“undischarged bankrupt” means a person who is declared bankrupt by a court of competent jurisdiction, within the State or elsewhere, and who has not obtained a certificate of discharge or its equivalent in the relevant jurisdiction; “written resolution” has the meaning given to it by section 191
\n
(8).
\n
(2)A word or expression used in
\n
Part 6
\n
and also used in another Part of this Act has, in that other Part, the same meaning as it has in
\n
Part 6
\n
.
\n
(3)A reference in this Act to Table A in the First Schedule to the Act of 1963 shall, where appropriate, be read as a reference to Tábla A in that Schedule.
\n
(4)References in this Act to a body corporate or to a corporation shall be read as not including a corporation sole, but as including a company or body corporate incorporated outside the State.
\n
(5)Any provision of this Act overriding or interpreting a company's constitution shall, except as provided by this Act, apply in relation to the constitution in force on the provision's commencement as well as to regulations of the constitution coming into force thereafter.
\n
(6)References in this Act to a person being in partnership with another are references to the person's being in partnership, within the meaning of section 1
\n
(1)of the Partnership Act 1890 , with that person and references to a partner of a person shall be read accordingly.
\n
(7)The Minister may, by order, specify a rate of interest for the purposes of paragraph (b) of the definition of “appropriate rate” in subsection (1).
\n
(8)In this Act a reference to a company having a sole director is a reference to its having, for the time being and for whatever reason, a single director (and this applies notwithstanding a stipulation in the constitution that there be 2 directors, or a greater number).
\n
(9)In this Act a reference to a receiver of the property of a company includes— (a) a reference to— (i) a receiver and manager of the property of a company; or (ii) a manager of the property of a company; (b) a reference to a receiver or to a receiver and manager or to a manager, of part only of that property; and (c) a reference to a receiver only of the income arising from that property or from part of it.
\n
(10)For the purposes of this Act, a company is related to another company if— (a) that other company is its holding company or subsidiary; or (b) more than half in nominal value of its equity share capital (within the meaning of section 7
\n
(11)) is held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); or (c) more than half in nominal value of the equity share capital (within the meaning of section 7
\n
(11)) of each of them is held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or (d) that other company or a company or companies related to that other company, or that other company together with a company or companies related to it, are entitled to exercise or control the exercise of more than one half of the voting power at any general meeting of the company; or (e) the businesses of the companies have been so carried on that the separate business of each company, or a substantial part thereof, is not readily identifiable; or (f) there is another body corporate to which both companies are related, and “related company” has a corresponding meaning; for the purpose of any preceding paragraph of this subsection that contains a reference to a company being related to another, the provisions of this subsection also apply to the construction of each such reference.
\n
(11)For the purposes of subsection (10) “company” includes any body that is capable of being wound up under this Act.
\n
Periods of time 3. (1) Where the time limited by any provision of this Act for the doing of anything expires on a Saturday, a Sunday or a public holiday, the time so limited shall extend to and the thing may be done on the first following day that is not a Saturday, a Sunday or a public holiday.
\n
(2)Where in this Act anything is required or allowed to be done within a number of days not exceeding 6, a day that is a Saturday, a Sunday or a public holiday shall not be reckoned in computing that number.
\n
Repeals and revocations 4. (1) The Acts of the Oireachtas specified in
\n
Part 1
\n
of Schedule 2 are repealed to the extent specified in the third column of that Part.
\n
(2)The statutory instruments specified in
\n
Part 2
\n
of Schedule 2 are revoked to the extent specified in the third column of that Part.
\n
(3)This section is in addition to section 1325 and Schedule 15 (repeals related to an unregistered company becoming registered under this Act).
\n
Savings and transitional provisions 5. (1) As provided under
\n
Part 17
\n
, 18 , 19 or 24 , as appropriate, the repeal by this Act of any enactment shall not affect the incorporation of any company registered under any enactment so repealed.
\n
(2)The effect of this Act in relation to a private company limited by shares incorporated under any former enactment relating to companies is provided for in
\n
Chapter 6
\n
of
\n
Part 2
\n
.
\n
(3)Any document referring to any former enactment relating to companies shall be read as referring to the corresponding enactment of this Act.
\n
(4)Any person, appointed to any office under or by virtue of any former enactment relating to companies, who is in office immediately before the commencement of the provision concerned of this Act, shall be deemed to have been appointed to that office under or by virtue of the provision concerned of this Act.
\n
(5)Any register, kept under any former enactment relating to companies, shall be deemed part of the register to be kept under the corresponding provision of this Act.
\n
(6)All funds and accounts constituted under this Act shall be deemed to be in continuation of the corresponding funds and accounts constituted under the former enactments relating to companies.
\n
(7)Schedule 6 contains further savings and transitional provisions and shall have effect accordingly.
\n
(8)This section is without prejudice to— (a) the generality of the Interpretation Act 2005 and, in particular, section 27 of it; and (b) the special provision made in certain provisions of this Act for transitional matters as they relate to those provisions.
\n
(9)In this section “former enactment relating to companies” means any enactment repealed or revoked by this Act and any enactment repealed or revoked by the Act of 1963 or the Companies (Consolidation) Act 1908 .
\n
Construction of references in other Acts to companies registered under Companies (Consolidation) Act 1908 and Act of 1963 6. (1) References in any Act, other than this Act, to a company formed and registered, or registered, under the Companies (Consolidation) Act 1908 or the Act of 1963 shall, unless the contrary intention appears, be read as references to a company formed and registered, or registered, under whichever of those Acts is appropriate or this Act.
\n
(2)Subsection (1) applies despite section 26
\n
(2)(f) of the Interpretation Act 2005 (which provides that where an Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be read as references to the provisions of the new Act relating to the same subject-matter as that of the former Act).
\n
Definition of “subsidiary”
\n
7.(1) In this section the expressions “superior company” and “lower company” are used solely to assist the understanding of its terms and— (a) are not indicative of the status (in any manner not relevant to this section) of the respective companies vis a vis one another; and (b) do not constitute definitions to which regard must be had for any other purpose of this Act.
\n
(2)For the purposes of this Act, a company (the “lower company”) is, subject to subsection (5), a subsidiary of another (the “superior company”) if, but only if— (a) the superior company— (i) is a shareholder or member of it and controls the composition of its board of directors; or (ii) holds more than half in nominal value of its equity share capital; or (iii) holds more than half in nominal value of its shares carrying voting rights (other than voting rights which arise only in specified circumstances); or (iv) holds a majority of the shareholders' or members' voting rights in the lower company; or (v) is a shareholder or member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the shareholders' or members' voting rights; or (b) the superior company has the right to exercise a dominant influence over it— (i) by virtue of provisions contained in the lower company's constitution; or (ii) by virtue of a control contract; or (c) the superior company has the power to exercise, or actually exercises, dominant influence or control over it; or (d) the superior company and the lower company are managed by the superior company on a unified basis; or (e) the lower company is a subsidiary (by virtue of the application of any of the provisions of this section) of any company which is the superior company's subsidiary (by virtue of such application).
\n
(3)For the purposes of subsection (2)(a)(i), the composition of the lower company's board of directors shall be regarded as being controlled by the superior company if, but only if, the latter company, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove the holders of all or a majority of the directorships.
\n
(4)In applying subsection (3), the superior company shall be deemed to have power to appoint to a directorship in relation to which any of the following conditions is satisfied— (a) that a person cannot be appointed to the directorship without the exercise in his or her favour by the superior company of such a power as is mentioned in that subsection; or (b) that a person's appointment to the directorship follows necessarily from his or her appointment as director of the superior company.
\n
(5)In determining whether the lower company is a subsidiary of the superior company— (a) any shares held or power exercisable by the superior company in a fiduciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable— (i) by any person as a nominee for the superior company (except where the latter company is concerned only in a fiduciary capacity), or (ii) by, or by a nominee for, a subsidiary of the superior company, not being a subsidiary which is concerned only in a fiduciary capacity, shall be treated as held or exercisable by the superior company; (c) any shares held or power exercisable by the superior company or a nominee for the superior company or a subsidiary of it shall be treated as not held or exercisable by the superior company where the shares are so held or the power is so exercisable by way of security but only if such power or the rights attaching to such shares are exercised in accordance with instructions received from the person providing the security; (d) any shares held or power exercisable by the superior company or by a nominee for the superior company or a subsidiary of it shall be treated as not held or exercisable by the superior company if the ordinary business of the superior company or its subsidiary, as the case may be, includes the lending of money and the shares are so held or the power is so exercisable by way of security but only if such power or the rights attaching to such shares are exercised in the interests of the person providing the security.
\n
(6)For the purposes of subsection (2)(a)(iv) and (v), the total of the voting rights of the shareholders or members in the lower company shall be reduced by the following— (a) the voting rights attached to shares held by the lower company in itself; and (b) the voting rights attached to shares held in the lower company by any of its subsidiaries; and (c) the voting rights attached to shares held by a person acting in his or her own name but on behalf of the lower company or one of the lower company's own subsidiaries.
\n
(7)For the purposes of subsection (2)(b), a company shall not be regarded as having the right to exercise a dominant influence over another company unless it has a right to give directions with respect to the operating and financial policies of that other company which its directors are obliged to comply with.
\n
(8)In subsection (2)(b) “control contract” means a contract in writing conferring such a right as is there referred to which— (a) is of a kind authorised by the constitution of the company in relation to which the right is exercisable; and (b) is permitted by the law under which that company is established.
\n
(9)Subsection (7) shall not be read as affecting the construction of the expression “actually exercises dominant influence” in subsection (2)(c).
\n
(10)If a document created before the commencement of this section defines the expression “subsidiary” by reference to section 155 of the Act of 1963, then, for the avoidance of doubt, the construction provided in respect of that expression by the document is not affected by this section in the absence of an agreement to the contrary by the parties to the document.
\n
(11)In this section— “company” includes any body corporate; “equity share capital” means, in relation to a company, its issued share capital excluding any part of it which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution.
\n
Definitions of “holding company”, “wholly owned subsidiary” and “group of companies”
\n
8.(1) For the purposes of this Act, a company is another company's holding company if, but only if, that other is its subsidiary.
\n
(2)For the purposes of this Act, a company is another company's wholly owned subsidiary if, but only if, the company has no members except— (a) that other company; or (b) companies that are wholly-owned subsidiaries (by virtue of the application of this subsection to them) of that other company; or (c) nominees of any company referred to in paragraph (a) or (b); or (d) a mixture of what is referred to in 2 or more of the foregoing paragraphs.
