Companies Act 2006
Company Limited by guarantee
Articles of Association of Cornwall Bird Watching & Preservation Society
1.1 The Articles are to be interpreted without reference to the model articles under the Companies Act, which do not apply to the Charity.
1.2 In the Articles, unless the context indicates another meaning: ‘AGM’ means an annual general meeting of the Charity; ‘the Articles’ means the Charity’s Articles of Association and ‘Article’ refers to a particular Article; ‘Chairman’ means the chairman of the Trustees; ‘the Charity’ means the company governed by the Articles; ‘the Charities Act’ means the Charities Acts 1992 to 2006;
‘charity trustee’ has the meaning prescribed by the Charities Act; ‘clear day’ does not include the day on which notice is given or the day of the meeting or other event; ‘the Commission’ means the Charity Commission for England and Wales or any body which replaces it; ‘the Companies Act’ means the Companies Act 2006; ‘Conflicted Trustee’ means a Trustee in respect of whom a conflict of interest arises or may reasonably arise because the Conflicted Trustee or a Connected Person is receiving or stands to receive a benefit (other than payment of a premium for indemnity insurance) from the Charity, or has some separate interest or duty in a matter to be decided, or in relation to information which is confidential to the Charity; ‘Connected Person’ means, in relation to a Trustee, a person with whom the Trustee shares a common interest such that he/she may reasonably be regarded as benefiting directly or indirectly from any material benefit received by that person, being either a member of the Trustee’s family or household or a person or body who is a business associate of the Trustee, and (for the avoidance of doubt) does not include a company with which the Trustee’s only connection is an interest consisting of no more than 1% of the voting rights; ‘constitution’ means the Memorandum and the Articles and any special resolutions relating to them; ‘custodian’ means a person or body who undertakes safe custody of assets or of documents or records relating to them; ‘electronic means’ refers to communications addressed to specified individuals by telephone, fax or email or, in relation to meetings, by telephone conference call or video conference; ‘financial expert’ means an individual, company or firm who is authorised to give investment advice under the Financial Services and Markets Act 2000; ‘financial year’ means the Charity’s financial year; ‘firm’ includes a limited liability partnership; ‘indemnity insurance’ has the meaning prescribed by the Charities Act; ‘material benefit’ means a benefit, direct or indirect, which may not be financial but has a monetary value; ‘Member’ and ‘Membership’ refer to company Membership of the Charity; ‘Memorandum’ means the Charity’s Memorandum of Association; ‘month’ means calendar month; ‘nominee company’ means a corporate body registered or having an established place of business in England and Wales which holds title to property for another; ‘ordinary resolution’ means a resolution agreed by a simple majority of the Members present and voting at a general meeting or in the case of a written resolution by Members who together hold a simple majority of the voting power; ‘the Objects’ means the Objects of the Charity as defined in Article 2; ‘Registered Office’ means the address recorded with Companies House as the registered office of the Charity; ‘resolution in writing’ means a written resolution of the Trustees; ‘Secretary’ means a company secretary; ‘special resolution’ means a resolution of which at least 14 days’ notice has been given agreed by a 75% majority of the Members present and voting at a general meeting or in the case of a written resolution by Members who together hold 75% of the voting power. ‘taxable trading’ means carrying on a trade or business in such manner or on such a scale that some or all of the profits are subject to corporation tax; ‘Trustee’ means a director of the Charity and ‘Trustees’ means the directors; ‘written’ or ‘in writing’ refers to a legible document on paper or a document sent by electronic means which is capable of being printed out on paper; ‘written resolution’ refers to an ordinary or a special resolution which is in writing; ‘year’ means calendar year
1.3 Expressions not otherwise defined which are defined in the Companies Act have the same meaning.
1.4 References to an Act of Parliament are to that Act as amended or re-enacted from time to time and to any subordinate legislation made under it.
2.1 The Objects of the Charity are to advance the education of the public in the knowledge, study and conservation of birds in the county of Cornwall and to assist in their preservation and conservation and in particular (but without limitation) to:
(a) encourage the submission of records of birds seen in the county and to maintain a database of birds recorded within the county;
(b) manage or participate in the management of Nature Reserves;
(c) publish newsletters and an annual bird report for the county;
(d) to promote the conservation of birds and to liaise and work with local and national organisations to achieve that objective; and
(e) carry out educational activities including indoor and field meetings for the benefit of the membership and the wider public.
