UK company formation, limited company formations, online company formation, company formation UK, same day companies formation, UK company registration, company registrations, limited COMPANY INCORPORATION, shelf companies, purchase ready-made companies, company incorporation uk, incorporation uk company, registering company uk, vat. There are no qualifications specified in the Companies Act 1985 which must be held in order to qualify to become a company director.
A board is responsible for its employees and customers, but responsible to its shareholders.
This has become a form of words which would do credit to a mediator in Northern Ireland. It is designed to give comfort to all sides of an argument - until, of course, they start to unravel what it means. Before you agree to be a company's director, you should understand your duties and obligations. By fulfilling them in good faith, you can avoid conflict of interest and possible personal liability for company difficulties related to actions you take as a board member. Before you accept a board position, be sure you understand what will be expected of you. What is the duty of loyalty to the company? It means that you must set aside your personal interests and make company decisions on the basis of what's best for the company, not what's best for you. The company is trusting you to do this. In practice, this means you must recognize when your and the company's interests are in conflict, advise the other directors of the conflict and abstain from voting on the matter.
For example, you cannot vote on whether your company enters a contract with you or between the company and another entity in which you have a material interest or position of responsibility. Also, you must not take advantage of an opportunity that belongs to the company by exploiting it for yourself. Finally, you must never compete with the company. For example, you must not take business or customers away from the company or take its trade secrets or other secret information.
Nominee Secretary Service for Public Records for one year: Nominee Secretaries do not usually have an active role or function in the actual business of the company. The Company Secretary can authenticate documents or proceedings of the company and the signature of the Secretary on a written resolution is evidence of the proceedings. Coddan will act as Nominee Company Secretary for limited companies on an annual basis. This service is primarily designed to help people keep non-trading companies fully compliant with the law. It does not perform any secretarial duties, and does not become involved with operations of the company in any way. If signatures or verification documents are required extra charges will apply. Preparation and submission of the Annual Returns (payable fee additional).
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Nominee Secretary For Sole Director Company: The nominee services can be used to maintain anonymity or simply provide an additional officer to comply with the legal requirements. Nominee Secretaries do not usually have an active role or function in the actual business of the company. The Company Secretary can authenticate documents or proceedings of the company and the signature of the Secretary on a written resolution is evidence of the proceedings. Coddan will act as Nominee Company Secretary for limited companies on an annual basis. It does not perform any secretarial duties, and does not become involved with operations of the company in any way. The nominee secretary's signature on the forms to open a bank account (no extra fee). If signatures or verification any other documents are required extra charges will apply. Preparation and submission of the Annual Returns (payable fee additional).
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Nominee Secretary For Trading Companies: Nominee Secretaries do not usually have an active role or function in the actual business of the company. The Company Secretary can authenticate documents or proceedings of the company and the signature of the Secretary on a written resolution is evidence of the proceedings. Coddan will act as Nominee Company Secretary for limited companies on an annual basis. It does not perform any secretarial duties, and does not become involved with operations of the company in any way. We will complete and file the Annual Return on behalf of your company. This will include the fees for the filing of the official documentation. The nominee secretary's signature on the forms to open a bank account (no extra fee). Our Company Secretary fee covers the cost of reasonable handling of official company documents, which will be sent via the normal postal service. If signatures or verification any other documents are required extra charges will apply.
Legal Requirements
A company secretary's typical work activities: Organising, preparing agenda for, and taking minutes of, meetings. Dealing with correspondence before and after meetings, collating information, writing reports, ensuring decisions made are communicated to the relevant people. Monitoring changes in relevant legislation and the regulatory environment and taking appropriate action. Developing company contracts. Managing insurance and property issues. Developing and overseeing the systems that ensure that the company complies with all applicable codes as well as its legal and statutory requirements. The company is bound by any document expressed to be on behalf of the company and signed by a Director and the Secretary or two Directors (s. 36A Companies Act 1985).
DIRECTORS AND BOARD MEETINGS. PRIVATE COMPANY DIRECTORS APPOINTMENT
Effective Board Meetings: The way you run board meetings speaks volumes about how you run the company. Successful companies use board meetings to create and improve key business strategies. Mediocre companies often fail even to set objectives for their board meetings. This briefing is aimed primarily at companies large enough to have board meetings. But it is also useful for smaller businesses, as many of the points apply to strategy meetings in general. The briefing outlines: The objectives of board meetings. Who should be on the board. Preparing for board meetings. Running and following up board meetings.