\n
(3)For the purposes of this Act “group of companies” means a holding company and its one or more subsidiaries.
\n
(4)If a document created before the commencement of this section defines the expression “holding company” by reference to section 155 of the Act of 1963, then, for the avoidance of doubt, the construction provided in respect of that expression by the document is not affected by this section in the absence of an agreement to the contrary by the parties to the document.
\n
(5)In this section “company” has the same meaning as it has in section 7 .
\n
Act structured to facilitate its use in relation to most common type of company 9. (1) Subject to subsections (3) and (4), all of the law in this Act in relation to private companies limited by shares is to be found in Parts 1 to 14 (or instruments under them) and Schedules 1 to 6 .
\n
(2)Subject to subsection (3), all of the law in this Act in relation to other types of company is to be found amongst the provisions of— (a) Parts 16 to 25 (or instruments under them) and Schedules 7 to 17 ; and (b) Parts 1 to 14 (or instruments under them) and Schedules 1 to 6 as applied or adapted by Parts 16 to 25 .
\n
(3)
\n
Part 15
\n
(Functions of Registrar and of regulatory and advisory bodies) applies to both— (a) private companies limited by shares; and (b) other types of company, as well as to certain undertakings to which the European Communities (Accounts) Regulations 1993 ( S.I. No. 396 of 1993 ), as amended, apply.
\n
(4)Exceptionally, provisions either— (a) of a miscellaneous nature arising out of the relationship between a private company limited by shares and another company type (such as provisions for re-registration); or (b) which it would not otherwise be practicable to include in Parts 1 to 14 (such as provisions for a merger between a public limited company and a private company limited by shares), will be found in Parts 16 to 25 .
\n
(5)References in
\n
Chapter 6
\n
of
\n
Part 2
\n
, however expressed, to this Part and Parts 2 to 15 having application to a private company limited by shares shall not be read as excluding the application to such a company of provisions of the kind mentioned in subsection (4).
\n
Reference in Parts 2 to 14 to company to mean private company limited by shares 10. (1) Unless expressly provided otherwise, a reference in Parts 2 to 14 to a company is a reference to a private company limited by shares.
\n
(2)For the avoidance of doubt, subsection (1) does not apply to the construction of— (a) the expression “holding company”, where that expression is used without qualification, in Parts 2 to 14 ; or (b) any related expression, where used without qualification, in those Parts.
\n
Construction of references to directors, board of directors and interpretation of certain other plural forms 11. (1) References in this Act to the directors of a company shall, where the company has a sole director, be read as references to the director of the company.
\n
(2)References in this Act to the board of directors of a company shall, where the company has a sole director, be read as references to the director of the company.
\n
(3)References in this Act to the members of a company, or the subscribers to a company's constitution, shall, where the company has a sole member or where there is a single subscriber to its constitution, be read as references to the member of the company or the subscriber to its constitution, as the case may be.
\n
(4)This section is in addition to, and does not derogate from, any special provision in this Act as to the construction of the expression “director” or “member” in a particular case.
\n
(5)This section is without prejudice to the generality of section 18 (a) of the Interpretation Act 2005 .
\n
Regulations and orders 12. (1) Subject to subsection (2), the Minister may make regulations prescribing anything referred to in this Act as prescribed or to be prescribed.
\n
(2)Subsection (1) does not apply to anything that
\n
Part 11
\n
or 15 provides is to be prescribed by another authority.
\n
(3)Every regulation made by the Minister under this Act (other than a regulation referred to in section 946 , 1313 or 1321 ) or order made by the Minister under this Act (other than an order under section 1
\n
(2)or 16
\n
(1)) shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation or order is passed by either such House within the next 21 days on which that House has sat after the regulation or order is laid before it, the regulation or order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
\n
Authentication of certain official documents 13. Any approval, sanction, direction or licence or revocation of licence which, under this Act, may be given or made by the Minister may be signed by any person authorised in that behalf by the Minister.
\n
Expenses 14. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.
\n
PART 2
\n
INCORPORATION AND REGISTRATION
\n
CHAPTER 1
\n
Preliminary Definitions (Part 2) 15. In this Part— “activity” means any activity that a company may be lawfully formed to carry on and includes the holding, acquisition or disposal of property of whatsoever kind; “existing private company” means a private company limited by shares which— (a) was incorporated under any former enactment relating to companies (within the meaning of section 5 ); and (b) is in existence at the commencement of this section, but does not include such a company where, subsequent to that commencement, it re-registers as another type of company; “registered person” shall be read in accordance with section 39
\n
(2); “relevant classification system” means NACE Rev. 2, that is to say, the common basis for statistical classifications of economic activities within the European Community set out in the Annex to Council Regulation (EEC) No. 3037/90 of 9 October 1990 on the statistical classification of economic activities in the European Community, as amended for the time being; “transition period” means the period expiring 18 months after the commencement of this section.
\n
Extension of transition period in the event of difficulties 16. (1) If, in any respect, any difficulties arise in the operation of the provisions of the Act which, in the opinion of the Minister, necessitate the giving of more time for affected or interested parties to undertake any necessary actions or procedures in the period provided for in the definition of “transition period” in section 15 , the Minister may by order substitute a longer period (but not a period of longer than 30 months) for the period mentioned in that definition.
\n
(2)Where it is proposed to make an order under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving of the draft has been passed by each such House.
\n
CHAPTER 2
\n
Incorporation and consequential matters Way of forming private company limited by shares 17. (1) A company may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the requirements of this Part as to registration of a company.
\n
(2)The liability of a member of a company at any time shall be limited to the amount, if any, unpaid on the shares registered in the member's name at that time.
\n
(3)Subsection (2) is without prejudice to any other liability to which a member may be subject as provided by this Act.
\n
(4)The number of members of a company shall not exceed 149 but, in reckoning that limit, there shall be disregarded any of the following persons.
\n
(5)Those persons are— (a) a person in the employment of the company who is a member of it; (b) a person who, having been formerly in the employment of the company, was, while in that employment, and has continued after the termination of the employment to be, a member of it.
\n
(6)Where 2 or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.
\n
(7)Any registration of a person as a member of a company in excess of the limit provided by subsection (4) shall be void.
\n
Company to carry on activity in the State and prohibition of certain activities 18. (1) A company shall not be formed or registered unless it appears to the Registrar that the company, when registered, will carry on an activity in the State.
\n
(2)A company shall not carry on the activity of a credit institution or an insurance undertaking.
\n
Form of the constitution 19. (1) The constitution of a company shall state— (a) the company's name; (b) that it is a private company limited by shares registered under this Part; (c) that the liability of its members is limited; (d) as respects its share capital, either— (i) the amount of share capital with which it proposes to be registered (“its authorised share capital”), and the division of that capital into shares of a fixed amount specified in the constitution, or (ii) without stating such amount, that the share capital of the company shall, at the time of its registration, stand divided into shares of a fixed amount specified in the constitution; (e) the number of shares (which shall not be less than one) taken by each subscriber to the constitution; and (f) if the company adopts supplemental regulations, those regulations.
\n
(2)The constitution shall— (a) be in a form in accordance with the form set out in Schedule 1 or as near to it as circumstances permit; (b) be divided into paragraphs numbered consecutively; and (c) either— (i) be signed by each subscriber in the presence of at least one witness who shall attest the signature; or (ii) be authenticated in the manner referred to in section 888 .
\n
(3)Where, subsequent to its registration, an amendment of the constitution is made affecting the matter of share capital, or another matter, referred to in subsection (1), that subsection shall be read as requiring the constitution to state the matter as it stands in consequence of that amendment.
\n
Restriction on amendment of constitution 20. A company may not amend the provisions contained in its constitution except in the cases, in the manner and to the extent for which express provision is made in this Act.
\n
Registration of constitution 21. (1) The constitution of a company shall be delivered for registration to the Registrar together with— (a) the statement and consent referred to in section 22 ; and (b) the declaration referred to in section 24 , and, where appropriate— (i) the bond referred to in section 22
\n
(6); (ii) the statement referred to in section 23 .
\n
(2)The Registrar shall not register a constitution delivered for registration under this section unless he or she is satisfied that all the requirements of this Act in respect of registration and of matters precedent and incidental thereto have been complied with.
\n
Statement to be delivered with constitution 22. (1) In this section— (a) a reference to a statement is to the statement required to be delivered by section 21
\n
(1)(a); and (b) a reference to a company is to the company to which such statement relates.
\n
(2)The statement shall be in the prescribed form and shall state: (a) the name of each of the persons who are to be the first directors of the company; (b) the name of the person who is, or of each of the persons who are, to be the first secretary or joint secretaries of the company; (c) the name of the person (if any) who is, or of each of the persons (if any) who are, to be the first assistant or deputy secretary or secretaries of the company; (d) the address of the company's registered office; and (e) the place (whether in the State or not) where the central administration of the company will normally be carried on, and the particulars (in relation to any foregoing person) specified in subsection (3) and any other particulars that may be prescribed in relation to such a person or in relation to any other foregoing matter.
\n
(3)The particulars referred to in subsection (2) are— (a) in relation to a person named as director of the company concerned, all particulars which are, in relation to a director, required pursuant to subsection (2) of section 149 to be contained in the register kept under that section; (b) in relation to a person named as secretary, or as one of the joint secretaries, all particulars which are, in relation to the secretary or to each joint secretary, required pursuant to subsection (5) of section 149 to be contained in the register kept under that section; and (c) in relation to a person named as assistant or deputy secretary, all particulars which are, in relation to an assistant or deputy secretary, required pursuant to subsection (7) of section 149 to be contained in the register kept under that section.
\n
(4)Where the constitution is delivered, pursuant to section 21 , to the Registrar by a person (the “agent”) as agent for the person or persons who have subscribed to the constitution, the statement shall so specify and shall specify the name and address of the agent.
\n
(5)Subsections (2) and (3) are without prejudice to subsection (7).
\n
(6)Where no person referred to in subsection (2)(a) is resident in an EEA state, there shall be delivered for registration a bond as provided by section 137
\n
(2).
\n
(7)In respect of the activity, or one of the activities, to be carried on by the company in the State, the statement shall contain the following particulars: (a) if it appears to the person making the statement that the activity belongs to a division, group and class appearing in the relevant classification system— (i) the general nature of the activity; and (ii) the division, group and class in that system to which the activity belongs; (b) if it appears to that person that the activity does not belong to any such division, group and class, a precise description of the activity; (c) the place or places in the State where it is proposed to carry on the activity.
