(5)Any director of a company making the statutory declaration without having reasonable grounds for the opinion that the company having carried out the transaction whereby such assistance is to be given will be able to pay its debts in full as they become due, shall be liable to imprisonment for a period not exceeding 6 months or to a fine not exceeding £100 or to both; and if the company is wound up within the period of 12 months after the making of the statutory declaration and its debts are not paid or provided for in full within the period of 12 months after the commencement of the winding up, it shall be presumed until the contrary is shown that the director did not have reasonable grounds for his opinion.
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(6)Notwithstanding anything in the articles of association of the company, every member of the company shall have the right to receive notice of and to attend the meeting at which the special resolution is to be proposed.
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(7)Unless all of the members of the company entitled to vote at general meetings of the company vote in favour of the special resolution, the transaction whereby such assistance is to be given shall not be carried out before the expiry of 30 days after such special resolution has been passed or, if an application under subsection (8) is made, until such application has been disposed of by the court.
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(8)If application is made to the court in accordance with this section for the cancellation of the special resolution, such special resolution shall not have effect except to the extent to which it is confirmed by the court.
\n
(9)Subject to subsection (10), an application under subsection (8) may be made by the holders of not less in the aggregate than 10 per cent. in nominal value of the company's issued share capital or any class thereof.
\n
(10)An application shall not be made under subsection (8) by any person who has consented to or voted in favour of the special resolution.
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(11)An application under subsection (8) must be made within 28 days after the date on which the special resolution was passed and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
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(12)Nothing in this section shall be taken to prohibit the payment of a dividend properly declared by a company or the discharge of a liability lawfully incurred by it.
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(13)Nothing in this section shall be taken to prohibit— (a) where the lending of money is part of the ordinary business of the company, the lending of money by the company in the ordinary course of its business; (b) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully paid shares in the company or its holding company, being a purchase or subscription of or for shares to be held 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; (c) the making by a company of loans to persons, other than directors, bona fide in the employment of the company or any subsidiary of the company with a view to enabling those persons to purchase or subscribe for fully paid shares in the company or its holding company to be held by themselves as beneficial owners thereof.
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(14)Any transaction in breach of this section shall be voidable at the instance of the company against any person (whether a party to the transaction or not) who had notice of the facts which constitute such breach.
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(15)If a company acts in contravention of this section every officer of the company who is in default shall be liable: (a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine not exceeding £500 or to both, or (b) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both.
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(16)Nothing in this section shall prejudice the provisions of section 72.
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Construction of references to offering Shares or Debentures to the Public.
\n
Construction of references to offering shares or debentures to the public.
\n
61.—(1) Any reference in this Act to offering shares or debentures to the public shall, subject to any provision to the contrary contained therein, be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner, and references in this Act or in a company's articles to invitations to the public to subscribe for shares or debentures shall, subject as aforesaid, be similarly construed.
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(2)Subsection (1) shall not be taken as requiring any offer or invitation to be treated as made to the public if it can properly be regarded, in all the circumstances, as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation, or otherwise as being a domestic concern of the persons making and receiving it, and in particular— (a) a provision in a company's articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be regarded as aforesaid, and (b) the provisions of this Act relating to private companies shall be construed accordingly.
\n
Issue of Shares at Premium and Discount and Redeemable Preference Shares.
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Application of premiums received on issue of shares.
\n
62.—(1) Where a company issues shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to an account, to be called “the share premium account”, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the share premium account were paid up share capital of the company.
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(2)The share premium account may, notwithstanding anything in subsection (1) be applied by the company in paying up unissued shares of the company (other than redeemable preference shares) to be issued to members of the company as fully paid bonus shares, in writing off (a) the preliminary expenses of the company, or (b) the expenses of, or the commission paid or discount allowed on, any issue of shares or debentures of the company; or in providing for the premium payable on redemption of any redeemable preference shares or of any debentures of the company.
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(3)Where a company has before the operative date issued any shares at a premium, this section shall apply as if the shares had been issued after the operative date, so however that any part of the premiums which has been so applied that it does not at the operative date form an identifiable part of the company's reserves within the meaning of the Sixth Schedule shall be disregarded in determining the sum to be included in the share premium account.
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Power to issue shares at a discount.
\n
63.—(1) Subject to the provisions of this section, it shall be lawful for a company to issue at a discount shares in the company of a class already issued so, however, that— (a) the issue of the shares at a discount must be authorised by a special resolution of the company, and must be sanctioned by the court; (b) the resolution must specify the maximum rate of discount at which the shares are to be issued; (c) in the case of a company which is not a private company not less than 2 years must at the date of issue have elapsed since the date on which the company was entitled to commence business and, in the case of a private company not less than 2 years must have elapsed since the date on which the company was incorporated; (d) the shares to be issued at a discount must be issued within 6 months after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.
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(2)Where a company has passed a resolution authorising the issue of shares at a discount, it may apply to the court for an order sanctioning the issue, and on any such application the court, if, having regard to all the circumstances of the case, it thinks proper so to do, may make an order sanctioning the issue on such terms and conditions as it thinks fit.
\n
(3)The company shall, within 21 days after the making of the order, deliver a copy of the order to the registrar of companies for registration.
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(4)Every prospectus relating to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the prospectus.
\n
(5)If default is made in complying with subsection (3) or (4) the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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Power to issue redeemable preference shares.
\n
64.—(1) Subject to the provisions of this section, a company limited by shares may, if so authorised by its articles, issue preference shares which are, or at the option of the company are to be liable, to be redeemed, so, however, that— (a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption; (b) no such shares shall be redeemed unless they are fully paid; (c) the premium, if any, payable on redemption, must have been provided for out of the profits of the company or out of the company's share premium account before the shares are redeemed; (d) where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividend be transferred to a reserve fund to be called “the capital redemption reserve fund”, a sum equal to the nominal amount of the shares redeemed and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid up share capital of the company.
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(2)Subject to the provisions of this section, the redemption of preference shares thereunder may be effected on such terms and in such manner as may be provided by the articles of the company.
\n
(3)The redemption of preference shares under this section by a company shall not be taken as reducing the amount of the company's authorised share capital.
\n
(4)Subject to subsection (5), where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued, and accordingly the share capital of the company shall not for the purposes of any enactments relating to stamp duty be deemed to be increased by the issue of shares in pursuance of this subsection.
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(5)Where new shares are issued before the redemption of the old shares, the new shares shall not, so far as relates to stamp duty, be deemed to have been issued in pursuance of subsection (4) unless the old shares are redeemed within one month after the issue of the new shares.
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(6)The capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company in paying up unissued shares of the company (other than redeemable preference shares) to be issued to members of the company as fully paid bonus shares.
\n
Power to redeem preference shares issued before 5th May, 1959.
\n
65.—(1) Subject to the provisions of this section, a company limited by shares may, if so authorised by its articles, redeem any preference shares issued by it before the 5th day of May, 1959, so, however, that— (a) no such shares shall be redeemed unless they are fully paid; (b) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption; (c) no such shares shall be redeemed at a sum greater than the issue price of such shares; (d) the redemption of such shares and the terms and the manner thereof must have been authorised by a special resolution of the company; (e) notice of the meeting at which the special resolution referred to in paragraph (d) is to be proposed and a copy of the said resolution must be published in Iris Oifigiúil and in at least one daily newspaper circulating in the district in which the registered office of the company is situated not less than 14 days and not more than 30 days before the date of the meeting; (f) no holder of such shares shall be obliged to accept redemption thereof; (g) in the case of a private company the redemption must have been sanctioned by the court.
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(2)The powers conferred by this section may be availed of only by means of an offer made to all the holders of the preference shares concerned.
\n
(3)Where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividend be transferred to a reserve fund to be called “the capital redemption reserve fund” a sum equal to the nominal amount of the shares redeemed, and the provisions of this Act relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid up share capital of the company.
\n
(4)Subject to the provisions of this section, the redemption of preference shares under this section may be effected on such terms and in such manner as may be provided by the special resolution referred to in paragraph (d) of subsection (1).
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(5)The redemption of preference shares under this section by a company shall not be taken as reducing the amount of the company's authorised share capital.
\n
(6)Subject to subsection (7), where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued, and accordingly the share capital of the company shall not for the purposes of any enactments relating to stamp duty be deemed to be increased by the issue of shares in pursuance of this subsection.
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(7)Where new shares are issued before the redemption of the old shares, the new shares shall not, so far as relates to stamp duty, be deemed to have been issued in pursuance of subsection (6) unless the old shares are redeemed within one month after the issue of the new shares.
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(8)The capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company in paying up unissued shares of the company (other than redeemable preference shares) to be issued to members of the company as fully paid bonus shares.
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Miscellaneous Provisions as to Share Capital.
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Power of company to arrange for different amounts being paid on shares.
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66.—A company, if so authorised by its articles, may do any one or more of the following things— (a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares; (b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up; (c) pay a dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
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Reserve liability of limited company.
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67.—A limited company may by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes aforesaid.
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Power of company to alter its share capital.
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68.—(1) A company limited by shares or a company limited by guarantee and having a share capital, if so authorised by its articles, may in general meeting alter the conditions of its memorandum as follows, that is, it may— (a) increase its share capital by new shares of such amount as it thinks expedient; (b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares; (c) convert all or any of its paid up shares into stock, and re-convert that stock into paid up shares of any denominations; (d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived; (e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
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(2)A cancellation of shares in pursuance of this section shall not be deemed to be a reduction of share capital within the meaning of this Act.
