ACCA《F4公司法与商法》辅导讲义(18)

ACCA《F4公司法与商法》辅导讲义(18)

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1 General

1.1 Types of director

Company may have in addition to its full time executive directors: Non-executive directors : Part time Generally have specific expertise.

Take objective standpoint and question executive directors' actions.

De facto directors : Person who purports to act as or occupies position of director. May as a consequence be treated as if they were directors. See agency notes for possible liability. Shadow directors : Not formally appointed.

Are persons in accordance with whose instructions directors are accustomed to act. Have the same duties liabilities and obligations as any other director. 1.2 Minimum numbers

(a) Private company: one director. (b) Public company: two directors.

(c) Both private and public companies must also appoint a company secretary. This person cannot also be sole director. Overview

1.3 Persons eligible:

(a) Anyone can be appointed except: (i) persons disqualified by the articles.

Table A disqualifies lunatics, or absentees from board meetings for more than 6 months without consent; (ii) undischarged bankrupts; (iii) company's auditor; (iv) anyone over 70 unless: permitted by articles, or

(plcs only) where appointment is approved in GM (s.293)

(v) persons disqualified by Company Directors Disqualification Act 1986. (b) Effect of order under CDDA 1986: A person is disqualified from being (s.1) (i) a director/shadow director (ii) liquidator/administrator/receiver

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(iii) involved in any way in the promotion, formation or management of a company. (c) Reasons for disqualification:

1 Conviction re indictable offence 2 Persistent failure to make returns. (3 or more in last 5 years).

3 Fraud, or breach of duty in winding-up. 4 Unfitness.

5 Following investigation (DTI).

6 Following fraudulent or wrongful trading. 1.4 Appointment, Retirement and Removal (a) First directors: Can be appointed by:

(i) subscribers to the memorandum subscribers sign a 'notice of appointment'; (ii) being named in articles

appointment takes effect on incorporation; (iii) appointment at first GM.

(b) Subsequent and additional directors:

Subsequent appointments are made in accordance with the articles. This includes:

(i) appointment by OR in GM

(ii) appointment by the Board to fill casual vacancies.

(iii) Appointment by the Board of additional directors who are put forward for appointment by members at next GM. (c) Retirement

(i) Directors retire by rotation in accordance with the articles. (ii) Table A provides:

1/3 of the directors retire at each AGM. Done on FIFO basis.

Retiring directors are eligible for re-election. 1.5 Removal (s.303) (a) Done by OR

(b) (i) Special notice (28 days) required.

(ii) No automatic right to compel inclusion of s.303 resolution. Members may have to satisfy s.376. (c) Director is given opportunity to:

circularise members with statement under 1,000 words

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address the meeting.

(d) There may also be breach of contract under director's service contract Southern Foundries v Shirlaw

(e) Weighted voting rights may make s.303 ineffective. Bushell v Faith

(f) Directors of a partnership type company may apply for: (i) a winding up under s.122 IA 1986 – just and equitable grounds. (ii) action under s.459 – conduct unfairly prejudicial.

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