2.2 This provision may be amended by special resolution but only with the prior written consent of the Commission.
The Charity has the following powers, which may be exercised only in promoting the Objects:
3.1 To acquire all or any of the undertaking, assets, liabilities and engagements of the existing charity known as Cornwall Bird-watching and Preservation Society, registered as a charity with number 255899;
3.2 to provide advice or information;
3.3 to carry out research;
3.4 to co-operate with other bodies;
3.5 to support, administer or set up other charities;
3.6 to accept gifts and to raise funds (but not by means of taxable trading);
3.7 to borrow money;
3.8 to give security for loans or other obligations (but only in accordance with the restrictions imposed by the Charities Act);
3.9 to acquire or hire property of any kind;
3.10 to let or dispose of property of any kind (but only in accordance with the restrictions imposed by the Charities Act);
3.11 to set aside funds for special purposes or as reserves against future expenditure;
3.12 to deposit or invest its funds in any manner (but to invest only after obtaining such advice from a financial expert as the Trustees consider necessary and having regard to the suitability of investments and the need for diversification);
3.13 to delegate the management of investments to a financial expert, but only on terms that:
(a) the investment policy is set down in writing for the financial expert by the Trustees;
(b) timely reports of all transactions are provided to the Trustees;
(c) the performance of the investments is reviewed regularly with the Trustees;
(d) the Trustees are entitled to cancel the delegation arrangement at any time;
(e) the investment policy and the delegation arrangement are reviewed at least once a year;
(f) all payments due to the financial expert are on a scale or at a level which is agreed in advance and are notified promptly to the Trustees on receipt; and
(g) the financial expert must not do anything outside the powers of the Charity;
3.14 to arrange for investments or other property of the Charity to be held in the name of a nominee company acting under the direction of the Trustees or controlled by a financial expert acting under their instructions, and to pay any reasonable fee required;
3.15 to deposit documents and physical assets with any company registered or having a place of business in England or Wales as custodian, and to pay any reasonable fee required;
3.16 to insure the property of the Charity against any foreseeable risk and take out other insurance policies to protect the Charity when required;
3.17 subject to Article 7.3, to employ paid or unpaid agents, staff or advisers;
3.18 to enter into contracts to provide services to or on behalf of other bodies;
3.19 to establish or acquire subsidiary companies;
3.20 to amalgamate with any charity which has objects similar to the Objects:
3.21 to provide indemnity insurance for the Trustees in accordance with, and subject to the conditions in, Section 73F Charities Act 1993;
3.22 to do anything else within the law which promotes or helps to promote the Objects.
4.0 The Trustees
4.1 The Trustees as charity trustees have control of the Charity and its property and funds.
4.2 The subscribers to the Memorandum (being the first Members) are also the first Trustees. Subsequent Trustees are elected by the Members or co-opted by the Trustees.
4.3 The Trustees when complete consist of at least 3 persons who are over the age of 18, all of whom must support the Objects. The maximum number of Trustees shall be 20 persons.
4.4 A Trustee may not act as a Trustee unless he/she
(a) is a Member; and
(b) has signed a written declaration of willingness to act as a charity trustee of the Charity.
4.5 All Trustees must retire at each AGM, (or each year in the absence of an AGM). This provision was removed at the Annual General Meeting on 29th August, 2012.
4.6 A retiring Trustee who is eligible under Article 4.4 may be reappointed.
4.7 A Trustee’s term of office as such automatically terminates if he/she:
(a) is disqualified under the Charities Act from acting as a charity trustee;
(b) is incapable, whether mentally or physically, of managing his/her own affairs;
(c) is absent without permission from 2 consecutive meetings of the Trustees and is asked by a majority of the other Trustees to resign;
(d) is in the opinion of the Trustees guilty of conduct detrimental to the interests of the Charity and the Trustees resolve by a 75% majority of the Trustees present and voting that he or she should be removed provided that the Trustee concerned has first been given an opportunity to put his or her case and to justify why he or she should not be removed as a Trustee;
(e) resigns by written notice to the Trustees (but only if at least two Trustees will remain in office); or
(f) is removed by the Members.
4.8 The Trustees may at any time co-opt any individual who is eligible under Article 4.4 as a Trustee to fill a vacancy in their number or (subject to the maximum number permitted by Article 4.3) as an additional Trustee, but a co-opted Trustee holds office only for one year or until the next following AGM (whichever is the earlier).
4.9 A technical defect in the appointment of a Trustee of which the Trustees are unaware at the time does not invalidate decisions taken at a meeting.
5.0 Trustees’ proceedings
5.1 The Trustees must hold at least 4 meetings each year.
5.2 A quorum at a meeting of the Trustees is at least one half of the total number of Trustees.
5.3 A meeting of the Trustees may be held either in person or by suitable electronic means agreed by the Trustees in which all participants may communicate with all the other participants.