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Notice to registrar of certain alterations in share capital.
\n
69.—(1) If a company having a share capital has— (a) consolidated and divided its share capital into shares of larger amount than its existing shares; or (b) converted any shares into stock; or (c) reconverted stock into shares; or (d) subdivided its shares or any of them; or (e) redeemed any redeemable preference shares; or (f) redeemed any preference shares; or (g) cancelled any shares, otherwise than in connection with a reduction of share capital under section 72: it shall, within one month after so doing, give notice thereof to the registrar of companies, specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.
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(2)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
\n
Notice of increase of share capital.
\n
70.—(1) Where a company, having a share capital, whether its shares have or have not been converted into stock, has increased its share capital above the registered capital, it shall, within 15 days after the passing of the resolution increasing its share capital, give to the registrar of companies notice of the increase, and the registrar shall record the increase.
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(2)The notice to be given as aforesaid shall include such particulars as may be prescribed with respect to the classes of shares affected, and the conditions subject to which the new shares have been or are to be issued.
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(3)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
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Power of unlimited company to provide for reserve share capital on re-registration.
\n
71.—An unlimited company having a share capital may, by its resolution for registration as a limited company in pursuance of this Act, do either or both of the following things: (a) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up, except in the event and for the purposes of the company being wound up; (b) provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.
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Reduction of Share Capital.
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Power of company to reduce its share capital.
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72.—(1) Except in so far as this Act expressly permits, it shall not be lawful for a company limited by shares or a company limited by guarantee and having a share capital to purchase any of its shares or to reduce its share capital in any way.
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(2)Subject to confirmation by the court, a company limited by shares or a company limited by guarantee and having a share capital, may, if so authorised by its articles, by special resolution reduce its share capital in any way and, in particular, without prejudice to the generality of the foregoing power, may— (a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or (b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid up share capital which is lost or unrepresented by available assets; or (c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid up share capital which is in excess of the wants of the company; and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
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(3)A special resolution under this section is, in this Act, referred to as “a resolution for reducing share capital”.
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Application to court for confirming order, objections by creditors and settlement of list of objecting creditors.
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73.—(1) Where a company has passed a resolution for reducing share capital, it may apply to the court for an order confirming the reduction.
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(2)Where the proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital, or the payment to any shareholder of any paid up share capital, and in any other case if the court so directs, the following provisions shall have effect, subject nevertheless to subsection (3); (a) every creditor of the company who at the date fixed by the court is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction; (b) the court shall settle a list of creditors so entitled to object, and for that purpose shall ascertain, as far as possible without requiring an application from any creditor, the names of those creditors and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the reduction; (c) where a creditor entered on the list whose debt or claim is not discharged or has not determined does not consent to the reduction, the court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his debt or claim by appropriating, as the court may direct, the following amount:— (i) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim; (ii) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or, if the amount is contingent or not ascertained, then an amount fixed by the court after the like inquiry and adjudication as if the company were being wound up by the court.
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(3)Where a proposed reduction of share capital involves either the diminution of any liability in respect of unpaid share capital or the payment to any shareholder of any paid up share capital, the court may, if, having regard to any special circumstances of the case, it thinks proper so to do, direct that subsection (2) shall not apply as regards any class or any classes of creditors.
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Order confirming reduction and powers of court on making such order.
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74.—(1) The court, if satisfied in relation to every creditor of the company who, under section 73, is entitled to object to the reduction, that either his consent to the reduction has been obtained or that his debt or claim has been discharged or has determined, or has been secured, may make an order confirming the reduction on such terms and conditions as it thinks fit.
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(2)Where the court makes any such order, it may— (a) if for any special reason it thinks proper so to do, make an order directing that the company shall, during such period, commencing on or at any time after the date of the order, as is specified in the order, add to its name as the last words thereof the words “and reduced” or where the word “teoranta” is part of such name, the words “agus laghdaithe”, (b) make an order requiring the company to publish as the court directs the reasons for reduction or such other information in regard thereto as the court may think expedient, with a view to giving proper information to the public, and, if the court thinks fit, the causes which led to the reduction.
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(3)Where a company is ordered to add to its name the words “and reduced”, or the words “agus laghdaithe” those words shall, until the expiration of the period specified in the order, be deemed to be part of the name of the company.
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Registration of order and minute of reduction.
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75.—(1) The registrar of companies, on production to him of an order of the court confirming the reduction of the share capital of a company, and the delivery to him of a copy of the order and of a minute approved by the court showing, with respect to the share capital of the company as altered by the order, the amount of the share capital, the number of shares into which it is to be divided, and the amount of each share, and the amount, if any, at the date of the registration deemed to be paid up on each share, shall register the order and minute.
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(2)On the registration of the order and minute, and not before, the resolution for reducing share capital as confirmed by the order so registered shall take effect.
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(3)Notice of the registration shall be published in such manner as the court may direct.
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(4)The registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclusive evidence that all the requirements of this Act relating to reduction of share capital have been complied with, and that the share capital of the company is such as is stated in the minute.
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(5)The minute when registered shall be deemed to be substituted for the corresponding part of the memorandum, and shall be valid and alterable as if it had been originally contained therein.
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(6)The substitution of any such minute as aforesaid for part of the memorandum of the company shall be deemed to be an alteration of the memorandum within the meaning of section 30.
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Liability of members in respect of reduced shares.
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76.—(1) Subject to subsection (2), in the case of a reduction of share capital, a member of the company, past or present, shall not be liable in respect of any share to any call or contribution exceeding in amount the difference, if any, between the amount of the share as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be.
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(2)If any creditor entitled in respect of any debt or claim to object to the reduction of the share capital, is, by reason of his ignorance of the proceedings for reduction, or of their nature and effect with respect to his debt or claim, not entered on the list of creditors, and, after the reduction, the company is unable within the meaning of the provisions of this Act relating to winding up by the court, to pay the amount of his debt or claim, then— (a) every person who was a member of the company at the date of the registration of the order for reduction and minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he would have been liable to contribute if the company had commenced to be wound up on the day before the said date, and (b) if the company is wound up, the court, on the application of any such creditor and proof of his ignorance as aforesaid, may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding up.
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(3)Nothing in this section shall affect the rights of the contributories among themselves.
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Penalty for concealment of certain matters in proceedings for reduction.
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77.—If any officer of the company— (a) wilfully conceals the name of any creditor entitled to object to the reduction; or (b) wilfully misrepresents the nature or amount of the debt or claim of any creditor, he shall be liable on summary conviction to a fine not exceeding £100.
\n
Variation of Shareholders' Rights.
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Rights of holders of special classes of shares.
\n
78.—(1) If, in the case of a company the share capital of which is divided into different classes of shares, provision is made by the memorandum or articles for authorising the variation of the rights attached to any class of shares in the company, subject to the consent of any specified proportion of the holders of the issued shares of that class or the sanction of a resolution passed at a separate meeting of the holders of those shares, and in pursuance of the said provision the rights attached to any such class of shares are at any time varied, the holders of not less in the aggregate than 10 per cent. of the issued shares of that class, being persons who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled and, where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.
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(2)An application under this section must be made within 28 days (or such longer period as the court, on application made to it by any shareholder before the expiry of the said 28 days, may allow) after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the shareholders entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.
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(3)On any such application the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if it is satisfied having regard to all the circumstances of the case that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation and shall, if not so satisfied, confirm the variation.
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(4)The decision of the court on any such application shall be final but an appeal shall lie to the Supreme Court from the determination of the court on a question of law.
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(5)The company shall, within 21 days after the making of an order by the court on any such application, forward a copy of the order to the registrar of companies, and, if default is made in complying with this provision, the company and every officer of the company who is in default, shall be liable to a fine not exceeding £50.
\n
(6)In this section “variation” includes abrogation, and “varied” shall be construed accordingly.
\n
Numbering and Transfer of and Evidence of Title to Shares and Debentures.
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Nature of shares.
\n
79.—The shares or other interest of any member in a company shall be personal estate, transferable in manner provided by the articles of the company, and shall not be of the nature of real estate.
\n
Numbering of shares.
\n
80.—(1) Subject to subsections (2) and (3), each share in a company having a share capital 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 therein 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 remains fully paid up and ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up.
\n
(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 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 but the share certificates of the new shares shall, if not numbered, be appropriately worded or enfaced.
\n
Transfer not to be registered unless instrument of transfer delivered to the company.
\n
81.—(1) Subject to subsection (2), and notwithstanding anything in the articles of a company, it shall not be lawful for the company to register a transfer of shares in or debentures of the company unless a proper instrument of transfer has been delivered to the company.
\n
(2)Nothing in subsection (1) shall prejudice any power of the company to register as shareholder or debenture holder any person to whom the right to any shares in, or debentures of the company, has been transmitted by operation of law.
\n
Transfer by personal representative.
\n
82.—A transfer of the share or other interest of a deceased member of a company made by his personal representative shall, although the personal representative is not himself a member of the company, be as valid as if he had been such a member at the time of the execution of the instrument of transfer.
\n
Registration of transfer at request of transferor.
