Company Memorandum and Articles of Association
This article applies only to companies incorporated on or before 3 January 2016. If your company is incorporated after 3 January 2016, please refer to our article on the company constitution instead.
What is a Memorandum of Association?
A company’s memorandum of association sets out the the company’s structure and aims. These are the fundamental conditions upon which the company is incorporated upon. Section 22(1) of the Companies Act provides that, among other things, the company memorandum has to state
- The name of the company
- Whether the liability of the members is limited or unlimited
- (In the case of a company limited by guarantee) the maximum amount that the members may be called upon individually to contribute in the event of a winding up of the company
- The personal particulars of the subscribers to the shares
- A clause stating that the subscribers are desirous of being formed into a company in pursuance of the memorandum and (where the company is to have a share capital) respectively agree to take the number of shares in the capital of the company set out opposite their respective names
These are the minimum requirements. The company may wish to include other provisions, such as a provision limiting the number of members of the company.
What are the Articles of Association?
A company’s articles of association set out the internal regulations by which the company is governed. They set out the rights, powers and obligations of the parties involved in the company. The articles of the company can govern everything from the conduct of board and general meetings to the appointment of directors.
Companies limited by guarantee and unlimited companies must register articles of association, while for companies limited by shares, registration of articles is optional. If no articles are registered, then section 36 of the Companies Act states that Table A in the Fourth Schedule of the Companies Act will be applicable as the articles of the company. Table A is a “default” set of articles that will apply even if articles of association have been registered, so long as the registered articles do not exclude or modify the regulations contained in Table A.
Practically, companies tend to register their customised versions of Table A which explicitly exclude the applicability of Table A.
The Effect of the Memorandum and Articles of Association
The memorandum and the articles of association serve as contracts between the company and its members, and among the members themselves. A member therefore has a personal right to have the memorandum and articles of association observed.
It is important to note that both the memorandum and the articles of association are public documents. In the case of companies limited by shares, members may decide to have a shareholders’ agreement in addition to the memorandum and the articles. A shareholders’ agreement is a separate private contract among the shareholders. It helps in keeping sensitive company details away from the public eye as some details can be stated in the shareholders’ agreement rather than in the memorandum and articles of association.
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