Limited
to unlimited re-registrations
|
|
- A limited company
may only re-register as an unlimited company if it has obtained the
unanimous consent of the members of the company.
- A public company
may not re-register as unlimited, nor may a company which has previously
been registered as unlimited.
- The application
for re-registration must be accompanied by Form 49(8)(a), signed by
or on behalf of, all the members to indicate their consent to the re-registration.
- All of the directors
must also make a statutory declaration that the persons by whom, or
on whose behalf, the form of member's assent is signed constitute the
whole membership of the company, and, if any of the members have not
signed themselves, that the directors have taken all reasonable steps
to satisfy themselves that each person who signed it on behalf of a
member was lawfully empowered to do so.
- A copy of the
new memorandum and articles of association must be submitted with the
application for re-registration.
- A new certificate
of incorporation confirming the company’s re-registration will
be issued on receipt of the documents, if they are in order. The change
of status takes effect on issue of the certificate. The alterations
to the memorandum and articles take effect as if they were made by a
resolution of the company.
- Section 80 of
the Insolvency Act 1986 protects those who were past members of the
company at the time of re-registration from unlimited liability as a
contributory in the event of a subsequent winding-up.
|
|
Unlimited
to limited re-registrations
|
|
- The re-registration
of a company from unlimited to limited requires a special resolution
of the members.
- An unlimited company
may not re-register as a public limited company.
- The special resolution
must state: whether the company will be limited by guarantee or by share
capital and, if the latter, what the capital is to be. The resolution
must also make appropriate alteration in the memorandum and articles
of association to fit the requirements of the Companies Act 1985 as
to the substance and form of memorandum and articles suitable to the
type of limited liability chosen.
- The special resolution
must be accompanied by an application form, signed by a director or
the secretary of the company, and printed copies of the altered memorandum
and articles of association.
- The documents
must be filed within 15 days of the special resolution being passed.
- A new certificate
of incorporation confirming the company’s re-registration will
be issued on receipt of the documents, if they are in order. The change
of status takes effect on issue of the certificate. The alterations
to the memorandum and articles take effect as if they were made by a
resolution of the company.
- Section 77 of
the Insolvency Act 1986 provides that those who were members at the
time of re-registration shall remain liable to contribute if the company
is wound up within 3 years of the re-registration, even though they
have become past members by the time winding up commences. Such past
members remain liable to contribute to the company’s debts and
liabilities incurred before the re-registration as if the company had
not been re-registered as limited.
- Further, where
none of the members at the time of the re-registration remain members
at the commencement of the liquidation, those who were existing or past
members at the time of re-registration are liable to contribute without
limit to the debts and liabilities incurred before re-registration.
This is notwithstanding the fact that the existing members at the time
of winding up have satisfied the contribution required to be made by
them in pursuance of section 74 of the Insolvency Act 1986.
|