\n
83.—On application of the transferor of any share or interest in a company, the company shall enter in its register of members the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.
\n
Notice of refusal to register transfer.
\n
84.—(1) If the company refuses to register a transfer of any shares or debentures, the company shall, within 2 months after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.
\n
(2)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
\n
Certification of transfers.
\n
85.—(1) The certification by a company of any instrument of transfer of shares in or debentures of the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transferor named in the instrument of transfer, but not as a representation that the transferor has any title to the shares or debentures.
\n
(2)Where any person acts on the faith of a false certification by a company made negligently, the company shall be under the same liability to him as if the certification had been made fraudulently.
\n
(3)For the purposes of this section— (a) an instrument of transfer shall be deemed to be certificated if it bears the words “certificate lodged” or words to the like effect; (b) the certification of an instrument of transfer shall be deemed to be made by a company if— (i) the person issuing the instrument is a person authorised to issue certificated instruments of transfer on the company's behalf, and (ii) the certification is signed by a person authorised to certificate transfers on the company's behalf or by any officer or servant either of the company or of a body corporate so authorised; (c) a certification shall be deemed to be signed by any person if— (i) it purports to be authenticated by his signature or initials (whether hand written or not), and (ii) it is not shown that the signature or initials was or were placed there neither by himself nor by any person authorised to use the signature or initials for the purpose of certificating transfers on the company's behalf.
\n
Duties of company in relation to the issue of certificates.
\n
86.—(1) Every company shall, within 2 months after the allotment of any of its shares, debentures or debenture stock, and within 2 months after the date on which a transfer of any such shares, debentures or debenture stock is lodged with the company, complete and have ready for delivery the certificates of all shares, the debentures, and the certificates of all debenture stock allotted or transferred, unless the conditions of issue of the shares, debentures or debenture stock otherwise provide.
\n
The expression “transfer” for the purpose of this subsection means a transfer duly stamped and otherwise valid, and does not include such a transfer as the company is, for any reason, entitled to refuse to register and does not register.
\n
(2)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £20.
\n
(3)If any company on which a notice has been served requiring the company to make good any default in complying with the provisions of subsection (1) fails to make good the default within 10 days after the service of the notice, the court may, on the application of the person entitled to have the certificates or the debentures delivered to him, make an order directing the company and any officer of the company to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of the company responsible for the default.
\n
Evidence of title, probate and letters of administration.
\n
87.—(1) A certificate under the common seal of the company specifying any shares held by any member shall be prima facie evidence of the title of the member to the shares.
\n
(2)The production to a company of any document which is by law sufficient evidence of probate of the will or letters of administration of the estate of a deceased person having been granted to some person shall be accepted by the company, notwithstanding anything in its articles, as sufficient evidence of the grant Issue and effect of share warrants to bearer.
\n
88.—(1) A company limited by shares if so authorised by its articles, may, in relation to any fully paid up shares, issue under its common seal a warrant stating that the bearer of the warrant is entitled to the shares therein specified, and may provide by coupons or otherwise for the payment of the future dividends on the shares included in the warrant.
\n
(2)Such a warrant as aforesaid is in this Act referred to as “a share warrant”.
\n
(3)A share warrant shall entitle the bearer thereof to the shares therein specified, and the shares may be transferred by delivery of the warrant.
\n
Validation of invalid issue of shares.
\n
89.—If a company has created or issued shares in its capital and if there is reason to apprehend that such shares were invalidly created or issued, the court may, on the application of the company, any holder of such shares or any member or creditor, or the liquidator, of the company, declare that such creation or issue shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so and thereupon such shares shall from the creation or issue thereof, as the case may be, be deemed to have been validly created or issued.
\n
Penalty of personation of shareholder.
\n
90.—If any person falsely and deceitfully personates any owner of any share or interest in any company, or of any share warrant or coupon, issued in pursuance of this Act, and thereby obtains or endeavours to obtain any such share or interest or share warrant or coupon, or receives or endeavours to receive any money due to any such owner, or votes at any meeting, as if the offender were the true and lawful owner, he shall be liable, on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine not exceeding £500 or to both, or, on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both.
\n
Special Provisions as to Debentures.
\n
Provisions as to register of debenture holders.
\n
91.—(1) Every company shall keep a register of holders of debentures of the company and enter therein the names and addresses of the debenture holders and the amount of debentures currently held by each.
\n
For the purposes of this subsection, debentures do not include any debenture which does not form part of a series ranking pari passu nor any debenture which is transferable by delivery.
\n
(2)A company shall keep such register at the registered office of the company, any other office of the company at which the work of making it up is done, or if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, at the office of that other person at which the work is done.
\n
(3)Subject to subsection (4), every company shall send notice to the registrar of companies of the place where the register is kept, and of any change in that place.
\n
(4)A company shall not be bound to send notice under subsection (3) where the register has, at all times since it came into existence, or, in the case of a company which came into existence after the operative date, at all times since then, been kept at the registered office of the company.
\n
(5)Where a company makes default in complying with subsection (1) or (2) or makes default for 14 days in complying with subsection (3), the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
\n
Rights of inspection of register of debenture holders and to copies of register and trust deed.
\n
92.—(1) Every register of holders of debentures of a company shall, except when duly closed (but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection), be open to the inspection of the registered holder of any such debentures or any holder of shares in the company without fee, and of any other person on payment of a fee of one shilling or such less sum as may be prescribed by the company.
\n
(2)Any such registered holder of debentures or holder of shares as aforesaid or any other person may require a copy of the register of the holders of debentures of the company or any part thereof, on payment of sixpence for every 100 words required to be copied.
\n
(3)A copy of any trust deed for securing any issue of debentures shall be forwarded to every holder of any such debentures at his request on payment in the case of a printed trust deed of the sum of 5 shillings or such less sum as may be prescribed by the company, or, where the trust deed has not been printed, on payment of sixpence for every 100 words required to be copied.
\n
(4)If inspection is refused, or a copy is refused or not forwarded, the company and every officer of the company who is in default shall be liable to a fine not exceeding £25.
\n
(5)Where a company is in default as aforesaid, the court may by order compel an immediate inspection of the register or direct that the copies required shall be sent to the person requiring them.
\n
(6)For the purposes of this section, a register shall be deemed to be duly closed if closed in accordance with provisions contained in the articles or in the debentures or, in the case of debenture stock, in the stock certificates, or in the trust deed or other document securing the debentures or debenture stock, during such period or periods, not exceeding in the whole 30 days in any year, as may be therein specified.
\n
Liability of trustees for debenture holders.
\n
93.—(1) Subject to subsections (2) to (4), any provision contained in a trust deed for securing an issue of debentures, or in any contract with the holders of debentures secured by a trust deed, shall be void in so far as it would have the effect of exempting a trustee thereof from or indemnifying him against liability for breach of trust where he fails to show the degree of care and diligence required of him as trustee, having regard to the provisions of the trust deed conferring on him any powers, authorities or discretions.
\n
(2)Subsection (1) shall not invalidate— (a) any release otherwise validly given in respect of anything done or omitted to be done by a trustee before the giving of the release; or (b) any provision enabling such a release to be given— (i) on the agreement thereto of a majority of not less than three-fourths in value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose, and (ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act.
\n
(3)Subsection (1) shall not operate— (a) to invalidate any provision in force on the operative date so long as any person then entitled to the benefit of that provision or afterwards given the benefit thereof under subsection (4) remains a trustee of the deed in question; or (b) to deprive any person of any exemption or right to be indemnified in respect of anything done or omitted to be done by him while any such provision was in force,
\n
(4)While any trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (3), the benefit of that provision may be given either— (a) to all trustees of the deed, present and future; or (b) to any named trustee or proposed trustees thereof; by a resolution passed by a majority of not less than three-fourths in value of the debenture holders present in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose in accordance with the provisions of the deed or, if the deed makes no provision for summoning meetings, a meeting summoned for the purpose in any manner approved by the court.
\n
Perpetual debentures.
\n
94.—A condition contained in any debentures or in any deed for securing any debentures, whether issued or executed before or after the operative date, shall not be invalid by reason only that the debentures are thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, notwithstanding any rule of law to the contrary.
\n
Power to re-issue redeemed debentures.
\n
95.—(1) Where either before, on or after the operative date, a company has redeemed any debentures, then— (a) unless any provision to the contrary, whether express or implied, is contained in the articles or in any contract entered into by the company; or (b) unless the company has, by passing a resolution to that effect or by some other act, shown its intention that the debentures shall be cancelled; the company shall have, and shall be deemed always to have had, power to re-issue the debentures, either by re-issuing the same debentures or by issuing other debentures in their place.
\n
(2)Subject to section 96, on a re-issue of redeemed debentures, the person entitled to the debentures shall have, and shall be deemed always to have had, the same priorities as if the debentures had never been redeemed.
\n
(3)Where a company has, either before, on or after the operative date deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures shall not be deemed to have been redeemed by reason only of the account of the company having ceased to be in debit whilst the debentures remained so deposited.
\n
(4)Subject to subsection (5), the re-issue of a debenture or the issue of another debenture in its place under the power by this section given to, or deemed to have been possessed by, a company, whether the re-issue or issue was made before, on or after the operative date, shall be treated as the issue of a new debenture for the purposes of stamp duty, but it shall not be so treated for the purposes of any provision limiting the amount or number of debentures to be issued.