\n
(8)For the purposes of subsection (7), if the purpose or one of the purposes for which the company is being formed is the carrying on of 2 or more activities in the State, the particulars in respect of the matters referred to in paragraphs (a) to (c) of that subsection to be given in the statement shall be the particulars that relate to whichever of those activities the person making the statement considers to be the principal activity for which the company is being formed to carry on in the State.
\n
(9)The statement shall— (a) be signed by or on behalf of each subscriber to the constitution of the company or be authenticated in the manner referred to in section 888 ; and (b) be accompanied by a consent that is either— (i) signed by each of the persons named in the statement as a director, secretary or joint secretary or assistant or deputy secretary to act in that capacity, or (ii) authenticated in the manner referred to in section 888 .
\n
(10)
\n
Section 223
\n
(3), in the case of a director, and section 226
\n
(5), in the case of a secretary, requires the inclusion of a particular statement in a foregoing consent by him or her.
\n
Additional statement to be furnished in certain circumstances 23. (1) If any person named in the statement to be delivered under section 21
\n
(1)(a) as a director of the company concerned is a person who is disqualified under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, that person has the following obligation.
\n
(2)That obligation is to ensure that the foregoing statement is accompanied by (but as a separate document from that statement) a statement in the prescribed form signed by him or her, or authenticated in the manner referred to in section 888 , specifying— (a) the jurisdiction in which he or she is so disqualified; (b) the date on which he or she became so disqualified; and (c) the period for which he or she is so disqualified.
\n
Declaration to be made to Registrar 24. (1) In this section— (a) a reference to a declaration is to the declaration required to be delivered by section 21
\n
(1)(b); and (b) a reference to a company is to the company to which such declaration relates.
\n
(2)The declaration shall state that— (a) all the requirements in respect of registration of the company and of matters precedent and incidental thereto have been complied with; (b) the purpose, or one of the purposes, for which the company is being formed is the carrying on by it of an activity in the State; and (c) the particulars contained in the statement delivered under section 21
\n
(1)(a) are correct.
\n
(3)The declaration shall be made by— (a) one of the persons named in the statement delivered under section 21
\n
(1)(a) as directors of the company; (b) the person or, as the case may be, one of the persons named in that statement as secretary or joint secretaries of the company; or (c) the solicitor, if any, engaged in the formation of the company.
\n
(4)The Registrar may accept the declaration as sufficient evidence that all the requirements in respect of registration of the company and of matters precedent and incidental thereto have been complied with and, in particular, that there have been complied with— (a) the requirements mentioned in section 22 and, where appropriate, section 23 ; and (b) the requirement mentioned in section 18 .
\n
Effect of registration 25. (1) On the registration of the constitution of a company, the Registrar shall certify in writing that the company is incorporated and shall issue to the company a certificate of incorporation in respect of it.
\n
(2)From the date of incorporation mentioned in the certificate of incorporation, the subscriber or subscribers to the constitution, together with such other persons as may from time to time become members of the company, shall be a body corporate with the name contained in the constitution, having perpetual succession and a common seal.
\n
(3)The certificate of incorporation issued under subsection (1) shall state that the company is a private company limited by shares.
\n
(4)A certificate of incorporation issued under subsection (1) shall be conclusive evidence that the requirements of section 21 have been complied with, and that the company is duly registered under this Act.
\n
(5)The persons who are specified in the statement required to be delivered to the Registrar by section 21
\n
(1)(a) as the director or directors, secretary or joint secretaries or assistant or deputy secretary or secretaries of the company to which the statement refers shall, on the incorporation of the company, be deemed to have been appointed as the first director or directors, secretary or joint secretaries or assistant or deputy secretary or secretaries, as the case may be, of the company.
\n
(6)Any indication in the constitution, as delivered under section 21 for registration, specifying a person as a director or secretary (including any assistant or deputy secretary) of a company shall be void unless such person is specified as a director or as secretary (or, as the case may be, assistant or deputy secretary) in the foregoing statement.
\n
(7)Subsection (5) does not operate to deem a person appointed as a director or secretary (including any assistant or deputy secretary) of a company where— (a) he or she is disqualified under this Act from being appointed a director, secretary, assistant or deputy secretary, as the case may be, of a company; or (b) in the case of a director or secretary, a provision of this Act provides that the person's appointment as such in the circumstances is void.
\n
Provisions as to names of companies 26. (1) The name of a company shall end with one of the following: — limited; — teoranta.
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(2)The word “limited” may be abbreviated to “ltd.” (including that abbreviation in capitalised form) in any usage after the company's registration by any person including the company.
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(3)The word “teoranta” may be abbreviated to “teo.” (including that abbreviation in capitalised form) in any usage after the company's registration by any person including the company.
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(4)A company carrying on business under a name other than its corporate name shall register in the manner directed by law for the registration of business names but the use of the abbreviation set out in subsection (2) or (3) shall not of itself render such registration necessary.
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(5)No company shall be registered on— (a) its incorporation; or (b) should such occur, its re-registration, merger or division, by a name which, in the opinion of the Registrar, is undesirable.
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(6)An appeal shall lie to the court against a refusal by the Registrar to register a company (in any of the circumstances referred to in paragraph (a) or (b) of subsection (5)) on the ground there referred to.
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Trading under a misleading name 27. (1) Neither a body that is not a company nor an individual shall carry on any trade, profession or business under a name which includes, as its last part, the word “limited” or the words “company limited by shares” or any abbreviations of any of the foregoing words.
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(2)If a body or individual contravenes subsection (1), the body or individual and, in the case of a body, any officer of it who is in default, shall be guilty of a category 3 offence.
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(3)Subsection (1) as it relates to the use of the word “limited”, or any abbreviation of that word, shall not apply to a society registered under the Industrial and Provident Societies Acts 1893 to 2014.
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(4)A company shall not, in the following circumstances, use a name which may reasonably be expected to give the impression that it is any type of company other than a private company limited by shares or that it is any other form of body corporate.
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(5)Those circumstances are circumstances in which the fact that it is a private company limited by shares is likely to be material to any person.
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(6)If a company contravenes subsection (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.
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(7)Subsection (1) shall not apply to any company— (a) to which
\n
Part 21
\n
applies, and (b) which has provisions in its constitution that would entitle it to rank as a private company limited by shares (whether under this Part or
\n
Part 16
\n
) if it had been registered in the State.
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Reservation of a company name 28. (1) In this section— “reserved” means reserved under subsection (4) for the particular purpose mentioned in subsection (2); “specified period” means the period specified in the relevant notification made by the Registrar under subsection (5).
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(2)A person may apply to the Registrar to reserve a specified name for either of the following purposes, namely— (a) the purpose of a company that is proposed to be formed by that person being incorporated with that name; (b) the purpose of a company changing its name to that name, and, in either such case, such an application shall be accompanied by the prescribed fee.
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(3)In subsection (2), “person” means, for the purposes of paragraph (b) of it, the company referred to in that paragraph.
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(4)On the making of such an application, the Registrar may, subject to subsection (7), determine that the name specified in the application shall be reserved for the particular purpose mentioned in subsection (2).
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(5)That determination shall be notified to the applicant by the Registrar and that notification shall specify the period for which the name is reserved.
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(6)The specified period shall not be greater than 28 days and shall be expressed to begin on the making of the notification.
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(7)A name shall not be reserved that, in the opinion of the Registrar, is undesirable.
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(8)A person in whose favour a name has been reserved may, before the expiry of the specified period, apply to the Registrar for an extension of the specified period; such an application shall be accompanied by the prescribed fee.
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(9)On the making of such an application, the Registrar may, if he or she considers it appropriate to do so, extend the specified period for such number of days (not exceeding 28 days) as the Registrar determines and specifies in a notification of the determination to the applicant.
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Effect of reservation of name 29. (1) During the specified period and any extension under section 28
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(9)of that period, a company shall neither— (a) be incorporated with a particular reserved name save on application of the person in whose favour that name has been reserved; nor (b) be incorporated with a name that, in the opinion of the Registrar, is too like a particular reserved name.
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(2)During the specified period and any extension under section 28
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(9)of that period, a company shall neither— (a) change its name to a particular reserved name (unless it is the company in whose favour the name has been reserved); nor (b) change its name to a name that, in the opinion of the Registrar, is too like a particular reserved name.
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(3)If an application for the incorporation of a company with a name that has been reserved under section 28 is received by the Registrar during the specified period (or any extension of it granted under section 28
\n
(9)) from the person in whose favour the name has been so reserved, the fee payable to the Registrar in respect of that incorporation shall be reduced by an amount equal to the amount of the fee paid under section 28
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(2)in respect of the reservation of that name.
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(4)In this section “reserved” and “specified period” have the same meaning as they have in section 28 .
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Change of name 30. (1) A company may, by special resolution and with the approval of the Registrar, signified in writing, change its name.
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(2)Subsection (3) applies if, through inadvertence or otherwise, a company is registered by a name (whether on its first registration, or on its registration by a new name) which, in the opinion of the Registrar, is too like the name by which a company in existence is already registered.
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(3)Where this subsection applies the first-mentioned company in subsection (2)— (a) with the approval of the Registrar — may change its name; or (b) if, within 6 months after the date of its being registered by the first-mentioned name in subsection (2), the Registrar directs it to do so — shall change its name.
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(4)A direction under subsection (3)(b) shall be complied with within a period of 6 weeks after the date of its being given or such longer period as the Registrar may think fit to allow.
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(5)Where a company changes its name under this section, the Registrar shall enter the new name in the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case.
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(6)A change of name by a company under this section shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
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(7)A company which was registered by a name specified by statute, may, notwithstanding anything contained in that statute, change its name in accordance with subsection (1), but, if the Registrar is of the opinion that any Minister of the Government is concerned in the administration of the statute which specified the name of the company, the Registrar shall not approve of the change of name save after consultation with that Minister of the Government.
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(8)If a company fails to comply with a direction under subsection (3)(b) within the period provided under subsection (4), the company and any officer of it who is in default shall be guilty of a category 4 offence.
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Effect of constitution 31. (1) Subject to the provisions of this Act, the constitution shall, when registered, bind the company and the members of it to the same extent as if it had been signed and sealed by each member, and contained covenants by the company and each member to observe all the provisions of the constitution and any provision of this Act as to the governance of the company.