Selecting the Right Mix of People an Effective Board: Each board director's role should be agreed in the first place. The choice of chairperson is crucial. While the managing director runs the company, it is the chairperson who runs the board. All boards need strong leadership. Appoint a chairperson who can: create a good team. Command respect from fellow board members, shareholders and employees. Understand the business. Listen to all opinions and then speak honestly.
Experienced non-executive directors can have a major positive impact. A team with complementary skills contributes to sound decision-making. For example, if you plan to expand, find someone who understands the financial implications. Similarly, blend optimism with pessimism, and experience with youth.
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The Board of Directors selects and supervises the officers of the Company in the interest and for the benefit of the stockholders. The Board of Directors has delegated to the Co-Chief Executive Officers, together with the other officers of the Company, the authority and responsibility for managing the business of the Company under the direction of the Board. Each director is expected to spend the time and effort necessary to properly discharge the director's responsibilities. The Board of Directors is responsible for nominating candidates to the Board and for filling vacancies that occur between annual meetings of shareholders. The Corporate Governance and Nominating Committee is responsible for identifying, screening, and recommending candidates to the Board.
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Board Members Should be Selected on Merit: They need to be able to: Think strategically, with a long-term view and a level-headed, realistic approach. Work well with the rest of the board. Contribute to discussions outside their main area of expertise. Put the company’s best interests ahead of their personal best interests.
To be effective, the board should agree on the objectives and scope of the board meetings. Ask each board member to write down his or her views. Opinions will vary considerably, but you can then come to a workable consensus. This is the first step in getting the board to work as a team.
Resist pressure to appoint unsuitable people to the board. For example: the long-term manager, appointed as the only means of promotion; the chairperson’s friend, appointed as a non-executive to strengthen the chairperson's own position; or the shareholders' representative, who has little business experience.
Board Papers: All board directors should come to the meeting well briefed. Distribute board papers on an agreed date before the meeting. Board papers should include several standard elements. The agenda. A full agenda should: Fit the agreed objectives of the board meetings. Not be too long. Have specific items to discuss, rather than just a list of general areas.
For example, under the heading "Strategic issues" you might list "Proposal to start a direct sales team". Include cross references to the relevant items in the board papers. Minutes of the previous meeting. Papers relating to specific agenda items. For example, a major equipment purchase. A good summarising note enables the board to take such decisions swiftly. Generally speaking, the papers should not take much more than an hour to read and analyse. Stick to an agreed format, so the papers are easy to use. Review the format once a year, as your focus will change over time.
Running the Meeting: The chairperson has the most influence on the meeting. As chairperson, your role is to: Determine the final content of the agenda, in conjunction with the managing director. Brief non-execs (and others) in advance on any sensitive issues. Allocate time to agenda items according to their importance. Create open discussions by introducing each item in a balanced, positive way.
Elicit the views of the quieter directors and prevent anyone dominating the discussion. Give your views on each issue after the others have given theirs. Summarise what has been decided, to check there are no misunderstandings. Be firm in allocating responsibilities and ensuring that they are carried out. Check at the next meeting that all decisions have been implemented.
A good location for the meeting is important. An off-site venue can help you focus more on strategic issues and less on operational ones. A good seating plan helps to draw everyone into the discussion. The date of future meetings should be agreed in good time. Larger companies generally have monthly meetings. Smaller companies may find quarterly meetings more effective. The impact of board meetings becomes diluted if there are too many.
For limited companies, one board meeting a year is the legal minimum. This meeting is used to sign off the annual accounts and to ratify any key decisions made by directors during the course of the year. At times of rapid change, increase the number of meetings. Board members should receive monthly management accounts, even when there is no board meeting.
Eligibility: There are no qualifications specified in the Companies Act 1985 which must be held in order to qualify to become a company director. A company's Articles of Association may, however, require the holding of a specified qualification. For example, a company carrying on business as a registered auditor may require that all directors are themselves capable of being appointed as auditors in their own right.
Alternatively, the directors of a residents' management company will often be required to be property owners or tenants of the particular development. The Act does however set out a number of conditions which, if met, prohibit the appointment of that person as a director, as follows:
A bankrupt person may not be appointed as a director. If a director becomes bankrupt after appointment, he must immediately resign as a director unless leave to continue is given by the courts. A person who has had a disqualification order made against him may not act as a company director. The auditor of a company cannot also be a director or company secretary of that company. A director of an insolvent company cannot, without the leave of the court, be appointed as a director of a company with a "prohibited" name.