\n
(5)Any person lending money on the security of a debenture re-issued under this section, which appears to be duly stamped, may give the debenture in evidence in any proceedings for enforcing his security without payment of the stamp duty or any penalty in respect thereof, unless he had notice or, but for his negligence, might have discovered that the debenture was not duly stamped, but in any such case the company shall be liable to pay the proper stamp duty and penalty.
\n
Saving of rights of certain mortgagees in case of re-issued debentures.
\n
96.—Where any debentures which have been redeemed before the operative date are re-issued on or subsequently to that date, the re-issue of the debentures shall not prejudice and shall be deemed never to have prejudiced any right or priority which any person would have had under or by virtue of any mortgage or charge created before the operative date, if section 104 of the Companies (Consolidation) Act, 1908 , had been enacted in this Act instead of section 95.
\n
Specific performance of contracts to subscribe for debentures.
\n
97.—A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.
\n
Preferential payments when receiver is appointed under floating charge.
\n
98.—(1) Where either a receiver is appointed on behalf of the holders of any debentures of a company secured by a floating charge, or possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge, then, if the company is not at the time in course of being wound up, the debts which in every winding up are, under the provisions of Part VI relating to preferential payments to be paid in priority to all other debts, shall be paid out of any assets coming to the hands of the receiver or other person taking possession as aforesaid in priority to any claim for principal or interest in respect of the debentures.
\n
(2)In the application of the said provisions section 285 of this Act shall be construed as if the provision for payment of accrued holiday remuneration becoming payable on the termination of employment before or by the effect of the winding up order or resolution, were a provision for payment of such remuneration becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as aforesaid.
\n
(3)The periods of time mentioned in the said provisions of Part VI shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.
\n
(4)Where the date referred to in subsection (3) occurred before the operative date, subsections (1) and (3) shall have effect with the substitution for references to the said provisions of Part VI of references to the provisions which, by virtue of subsection (12) of the said section 285 are deemed to remain in force in the case therein mentioned, and subsection (2) of this section shall not apply.
\n
(5)Any payments made under this section shall be recouped so far as may be out of the assets of the company available for payment of general creditors.
\n
PART IV
\n
Registration of Charges Registration of Charges with Registrar of Companies.
\n
Registration of charges created by companies.
\n
99.—(1) Subject to the provisions of this Part, every charge created after the fixed date by a company, and being a charge to which this section applies, shall, so far as any security on the company's property or undertaking is conferred thereby, be void against the liquidator and any creditor of the company, unless the prescribed particulars of the charge, verified in the prescribed manner, are delivered to or received by the registrar of companies for registration in manner required by this Act within 21 days after the date of its creation, but without prejudice to any contract or obligation for repayment of the money thereby secured, and when a charge becomes void under this section, the money secured thereby shall immediately become payable.
\n
(2)This section applies to the following charges: (a) a charge for the purpose of securing any issue of debentures; (b) a charge on uncalled share capital of the company; (c) a charge created or evidenced by an instrument which, if executed by an individual, would require registration as a bill of sale; (d) a charge on land, wherever situate, or any interest therein, but not including a charge for any rent or other periodical sum issuing out of land; (e) a charge on book debts of the company; (f) a floating charge on the undertaking or property of the company; (g) a charge on calls made but not paid; (h) a charge on a ship or any share in a ship; (i) a charge on goodwill, on a patent or a licence under a patent, on a trade mark or on a copyright or a licence under a copyright.
\n
(3)In the case of a charge created out of the State comprising property situate outside the State, 21 days after the date on which the prescribed particulars could, in due course of post, and if despatched with due diligence, have been received in the State shall be substituted for 21 days after the date of the creation of the charge as the time within which the particulars are to be delivered to the registrar.
\n
(4)Where a charge is created in the State but comprises property outside the State, the prescribed particulars may be sent for registration under this section, notwithstanding that further proceedings may be necessary to make the charge valid or effectual according to the law of the country in which the property is situate.
\n
(5)Where a charge comprises property situate outside the State and registration in the country where the property is situate is necessary to make the charge valid or effectual according to the law of that country, a certificate in the prescribed form stating that the charge was presented for registration in the country where the property is situate on the date on which it was so presented shall be delivered to the registrar of companies for registration.
\n
(6)Where a negotiable instrument has been given to secure the payment of any book debts of a company, the deposit of the instrument for the purpose of securing an advance to the company shall not, for the purposes of this section, be treated as a charge on those book debts.
\n
(7)The holding of debentures entitling the holder to a charge on land shall not, for the purposes of this section, be deemed to be an interest in land.
\n
(8)Where a series of debentures containing, or giving by reference to any other instrument, any charge to the benefit of which the debenture holders of that series are entitled pari passu is created by a company, it shall, for the purposes of this section, be sufficient if there are delivered to or received by the registrar, within 21 days after the execution of the deed containing the charge, or, if there is no such deed, after the execution of any debentures of the series, the following particulars: (a) the total amount secured by the whole series; and (b) the dates of the resolutions authorising the issue of the series, and the date of the covering deed, if any, by which the security is created or defined; and (c) a general description of the property charged; and (d) the names of the trustees, if any, for the debenture holders; so, however, that where more than one issue is made of debentures in the series, there shall be sent to the registrar for entry in the register particulars of the amount and date of each issue, but an omission to do this shall not affect the validity of the debentures issued.
\n
(9)Where any commission, allowance or discount has been paid or made either directly or indirectly by a company to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any debentures of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any such debentures, the particulars required to be sent for registration under this section shall include particulars as to the amount and rate per cent. of the commission, discount or allowance so paid or made, but omission to do this shall not affect the validity of the debentures issued, so, however, that the deposit of any debentures as security for any debt of the company shall not, for the purposes of this subsection, be treated as the issue of the debentures at a discount.
\n
(10)In this Part— (a) “charge” includes mortgage; (b) “the fixed date” means, in relation to the charges specified in paragraphs (a) to (f), of subsection (2), the 1st July, 1908, and in relation to the charges specified in paragraphs (g) to (i), the operative date.
\n
Duty of company to register charges created by company.
\n
100.—(1) It shall be the duty of a company to send to the registrar of companies for registration within the time required by section 99 the particulars of every charge created by the company, and of the issues of debentures of a series requiring registration under section 99, together with any documents required by that section, but registration of any such charge may be effected on the application of any person interested therein.
\n
(2)Where registration is effected on the application of some person other than the company, that person shall be entitled to recover from the company the amount of any fees properly paid by him to the registrar on the registration.
\n
(3)If any company makes default in sending to the registrar for registration the particulars of any charge created by the company or of the issues of debentures of a series requiring registration under section 99 or any documents required by that section then, unless registration has been effected on the application of some other person, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
\n
(4)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
\n
Duty of company to register charges existing on property acquired.
\n
101.—(1) Where a company acquires any property which is subject to a charge of any such kind as would, if it had been created after the acquisition of the property, have been required to be registered under this Part, the company shall cause the prescribed particulars of the charge, verified in the prescribed manner, to be delivered to the registrar of companies for registration in manner required by this Act within 21 days after the date on which the acquisition is completed so, however, that if the property is situated outside the State, 21 days after the date on which the prescribed particulars could, in due course of post and if despatched with due diligence, have been received in the State, shall be substituted for 21 days after the completion of the acquisition as the time within which the particulars are to be delivered to the registrar.
\n
(2)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
\n
Registration of judgment mortgages.
\n
102.—(1) When judgment is recovered against a company and such judgment is subsequently converted into a judgment mortgage affecting any property of the company, the judgment creditor shall cause 2 copies (certified by the Land Registry or the Registry of Deeds, as the case may be, to be correct copies) of the affidavit required for the purpose of registering the judgment as a mortgage to be delivered to the company within 21 days after the date of such registration, and the company shall within 3 days of receipt of such copies deliver one of such copies to the registrar of companies for registration in manner required by this Act. By way of further precaution, the Land Registry, or Registry of Deeds, shall as soon as may be deliver a copy of the said affidavit to the registrar of companies.
\n
(2)If any judgment creditor makes default in complying with subsection (1) he shall be liable to a fine not exceeding £100, and if a company makes default in complying with that subsection, the company and every officer of the company who is in default shall be liable to a like penalty.
\n
(3)This section shall not apply to any judgment mortgage created before the operative date.
\n
Register of charges to be kept by registrar of companies.
\n
103.—(1) The registrar of companies shall keep, in relation to each company, a register in the prescribed form of all the charges requiring registration under this Part, and shall, on payment of such fee as may be prescribed, enter in the register, in relation to such charges, the following particulars: (a) in the case of a charge to the benefit of which the holders of a series of debentures are entitled, such particulars as are specified in subsection (8) of section 99; (b) in the case of any other charge— (i) if the charge is a charge created by the company, the date of its creation; (ii) if the charge was a charge existing on property acquired by the company, the date of the acquisition of the property; (iii) if the charge was a judgment mortgage, the date of the creation of such judgment mortgage; (iv) the amount secured by the charge; (v) short particulars of the property charged; (vi) the persons entitled to the charge.
\n
(2)The register kept in pursuance of this section shall be open to inspection by any person on payment of such fee as may be prescribed.
\n
Certificate of registration.