5.4 The Chairman or (if the Chairman is unable or unwilling to do so) the Vice-Chairman or (if neither the Chairman nor the Vice-Chairman is able or willing to do so) some other Trustee chosen by the Trustees present presides at each meeting.
5.5 Any issue may be determined by a simple majority of the votes cast at a meeting, but a resolution in writing or in electronic form agreed by a simple majority of the Trustees entitled to receive notice of a meeting of the Trustees and to vote upon the resolution shall be as valid as if it had been passed at a meeting of the Trustees provided that:-
- i) a copy of the resolution is sent or submitted to all the Trustees eligible to vote; and
- ii) a simple majority of the Trustees have signified their agreement to the resolution in an authenticated document or documents which are received at the Registered Office within the period of 28 days from the date the resolution was first circulated.
5.6 Every Trustee has one vote on each issue but, in case of equality of votes, the chairman of the meeting has a second or casting vote.
5.7 A procedural defect of which the Trustees are unaware at the time does not invalidate decisions taken at a meeting.
6.0 Trustees’ powers
The Trustees have the following powers in the administration of the Charity in their capacity as Trustees:
6.1 To appoint (and remove) any person (who may be a Trustee) to act as Secretary in accordance with the Companies Act.
6.2 To appoint a Chairman, a Vice-Chairman, a Honorary Treasurer and such other honorary officers from among their number as they see fit.
6.3 To delegate any of their functions to committees consisting of two or more individuals appointed by them. At least one member of every committee must be a Trustee and all proceedings of committees must be reported promptly to the Trustees.
6.4 To make standing orders consistent with the Memorandum, the Articles and the Companies Act to govern proceedings at general meetings.
6.5 To make rules consistent with the Memorandum, the Articles and the Companies Act to govern their proceedings and proceedings of committees.
6.6 To make regulations consistent with the Memorandum, the Articles and the Companies Act to govern the administration of the Charity and the use of its seal (if any).
6.7 To establish procedures to assist the resolution of disputes or differences within the Charity.
6.8 To exercise in their capacity as Trustees any powers of the Charity which are not reserved to the Members.
7.0 Benefits and Conflicts
7.1 The property and funds of the Charity must be used only for promoting the Objects and
do not belong to the Members but:
- Members who are not Trustees or Connected Persons may be employed by or enter into contracts with the Charity and receive reasonable payment for goods or services supplied; and,
Subject to compliance with Article 7.4:
(b) Members, Trustees and Connected Persons may be paid interest at a reasonable rate on money lent to the Charity;
(c) Members, Trustees and Connected Persons may be paid a reasonable rent or hiring fee for property let or hired to the Charity; and
(d) Members, Trustees and Connected Persons may receive charitable benefits on the same terms as any other members of the public.
7.2 A Trustee must not receive any payment of money or other material benefit (whether directly or indirectly) from the Charity except:
(a) as mentioned in Articles 7.1 or 7.3;
(b) reimbursement of reasonable out-of-pocket expenses (including hotel and travel costs) actually incurred in running the Charity;
(c) the benefit of indemnity insurance as permitted by the Charities Act;
(d) an indemnity in respect of any liabilities properly incurred in running the Charity (including the costs of a successful defence to criminal proceedings;
(e) in exceptional cases, other payments or benefits (but only with the written consent of the Commission in advance and where required by the Companies Act the approval or affirmation of the Members).
7.3 No Trustee or Connected Person may be employed by the Charity except in accordance with Article 7.2 e), but any Trustee or Connected Person may enter into a written contract with the Charity, as permitted by the Charities Act, to supply goods or services in return for a payment or other material benefit but only if:
(a) the goods or services are actually required by the Charity, and the Trustees decide that it is in the best interests of the Charity to enter into such a contract;
(b) the nature and level of the remuneration is no more than is reasonable in relation to the value of the goods or services and is set in accordance with the procedure in Article 7.4; and
(c) fewer than half of the Trustees are subject to such a contract in any financial year.
7.4 Subject to Article 7.5, any Trustee who becomes a Conflicted Trustee in relation to any
(a) declare the nature and extent of his or her interest before discussion begins on the matter;
(b) withdraw from the meeting for that item after providing any information requested by the Trustees;
(c) not be counted in the quorum for that part of the meeting; and
(d) be absent during the vote and have no vote on the matter.