The company secretary cannot also be the sole director of the company. A director aged over 70 may not be appointed to a public company or a subsidiary of a public company. This exclusion can be overcome if the company's Articles exclude Table A, Regulation 81 and the appointment is approved by the shareholders of the company. In addition the Act and Articles of Association may provide further instances where appointment may not be made or may cease, for example:
If the person is suffering from a mental disorder and is admitted to hospital under the Mental Health Act 1983 or a court order is made on the grounds of mental disorder. If a receiving order has been made against the director or proposed director or if they compound with their creditors generally. A minor may be barred from appointment. Failure to meet a share qualification or other qualifying criteria. If the maximum number of directors permitted by the articles has been reached.
Procedure for Appointment: The first directors of a company are those whose names are entered on Form 10 on the incorporation of a company. Subsequent appointments as directors are governed by the provisions of the company's Articles of Association. These usually provide that the board itself may fill any casual vacancies or appoint additional directors up to the maximum number permitted by the Articles.
However, elections or re-elections of directors following retirement by rotation or removal of directors must be approved by the company in general meeting. Also, at the company's first annual general meeting all the directors retire from office and have to be re-elected by the shareholders at the meeting.
A casual vacancy is one arising from the death or resignation of a director. Once it has been established that the proposed replacement is willing to be appointed (consent is formally required by signature of a consent-to-act section of Form 288a), the procedure for appointing a director to fill a casual vacancy is as follows:
The board resolves to appoint the new director. The secretary writes to the newly appointed director confirming his appointment by the board and dealing with the following: requesting personal particulars, including date of birth, which are required to complete Form 288a and to make the necessary entry in the register of directors and secretaries. The date of birth is required for all directors and not just those subject to Section 293 (Section 289 as amended by Companies Act 1989, Schedule 19, para. 2 (2) (b)); asking him to sign the consent section on Form 288a; if the director will sign cheques on the company's behalf, requesting a specimen signature to be sent to the company's bank.
Informing the director of any share qualifications which he must acquire under the articles and the time allowed in which to do this; informing the director of his obligations to disclose his interests in shares and debentures of the company and ask him to provide the necessary information regarding such interests so as to make the relevant entry in the register of directors' interests in shares and debentures.
Inviting the director to give a general notice of his interests in contracts with the company; giving dates of forthcoming board meetings; enquiring how the director wishes his emoluments to be paid, e.g. sent to his home address or paid direct into his bank account, including information regarding his PAYE coding and National Insurance contributions (if he is already paying the maximum contributions in connection with another employment, he should obtain and submit to the company a certificate of exemption from contributions).
Providing general information about the business of the company if the newly appointed director is not already involved in the company. Copies of the Memorandum and Articles, reports and accounts for recent years and interim reports and circulars should be made available if required; providing a copy of the company's rules for securities transactions based on the Model Code and asking him to acknowledge receipt.
A Regulatory Information Service should be notified of the appointment by the end of the business day following the decision to appoint the director. Details of the director's other business activities must be disclosed to a Regulatory Information Service within 14 days.
If appropriate, a press announcement should be sent to newspapers or through the company's press agents. On receipt of the relevant information from the director, the necessary entries in the register of directors and secretaries and in the register of directors' share and debenture interests should be made. The completed Form 288a MUST be sent to the Registrar of Companies within 14 days of the date of appointment. There may also be other matters to be attended to, depending on the circumstances.
Table A does not contain any provision requiring directors to obtain a share qualification and this is not usually required by modern forms of articles. However, it is usual for a director to wish to have some share interest in the company of which he is a director and, in this event, a notice of his interests must be included in the company's report and accounts each year. Where a director is not required to have a share qualification it is usual for the Articles to provide that the director may receive notice of, and attend and speak at, general meetings of the company.
As a non-shareholder, he would not otherwise have such power except if acting as chairman of the meeting. If the company has in force an insurance policy covering directors and officers of the company against liabilities that they may incur in carrying out their duties, the insurance company should be notified of the appointment of the new director either at the time of appointment or at renewal, depending upon the wording of the policy.
Directors' Addresses: Directors are required to give details of their usual residential address on Form 288a or any change in their usual residential address on Form 288c. Companies House VERIFIES the address details supplied against the Post Office database and will reject any that appear to be office addresses. Accommodation addresses and P.O. Box numbers CANNOT be used as clearly these are not residential addresses.