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(2)For the avoidance of doubt, in subsection (1) the reference to any provision of this Act as to the governance of the company includes a reference to any provision of this Act that commences with words to the effect that the provision applies save where the company's constitution provides otherwise or otherwise contains a qualification on the provision's application by reference to the company's constitution.
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(3)All money payable by any member to the company under the constitution shall be a debt due from him or her to the company.
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(4)An action to recover a debt created by this section shall not be brought after the expiration of 12 years after the date on which the cause of action accrued.
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Amendment of constitution by special resolution 32. (1) Subject to the provisions of this Act, a company may by special resolution amend its constitution.
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(2)Any amendment so made of the constitution shall, subject to the provisions of this Act, be as valid as if originally contained therein, and be subject in like manner to amendment by special resolution.
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(3)Where any amendment is made to a company's constitution notice of which section 33 requires to be published as therein mentioned, the company shall deliver to the Registrar, in addition to the amendment, a copy of the text of the constitution as so amended.
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(4)Subject to subsection (5), and notwithstanding anything in the constitution of a company, no member of the company shall be bound by an amendment made to the constitution after the date on which he or she became a member, if and so far as the amendment— (a) requires him or her to take or subscribe for more shares than the number held by him or her at the date on which the amendment is made, or (b) in any way increases his or her liability as at the date referred to in paragraph (a) to— (i) contribute to the share capital of the company, or (ii) otherwise pay money to the company.
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(5)Subsection (4) shall not apply in any case where the member agrees in writing, either before or after the amendment is made, to be bound by the amendment.
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Publication of notices 33. (1) The Registrar shall publish in the CRO Gazette notice of the delivery to or the issue by the Registrar of the following documents and particulars— (a) any certificate of incorporation of the company; (b) the constitution of the company; (c) any document making or evidencing an amendment of its constitution; (d) every amended text of its constitution; (e) any return relating to its register of directors or notification of a change among its directors; (f) any return relating to the persons, other than the board of directors, authorised to enter into transactions binding the company, or notification of a change among such persons; (g) its annual return and the financial statements that are required to be published in accordance with
\n
Part 6
\n
; (h) any notice of the situation of its registered office, or of any change therein; (i) any copy of a winding up order in respect of the company; (j) any copy of an order for the dissolution of the company on a winding up; (k) any return by the liquidator of the final meeting of the company on a winding up; (l) any notice of the appointment of a liquidator in a voluntary winding up of the company.
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(2)The publication referred to in subsection (1) shall occur within 10 days after the date of the relevant delivery or issue.
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Language of documents filed with Registrar 34. (1) Without prejudice to any other provisions on the language of documents, any document delivered to the Registrar shall be in the Irish or English language.
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(2)A translation of any such document may be delivered to the Registrar in any official language of the European Union.
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(3)Every translation referred to in subsection (2) shall be certified, in a manner approved by the Registrar, to be a correct translation.
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(4)In any case of a discrepancy between a document delivered as mentioned in subsection (1) and a translation of it delivered pursuant to subsection (2), the latter may not be relied upon by the company against a third party. A third party may, nevertheless, rely on that translation against the company, unless the company proves that the third party had knowledge of the document delivered as mentioned in subsection (1).
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(5)In subsection (4), “third party” means a person other than the company or a member, officer or employee of it.
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Authorisation of an electronic filing agent 35. (1) A company may authorise a person (who shall be known and is in this Act referred to as an “electronic filing agent”) to do the following acts on its behalf.
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(2)Those acts are— (a) the electronic signing of documents that are required or authorised, by or under this Act or any other enactment, to be delivered by the company to the Registrar; and (b) the delivery to the Registrar, by electronic means, of those documents so signed.
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(3)The authorisation of a firm (not being a body corporate) by its firm name to do the foregoing acts on behalf of a company shall operate to authorise the following persons to do those acts on the company's behalf, namely those persons who are from time to time during the currency of the authorisation the partners in that firm as from time to time constituted.
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(4)Subject to the following conditions being satisfied, an act of the foregoing kind done by such an agent on behalf of a company pursuant to an authorisation by the company under this section that is in force shall be as valid in law as if it had been done by the company (and the requirements of this Act or the other enactment concerned with respect to the doing of the act have otherwise been complied with (such as with regard to the period within which the act is to be done)).
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(5)The conditions mentioned in subsection (4) are— (a) that prior to the first instance of the electronic filing agent's doing of an act of the kind referred to in subsection (2), pursuant to an authorisation by the company concerned under this section, the authorisation of the agent has been notified by the company to the Registrar in the prescribed form; and (b) the doing of the act complies with any requirements of the Registrar of the kind referred to in sections 12
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(2)(b) and 13
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(2)(a) of the Electronic Commerce Act 2000 .
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(6)It shall be the joint responsibility of a company and the electronic filing agent authorised by it under this section to manage the control of the documents referred to in subsection (2).
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(7)An electronic filing agent shall not, by virtue of his or her authorisation under this section to act as such, be regarded as an officer or servant of the company concerned for the purposes of Regulation 71(4) or (5) of the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 ( S.I. No. 220 of 2010 ).
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Revocation of the authorisation of an electronic filing agent 36. (1) A company may revoke an authorisation by it under section 35 of an electronic filing agent.
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(2)Such a revocation by a company shall be notified by it, in the prescribed form, to the Registrar.
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(3)Unless and until the revocation is so notified to the Registrar, the authorisation concerned shall be deemed to subsist and, accordingly, to be still in force for the purposes of section 35
\n
(4).
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(4)If a revocation, in accordance with this section, of an authorisation under section 35 constitutes a breach of contract or otherwise gives rise to a liability being incurred— (a) the fact that it constitutes such a breach or otherwise gives rise to a liability being incurred does not affect the validity of the revocation for the purposes of section 35 ; and (b) the fact of the revocation being so valid does not remove or otherwise affect any cause of action in respect of that breach or the incurring of that liability.
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Copies of constitution to be given to members 37. (1) A company shall, on being so requested by any member, send to him or her a copy of its constitution— (a) free of charge, and (b) in the event of a second or subsequent such request by the member (the first request by him or her having been complied with) on payment to it of €5.00.
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(2)Where an amendment is made of the constitution of a company, every copy of the constitution issued after the date of the amendment shall be in accordance with the amendment.
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(3)If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 4 offence.
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CHAPTER 3
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Corporate capacity and authority Capacity of private company limited by shares 38. (1) Subject to subsection (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State— (a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and (b) for the purposes of paragraph (a), full rights, powers and privileges.
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(2)Nothing in subsection (1) shall relieve a company from any duty or obligation under any enactment or the general law.
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Registered person 39. (1) Where the board of directors of a company authorises any person as being a person entitled to bind the company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the company may notify the Registrar in the prescribed form of the authorisation and the Registrar shall register the authorisation.
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(2)A person so authorised, where his or her authorisation is registered in the foregoing manner, is referred to in this Act as a “registered person”; where, in a provision of this Act, that expression appears without qualification, it shall be taken as a reference to a registered person authorised by the board of the directors of the company to which the provision falls to be applied.
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(3)Where the board of directors of a company revokes an authorisation of a person as a person entitled to bind the company (being an authorisation notified to the Registrar in the prescribed form), the person shall, notwithstanding that revocation, continue to be regarded for the purposes of this Act as a registered person unless and until the company notifies the Registrar in the prescribed form of that revocation.
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(4)References in this section to a person's entitlement to bind the company are references to his or her authority to exercise any power of the company and to authorise others to do so.
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(5)In subsection (4) “power of the company” does not include— (a) any power of management of the company exercisable by its board of directors (as distinct from any power of the board to enter into transactions with third parties), or (b) a power of the company which this Act requires to be exercised otherwise than by its board of directors.
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(6)For the avoidance of doubt, for the purposes of this section the provisions of a company's constitution with regard to a person's office or powers shall not, in themselves, be taken as an authorisation by the board of the directors of the company of the person as a person entitled to bind the company.
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Persons authorised to bind company 40. (1) For the purposes of any question whether a transaction fails to bind a company because of an alleged lack of authority on the part of the person who exercised (or purported to exercise) the company's powers, the following, namely— (a) the board of directors of the company; and (b) any registered person, shall each be deemed to have authority to exercise any power of the company and to authorise others to do so.
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(2)Subsection (1) applies regardless of any limitations in the company's constitution on the board's authority or a registered person's authority, but subject to subsections (5) and (8).
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(3)Subsection (1) is not to be read as preventing the exercise of a company's powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists.
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(4)Subsection (1) does not affect— (a) a director's duties (including a director's duty to observe any limitations in the company's constitution on the board's authority), or his or her liability in respect of any breach of those duties; or (b) any duty arising on the part of any other person concerned in the transaction (including the registered person) or his or her liability in respect of any breach of that duty.
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(5)Where a company is purportedly a party to a transaction— (a) in connection with which the board of directors exceeded limitations in the company's constitution on their authority; and (b) to which a person referred to in subsection (6) is also a party, subsection (1) does not apply in favour of the person so referred to.
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(6)Each of the following is a person mentioned in subsection (5)(b): (a) a director or shadow director of the company or of its holding company; (b) a person connected with such a director; (c) a registered person; (d) a person connected with a registered person, and in this subsection references to a person's being connected with— (i) a director or shadow director are to be read in accordance with section 220 ; or (ii) a registered person are to be read in accordance with section 220 as that section is applied by subsection (7).
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(7)For the purpose of subsection (6)(ii), section 220 applies as if— (a) for each reference in subsections (1), (2), (3) and (8) to a director of a company there were substituted a reference to the registered person; (b) for the first reference and the third reference in subsection (5) to a director of a company there were substituted a reference to the registered person; (c) the references in subsection (5) to another director or directors included references to one or more other registered persons; and (d) the reference in subsection (6)(b) to a director included a reference to a registered person.
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(8)In subsection (1) “power of the company” does not include— (a) with reference to any registered person, the power of management referred to in section 39
\n
(5)(a), and (b) with reference to the board of directors or any registered person, the power referred to in section 39
\n
(5)(b).
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(9)Without prejudice to subsection (1), in determining any question whether a person had ostensible authority to exercise any of a company's powers in a given case, no reference may be made to the company's constitution.