7.5 When any Trustee is a Conflicted Trustee, the Trustees who are not Conflicted Trustees, if they form a quorum without counting the Conflicted Trustee and are satisfied that it is in the best interests of the Charity to do so, may by resolution passed in the absence of the Conflicted Trustee authorise the Conflicted Trustee, notwithstanding any conflict of interest or duty which has arisen or may arise for the Conflicted Trustee, to:
(a) continue to participate in discussions leading to the making of a decision and/or to vote, or
(b) disclose to a third party information confidential to the Charity, or
(c) take any other action not otherwise authorised which does not involve the receipt by the Conflicted Trustee or a Connected Person of any payment or material benefit from the Charity or
(d) refrain from taking any step required to remove the conflict.
7.6 This provision may be amended by special resolution but, where the result would be to permit any material benefit to a Trustee or Connected Person, only with the prior written consent of the Commission.
8.0 Records and Accounts
8.1 The Trustees must comply with the requirements of the Companies Act and of the Charities Act as to keeping records, the audit or independent examination of accounts and the preparation and transmission to the Registrar of Companies and the Commission of information required by law including:
(a) annual returns;
(b) annual reports; and
(c) annual statements of account.
8.2 The Trustees must also keep records of:
(a) all proceedings at meetings of the Trustees;
(b) all resolutions in writing;
(c) all reports of committees; and
(d) all professional advice obtained.
8.3 Accounting records relating to the Charity must be made available for inspection by any Trustee at any time during normal office hours and may be made available for inspection by Members who are not Trustees if the Trustees so decide.
8.4 A copy of the Charity’s constitution and latest available statement of account must be supplied on request to any Trustee. Copies of the latest accounts must also be supplied in accordance with the Charities Act to any other person who makes a written request and pays the Charity’s reasonable costs.
9.1 The Charity must maintain a register of Members.
9.2 The subscribers to the Memorandum are the first Members.
9.3 Membership is open to any person or organisation interested in furthering the Objects and approved by the Trustees, and who has paid the relevant membership subscription determined by the Trustees from time to time.
9.4 The form and the procedure for applying for Membership is to be prescribed by the Trustees.
9.5 Membership is not transferable.
9.6 The Trustees may establish classes of membership with different rights and obligations (with or without voting rights and with or without having the status of a Member) and shall record the rights and obligations in the register of Members, and may alter the rights or obligations attached to a class of membership subject to Articles 9.7 and 9.8.
9.7 The rights attached to a class of Membership afforded voting rights at general meetings of the Charity may only be varied if three-quarters of the Members of that class consent in writing to the variation; or a special resolution is passed at a separate general meeting of the Members of that class agreeing to the variation.
9.8 The provisions in the Articles about general meetings shall apply to any meeting pursuant to Article 9.7 relating to the variation of the rights of any class of Members.
9.9 Membership is terminated if:
(a) the Member dies or, if it is an organisation, ceases to exist;
(b) the Member resigns by written notice to the Charity;
(c) any sum due from the Member to the Charity is not paid in full within six months of it falling due;
(d) the Member is removed from membership by a resolution of the Trustees that it is in the best interests of the Charity that his or her or its membership is terminated. A resolution to remove a Member from Membership may only be passed if:
- the member has been given at least twenty-one days’ notice in writing of the meeting of the Trustees at which the resolution will be proposed and the reasons why it is to be proposed;
- the Member or, at the option of the Member, the Member’s representative (who need not be a Member of the Charity) has been allowed to make representations to the meeting.
10.0 General Meetings
10.1 Members are entitled to attend general meetings in person or by proxy (but only if the appointment of a proxy is in writing and notified to the Charity before the commencement of the meeting).
10.2 General meetings are called on at least 14 and not more than 28 clear days’ written notice indicating the business to be discussed and (if a special resolution is to be proposed) setting out the terms of the proposed special resolution.
10.3 There is a quorum at a general meeting if the number of Members present in person or by proxy is at least ten. If a quorum is not present within 15 minutes from the time of the general meeting, or a quorum ceases to be present during a general meeting, it must be adjourned to such time and place as the Trustees decide. Reasonable notice of an adjournment of a general meeting because of lack of quorum and the time and place of the adjourned general meeting must be given to all Members.
10.4 The Chairman shall chair any general meeting and in his or her absence or if the Chairman is unable or unwilling to do so the Vice-Chairman shall chair the meeting. If neither the Chairman nor the Vice-Chairman is present or able or willing to chair the meeting, the Chairman of the general meeting shall be elected by the Members present in person or by proxy in his/her capacity as a Member and not as proxy for another Member.
10.5 Except where otherwise provided by the Articles or the Companies Act, every issue is decided by ordinary resolution.