Under the Companies (Particulars of Usual Residential Address (Confidentiality Orders)) Regulations 2002, SI 2002/912, where there has been actual violence or intimidation or there is a serious risk that actual violence or intimidation will occur, a director may apply to the secretary of state for an order permitting the giving of a service address. Where granted, confidentiality orders lapse after five years unless extended or revoked.
Alternate Directors: There is no provision in the Act authorising a director to appoint an alternate to act on his behalf in his absence, so alternates may only be appointed if the Articles specifically provide for this. Regulations 65-9 of Table A make provision for a director to appoint another director to be his alternate, or he may appoint any other person as his alternate subject to that person being approved by the board of directors. Alternate directors are included in the definition of "director" in Section 741 and their particulars should be entered in the register of directors and secretaries and filed with the Registrar of Companies on Form 288a.
It should be noted that Form 288a does not differentiate between the appointments of a director or an alternate director, so a search of the records at Companies House will reveal alternate directors as appointed as directors. They are subject to the same rules as directors with regard to disclosure of interests in shares and debentures of the company and transactions with the company. Their names must also be shown on letterheads if it is company practice to show the names of directors on such stationery. An alternate director may only act in the absence of the appointing director: it is not a complete assignment by the director of his office under Section 308.
Shadow Directors: A person who either controls the management of a company or upon whose instructions the directors act is a "shadow director" of the company and is deemed to be a director of the company for all purposes. The appointment of a shadow director should be notified on Form 288a, although a shadow director may be unwilling to sign the "consent to act" declaration of the Form. In such circumstances an existing officer should countersign the form and it should be submitted to Companies House with a covering note explaining the circumstances of the "appointment".
Although directors will usually act upon the advice of their professional advisers this would not normally imply that those advisers were shadow directors as their advice is usually limited to a particular part of the business such as accounts or commercial property transactions.
Defective Appointment of Directors: If the appointment of a director is found to be defective in any way, Section 285 provides that, for the protection of third parties, any earlier acts made by the person concerned acting as a director remain valid. Where the defect is discovered after a long period has elapsed, it may be advisable for a special resolution or ordinary resolution to be passed by the company in general meeting to give retrospective validation to the acts of the person whose appointment as a director was defective.
Managing Directors and Other Executive Directors: The appointment of directors as managing or executive directors is usually governed by provisions contained in the company's Articles, giving the directors power to appoint such directors, to determine the terms of their appointment and remuneration and to delegate to them such powers of the board as may be desired.
Since the office of managing director is normally a full-time executive appointment it is good practice for this appointment to be governed by a formal service agreement so that the remuneration and other benefits associated with the appointment may be made clear. The agreement should also contain any restraints relating to confidentiality, with some control over the director's activity in the event of his leaving the service of the company. The contracts of directors who also hold salaried executive positions with the company should specify whether the remuneration stated in the contract is exclusive or inclusive of directors' fees.
For a smaller company, the terms of appointment could be set out in the minutes of the board appointing the director and a letter sent to him containing a copy of the minute and asking for his acceptance in writing of the proposed appointment. The Articles normally give the board of directors power to revoke any appointment of a managing director subject to the terms of any agreement which he has with the company. The appointment would also cease if the director ceased to be a director of the company for any reason.
Special Types of Director: Some companies' Articles provide for the board to appoint persons to offices with the word "director" as part of their title, e.g. divisional director, associate director. Such a person is not a director within the meaning of Section 741 and is not entitled to attend board meetings. He is not subject to the statutory responsibilities and liabilities of a director, provided that he does not represent himself as being a director in his dealings with third parties.
It is clearly misleading to appoint officials with the word ''director" in their job titles when they are not actually subject to the legal duties of a director. However, companies sometimes follow the practice in order to give an added measure of status to senior executives to facilitate their dealings with customers and suppliers, especially if the company has substantial dealings in overseas territories.
Local boards are also sometimes formed by companies under provisions contained in their Articles. These persons are not full directors for the purposes of the Companies Act 1985.
Contracts of Employment: An employment contract for a director that is not capable of being terminated other than for breach of contract within a period of five years must be approved by the shareholders in general meeting. Shareholders' approval may be given by an ordinary resolution passed at a general meeting, provided that a written Memorandum setting out the terms of the proposed agreement or a copy of the service contract is available for inspection by members of the company at the registered
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