\n
104.—The registrar shall give a certificate under his hand of the registration of any charge registered in pursuance of this Part, stating the amount thereby secured, and the certificate shall be conclusive evidence that the requirements of this Part as to registration have been complied with.
\n
Entries of satisfaction and release of property from charge.
\n
105.—The registrar of companies, on evidence being given to his satisfaction with respect to any registered charge (a) that the debt in relation to which the charge was created has been paid or satisfied in whole or in part; or (b) that part of the property or undertaking charged has been released from the charge or has ceased to form part of the company's property or undertaking; and after giving notice to the person to whom such charge was originally given or to the judgment creditor, as the case may be, may enter on the register a memorandum of satisfaction in whole or in part, or of the fact that part of the property or undertaking has been released from the charge or has ceased to form part of the company's property or undertaking, as the case may be, and where he enters a memorandum of satisfaction in whole he shall, if required, furnish the company with a copy thereof.
\n
Extension of time for registration of charges.
\n
106.—(1) The court, on being satisfied that the omission to register a charge within the time required by this Act or that the omission or mis-statement of any particular with respect to any such charge or in a memorandum of satisfaction was accidental, or due to inadvertence or to some other sufficient cause, or is not of a nature to prejudice the position of creditors or shareholders of the company, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any person interested, and on such terms and conditions as seem to the court just and expedient, order that the time for registration shall be extended, or, as the case may be, that the omission or mis-statement shall be rectified.
\n
(2)The grant of relief by the court under this section shall, if the court so directs, not have the effect of relieving the company or its officers of any liability already incurred under section 100.
\n
Notice to registrar of appointment of receiver, and of receiver ceasing to act.
\n
107.—(1) If any person obtains an order for the appointment of a receiver of the property of a company or appoints such a receiver under any powers contained in any instrument, he shall, within 7 days after the date of the order or of the appointment, publish in Iris Oifigiúil and in at least one daily newspaper circulating in the district where the registered office of the company is situated, and deliver to the registrar of companies, a notice in the form prescribed.
\n
(2)When any person appointed receiver of the property of a company ceases to act as such receiver, he shall, on so ceasing, deliver to the registrar of companies a notice in the form prescribed.
\n
(3)If any person makes default in complying with the requirements of this section, he shall be liable to a fine not exceeding £100.
\n
Effect of provisions of former Companies Acts as to registration of charges on land.
\n
108.—Paragraph (d) of subsection (1) of section 10 of the Companies Act, 1907, and paragraph (d) of subsection (1) of section 93 of the Companies (Consolidation) Act, 1908 (by virtue whereof charges created on land by a company required registration under those Acts respectively), shall be deemed never to have applied to a charge for any rent or other periodical sum issuing out of the land.
\n
Provisions as to copies of Instruments creating Charges.
\n
Copies of instruments creating charges to be kept at registered office.
\n
109.—Every company shall cause a copy of every instrument creating any charge requiring registration under this Part, including every affidavit a copy of which has been delivered to the company under section 102, to be kept at the registered office of the company so, however, that, in the case of a series of uniform debentures, a copy of one debenture of the series shall be sufficient.
\n
Right to inspect copies of instruments creating charges.
\n
110.—(1) The copies of instruments referred to in section 109 may be inspected during business hours (but subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day shall be allowed for inspection) by any creditor or member of the company without fee.
\n
(2)If inspection is refused, every officer of the company who is in default shall be liable to a fine not exceeding £100.
\n
(3)In the event of any such refusal, the court may by order compel an immediate inspection.
\n
Application of this Part to Companies incorporated outside the State.
\n
Application of this Part to companies incorporated outside the State.
\n
111.—The provisions of this Part shall extend to charges on property in the State which are created on or after the operative date, and to charges on property in the State which is acquired on or after the operative date, by a company incorporated outside the State which has an established place of business in the State, and to judgment mortgages created on or after the operative date and affecting property in the State of such a company and to receivers, appointed on or after the operative date, of property in the State of such a company, and for the purposes of those provisions, the principal place of business of such a company in the State shall be deemed to be its registered office.
\n
Registration of Charges existing before application of this Act.
\n
Registration of charges existing before application of this Act.
\n
112.—(1) It shall be the duty of a company within 6 months after the operative date to send to the registrar of companies for registration the prescribed particulars of (a) any charge created by the company before the operative date and remaining unsatisfied at that date which would have been required to be registered under paragraphs (g), (h) and (i) of subsection (2) of section 99 or under section 111, if the charge had been created after the operative date; (b) any charge to which any property acquired by the company before the operative date is subject and which would have been required to be registered under section 101 or under section 111 if the property had been acquired after the operative date; (c) any charge created before the operative date to which any property of the company is subject and which would have required registration under section 102 or under section 111 if created after the operative date.
\n
(2)The registrar on payment of the prescribed fee shall enter the said particulars on the register kept by him in pursuance of this Part.
\n
(3)If a company fails to comply with this section, the company and every officer of the company or other person who is knowingly a party to the default shall be liable to a fine not exceeding £100.
\n
(4)The failure of the company to send to the registrar the prescribed particulars of any charge mentioned in paragraphs (a), (b) and (c) of subsection (1) shall not prejudice any rights which any person in whose favour the charge was made may have thereunder.
\n
(5)For the purposes of this section, “company” includes a company incorporated outside the State which has an established place of business in the State.
\n
(6)In relation to a company incorporated outside the State which, on or after the operative date, establishes a place of business in the State, this section shall have effect as if— (a) for the references to the operative date there were substituted references to the date of such establishment, and (b) for the references to charges created or property acquired before the operative date there were substituted references to charges created or property acquired before such establishment, whether before the operative date or not.
\n
PART V
\n
Management and Administration.
\n
Registered Office and Name.
\n
Registered office of company.
\n
113.—(1) A company shall, as from the day on which it begins to carry on business or as from the fourteenth day after the date of its incorporation, whichever is the earlier, have a registered office in the State to which all communications and notices may be addressed.
\n
(2)Notice of the situation of the registered office, and of any change therein, shall be given within 14 days after the date of the incorporation of the company or of the change, as the case may be, to the registrar of companies, who shall record the same.
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The inclusion in the annual return of a company of a statement as to the address of its registered office shall not be taken to satisfy the obligation imposed by this subsection.
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(3)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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(4)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
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Publication of name by company.
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114.—(1) Every company— (a) shall paint or affix, and keep painted or affixed, its name on the outside of every office or place in which its business is carried on, in a conspicuous position, in letters easily legible; (b) shall have its name engraven in legible characters on its seal; (c) shall have its name mentioned in legible characters in all business letters of the company and in all notices and other official publications of the company, and in 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 and in all invoices, receipts and letters of credit of the company.
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(2)If a company does not paint or affix its name in manner directed by this Act, the company and every officer of the company who is in default shall be liable to a fine not exceeding £25, and if a company does not keep its name painted or affixed in manner so directed, the company and every officer of the company who is in default shall be liable to a fine not exceeding £25.
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(3)If a company fails to comply with paragraph (b) or paragraph (c) of subsection (1), the company shall be liable to a fine not exceeding £50.
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(4)If an officer of a company or any person on its behalf— (a) uses or authorises the use of any seal purporting to be a seal of the company whereon its name is not so engraven as aforesaid, or (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 wherein its name is not mentioned in manner aforesaid, or (c) issues or authorises the issue of any invoice, receipt or letter of credit of the company wherein its name is not mentioned in manner aforesaid; he shall be liable to a fine not exceeding £50, and shall further 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 it is duly paid by the company.
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(5)The use of the abbreviation “Ltd.” instead of “Limited” or “Teo.” instead of “Teoranta” shall not be a breach of the provisions of this section.
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Restrictions on Commencement of Business.
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Restrictions on commencement of business.
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115.—(1) Where a company having a share capital has issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless— (a) shares held subject to the payment of the whole amount thereof in cash have been allotted to an amount not less in the whole than the minimum subscription; and (b) every director of the company has paid to the company on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares offered for public subscription; and (c) no money is or may become liable to be repaid to applicants for any shares or debentures which have been offered for public subscription by reason of any failure to apply for or to obtain permission for the shares or debentures to be dealt in on any stock exchange; and (d) there has been delivered to the registrar of companies for registration a statutory declaration by the secretary or one of the directors, in the prescribed form, that the aforesaid conditions have been complied with.
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(2)Where a company having a share capital has not issued a prospectus inviting the public to subscribe for its shares, the company shall not commence any business or exercise any borrowing powers unless— (a) there has been delivered to the registrar of companies for registration a statement in lieu of prospectus; and (b) every director of the company has paid to the company, on each of the shares taken or contracted to be taken by him and for which he is liable to pay in cash, a proportion equal to the proportion payable on application and allotment on the shares payable in cash; and (c) there has been delivered to the registrar of companies for registration a statutory declaration by the secretary or one of the directors, in the prescribed form, that paragraph (b) of this subsection has been complied with.
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(3)The registrar of companies shall, on the delivery to him of the said statutory declaration, and, in the case of a company which is required by this section to deliver a statement in lieu of prospectus, of such a statement, certify that the company is entitled to commence business, and that certificate shall be conclusive evidence that the company is so entitled.
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(4)Any contract made or ratified by a company before the date at which it is entitled to commence business shall be provisional only, and shall not be binding on the company until that date, and on that date it shall become binding.
