Articles of association
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In corporate governance, a company's articles of association (AoA, called articles of incorporation in some jurisdictions) is a document which, along with the memorandum of association (in cases where the memorandum exists) form the company's constitution, and defines the responsibilities of the directors, the kind of business to be undertaken, and the means by which the shareholders exert control over the board of directors.
In contrast to the memorandum, which declares the business objectives and manners of external affairs, the articles of association defines the businesses internal affairs and manner of achieving the business objective.
The articles of association of a company, or articles of incorporation, of an American or Canadian company, are often simply referred to as articles (and are often capitalized as an abbreviation for the full term). The Articles are a requirement for the establishment of a company under the law of India, the United Kingdom, Nigeria, Pakistan and many other countries. In 1955, Together with the memorandum of association, they are the constitution of a company. The equivalent term for an LLC is articles of organization. Roughly equivalent terms operate in other countries, such as Gesellschaftsvertrag in Germany, statuts in France, statut in Poland, Ukrainian: статут (Romanization: statut) in Ukraine, and Jeong-gwan in South Korea.
In South Africa, from the new Companies Act 2008 which commenced in 2011, articles and memoranda of association have been replaced by a "memorandum of incorporation" or "MoI". The MoI gives considerably more scope to vary how to the company is governed than the previous arrangement.
The Articles can cover a medley of topics, not all of which is required in a country's law. Although all terms are not discussed, they may cover:
- The issuing of shares (also called stock) and the classes of shares, such as preferred stock and common stock
- The dividend policy and the transferability of shares
- Valuation of intellectual rights
- How the day-to-day operations of the company are conducted, such as by a board of directors.
- The appointments of directors, which shows whether a shareholder dominates or shares equality with all of the contributors
- Special voting rights of the Chairperson and their mode of election
- Directors meetings, including the quorum number and the percentage of vote needed to pass a motion
- Confidentiality and the founders' agreement with penalties for disclosure
- First right of refusal for purchase rights and counter-bids by a founder.
- Drag-along provisions, or when the majority shareholders force a sale on the other shareholders.
- Determinations for the price paid for shares transferred following cessation of directorship or employment.
A company is run by the directors, who are appointed by the shareholders. Usually, the shareholders elect a Board of Directors (BOD) at the Annual General Meeting (AGM), which may be statutory (e.g. India and the UK).
The number of Directors depends on the size of the company and statutory requirements. The Chairperson is generally a well-known outsider but they may be a working Executive of the company, typically of an American company. The Directors may, or may not, be employees of the company.
In emerging countries there are usually a few major shareholders who come together to form the company. Each usually has the right to nominate, without objection of the other, a certain number of Directors who become nominees for the election by the shareholder body at the AGM. Shareholders may also elect Independent Directors (from the public). The Chair would be a person not associated with the promoters of the company, a person is generally a well-known outsider. Once elected, the BOD manages the company. The shareholders play no part till the next AGM/EGM.
Memorandum of association
The Objectives and the purpose of the company are determined in advance by the shareholders and the Memorandum of Association (MOA), if separate, which denotes the name of the company, its Head- Office, street address, and (founding) Directors and the main purposes of the company for public access. It cannot be changed except at an AGM or Extraordinary General Meeting (EGM) and statutory allowance. The MOA is generally filed with a Registrar of Companies who is an appointee of the Government of the country. For their assurance, the shareholders are permit of the Memorandum of Association. Any matter in the Articles of Association not within the scope of the Memorandum of Association of the company is void.
The Board meets several times each year. At each meeting there is an 'agenda' before it. A minimum number of Directors (a quorum) is required to meet. This is either determined by the by-laws or is a statutory requirement. It is presided over by the Chairperson, or in their absence, by the Vice-Chair. The Directors survey their area of responsibility. They may determine to make a 'Resolution' at the next AGM or if it is an urgent matter, at an EGM. The Directors who are the electives of one major shareholder, may present their view but this is not necessarily so - they may have to view the Objectives of the company and competitive position. The Chair may have to break the vote if there is a tie. At the AGM, the various Resolutions are put to vote.
Annual general meeting
The AGM is called with a notice sent to all shareholders with a clear interval. A certain quorum of shareholders is required to meet. If the quorum requirement is not met, it is cancelled and another Meeting called. If it at that too a quorum is not met, a Third Meeting may be called and the members present, unlimited by the quorum, take all decisions. There are variations to this among companies and countries.
Decisions are taken by a show of hands; the Chair is always present. Where decisions are made by a show of hands is challenged, it is met by a count of votes. Voting can be taken in person or by marking the paper sent by the company. A person who is not a shareholder of the company can vote if they has the 'proxy', an authorization from the shareholder. Each share carries the number of votes attached to it. Some votes maybe for the decision, others not.
There are two types of resolutions, known as an Ordinary Resolution and a Special Resolution.
A Special Resolution can be tabled at a Director's Meeting. The Ordinary Resolution requires the endorsement by a majority vote, sometimes easily met by partners' vote. The Special Resolution requires a 60, 70 or 80% of the vote as stipulated by the constitution of the company. Shareholders other than partners may vote. The matters which require the Ordinary and Special Resolution to be passed are enumerated in company or Corporate Law. Special Resolutions covering some topics may be a statutory requirement.
Model articles of associations (A.O.A.)
In the United Kingdom, model articles of association, known as Table A have been published since 1865. The articles of association of most companies incorporated prior to 1 October 2009 – particularly small companies – are Table A, or closely derived from it. However, a company is free to incorporate under different articles of association, or to amend its articles of association at any time by a special resolution of its shareholders, provided that they meet the requirements and restrictions of the Companies Acts. Such requirements tend to be more onerous for public companies than for private ones. In Hong Kong, the Companies Registry provides four samples of model Articles of Association, and they are known as Sample A, B, C, and D respectively. Sample A and B are both designed for a private company (the most common company type), Sample C for a public company, and Sample D for a company limited by guarantee.
Companies Act 2006
The Companies Act 2006 received Royal Assent on 8 November 2006 and was fully implemented on 1 October 2009. It provides a new form of Model Articles for companies incorporated in the United Kingdom. Under the new legislation, the articles of association will become the single constitutional document for a UK company, and will subsume the majority of the role previously filled by the separate memorandum of association.
- List of company registers
- Articles of incorporation
- Articles of organization
- Certificate of incorporation
- Collegium (ancient Rome)
- Congressional charter
- Government-sponsored enterprise
- Royal charter
- Articles of Agreement Law & Legal Definition
- Delport, Piet "The New Companies Act Manual" (Lexis Nexis)
- "How to make your MOI "mooi"". Archived from the original on 2016-10-02. Retrieved 2016-08-26.
- "Memorandum and articles of association for UK limited companies". Quality Formations Blog. 2017-04-24. Retrieved 2020-11-22.
- Joint Stock Companies Act 1856 - Table B
- "Companies Registry - FAQ - Local Limited Companies - Incorporation".
- Under the law prior to the 2006 Act, in the event of any inconsistency between the memorandum and the articles, the memorandum usually prevailed: see Ashbury v Watson (1885) 30 Ch D 376.