10.6 Resolutions are to be decided on a show of hands unless a ballot is properly demanded. Every Member present in person or by proxy has one vote on each issue both on a show of hands and a ballot.
10.7 A ballot may be demanded by the chairman, or by a requisition of the Members in accordance with the Companies Act, before or on the declaration of the result of a show of hands.
10.8 A ballot is to be taken as the Chairman directs. The result will be the resolution of the general meeting at which the ballot was demanded but will be treated as passed when the result is declared.
10.9 A ballot on the election of a Chairman or an adjournment must be taken immediately. A ballot on any other question may be taken either immediately or at such time and place as the Chairman directs.
10.10 At least 7 clear days’ notice must be given of the time and place at which the ballot is to be taken unless the time and place are announced at the general meeting at which it is demanded.
10.11 The Chairman may, with the consent of a general meeting at which a quorum is present (and must if so directed by the general meeting), adjourn it to a time and place agreed by the general meeting. The Chairman may also adjourn a general meeting if it appears to the chairman that for any other reason an adjournment is necessary for the business of the meeting to be properly conducted. The only business which may be transacted at an adjourned general meeting is that left unfinished from the general meeting which was adjourned.
10.12 It is not necessary to give notice of a general meeting which is adjourned under Article 10.11 unless it is adjourned for 30 days or more in which case 7 clear days’ notice must be given.
10.13 Resolutions passed at an adjourned general meeting are to be treated as having been passed on the date on which they were actually passed.
10.14 Except where otherwise provided by the Articles or the Companies Act, a written resolution (whether an ordinary or a special resolution) is as valid as an equivalent resolution passed at a general meeting. For this purpose the written resolution may be set out in more than one document.
10.15 The Charity may (but need not) hold an AGM in any year.
10.16 Members must annually:
(a) receive the accounts of the Charity for the previous financial year;
(b) receive a written report on the Charity’s activities;
(c) be informed of the retirement of those Trustees who wish to retire or are retiring by rotation;
(d) elect Trustees to fill the vacancies arising;
(e) appoint reporting accountants or auditors for the Charity;
10.17 Members may also from time to time
(a) confer on any individual (with his/her consent) the honorary title of Patron, President or Vice-President of the Charity; and
(b) discuss and determine any issues of policy or deal with any other business put before them by the Trustees.
10.18 A general meeting may be called by the Trustees at any time and must be called within 21 days of a written request from one or more Trustees (being Members), at least 10% of the Membership or (where no general meeting has been held within the last year) at least 5% of the Membership.
10.19 A technical defect in the appointment of a Member of which the Members are unaware at the time does not invalidate a decision taken at a general meeting or a Written Resolution.
11.0 Limited Liability
The liability of Members is limited.
Every Member promises, if the Charity is dissolved while he/she remains a Member or within one year after he/she ceases to be a member, to pay up to £1 towards:
12.1 payment of those debts and liabilities of the Charity incurred before he/she ceased to be a Member;
12.2 payment of the costs, charges and expenses of winding up; and
12.3 the adjustment of rights of contributors among themselves.
13.1 Notices and other documents to be served on Members or Trustees under the Articles or the Companies Act may be served:
(a) by hand;
(b) by post; or
(c) by suitable electronic means; or
(d) via the Charity’s website.
13.2 The only address at which a Member is entitled to receive notices sent by post is an address in the U.K. shown in the register of Members.
13.3 Any notice given in accordance with these Articles is to be treated for all purposes as having been received:
(a) 24 hours after being sent by electronic means or delivered by hand to the relevant address;
(b) two clear days after being sent by first class post to that address;
(c) three clear days after being sent by second class or overseas post to that address;
(d) immediately on being handed to the recipient personally; or
(e) if earlier, as soon as the recipient acknowledges actual receipt.
13.4 A technical defect in service of which the Trustees are unaware at the time does not invalidate decisions taken at a meeting.
13.5 A notice may be served on the Charity by delivering it or sending it to the Charity’s Registered Office or by handing it to the Secretary (if any).
14.1 If the Charity is dissolved, the assets (if any) remaining after providing for all its liabilities must be applied in one or more of the following ways:
(a) by transfer to one or more other bodies established for exclusively charitable purposes within, the same as or similar to the Objects;
(b) directly for the Objects or for charitable purposes which are within or similar to the Objects;
(c) in such other manner consistent with charitable status as the Commission approves in writing in advance.
14.2 A final report and statement of account must be sent to the Commission.
14.3 This provision may be amended by special resolution but only with the prior written consent of the Commission.