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(5)Nothing in this section shall prevent the simultaneous offer for subscription or allotment of any shares and debentures or the receipt of any money payable on application for debentures.
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(6)If any company commences business or exercises borrowing powers in contravention of this section, every person who is responsible for the contravention shall, without prejudice to any other liability, be liable to a fine not exceeding £100.
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(7)Nothing in this section shall apply to— (a) a private company, or (b) a company registered before the 1st day of January, 1901, or (c) a company registered before the 1st day of July, 1908, which has not issued a prospectus inviting the public to subscribe for its shares.
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Register of Members.
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Register of members.
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116.—(1) Subject to subsection (4), every company shall keep a register of its members and enter therein the following particulars:— (a) the names, addresses and occupations of the members, and, in the case of a company having a share capital, a statement of the shares held by each member, distinguishing each share by its number so long as the share has a number, and of the amount paid or agreed to be considered as paid on the shares of each member; (b) the date at which each person was entered in the register as a member; (c) the date at which any person ceased to be a member.
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(2)The entries required under paragraphs (a) and (b) of subsection (1) shall be made within 28 days after the conclusion of the agreement with the company to become a member or, in the case of a subscriber of the memorandum, within 28 days after the registration of the company.
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(3)The entry required under paragraph (c) of subsection (1) shall be made within 28 days after the date when the person concerned ceased to be a member, or, if he ceased to be a member otherwise than as a result of action by the company, within 28 days of production to the company of evidence satisfactory to the company of the occurrence of the event whereby he ceased to be a member.
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(4)Where the company has converted any of its shares into stock and given notice of the conversion to the registrar of companies, the register shall show the amount of stock held by each member instead of the amount of shares and the particulars relating to shares specified in paragraph (a) of subsection (1).
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(5)Subject to subsection (6), the register of members shall, except when it is closed under the provisions of this Act, be kept at the registered office of the company, so, however, that— (a) if the work of making it up is done at another office of the company, it may be kept at that other office; and (b) if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, it may be kept at the office of that other person at which the work is done.
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(6)The register of members shall not be kept at a place outside the State.
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(7)Subject to subsection (8), every company shall send notice to the registrar of companies of the place where its register of members is kept and of any change in that place.
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(8)A company shall not be bound to send notice under subsection (7) where the register has, at all times since it came into existence or, in the case of a register in existence on the operative date, at all times since then, been kept at the registered office of the company.
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(9)Where a company makes default in complying with any of the requirements of subsections (1) to (6) or makes default for 14 days in complying with subsection (7), the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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Index of members.
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117.—(1) Every company having more than fifty members shall, unless the register of members is in such a form as to constitute in itself an index, keep an index of the names of the members of the company and shall, within 14 days after the date on which any alteration is made in the register of members, make any necessary alteration in the index.
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(2)The index shall in respect of each member contain a sufficient indication to enable the account of that member in the register to be readily found.
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(3)The index shall be at all times kept at the same place as the register of members.
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(4)If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
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Provisions as to entries in register in relation to share warrants.
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118.—(1) On the issue of a share warrant the company shall strike out of its register of members the name of the member then entered therein as holding the shares specified in the warrant as if he had ceased to be a member and shall enter in the register the following particulars: (a) the fact of the issue of the warrant; and (b) a statement of the shares included in the warrant, distinguishing each share by its number so long as the share has a number; and (c) the date of the issue of the warrant.
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(2)The bearer of a share warrant shall, subject to the articles of the company, be entitled on surrendering it for cancellation to have his name entered as a member in the register of members.
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(3)The company shall be responsible for any loss incurred by any person by reason of the company entering in the register the name of a bearer of a share warrant in respect of the shares therein specified without the warrant being surrendered and cancelled.
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(4)Until the warrant is surrendered, the particulars specified in subsection (1) shall be deemed to be the particulars required by this Act to be entered in the register of members, and, on surrender, the date of the surrender must be entered.
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(5)Subject to the provisions of this Act, the bearer of a share warrant may, if the articles of the company so provide, be deemed to be a member of the company within the meaning of this Act, either to the full extent or for any purposes defined in the articles.
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Inspection of register and index.
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119.—(1) Except when the register of members is closed under the provisions of this Act, the register, and index of the names, of the members of a company shall during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member without charge, and of any other person on payment of one shilling, or such less sum as the company may prescribe, for each inspection.
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(2)Any member or other person may require a copy of the register, or of any part thereof, on payment of sixpence, or such less sum as the company may prescribe, for every 100 words or fractional part thereof required to be copied.
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The company shall cause any copy so required by any person to be sent to that person within a period of 10 days commencing on the day next after the day on which the requirement is received by the company.
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(3)If any inspection required under this section is refused or if any copy required under this section is not sent within the proper period, the company and every officer of the company who is in default shall be liable in respect of each offence to a fine not exceeding £50.
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(4)In the case of any such refusal or default, the court may by order compel an immediate inspection of the register and index or direct that the copies required shall be sent to the persons requiring them.
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Consequences of failure to comply with requirements as to register owing to agent's default.
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120.—Where, by virtue of paragraph (b) of subsection (5) of section 116, the register of members is kept at the office of some person other than the company, and by reason of any default of his the company fails to comply with subsection (7) of that section or subsection (3) of section 117 or section 119 , or with any requirements of this Act as to the production of the register, that other person shall be liable to the same penalties as if he were an officer of the company who is in default, and the power of the court under subsection (4) of section 119, shall extend to the making of orders against that other person and his officers or servants.
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Power to close register.
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121.—A company may, on giving notice by advertisement in some newspaper circulating in the district in which the registered office of the company is situate, close the register of members for any time or times not exceeding in the whole 30 days in each year.
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Rectification of register.
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122.—(1) If— (a) the name of any person is, without sufficient cause, entered in the register of members or omitted therefrom in contravention of subsections (1) and (2) of section 116; or (b) default is made in entering on the register within the period fixed by subsection (3) of section 116 the fact of any person having ceased to be a member; the person aggrieved, or any member of the company, or the company, may apply to the court for rectification of the register.
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(2)Where an application is made under this section, the court may either refuse the application or may order rectification of the register and payment by the company of compensation for any loss sustained by any party aggrieved.
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(3)On an application under this section the court may decide any question relating to the title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand, and generally may decide any question necessary or expedient to be decided for rectification of the register.
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(4)In the case of a company required by this Act to send a list of its members to the registrar of companies, the court when making an order for rectification of the register shall by its order direct notice of the rectification to be given to the registrar.
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(5)A company may, without application to the court, at any time rectify any error or omission (whether occurring before, on or after the operative date) in the register but such a rectification shall not adversely affect any person unless he agrees to the rectification made. The company shall, within 21 days, give notice of the rectification to the registrar of companies if the error or omission also occurs in any document forwarded by the company to him.
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Trusts not to be entered on register.
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123.—No notice of any trust, express, implied or constructive, shall be entered on the register or be receivable by the registrar.
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Register to be evidence.
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124.—The register of members shall be prima facie evidence of any matters by this Act directed or authorised to be inserted therein.
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Annual Return.
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Annual return to be made by company having a share capital.
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125.—(1) Every company having a share capital shall, once at least in every year, make a return to the registrar of companies containing in relation to the registered office of the company, registers of members and debenture holders, shares and debentures, indebtedness, past and present members and directors and secretary, the matters specified in Part I of the Fifth Schedule, and the said return shall be in the form set out in Part II of that Schedule, so, however, that— (a) a company need not make a return under this subsection either in the year of its incorporation or, if it is not required by section 131 to hold an annual general meeting during the following year, in that year; (b) where a company has converted any of its shares into stock then, where appropriate, references to shares in paragraphs 3 and 5 of Part I of the said Schedule shall be taken as references to stock and references to number of shares shall be taken as references to the amount of stock; (c) the return may, in any year, if the return for any of the 5 immediately preceding years has given as at the date of that return the full particulars required by the said paragraph 5, give only such of the particulars required by that paragraph as relate to persons ceasing to be or becoming members since the date of the last return and to shares transferred since that date; (d) a company which is not a private company need not in the return in any year give the particulars required by the said paragraph 5 which relate to shares transferred by persons who are still members or who have ceased to be members or the dates of registration of the transfers.
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(2)If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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(3)For the purposes of this section and of Part I of the Fifth Schedule, “director” and “officer” shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
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(4)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
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Annual return to be made by company not having a share capital.
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126.—(1) Subject to subsection (2), every company not having a share capital shall once at least in every year make a return to the registrar of companies stating— (a) the address of the registered office of the company; (b) in a case in which the register of members is, under the provisions of this Act, kept elsewhere than at that office, the address of the place where it is kept; (c) in a case in which any register of holders of debentures of the company is, under the provisions of this Act, kept elsewhere than at the registered office of the company, the address of the place where it is kept; (d) all such particulars relating to the persons who at the date of the return are the directors of the company and any person who at that date is secretary of the company as are by this Act required to be contained with respect to directors and the secretary respectively in the register of directors and secretaries of a company.
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(2)A company need not make a return under subsection (1) either in the year of its incorporation or, if it is not required by section 131 to hold an annual general meeting during the following year, in that year.
