This Q&A assumes that the company in question is a private company limited by shares proposing to buy back shares off-market and that the proposed share buyback is not for the purposes of, or pursuant to, an employees’ share scheme within the meaning of section 1166 of the Companies Act 2006 (CA 2006). It looks at whether a share buyback contract can be entered into that incorporates, by reference, provisions of a company’s articles of association that require it to buy back shares in certain circumstances. The contract required for an off-market share buyback (unless it is a share buyback for the purposes of, or pursuant to, an employees’ share scheme) must be approved by a shareholder resolution, rather than the specific share buyback itself. The contract that is approved may be a contract, entered into by the company and relating to shares in the company, that does not amount to a contract to purchase the shares, but under which the company may (subject

This Q&A relates to certificated shares (ie not shares traded via the CREST system). It assumes no overseas legal (or cross-border) considerations arise. There is nothing that prohibits a share certificate being executed electronically (ie using an electronic signature), provided the form of a company’s share certificate and the method of its execution complies with any requirements set out in the articles of association of the company whose shares are being transferred and any other relevant agreement, such as a shareholders’ agreement, as well as the Listing Rules (where relevant). The validity of a document executed under hand using an electronic signature is generally accepted (see below, Can a share certificate be validly executed under hand using an electronic signature?). However, the validity of a document executed as a deed using an electronic signature remains uncertain (see below, Can a share certificate be validly executed as a deed using an electronic signature?). In addition, even if legally valid, use of an electronic signature to execute a share certificate may raise practical

It will be necessary to scrutinise the terms of the first variation. If it can be determined that the share is entirely directed to someone else and/or basically confirms the destination of the remainder there may not be a problem. However, these issues are never without doubt and HMRC are always likely to look closely at the variation if their interest is aroused. For instance,

For statutory tax advantaged options, there are constraints on granting these over a percentage of share capital, due to the following requirements set out under the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003): • in the case of enterprise management incentives (EMI) options, ITEPA 2003, Sch 5 para 37(2) requires that the option agreement must state the number, or maximum number, of shares that may be acquired from it • similarly, for company share option plan (CSOP) options, ITEPA 2003, Sch 4 Para 21A(1)(b) prescribes that the number of shares under a CSOP option must be stated at the time of its grant, and • for a save as you earn (SAYE) scheme option, the number of shares which can be acquired on its exercise is determined by

The use of a cashless exercise facility in conjunction with an enterprise management incentives (EMI) option must be structured with care, as the legislation governing EMI schemes requires that, at the time that the option is granted, the option must confer a right to acquire shares that are fully paid up (under paragraph 35, Schedule 5, Part 5 to the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003)). HMRC guidance on EMI schemes does not give details of the intended meaning of fully paid up, but HMRC’s guidance in relation to tax advantaged share incentive plans (SIPs) states that at least the shares’ nominal value must be added to the capital of the company when the shares are issued, and that this capital amount will normally have been paid by the subscriber. Importantly,

This response assumes that the putative challenge concerns interests held by the shareholder in their capacity as such, as opposed to any other interests they may also have (eg as a creditor of the company). There does not appear to be any case law that address either of these points. As to the first question, Part I—Company voluntary arrangements: Insolvency Legislation: Annotation and Commentary [1.2] appears to take the view that challenges under section 994 of the Companies Act 2006 (CA 2006) can exist, but as the context ‘unfairly prejudicial’ is employed in a very different context (ie relating to the conduct of the management of the company), the authorities on CA 2006, s 994 are unlikely to be of assistance in interpreting

Whether a sums owed by a private limited company to a shareholder can be used to pay up that shareholder’s partly paid shares depends on whether such set-off constitutes valid payment for the amount remaining unpaid on that shareholder’s shares for the purposes of the Companies Act 2006 (CA 2006). CA 2006 sets out various restrictions and requirements in relation to payment for shares. Any company (whether public or private) that allots shares: • must not allot the shares at a discount, ie for less than their nominal value (CA 2006, s 580), and • may, if so authorised by its articles of association, provide for there to be differences between the shareholders as to the amounts to be paid up on allotment of the shares and the times that those outstanding payments will be required to be made (CA 2006, s

This Q&A relates to a private company limited by shares. The Companies Act 2006 (CA 2006) prescribes that a private company limited by shares can pass resolutions: • at a general meeting of its shareholders, or • as written resolutions in accordance with the procedure prescribed in the CA 2006 (see Practice Note: Written resolutions) While CA 2006 has preserved the common law principle of unanimous consent (see further reference to The Duomatic principle below), which means that a company’s shareholders could take a decision without having to comply with the relevant statutory procedures to pass a resolution, it is preferable to pass resolutions in accordance with the statutory procedures because otherwise: • there is a risk that an informal decision by unanimous consent will not have the status of a resolution, and therefore may not be sufficient where statute requires a resolution to be passed, and • it may be difficult to show afterwards that the shareholders were

We refer you to Practice Note: Acting for a tenant—assignment of existing lease—key issues which explains that an indemnity covenant is designed to protect the tenant from obligations which will continue to bind the tenant after completion. Where required: • the indemnity covenants should be included in the transfer or deed of assignment—it is best practice to agree the form of the transfer and annex it to the sale contract. If the transfer will not be attached, ensure that the contract provides that the transfer

The terms of a joint venture or private equity transaction will typically be set out in the articles of association of the relevant company and the shareholders' agreement (which will often be called a subscription and shareholders' agreement or an investment agreement in a private equity context, ie this document also tends to deal with the investor's subscription for new shares and any loan stock in the relevant investee company). A shareholders' agreement is a contract to which every shareholder in the joint venture company or private equity company will become a party

Under the National Minimum Wage Regulations 2015 (NMW 2015), SI 2015/621, determining whether or not a worker is being paid the minimum wage involves, in essence, working out an hourly rate of pay by dividing payments received by hours worked in a pay reference period (NMW 2015, SI 2015/621, reg 7). In order to calculate

We have assumed that the question relates to the execution of a scanned version of a contract or deed. We would like to refer