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(10)In this section a reference— (a) to limitations in a company's constitution includes a reference to limitations deriving from— (i) a resolution of the company or of any class of its members; or (ii) any agreement between the members of the company or of any class of its members; (b) to a transaction includes a reference to any act or omission.
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(11)This section is in addition to, and not in substitution for, the Rule in Royal British Bank v. Turquand.
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Powers of attorney 41. (1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.
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(2)A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.
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CHAPTER 4
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Contracts and other transactions Form of contracts 42. (1) Contracts on behalf of a company may be made as follows— (a) a contract which, if made between natural persons, would be by law required to be in writing and to be under seal, may be made on behalf of the company in writing under the common seal of the company; (b) a contract which, if made between natural persons, would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person acting under its authority, express or implied; (c) a contract which, if made between natural persons, would by law be valid although made by parol only, and not reduced into writing may be made by parol on behalf of the company by any person acting under its authority, express or implied.
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(2)A contract made according to this section shall bind the company and its successors and all other parties to it.
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(3)A contract made according to this section may be varied or discharged in the same manner in which it is authorised by this section to be made.
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The common seal 43. (1) A company shall have a common seal or seals that shall state the company's name, engraved in legible characters.
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(2)Save as otherwise provided by this Act or by the constitution of the company— (a) a company's seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf; and (b) any instrument to which a company's seal shall be affixed shall be— (i) signed by a director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them; and (ii) be countersigned by the secretary or by a second (if any) director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them.
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(3)Save as otherwise provided by the constitution of the company, if there be a registered person in relation to a company, the company's seal may be used by such person and any instrument to which the company's seal shall be affixed when it is used by the registered person shall be signed by that person and countersigned— (a) by the secretary or a director of the company; or (b) by some other person appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf.
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Power for company to have official seal for use abroad 44. (1) In this section— “official seal”, in relation to a company, means the official seal referred to in subsection (2); “place abroad” means any territory, district or place not situate in the State.
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(2)A company may, if authorised by its constitution, have for use in any place abroad an official seal which shall resemble the common seal of the company with the addition on its face of the name of every place abroad where it is to be used.
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(3)A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.
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(4)A company having an official seal for use in any place abroad may, by writing under its common seal, authorise any person appointed for the purpose in that place (the “agent”) to affix the official seal to any deed or other document to which the company is party in that place.
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(5)The authority of the agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until the notice of revocation or determination of the agent's authority has been given to the person dealing with him or her.
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(6)The person affixing an official seal shall, by writing under his or her hand, certify on the deed or other instrument to which the seal is affixed, the date on which and the place at which it is affixed.
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Pre-incorporation contracts 45. (1) Any contract or other transaction (including any application to any lawful authority) purporting to be entered into by a company prior to its formation, or by any person on behalf of the company prior to its formation, may be ratified by the company after its formation.
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(2)Upon such contract or other transaction being so ratified, the company shall become bound by it and entitled to the benefit of it as if the company had been in existence at the date of such contract or other transaction and had been a party to it.
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(3)Prior to such ratification (if any) by the company, the person or persons who purported to act in the name or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benefit of it.
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Bills of exchange and promissory notes 46. A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company, if made, accepted or endorsed in the name of or by or on behalf or on account of, the company by a person acting under its authority.
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Liability for use of incorrect company name 47. (1) If an officer of a company or any person on its behalf does any of the following things, the officer or person shall be guilty of a category 4 offence.
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(2)Those things are: (a) uses or authorises the use of any seal purporting to be a seal of the company on which its name is not engraved in legible characters; (b) issues or authorises the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, in which its name is not mentioned in the manner described in section 49 ; (c) issues or authorises the issue of any invoice, receipt or letter of credit of the company in which its name is not mentioned in the manner described in section 49 .
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(3)In the circumstances of his or her doing a relevant thing mentioned in subsection (2) (b), the officer or other person shall be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless— (a) it is duly paid by the company; or (b) it appears to the court that no injustice will be done by imposing liability for the amount on the company.
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Authentication by company of documents 48. A document or proceeding requiring authentication by a company may be signed by a director, secretary, registered person or other authorised officer of the company, and need not be under its common seal.
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CHAPTER 5
\n
Company name, registered office and service of documents Publication of name by company 49. (1) A company— (a) shall display its name in a conspicuous position, in letters easily legible, outside every office or place in which its business is carried on and at its registered office; and (b) shall have its name mentioned in legible characters in each of the following: (i) all notices and other official publications of the company; (ii) all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company; (iii) all invoices, receipts and letters of credit of the company.
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(2)If a company contravenes subsection (1)(a) or (b), the company and any officer of it who is in default shall be guilty of a category 4 offence.
\n
(3)The use of the abbreviation “ltd” instead of “limited” or “teo” instead of “teoranta” shall not be regarded as constituting a contravention of this section.
\n
(4)This section is without prejudice to section 151 .
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Registered office of company 50. (1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed.
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(2)Particulars of the situation of the company's registered office shall be specified in the statement delivered pursuant to section 21
\n
(1)(a) prior to the incorporation of the company.
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(3)Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change.
\n
(4)A company's registered office may be constituted by a statement (contained in the statement or notice referred to in subsection (2) or (3)) to the effect that the office is care of a specified agent, being a company formed and registered under this Act, or an existing company, and which is approved for this purpose by the Registrar; where a registered office is constituted by those means, references in this Act to the situation of the company's registered office shall be read accordingly.
\n
(5)The notification to the Registrar by the agent approved for that purpose of any change in the situation of the agent's registered office shall, if made in the form prescribed for the purpose of subsection (3) and within the period there mentioned, be regarded as constituting compliance by the company concerned with subsection (3).
\n
(6)If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.
\n
Service of documents 51. (1) A document may be served on a company— (a) by leaving it at or sending it by post to the registered office of the company; or (b) if the company has not given notice to the Registrar of the situation of its registered office, by delivering it to the Registrar.
\n
(2)For the purposes of this section, any document left at or sent by post to the place for the time being recorded by the Registrar as the situation of the registered office of a company shall be deemed to have been left at or sent by post to the registered office of the company notwithstanding that the situation of its registered office may have changed.
\n
(3)It shall be the duty of the Registrar to enter on the register a document that has, by the means referred to in subsection (1)(b), been served on a company.
\n
Security for costs 52. Where a company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his or her defence, require security to be given for those costs and may stay all proceedings until the security is given.
\n
Enforcement of orders and judgments against companies and their officers 53. (1) Any judgment or order against a company wilfully disobeyed may, by leave of the court, be enforced by— (a) sequestration against the property of the company, (b) attachment against the directors or other officers of the company, or (c) sequestration against the property of such directors or other officers.
\n
(2)An application may not be made, in the foregoing circumstances, for attachment against directors or other officers or for sequestration against their property unless the judgment or order of the court to which the application relates has contained a statement indicating the liability of such persons or of their property to attachment or sequestration, as the case may be, should the judgment or order be disobeyed by the company.
\n
(3)In this section “attachment” and “sequestration” have the same meaning as they have in rules of court concerning the jurisdiction of the High Court and the Supreme Court.
\n
CHAPTER 6
\n
Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply Interpretation (Chapter 6) 54. (1) In this Chapter— “mandatory provision” means a provision of any of
\n
Part 1
\n
, this Part or Parts 3 to 14 that is not an optional provision; “optional provision” means a provision of any of
\n
Part 1
\n
, this Part or Parts 3 to 14 that— (a) contains a statement to the effect, or is governed by provision elsewhere to the effect, that the provision applies save to the extent that the constitution provides otherwise or unless the constitution states otherwise; or (b) is otherwise of such import; “Table A” means Table A in the First Schedule to the Act of 1963.
\n
(2)A reference in this Chapter to a designated activity company is a reference to a designated activity company limited by shares.
\n
(3)A reference in this Chapter to Table A includes, where appropriate, a reference to any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963.
\n
Status of existing private companies at end of transition period: general principle 55. As provided for in section 61 , on the expiry of the transition period, unless it has re-registered as a designated activity company or one of the other circumstances specified in that section prevent the following happening— (a) an existing private company shall be deemed to have a constitution that comprises the provisions of its existing memorandum (other than the provisions excepted by subsection (1)(a) of that section) and of its existing articles and subject to subsection (3) of that section; (b) the company's constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company's constitution, and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
\n
Conversion of existing private companies to designated activity companies: duties and powers in that regard 56. (1) An existing private company may re-register as a designated activity company by passing an ordinary resolution, not later than 3 months before the expiry of the transition period, resolving that the company be so registered; if it so re-registers, pursuant to such a resolution, before the expiry of the transition period,
\n
Part 16
\n
shall, as provided in section 63
\n
(9), apply to it.
\n
(2)An existing private company shall re-register as a designated activity company before the expiry of the transition period if, not later than 3 months before the expiry of that period, a notice in writing requiring it to do so is served on it by a member or members holding shares in the company that confer, in aggregate, more than 25 per cent of the total voting rights in the company; on its so re-registering, in compliance with that notice,
\n
Part 16
\n
shall, as provided in section 63
\n
(9), apply to it.
\n
(3)Without prejudice to subsections (1) and (2) but subject to subsection (4), where anything is done by an existing private company, being a thing which (if the company were a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply) would not be in compliance with section 68 , then the company shall re-register as a designated activity company before the expiry of the transition period and upon its so doing
\n
Part 16
\n
shall, as provided in section 63
\n
(9), apply to it.
\n
(4)Instead of re-registering as a designated activity company as mentioned in subsection (3), an existing private company referred to in that subsection may, by passing a special resolution and otherwise complying with the requirements of
\n
Part 20
\n
, re-register as a type of company that is not a designated activity company before the expiry of the transition period.
\n
(5)The reference in subsection (2) to a voting right in a company shall be read as a reference to a right exercisable for the time being to cast a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.
\n
Relief where company does not re-register as a designated activity company 57. (1) Where an existing private company does not, before the expiry of the transition period, re-register as a designated activity company under section 56 (whether it is obliged under that section to do so or not), the person or persons referred to in subsection (2) may apply to the court for an order directing that it shall re-register as such a company and the court shall, unless cause is shown to the contrary, make the order sought or make such other order as seems just.
\n
(2)The persons mentioned in subsection (1) are— (a) one or more members of the company who hold, or together hold, not less than 15 per cent in nominal value of the company's issued share capital or any class thereof; or (b) one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company's debentures entitling the holders to object to alterations of its objects.
