CHAPTER 1
Formation of a company
CLASSIFICATION OF COMPANIES AND INCORPORATION PROCEDURE
Companies registered under the Companies Act 1985, or the earlier Companies Acts, are divided into two main categories, namely, public companies and private companies. A public company is defined as a company limited by shares, or limited by guarantee and having a share capital, whose memorandum of association states that it is to be a public company,' and which complies with the provisions of the Companies Act 1985, as to its name2 and the amount of its nominal share capital,3 and which has a certificate of incorporation stating that it is a public company." All other companies registered under the Companies Acts are private companies, and they comprise private companies limited by shares, companies limited by guarantee and unlimited companies.5
4
Whether a company is a public or private company, it is incorporated by the Registrar of Companies issuing a certificate of incorporation. To obtain this certificate, the persons who form the company must deliver to the Registrar a number of documents, the most important of which are the memorandum and articles of association.
MEMORANDUM OF ASSOCIATION
The memorandum of association contains the fundamental provisions of the company's constitution. It must provide for certain matters (such as the activities which the company may pursue, and the company's share capital), and it may provide for any additional matter which could be dealt with in the articles of ociation. Specimen forms of memorandum of association for a public company and for the different kinds of private companies are set out in Tables B, C, D and E in the Schedule to regulations made by the Secretary of State for Trade and Industry; these regulations were made under the Companies Act 1985, and like it, came into operation on 1 July 1985.8 So far as possible, the memorandum of a company to be incorporated must be in the form set out in Table B, C, D, E or F, whichever is appropriate, or as near thereto as circumstances admit. However, this does not mean that the contents of the memorandum and articles, as distinct
Companies Act 1985, s 1 (3). But since 22 December 1980 no new company may be registered as
me limited by shares and by guarantee (s 1 (4)). Companies Act 1985, s 25 (1) (see p 4, post).
Ibid, s 11 and s 118 (1) (see p 9, post).
14 Mid, s 13 (6) (see p 27, post).
3 Ibid, # 1 (2) and (3).
18 Ibid, 1 13 (1) and (3).
The Companies (Tables A to F) Regulations 1985, (SI 1985/805), para 2 and Schedule.
id; Companies Act 1985, s 746.
Companies Act 1985, s 3 (1).