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(3)There shall be annexed to the return a statement containing particulars of the total amount of the indebtedness of the company in respect of all mortgages and charges which are required to be registered with the registrar of companies under this Act, or which would have been required so to be registered if created after the 1st day of July, 1908.
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(4)If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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(5)For the purposes of this section, “officer” and “director” shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
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(6)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
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Time for completion of annual return.
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127.—(1) The annual return must be completed within 60 days after the annual general meeting for the year, whether or not that meeting is the first or only ordinary general meeting, or the first or only general meeting, of the company in the year, and the company must forthwith forward to the registrar of companies a copy signed both by a director and by the secretary of the company.
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(2)If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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For the purposes of this subsection, “officer” shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
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(3)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
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Documents to be annexed to annual return.
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128.—(1) Subject to the provisions of this Act, there shall be annexed to the annual return— (a) a written copy certified both by a director and by the secretary of the company to be a true copy of every balance sheet laid before the annual general meeting of the company held during the period to which the return relates (including every document required by law to be annexed to the balance sheet); and (b) a copy certified as aforesaid of the report of the auditors on, and of the report of the directors accompanying, each such balance sheet; and (c) where any such balance sheet or document required by law to be annexed thereto is in any language other than the English or Irish language, there shall be annexed to that balance sheet a translation in English or Irish of the balance sheet or document certified in the prescribed manner to be a correct translation.
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(2)If any such balance sheet as aforesaid or document required by law to be annexed thereto did not comply with the requirements of the law as in force at the date of the audit with respect to the form of balance sheets or documents aforesaid, as the case may be, there shall be made such additions to and corrections in the copy as would have been required to be made in the balance sheet or document in order to make it comply with the said requirements, and the fact that the copy has been so amended shall be stated thereon.
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(3)If a company fails to comply with this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding £100.
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For the purposes of this subsection, “officer” shall include any person in accordance with whose directions or instructions the directors of the company are accustomed to act.
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(4)This section shall not apply to— (a) a private company; or (b) an assurance company which has complied with subsection (4) of section 7 of the Assurance Companies Act, 1909; or (c) a company, not having a share capital, which is formed for an object that is charitable and is under the control of a religion recognised by the State under Article 44 of the Constitution, and which exercises its functions in accordance with the laws, canons and ordinances of the religion concerned.
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(5)(a) The Commissioners of Charitable Donations and Bequests for Ireland may, if they think fit, by order exempt, either altogether or for a limited period, from the application of this section a specified company, formed for charitable purposes, not having a share capital. (b) The Commissioners may by order revoke an order under paragraph (a). (c) A sealed copy of every order of the Commissioners under this subsection shall be delivered by the company to the registrar of companies for registration within fourteen days of the making of the order.
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(6)Nothing in this section shall operate to require the balance sheet of a private company or any document or report relating thereto to be annexed to an annual return.
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(7)Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.
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Certificates to be sent by private company with annual return.
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129.—A private company shall send with the annual return required by section 125 a certificate signed both by a director and by the secretary of the company that the company has not, since the date of the last return or, in the case of a first return, since the date of the incorporation of the company, issued any invitation to the public to subscribe for any shares or debentures of the company, and, where the annual return discloses the fact that the number of members of the company exceeds fifty, also a certificate so signed that the excess consists wholly of persons who, under paragraph (b) of subsection (1) of section 33 are not to be included in reckoning the number of fifty.
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Meetings and Proceedings.
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Statutory meeting and statutory report.
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130.—(1) Every company limited by shares and every company limited by guarantee and having a share capital shall, within a period of not less than one month nor more than 3 months from the date at which the company is entitled to commence business hold a general meeting of the members of the company which shall be called “the statutory meeting”.
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(2)Subject to subsection (3), the directors shall, at least 14 days before the day on which the meeting is held, forward a report (in this Act referred to as “the statutory report”) to every member of the company.
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(3)If the statutory report is forwarded later than is required by subsection (2) it shall, notwithstanding that fact, be deemed to have been duly forwarded if it is so agreed by all the members entitled to attend and vote at the meeting.
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(4)The statutory report shall be certified by not less than two directors of the company and shall state— (a) the total number of shares allotted, distinguishing shares allotted as fully or partly paid up otherwise than in cash, and stating in the case of shares partly paid up, the extent to which they are so paid up and, in either case, the consideration for which they have been allotted; and (b) the total amount of cash received by the company in respect of all the shares allotted, distinguished as aforesaid; and (c) an abstract of the receipts of the company and of the payments made thereout, up to a date within 7 days of the date of the report, exhibiting under distinctive headings the receipts of the company from shares and debentures and other sources, the payments made thereout, and particulars concerning the balance remaining in hand, and an account or estimate of the preliminary expenses of the company; and (d) the names and addresses of the directors, auditors (if any) and secretary of the company; and (e) particulars of any contract, the modification of which is to be submitted to the meeting for its approval, together with particulars of the modification or the proposed modification.
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(5)The statutory report shall, so far as it relates to the shares allotted by the company, and to cash received in respect of such shares, and to the receipts and payments of the company on capital account, be certified as correct by the auditors, if any, of the company.
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(6)The directors shall cause a copy of the statutory report certified as required by this section, to be delivered to the registrar of companies for registration forthwith after the sending thereof to the members of the company.
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(7)The directors shall cause a list showing the names, addresses and occupations of the members of the company, and the number of shares held by them respectively, to be produced at the commencement of the meeting and to remain open and accessible to the members of the company during the continuance of the meeting.
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(8)The members of the company present at the meeting shall be at liberty to discuss any matter relating to the formation of the company, or arising out of the statutory report, whether previous notice has been given or not, but no resolution of which notice has not been given in accordance with the articles may be passed.
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(9)The meeting may adjourn from time to time, and at any adjourned meeting any resolution of which notice has been given in accordance with the articles, either before or subsequently to the former meeting, may be passed, and the adjourned meeting shall have the same powers as an original meeting.
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(10)In the event of any default in complying with this section, every director of the company who is knowingly and wilfully guilty of the default or, in the case of default by the company, every officer of the company who is in default shall be liable to a fine not exceeding £100.
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(11)This section shall not apply to a private company.
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Annual general meeting.
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131.—(1) Subject to subsection (2), every company shall in each year hold a general meeting as its annual general meeting in addition to any other meetings in that year and shall specify the meeting as such in the notices calling it and not more than 15 months shall elapse between the date of one annual general meeting of a company and that of the next.
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(2)So long as a company holds its first annual general meeting within 18 months of its incorporation, it need not hold it in the year of its incorporation or in the following year.
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(3)If default is made in holding a meeting of the company in accordance with subsection (1), the Minister may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential directions as the Minister thinks expedient, including directions modifying or supplementing in relation to the calling, holding and conducting of the meeting, the operation of the company's articles, and it is hereby declared that the directions which may be given under this subsection include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
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(4)A general meeting held in pursuance of subsection (3) shall, subject to any directions of the Minister, be deemed to be an annual general meeting of the company but, where a meeting so held is not held in the year in which the default in holding the company's annual general meeting occurred, the meeting so held shall not be treated as the annual general meeting for the year in which it is held unless at that meeting the company resolves that it shall be so treated.
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(5)Where a company resolves that a meeting shall be so treated, a copy of the resolution shall, within 15 days after the passing thereof, be forwarded to the registrar of companies and recorded by him.
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(6)If default is made in holding a meeting of the company in accordance with subsection (1), or in complying with any direction of the Minister under subsection (3), the company and every officer of the company who is in default shall be liable to a fine not exceeding £100, and if default is made in complying with subsection (5), the company and every officer of the company who is in default shall be liable to a fine not exceeding £20.
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Convening of extraordinary general meeting on requisition.
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132.—(1) The directors of a company, notwithstanding anything in its articles, shall, on the requisition of members of the company holding at the date of the deposit of the requisition not less than one-tenth of such of the paid up capital of the company as at the date of the deposit carries the right of voting at general meetings of the company, or, in the case of a company not having a share capital, members of the company representing not less than one-tenth of the total voting rights of all the members having at the said date a right to vote at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.
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(2)The requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the registered office of the company and may consist of several documents in like form each signed by one or more requisitionists.
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(3)If the directors do not within 21 days from the date of the deposit of the requisition proceed duly to convene a meeting to be held within 2 months from the said date, the requisitionists, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, but any meeting so convened shall not be held after the expiration of 3 months from the said date.
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(4)A meeting convened under this section by the requisitionists shall be convened in the same manner as nearly as possible as that in which meetings are to be convened by directors.
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(5)Any reasonable expenses incurred by the requisitionists by reason of the failure of the directors duly to convene a meeting shall be repaid to the requisitionists by the company and any sum so repaid shall be retained by the company out of any sums due or to become due from the company by way of fees or other remuneration in respect of their services to such of the directors as were in default.
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(6)For the purposes of this section, the directors shall, in the case of a meeting at which a resolution is to be proposed as a special resolution, be deemed not to have duly convened the meeting if they do not give such notice thereof as is required by section 141.
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Length of notice for calling meetings.
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133.—(1) Any provision of a company's articles shall be void in so far as it provides for the calling of a meeting of the company (other than an adjourned meeting) by a shorter notice than— (a) in the case of the annual general meeting, 21 days' notice in writing; and (b) in the case of a meeting (other than an annual general meeting or a meeting for the passing of a special resolution) 14 days' notice in writing where the company is neither a private company nor an unlimited company and 7 days' notice in writing where it is a private company or an unlimited company.