\n
Applicable laws during transition period 58. (1) During the period beginning on the commencement of this Part and ending on the expiry of the transition period,
\n
Part 16
\n
shall, subject to subsection (3) and without prejudice to subsection (7), apply to an existing private company as if it were a designated activity company, unless and until there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19 .
\n
(2)If there is so delivered to the Registrar such a constitution in respect of that company then, on and from such delivery, this Part and Parts 1 and 3 to 15 shall apply to that company.
\n
(3)The provisions of the prior Companies Acts relating to the use of limited or teoranta (or their abbreviations) shall apply as respects the name of an existing private company referred to in subsection (1) during the period referred to in that subsection and not the provisions of section 969 and the other relevant provisions of
\n
Part 16
\n
.
\n
(4)The reference in subsection (3) to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.
\n
(5)An existing private company that has adopted, or is deemed to have adopted, in whole or in part, the regulations of Table A as its articles, shall, despite the repeal of the Act of 1963, continue to be governed by those regulations (or the parts of them concerned) after the repeal of that Act and, without prejudice to subsection (8), before the expiry of the transition period unless and until— (a) there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19 ; or (b) it re-registers as another type of company, but, as regards the company continuing to be governed by the foregoing regulations— (i) this is save to the extent that those regulations are inconsistent with a mandatory provision; (ii) those regulations may be altered or added to under and in accordance with the conditions under which articles, whenever registered, are permitted by
\n
Part 16
\n
to be altered or added to; and (iii) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
\n
(6)Subject to paragraphs (ii) and (iii) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
\n
(7)To take account of any interregnum between— (a) the delivery (in accordance with this Chapter and in the form provided under section 19 ) of a constitution in respect of an existing private company to the Registrar for registration; and (b) its registration by the Registrar, it is declared that subsections (1) and (2) operate, and are to be read as operating, so as also to provide that
\n
Part 16
\n
applies, subject to subsection (3), to that company as if it were a designated activity company during any such interregnum (and accordingly that the application of this Part, and Parts 1 and 3 to 15 , to it is postponed until that registration is effected).
\n
(8)Likewise, to take account of any similar interregnum in the case of subsection (5), it is declared that that subsection operates, and is to be read as operating, so as also to provide that the whole or part (as the case may be) of the regulations of Table A continue to govern the company concerned during any such interregnum.
\n
(9)For the avoidance of doubt, the application of
\n
Part 16
\n
, in the circumstances under this section where that Part is stated to apply and notwithstanding that the course of action of delivering a constitution of the kind referred to in subsection (1) will not be adopted by such a company, extends to an existing private company falling within subsection (10) but— (a) the application of
\n
Part 16
\n
to such a company does not affect the application of the provisions of the statute referred to in subsection (10) (or any other relevant statute) to the company; and (b) if, by virtue of the foregoing statute, the company was not required to include the word “limited” or “teoranta” in its name, that exemption is not affected by anything in this section or
\n
Part 16
\n
.
\n
(10)The existing private company referred to in subsection (9) is one that has been incorporated under a former enactment relating to companies (within the meaning of section 5 ) pursuant to, or in compliance with a requirement of, any statute.
\n
Adoption of new constitution by members 59. (1) An existing private company— (a) by special resolution passed in accordance with its existing memorandum and articles; and (b) subject to compliance with the provisions of
\n
Part 16
\n
as to the variation of rights and obligations of members, may, after the commencement of this Part, adopt a new constitution in the form provided under section 19 ; where it does so and delivers, in the prescribed form, before the expiry of the transition period, the constitution to the Registrar for registration, it shall, on the constitution's registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
\n
(2)The constitution need not contain any supplemental regulations, to the extent that the provisions of this Part and Parts 1 and 3 to 15 regulate the matters which would be governed by those regulations; for the avoidance of doubt, the requirements of sections 19 and 26
\n
(1)relating to a company's name shall apply despite any exemption of the kind referred to in section 61
\n
(3)that had been enjoyed by the company under the prior Companies Acts.
\n
(3)On registration of its constitution under this section, the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
\n
Preparation, registration, etc. of new constitution by directors 60. (1) The directors of an existing private company shall do each of the things specified in subsection (2) before the expiry of the transition period, unless the company— (a) has already adopted a constitution in accordance with section 59
\n
(1); or (b) is required, under section 56
\n
(2)or (3), to re-register as a designated activity company; or (c) is proceeding, in accordance with a resolution passed pursuant to section 56
\n
(1), to re-register as such a company or is proceeding, in accordance with section 56
\n
(4)and
\n
Part 20
\n
, to re-register as another type of company; or (d) is required by an order made under section 57 to re-register as a designated activity company or proceedings under that section are pending in relation to it.
\n
(2)The things referred to in subsection (1) are— (a) prepare a constitution for the company in the form provided under section 19 ; (b) deliver a copy of such constitution to each member; and (c) deliver, in the prescribed form, the constitution to the Registrar for registration, and, where the things in the foregoing paragraphs are done (including the delivery of the constitution to the Registrar for registration), the company shall, on the constitution's registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply, and the Registrar shall issue to it a certificate of incorporation in respect of it stating that it is a private company limited by shares registered under this Part.
\n
(3)The provisions of that constitution of the company, to be prepared by the directors as mentioned in subsection (2)(a), shall consist solely of— (a) the provisions of its existing memorandum, other than provisions that— (i) contain its objects; or (ii) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles; and (b) the provisions of its existing articles, but, despite any exemption of the kind referred to in section 61
\n
(3)that had been enjoyed by the company under the prior Companies Acts, nothing in this subsection shall be read as overriding the requirements of sections 19 and 26
\n
(1)relating to a company's name.
\n
(4)If, by reason of the company not having registered articles, the regulations in Table A are deemed to be the articles of the company, the constitution prepared under subsection (2)(a) shall state that the articles of the company comprise those regulations.
\n
(5)If the existing articles do not exclude or modify the regulations contained in the Table A, those regulations shall, so far as applicable, be the regulations of the existing private company in the same manner and to the same extent as if they were contained in the constitution prepared under subsection (2)(a).
\n
(6)For the purposes of subsections (4) and (5) and without prejudice to their application otherwise by a provision of this Chapter, the regulations contained in Table A shall, despite the repeal of the Act of 1963, continue in force but, as regards the company continuing, by virtue of subsection (4) or (5), to be governed (in whole or in part) by the foregoing regulations— (a) this is save to the extent that those regulations are inconsistent with a mandatory provision; (b) those regulations may be altered or added to under and in accordance with the conditions under which the company's constitution is permitted by section 32 to be altered or added to; and (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
\n
(7)Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (6) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
\n
Deemed constitution 61. (1) Where there has not been delivered to the Registrar a constitution (in the form provided under section 19 ) in respect of an existing private company for registration within the transition period then, subject to subsection (4), from the expiry of that period— (a) the existing private company shall be deemed to have, in place of its existing memorandum and articles, a constitution that comprises— (i) the provisions of its existing memorandum, other than provisions that— (I) contain its objects; or (II) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles; and (ii) the provisions of its existing articles; and (b) its constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company's constitution, and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
\n
(2)In those circumstances the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
\n
(3)Notwithstanding— (a) section 24, as originally enacted, of the Act of 1963; or (b) section 24, inserted in the Act of 1963 by section 88
\n
(1)of the Company Law Enforcement Act 2001 , in place of the first-mentioned section, and the continuing effect, for certain other types of company, provided elsewhere by this Act of an exemption conferred by or under either such section, any such exemption (whatever its basis) enjoyed, immediately before the expiry of the transition period, by an existing private company to which subsection (1) applies shall cease on that expiry; accordingly subsection (1)(a) shall be read as requiring such a company's name to end with “limited” or “teoranta”, as appropriate, and subsection (2) shall have effect subject to this subsection.
\n
(4)Subsection (1) shall not apply if— (a) the existing company has re-registered before the expiry of the transition period as a designated activity company in accordance with section 56
\n
(1)or as another type of company in accordance with section 56
\n
(4)and
\n
Part 20
\n
; (b) the existing company is required under section 56
\n
(2)or (3) to re-register as such a company and has so re-registered; or (c) its operation would be inconsistent with an order of the court made under section 57 or otherwise.
\n
(5)If, by reason of section 58 , an existing private company was, immediately before the expiry of the transition period or, if later, the end of the interregnum referred to in section 58
\n
(8), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and without prejudice to their application otherwise by a provision of this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and the existing articles of the company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but— (a) this is save to the extent that those regulations are inconsistent with a mandatory provision; (b) those regulations may be altered or added to under and in accordance with the conditions under which the company's constitution is permitted by section 32 to be altered or added to; and (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
\n
(6)Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
\n
Relief for members and creditors 62. (1) Without limiting the generality of section 212 , if any member of a company considers that his or her rights or obligations have been prejudiced by— (a) the exercise of any power under this Chapter; (b) the non-exercise of any such power; or (c) the exercise of any such power in a particular manner, by the company or the directors of it, the member may apply to the court for an order under section 212 .
\n
(2)In any such application where it is proved that the directors of the company have failed to comply with section 60 then, unless the members of the company have adopted a new constitution in accordance with section 59
\n
(1), it shall be presumed, until the contrary is proved, that the directors have exercised their powers in a manner oppressive to the applicant or in disregard of his or her interests as a member.
\n
(3)Where in relation to an existing private company a constitution in the form provided under section 19 comes into being, the person or persons referred to in subsection (5) may apply under this subsection to the court for relief if the constitution prejudices any interest of the person or persons (but only if the person or persons has or have a legal or equitable right to that interest).
\n
(4)On the hearing of an application under subsection (3), the court may grant such relief to the applicant or applicants as the court thinks just.
\n
(5)The persons mentioned in subsection (3) are one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company's debentures entitling the holders to object to alterations of its objects.
\n
(6)The jurisdiction of the court under section 212 as provided for under subsection (1) and the jurisdiction of the court under subsection (3) shall each be exercised having regard to, and, where appropriate subject to, any exercise by the court of its jurisdiction under section 57 in relation to the company concerned.
\n
(7)In this section a reference to a constitution in the form provided under section 19 coming into being is a reference to such a constitution coming into being by reason of— (a) its being adopted and registered under section 59 ; or (b) its being prepared by the directors and registered under section 60 ; or (c) the operation of section 61 .
