After the introduction of the Companies (Amendment) Act 2014, a company’s memorandum and articles of association (“M&AA”) merged into a single document known as the “Constitution”. Although the company does not need to take any action to “merge” their existing M&AA, most companies have since taken this opportunity to update and amend their M&AA to reflect this change. Therefore, a simple explanation of what is a company constitution, is that it is a legal document, typically drafted by a corporate law firm in Singapore that details the governing rules and procedures of the company. It also defines the relationships between the management of the company, its shareholders and the company itself.
Pursuant to section 19 of the Companies Act (the “Act”), anyone incorporating a company must also submit the constitution of the proposed company. Section 22(1) of the Act also provides that the constitution shall state the following:
Any company could opt to adopt the Model Constitution as provided in the Companies (Model Constitutions) Regulations 2015. However, given that clauses of the constitution should be precise and unambiguous so as to prevent potential disputes that could impede a company’s operation and that different companies could have very differing needs, it would be prudent to engage a lawyer to review the company’s constitution.
Typically, a company’s Constitution is typically amended to show:
Section 75 of the Companies Act states that no company shall allot any preference shares or convert any issued shares into preference shares unless there are set out in its constitution the rights of the holders of those shares with respect to:
Section 75 is necessary so that an interested 3 rd party or shareholder could accurately and easily determine what the rights attaching to the preference shares are.
Further, there is a presumption that the rights set out in the company’s constitution are exhaustive. Therefore, if a right is not included when the constitution is amended, that right will not be regarded to be attached to the issued preference shares.
A company can alter its constitution by means of a special resolution. In order to do so, the company has to first serve a notice to its members. The notice period for such a notice is at least 14 days for private companies (or longer, as set out in the Constitution) and 21 days for public companies. For the special resolution to be passed, it would require 75% of the shareholders’ approval.
Once the special resolution is passed, the company secretary would file the necessary documents with the regulatory authorities within 14 days of the passing of the resolution.
Shareholders could possibly state in the shareholder’s agreement agreeing as to how they shall exercise their voting rights in relation to a resolution to alter the constitution.
In that regard, it is also possible for the shareholders’ agreement to prevail over the company’s constitution if shareholders agree in that agreement that, in the event, that the agreement and the constitution are inconsistent, the shareholders’ agreement would override the constitution. However, such a clause in the shareholder’s agreement must be carefully crafted as the prevailing assumption is that, in absence of a valid agreement, the constitution would always be the legal document that governs the operation of the company and the relationships that the company has with its shareholders.