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(2)Save in so far as the articles of a company make other provision in that behalf (not being a provision avoided by subsection (1)) a meeting of the company (other than an adjourned meeting) may be called— (a) in the case of the annual general meeting by 21 days' notice in writing; and (b) in the case of a meeting (other than an annual general meeting or a meeting for the passing of a special resolution), by 14 days' notice in writing where the company is neither a private company nor an unlimited company and by 7 days' notice in writing where it is a private company or an unlimited company.
\n
(3)A meeting of a company shall, notwithstanding that it is called by shorter notice than that specified in subsection (2) or in the company's articles, as the case may be, be deemed to have been duly called if it is so agreed by the auditors of the company and by all the members entitled to attend and vote thereat.
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General Provisions as to meetings and votes.
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134.—The following provisions shall have effect in so far as the articles of the company do not make other provision in that behalf— (a) notice of the meeting of a company shall be served on every member of the company in the manner in which notices are required to be served by Table A and for the purpose of this paragraph “Table A” means that Table as for the time being in force; (b) two or more members holding not less than one-tenth of the issued share capital or, if the company has not a share capital, not less than 5 per cent. in number of all the members of the company may call a meeting; (c) in the case of a private company two members, and in the case of any other company three members, personally present shall be a quorum; (d) any member elected by the members present at a meeting may be chairman thereof; (e) in the case of a company originally having a share capital, every member shall have one vote in respect of each share or each £10 of stock held by him, and in any other case, every member shall have one vote.
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Power of court to order a meeting.
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135.—(1) If for any reason it is impracticable to call a meeting of a company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in manner prescribed by the articles or this Act, the court may, either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the court thinks fit, and where any such order is made may give such ancillary or consequential directions as it thinks expedient; and it is hereby declared that the directions that may be given under this subsection include a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.
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(2)Any meeting called, held and conducted in accordance with an order under subsection (1) shall for all purposes be deemed to be a meeting of the company duly called, held and conducted.
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Proxies.
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136.—(1) Subject to subsection (2), any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person (whether a member or not) as his proxy to attend and vote instead of him, and a proxy so appointed shall have the same right as the member to speak at the meeting and to vote on a show of hands and on a poll.
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(2)Unless the articles otherwise provide— (a) subsection (1) shall not apply in the case of a company not having a share capital; and (b) a member of a company shall not be entitled to appoint more than one proxy to attend on the same occasion.
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(3)In every notice calling a meeting of a company having a share capital there shall appear with reasonable prominence a statement that a member entitled to attend and vote is entitled to appoint a proxy or, where that is allowed, one or more proxies, to attend, speak and vote instead of him, and that a proxy need not be a member; and if default is made in complying with this subsection in relation to any meeting, every officer of the company who is in default shall be liable to a fine not exceeding £50.
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(4)Any provision contained in a company's articles shall be void in so far as it would have the effect of requiring the instrument appointing a proxy, or any other document necessary to show the validity of or otherwise relating to the appointment of a proxy, to be received by the company or any other person more than 48 hours before a meeting or adjourned meeting in order that the appointment may be effective thereat.
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(5)Subject to subsection (6), if for the purpose of any meeting of a company invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the company's expense to some only of the members entitled to be sent a notice of the meeting and to vote thereat by proxy, every officer of the company who knowingly and wilfully authorises or permits their issue as aforesaid shall be liable to a fine not exceeding £100.
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(6)An officer shall not be liable under subsection (5) by reason only of the issue to a member at his request in writing of a form of appointment naming the proxy or of a list of persons willing to act as proxy if the form or list is available on request in writing to every member entitled to vote at the meeting by proxy.
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(7)This section shall apply to meetings of any class of members of a company as it applies to general meetings of the company.
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Right to demand a poll.
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137.—(1) Any provision contained in a company's articles shall be void in so far as it would have the effect either— (a) of excluding the right to demand a poll at a general meeting on any question other than the election of the chairman of the meeting or the adjournment of the meeting, or (b) of making ineffective a demand for a poll on any such question which is made— (i) by not less than five members having the right to vote at the meeting, or (ii) by a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting, or (iii) by a member or members holding shares in the company conferring a right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right.
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(2)The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsection (1), a demand by a person as proxy for a member shall be the same as a demand by the member.
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Voting on a poll.
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138.—On a poll taken at a meeting of a company or a meeting of any class of members of a company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.
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Representation of bodies corporate at meetings of companies and of creditors.
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139.—(1) A body corporate may— (a) if it is a member of a company, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the company or at any meeting of any class of members of the company; and (b) if it is a creditor (including a holder of debentures) of a company, by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of this Act or of any rules made thereunder or in pursuance of the provisions contained in any debenture or trust deed, as the case may be.
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(2)A person authorised as aforesaid shall be entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise if it were an individual member, creditor or holder of debentures of the company.
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Annual general meeting to be held in the State.
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140.—(1) Subject to subsection (2), the annual general meeting of a company shall be held in the State and any business transacted at a meeting held in breach of this requirement shall be void unless— (a) either all the members entitled to attend and vote at such meeting consent in writing to its being held elsewhere or a resolution providing that it be held elsewhere has been passed at the preceding annual general meeting; and (b) the articles do not provide that the annual general meeting shall be held in the State.
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(2)Subsection (1) shall not apply to the first annual general meeting of a company held on or after the operative date.
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Resolutions.
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141.—(1) A resolution shall be a special resolution when it has been passed by not less than three-fourths of the votes cast by such members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy at a general meeting of which not less than 21 days' notice, specifying the intention to propose the resolution as a special resolution, has been duly given.
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(2)A resolution may be proposed and passed as a special resolution at a meeting of which less than 21 days' notice has been given if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority together holding not less than ninety per cent. in nominal value of the shares giving that right or, in the case of a company not having a share capital, together representing not less than ninety per cent. of the total voting rights at that meeting of all the members.
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(3)At any meeting at which a special resolution is submitted to be passed, a declaration of the chairman that the resolution is carried shall, unless a poll is demanded, be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
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(4)For the purposes of this section, notice of a meeting shall be deemed to be duly given and the meeting to be duly held when the notice is given and the meeting held in manner provided by this Act or the articles.
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(5)The terms of any resolution (whether special or otherwise) before a general meeting may be amended by ordinary resolution moved at the meeting provided that the terms of the resolution as amended will still be such that adequate notice of the intention to pass the same can be deemed to have been given.
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(6)Any reference to an extraordinary resolution contained in any statute which was passed or document which existed before the operative date shall, in relation to a resolution passed or to be passed on or after the operative date, be deemed to be a reference to a special resolution.
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(7)Where before the operative date a meeting has been convened for the purpose of passing an extraordinary resolution as defined in the Companies Acts, 1908 to 1959, and at that meeting that resolution has after the operative date been passed in the manner required by those Acts for the passing of an extraordinary resolution and such resolution would under the Companies Acts, 1908 to 1959, have been effective for its purpose, such resolution shall be as effective as if it had been a special resolution.
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(8)(a) Notwithstanding anything to the contrary in this Act, in any case in which a company is so authorised by its articles, a resolution in writing signed by all the members for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held, and if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act. (b) Any such resolution shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and where the resolution states a date as being the date of his signature thereof by any member the statement shall be prima facie evidence that it was signed by him on that date. (c) This subsection does not apply to a resolution for any of the purposes of section 160 or 182.
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Extended notice.
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142.—(1) Subject to subsection (2), where by any provision hereafter contained in this Act extended notice is required of a resolution, the resolution shall not be effective unless (except when the directors of the company have resolved to submit it) notice of the intention to move it has been given to the company not less than 28 days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a daily newspaper circulating in the district in which the registered office of the company is situate or in any other mode allowed by the articles, not less than 21 days before the meeting.
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(2)If, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice though not given within the time required by subsection (1) shall be deemed to have been properly given for the purposes of that subsection.
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Registration of, and obligation of company to supply copies of, certain resolutions and agreements.
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143.—(1) A printed copy of every resolution or agreement to which this section applies shall, within 15 days after the passing or making thereof, be forwarded to the registrar of companies and recorded by him.
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(2)Where articles have been registered, a copy of every such resolution or agreement for the time being in force shall be embodied in or annexed to every copy of the articles issued after the passing of the resolution or the making of the agreement.
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(3)A copy of every such resolution or agreement shall be forwarded to any member at his request on payment of one shilling or such less sum as the company may direct.
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(4)This section shall apply to— (a) special resolutions; (b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions; (c) resolutions or agreements which have been agreed to by all the members of some class of shareholders but which, if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of shareholders though not agreed to by all those members; (d) resolutions increasing the share capital of a company; (e) resolutions that a company be wound up voluntarily passed under paragraph (a) or paragraph (c) of subsection (1) of section 251.
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(5)If a company fails to comply with subsection (1), the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.
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(6)If a company fails to comply with subsection (2) or subsection (3), the company and every officer of the company who is in default shall be liable to a fine not exceeding £1 for each copy in respect of which default is made.
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(7)For the purposes of subsections (5) and (6), a liquidator of a company shall be deemed to be an officer of the company.
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Resolutions passed at adjourned meetings.
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144.—Where a resolution is passed at an adjourned meeting of—