\n
Procedure for re-registration as designated activity company under this Chapter 63. (1) This section contains the procedure for re-registration by an existing private company as a designated activity company under section 56
\n
(1), (2) or (3) or pursuant to an order of the court under section 57
\n
(1).
\n
(2)Either— (a) in the case of re-registration under section 56
\n
(1), the ordinary resolution referred to in that provision; or (b) in the case of re-registration under subsection (2) or (3) of section 56 or pursuant to an order of the court under section 57
\n
(1), a resolution of the directors of the company passed for the purpose in consequence of that subsection's operation or that order, shall alter the company's memorandum so that it states that the company is to be a designated activity company and shall, unless this Act provides that on re-registration the company shall continue to enjoy an exemption conferred by or under either of the sections referred to in section 61
\n
(3), alter that document and the articles so that there is substituted “designated activity company” or “cuideachta ghníomhaíochta ainmnithe” for “limited” or “teoranta”, as the case may be, in the company's name.
\n
(3)An application for the purpose of re-registration, in the prescribed form and signed by a director or secretary of the company, shall be delivered by the company to the Registrar together with the documents specified in subsection (4).
\n
(4)Those documents are— (a) a copy of the ordinary resolution or the resolution of the directors referred to in subsection (2)(a) or (b); (b) a copy of the memorandum and articles of the company as altered by the resolution; and (c) a statement in the prescribed form (in this section referred to as a “statement of compliance”) by a director or secretary of the company that the requirements of this Chapter as to re-registration as a designated activity company have been complied with by the company, including the passing of the resolution referred to in paragraph (a).
\n
(5)The Registrar may accept the statement of compliance as sufficient evidence that the resolution referred to in subsection (4)(a) has been duly passed and the other conditions of this Chapter for re-registration as a designated activity company have been satisfied and that the company is entitled to be re-registered as that type of company.
\n
(6)If, on an application under subsection (3) for re-registration of an existing private company as a designated activity company, the Registrar is satisfied that a company is entitled to be so re-registered, the Registrar shall— (a) retain the application and the other documents delivered to him or her under this section; and (b) issue to the company a certificate of incorporation in respect of it, being a certificate of incorporation that— (i) is altered to meet the circumstances of the case; and (ii) states that it is issued on re-registration of the company and the date on which it is issued.
\n
(7)If the existing private company had not registered articles and, by reason of section 58 , the regulations in Table A are, immediately before the making by the company of an application under subsection (3), deemed to be its articles, then each of the references in the preceding subsections of this section to articles shall be disregarded, but in such a case the application under subsection (3) shall be accompanied by a statement in the prescribed form that the articles of the company comprise those regulations.
\n
(8)Upon the issue to a company of a certificate of incorporation on re-registration under subsection (6)— (a) the company shall, by virtue of the issue of that certificate, become a designated activity company; and (b) any alterations in the memorandum and articles set out in the resolution concerned shall take effect accordingly.
\n
(9)A certificate of incorporation issued on re-registration to a company under subsection (6) shall be conclusive evidence— (a) that the requirements of this Chapter as to re-registration and of matters precedent and incidental thereto have been complied with; and (b) that the company is the type of company which is set out in the certificate, and, accordingly, without prejudice to section 58 ,
\n
Part 16
\n
, on and from the issue of the certificate, shall apply to the company as a designated activity company.
\n
(10)If, by reason of section 58 , an existing private company was, immediately before the making by the company of an application under subsection (3), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and in addition to the other cases where their continuance in force for a particular purpose is provided for by this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and upon the issue of the aforementioned certificate of incorporation the articles of the designated activity company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but— (a) this is save to the extent that those regulations are inconsistent with a mandatory provision; (b) those regulations may be altered or added to under and in accordance with the conditions under which the designated activity company's articles are permitted by
\n
Part 16
\n
to be altered or added to; and (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
\n
(11)Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (10) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
\n
(12)The re-registration of an existing private company as a designated activity company pursuant to this Chapter shall not affect any rights or obligations of the company or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.
\n
(13)The procedures under this section may be followed, after consultation by the company with the relevant Minister, by an existing private company that has been incorporated under a former enactment relating to companies (within the meaning of section 5 ) pursuant to, or in compliance with a requirement of, any statute (in subsection (11) referred to as the “relevant statute”) and may be so followed notwithstanding that statute but— (a) the provisions otherwise of that statute (and any other relevant statute) shall apply to the designated activity company that the foregoing company re-registers as under this section as they apply to the foregoing company before such re-registration; and (b) if the foregoing company is a company to which section 1446 applies, the provision made by subsection (1) requiring the substitution of certain words in its name shall be taken to be omitted from that subsection.
\n
(14)In subsection (13) “relevant Minister” means the Minister of the Government concerned in the administration of the relevant statute.
\n
(15)For the avoidance of doubt, references in
\n
Part 6
\n
, and in particular section 349 (which exempts a company from having to annex financial statements to its first annual return), to the incorporation of a company are references to its original incorporation.
\n
PART 3
\n
SHARE CAPITAL, SHARES AND CERTAIN OTHER INSTRUMENTS
\n
CHAPTER 1
\n
Preliminary and interpretation Interpretation (Part 3) 64. (1) In this Part— “capital conversion reserve fund”, in relation to a company, means the amount equivalent to the aggregate diminution in share capital consequential upon renominalisation of share capital under section 26 of the Economic and Monetary Union Act 1998 ; “cash” includes funds in any currency or currencies; “company capital”, in relation to a company, means— (a) the aggregate value, expressed as a currency amount, of the consideration received by the company in respect of the allotment of shares of the company; and (b) that part of the company's undenominated capital constituted by the transfer of sums referred to in sections 106
\n
(4)and 108
\n
(3), and subsection (2) supplements this definition; “employees' share scheme” means any scheme, for the time being in force, in accordance with which a company encourages or facilitates the holding of shares in, or debentures of, the company or its holding company by or for the benefit of employees or former employees of the company or of any subsidiary of the company including any person who is or was a director holding a salaried employment or office in the company or any subsidiary of the company; “nominal value”, in relation to a share, means a monetary amount, expressed as an amount, multiple, fraction or percentage of any currency or currencies or combination thereof; “parent public company” means a public limited company which has one or more private limited subsidiaries; “private limited subsidiary” means a subsidiary that is a private company limited by shares but, for the purposes of this definition, a company shall not be regarded as a subsidiary if it is such only by virtue of section 7
\n
(2)(a)(ii) or (e); “redeemable shares” includes shares which are liable at the option of the company or the shareholder to be redeemed; “securities” means— (a) shares in a company; (b) debentures of a company, including debenture stock, bonds and any other debt instruments of a company whether constituting a charge on the assets of the company or not; (c) those classes of securities which are negotiable on the capital market, such as: (i) shares in bodies corporate and other securities equivalent to shares in bodies corporate, partnerships or other entities, and depositary receipts in respect of shares; (ii) bonds or other forms of securitised debt, including depositary receipts in respect of such securities; (iii) any other securities giving the right to acquire or sell any such transferable securities or giving rise to a cash settlement determined by reference to transferable securities, currencies, interest rates or yields, commodities or other indices or measures with the exception of instruments of payment; “share capital”, in relation to a company, means the aggregate amount or value of the nominal value of shares of the company; “undenominated capital”, in relation to a company, means the amount of the company capital from time to time which is in excess of the nominal value of its issued shares and shall be deemed to include any sum transferred as referred to in sections 106
\n
(4)and 108
\n
(3).
\n
(2)There is included in the definition of “company capital” in subsection (1) any amounts standing, immediately before the commencement of this section, to the credit of— (a) the company's share premium account (within the meaning of the prior Companies Acts); (b) its capital redemption reserve fund (within the meaning of those Acts); and (c) its capital conversion reserve fund.
\n
(3)For the purposes of this Part a share in a company shall be taken to have been paid up (as to its nominal value or any premium on it) in cash or allotted for cash if the consideration for the allotment or the payment up is— (a) cash received by the company; or (b) a cheque received by the company in good faith which the directors have no reason for suspecting will not be paid; or (c) the release of a liability of the company for a liquidated sum; or (d) an undertaking to pay cash to the company on demand or at an identified or identifiable future date which the directors have no reason for suspecting will not be complied with.
\n
(4)In relation to the allotment or payment up of any shares in a company, references in this Act, other than in section 69
\n
(12)(c), to consideration other than cash and to the payment up of shares and premiums on shares otherwise than in cash include references to the payment of, or an undertaking to pay, cash to any person other than the company.
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Powers to convert shares into stock, etc.
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65.(1) Each provision of this section applies save to the extent that the company's constitution provides otherwise.
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(2)A company may, by ordinary resolution— (a) convert any of its paid up shares into stock; and (b) reconvert any stock into paid up shares of any denomination.
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(3)Subject to subsection (4), the holders of stock may transfer the stock, or any part of it, in the same manner and subject to the same regulations as, and subject to which the shares from which the stock arose might, previously to conversion, have been transferred, or as near thereto as circumstances admit.
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(4)The directors of a company may from time to time fix the minimum amount of stock that is capable of being transferred but any such minimum so fixed shall not exceed the nominal amount of each share from which the stock arose.
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(5)Subject to subsection (6), the holders of stock shall, according to the amount of stock held by them, have the same rights, privileges and advantages in relation to dividends, voting at meetings of the company and other matters as if they held the shares from which the stock arose.
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(6)No such right, privilege or advantage (except participation in the dividends and profits of the company and in the assets on winding up) shall be conferred by an amount of stock which would not, if existing in shares, have conferred that right, privilege or advantage.
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(7)Such of the regulations of a company as are applicable to paid up shares shall apply to stock of the company, and the words “share” and “shareholder” in those regulations shall be read as including “stock” and “stockholder”, respectively.
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Shares 66. (1) Shares in the capital of a company shall have a nominal value.
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(2)A company may allot shares— (a) of different nominal values; (b) of different currencies; (c) with different amounts payable on them; or (d) with a combination of 2 or more of the foregoing characteristics.
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(3)Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any share in a company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the company may from time to time by ordinary resolution determine.
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(4)Save to the extent that its constitution provides otherwise, a company may allot shares that are redeemable (which shall be known, and are referred to in this Act, as “redeemable shares”).
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(5)The shares or other interest of any member in a company shall be personal estate and shall not be of the nature of real estate.
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(6)Except as required by law, no person shall be recognised by a company as holding any share upon any trust and the company shall not be bound by or be compelled in any way to recognise (even when having notice of it)— (a) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share; or (b) save only as this Act or other law otherwise provides, any other rights in respect of any share, except an absolute right to the entirety of it in the registered holder.
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(7)Subsection (6) shall not preclude the company from requiring a member or a transferee of shares to furnish the company with information as to the beneficial ownership of any share when such information is reasonably required by the company.
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(8)In subsections (9) and (10) “bearer instrument” means an instrument, in relation to shares of a company, which entitles or purports to entitle the bearer thereof to transfer the shares that are specified in the instrument by delivery of the instrument.
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(9)A company shall not have power to issue any bearer instrument.
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(10)If a company purports to issue a bearer instrument, the shares that are specified in the instrument shall be deemed not to have been allotted or issued, and the amount subscribed therefor (and in the case of a non-cash asset subscribed therefor, the cash value of that asset) shall be due as a debt of the company to the purported subscriber thereof.
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Numbering of shares 67. (1) Subject to subsections (2) and (3), each share in a company shall be distinguished by its appropriate number.
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(2)If at any time, all the issued shares in a company or all the issued shares in it of a particular class are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number, so long as it— (a) remains fully paid up; and (b) ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up.
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(3)Where new shares are issued by a company on the terms that, within a period not exceeding 12 months, they will rank pari passu for all purposes with all the existing shares, or with all the existing shares of a particular class in the company, neither the new shares nor the corresponding existing shares need have distinguishing numbers so long as all of them are fully paid up and rank pari passu.
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(4)However, in the circumstances mentioned in subsection (3), the share certificates of the new shares shall, if not numbered, be appropriately worded or enfaced.
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CHAPTER 2
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Offers of securities to the public Limitation on offers of securities to the public 68. (1) Subject to the provisions of this section, a company shall not— (a) make— (i) any invitation to the public to subscribe for; or (ii) any offer to the public of, any shares, debentures or other securities of the company; or (b) allot, or agree to allot, (whether for cash or otherwise) any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public or being the subject of an invitation to the public to subscribe for them.
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(2)A company shall— (a) neither apply to have securities (or interests in them) admitted to trading or to be listed on; nor (b) have securities (or interests in them) admitted to trading or listed on, any market, whether a regulated market or not, in the State or elsewhere.
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(3)Subsection (1) shall not apply to any of the following offers or allotments of debentures by a company (wherever they may be made)— (a) an offer of debentures addressed solely to qualified investors; (b) an offer of debentures addressed to fewer than 150 persons, other than qualified investors; (c) an offer of debentures addressed to investors who acquire securities for a total consideration of at least €100,000 per investor, for each separate offer; (d) an offer of debentures whose denomination per unit amounts to at least €100,000; (e) an offer of debentures with a total consideration in the European Union less than €100,000, which shall be calculated over a period of 12 months; (f) an allotment of debentures, or an agreement to make such an allotment, with a view to those debentures being the subject of any one or more of the offers referred to in paragraphs (a) to (e), and the reference in this subsection to an offer of debentures includes an invitation to subscribe for them.
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(4)Subsection (1) shall not apply to— (a) an offer of shares by a company (of any amount or wherever it may be made), being an offer addressed to— (i) qualified investors; or (ii) 149 or fewer persons; or (iii) both qualified investors and 149 or fewer other persons; or (b) an allotment of shares, or an agreement to make such an allotment, with a view to those shares being the subject of an offer referred to in paragraph (a), and the reference in this subsection to an offer of shares includes an invitation to subscribe for them.
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(5)Subsection (1) shall not apply to an offer by a company of those classes of instruments which are normally dealt in on the money market (such as treasury bills, certificates of deposit and commercial papers) having a maturity of less than 12 months, and the reference in this subsection to an offer of instruments includes an invitation to subscribe for them.
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(6)A word or expression that is used in this section and is also used in the Prospectus (Directive 2003/71/EC) Regulations 2005 ( S.I. No. 324 of 2005 ) shall have in this section the same meaning as it has in those Regulations.
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(7)For the purposes of subsection (6), the Regulations referred to in that subsection shall have effect as if Regulation 8 were omitted therefrom.
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(8)Nothing in this section shall affect the validity of any allotment or sale of securities or of any agreement to allot or sell securities.
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(9)If a company contravenes subsection (1) or (2), the company and any officer of it who is in default shall be guilty of a category 2 offence.
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CHAPTER 3
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Allotment of shares Allotment of shares 69. (1) No shares may be allotted by a company unless the allotment is authorised, either specifically or pursuant to a general authority, by ordinary resolution or by the constitution of the company.
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(2)Without prejudice to subsection (1), in the case of a company whose constitution states an authorised share capital, no shares may be allotted by the company unless those shares are comprised in the authorised but unissued share capital of the company.
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(3)An authorisation for the purposes of subsection (1) (whether conferred by an ordinary resolution or the constitution) may stipulate a period during which the allotment may occur; if it so stipulates, then allotments occurring outside that period are not authorised by it.
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(4)Save to the extent that the constitution of the company provides otherwise— (a) shares of a company may only be allotted by the directors of the company; (b) the directors of a company may allot, grant options over or otherwise dispose of shares to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the company and its shareholders.
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(5)Any director of a company who knowingly contravenes, or knowingly permits or authorises a contravention of, a preceding provision of this section shall be guilty of a category 3 offence.
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(6)Subject to subsections (8) and (12) and section 70 , a company proposing to allot any shares— (a) shall not allot any of those shares, on any terms— (i) to any non-member, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same or more favourable terms, a proportion of those relevant shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the shares of that class; or (ii) to any person who holds shares in the company, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same terms, a proportion of those shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the relevant shares of that class; and (b) shall not allot any of those shares to any person unless the period during which any such offer may be accepted (not being less than 14 days) has expired or the company has received notice of the acceptance or refusal of every offer so made.
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(7)In— (a) subsection (6) “relevant shares”, in relation to a company, means shares in the company other than shares which as respects dividends and capital carry a right to participate only to a specified amount in a distribution; (b) subsection (6)(a)(ii) “non-member” means a person who is not a holder of shares (as that expression is to be read by virtue of section 70
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(4)) in the company.
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(8)Where a company's constitution contains provisions which— (a) require that the company, when proposing to allot shares of a particular class, shall not allot those shares unless it makes an offer of those shares to existing holders of shares of that class; and (b) specify that the minimum period during which that offer may be accepted is not less than 14 days, then subsection (6) shall not apply to any allotments made in compliance with such provisions.
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(9)An offer which is required by— (a) subsection (6); or (b) the provisions of the company's constitution referred to in subsection (8), to be made to any person shall be made by serving it on him or her in the same manner in which notices are authorised to be given by sections 180 , 181 and 218 .
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(10)Any such offer as is mentioned in subsection (6) or (8) shall not be withdrawn before the end of the period that the offer referred to in subsection (6) or, as the case may be, the provisions of the company's constitution referred to in subsection (8) specify as the period within which it may be accepted.
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(11)Nothing in subsection (6)(b), (9) or (10) shall invalidate provisions of the company's constitution referred to in subsection (8) by reason that those provisions require or authorise an offer thereunder to be made in contravention of one or more of those subsections, but, to the extent that those provisions require or authorise such an offer to be so made, they shall be of no effect.
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(12)Subsection (6) shall not apply— (a) to the extent that— (i) the constitution of the company, (ii) a special resolution, or (iii) the terms of issue of already allotted shares, provides or provide (either generally or in respect of a particular allotment or class of allotments), to the extent so provided; (b) to allotments of shares for a consideration wholly or partly paid for, otherwise than in cash; (c) to allotments of shares to the subscriber or subscribers to the company's constitution upon the company's incorporation, being the shares taken by that subscriber or those subscribers before such incorporation; (d) to allotments of shares to persons in pursuance of the terms of an employees' share scheme established by the company; (e) to allotments of bonus shares.
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Supplemental and additional provisions as regards allotments 70. (1) Shares which a company has offered to allot to a holder of shares in the company may be allotted to that holder or anyone in whose favour that holder has renounced his or her right to their allotment without contravening section 69
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(6)(b).
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(2)Notwithstanding that any authorisation conferred by a resolution or the constitution such as is mentioned in section 69
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(1)has expired, the directors of a company may allot shares in pursuance of an offer or agreement previously made by the company, if that authorisation enabled the company to make an offer or agreement which would or might require shares to be allotted after the authorisation's expiry.
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(3)For the purposes of section 69 and this section— (a) “allot” includes “agreement to allot” (other than an agreement made subject to the passing of an ordinary or special resolution); (b) “shares” includes a right to subscribe for shares or to convert securities into shares, and with the effect that— (i) in the case of paragraph (a), if an agreement to allot shares is entered into in compliance with section 69 , subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to that agreement; and (ii) in the case of paragraph (b), if a right to subscribe for shares, or to convert securities into shares, is granted in compliance with section 69 , subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to the exercise of that right.
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(4)References in section 69 and this section (however expressed) to the holder of shares or the holder of shares of any class shall be read as including references to any person who held shares or, as the case may be, shares of that class on any day within the period of 28 days ending with the day immediately preceding the date of the offer which is specified by the directors of the company concerned as being the record date for the purposes of the offer.
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(5)A resolution of a company to give, vary, revoke or renew an authority for the purposes of section 69
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(1)may, notwithstanding that it alters the company's constitution, be an ordinary resolution.
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(6)Where a company allots shares, the shares shall be taken, for the purposes of this Act, to be allotted when a person acquires the unconditional right to be included in the company's register of members in respect of those shares.
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(7)Where a company allots shares, it shall, within 30 days after the date of allotment, deliver particulars of the allotment in the prescribed form to the Registrar.
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(8)If a company fails to comply with subsection (7), the company and any officer of it who is in default shall be guilty of a category 4 offence.
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(9)Nothing in section 69 or this section shall affect the validity of any allotment of shares.
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(10)Where there is a contravention of section 69
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(6), the company and every officer of the company who knowingly authorised or permitted the contravention, shall be jointly and severally liable to compensate any person to whom an offer should have been made under section 69
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(6)for any loss, damage, costs or expenses which that person has sustained or incurred by reason of the contravention.
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(11)No proceedings to recover any such loss, damage, costs or expenses shall be commenced after the expiration of 2 years after the date of the delivery to the Registrar of the return of allotments in question or, where shares are agreed to be allotted, the agreement.
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(12)If, before the commencement of section 69