COMPANIES ACT, 1963

336 Certificate of registration of existing companies.

336.—On compliance with the requirements of this Part relating to registration, and on payment of such fees, if any, as are payable under the following provisions of this Act, the registrar shall certify under his hand that the company applying for registration is incorporated as a company under this Act, and in the case of a limited company that it is limited and thereupon the company shall be so incorporated.

337 Vesting of property on registration.

337.—(1) All property, real and personal (including things in action) belonging to or vested in a company at the date of its registration in pursuance of this Part, shall on registration pass to and vest in the company as incorporated under this Act for all the estate and interest of the company therein.

• (2) Section 12 of the Finance Act, 1895, shall not operate so as to require a company which registers under this Part to deliver to the Revenue Commissioners any document in connection with a vesting under subsection (1).

338 Saving for existing liabilities.

338.—Registration of a company in pursuance of this Part shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company before registration.

339 Continuation of existing actions.

339.—(1) Subject to subsection (2), all actions and other legal proceedings which at the time of the registration of a company in pursuance of this Part are pending by or against the company, or the public officer or any member thereof, may be continued in the same manner as if the registration had not taken place.

• (2) Execution shall not issue against the effects of any individual member of the company on any judgment, decree or order obtained in any such action or proceeding, but, in the event of the property and effects of the company being insufficient to satisfy the judgment, decree or order, an order may be obtained for winding up the company.

340 Effect of registration under this Part.

340.—(1) When a company is registered in pursuance of this Part, subsections (2) to (7) shall have effect.

• (2) All provisions contained in any statute or instrument constituting or regulating the company, including, in the case of a company registered as a company limited by guarantee, the resolution declaring the amount of the guarantee, shall be deemed to be conditions and regulations of the company, in the same manner and with the same incidents as if so much thereof as would, if the company had been formed under this Act, have been required to be inserted in the memorandum, were contained in a registered memorandum, and the residue thereof were contained in registered articles.

• (3) All the provisions of this Act shall apply to the company and the members, contributories and creditors thereof, in the same manner in all respects as if it had been formed under this Act, subject as follows—

• (a) Table A or Tábla A shall not apply unless adopted by special resolution;

• (b) the provisions of this Act relating to the numbering of shares shall not apply to any joint stock company whose shares are not numbered;

• (c) subject to the provisions of this section, the company shall not have power to alter any provision contained in any statute relating to the company;

• (d) subject to the provisions of this section, the company shall not have power without the sanction of the Minister, to alter any provision contained in any letters patent relating to the company;

• (e) the company shall not have power to alter any provision contained in a charter or letters patent relating to the objects of the company;

• (f) in the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the company contracted before registration, who is liable to pay or contribute to the payment of any debt or liability of the company contracted before registration or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves in respect of any such debt or liability, or to pay or contribute to the payment of the costs and expenses of winding up the company, so far as relates to such debts or liabilities as aforesaid;

• (g) in the event of the company being wound up, every contributory shall be liable to contribute to the assets of the company, in the course of the winding up, all sums due from him in respect of any such liability as aforesaid, and, in the event of the death or bankruptcy of any contributory, the provisions of this Act relating to the personal representatives of deceased contributories and to the assignees of bankrupt contributories shall apply.

• (4) The provisions of this Act relating to—

• (a) the registration of an unlimited company as limited;

• (b) the powers of an unlimited company on registration as a limited company to increase the nominal amount of its share capital and to provide that a portion of its share capital shall not be capable of being called up except in the event of winding up;

• (c) the power of a limited company to determine that a portion of its share capital shall not be capable of being called up except in the event of winding up;

shall apply notwithstanding any provisions contained in any statute, charter or other instrument constituting or regulating the company.

• (5) Nothing in this section shall authorise the company to alter any such provisions contained in any instrument constituting or regulating the company, as would, if the company had originally been formed under this Act, have been required to be contained in the memorandum and are not authorised to be altered by this Act.

• (6) None of the provisions of this Act (apart from those of subsection (4) of section 205) shall derogate from any power of altering its constitution or regulations which may, by virtue of any statute or other instrument constituting or regulating the company, be vested in the company.

• (7) In this section, “instrument” includes deed of settlement, contract of co-partnery and letters patent.

341 Power to substitute memorandum and articles for deed of settlement.

341.—(1) Subject to subsections (2) to (4), a company registered in pursuance of this Part may by special resolution alter the form of its constitution by substituting a memorandum and articles for a deed of settlement.

• (2) The provisions of section 10 relating to applications to the court for cancellation of alterations of the objects of a company and matters consequential on the passing of resolutions for such alterations shall, so far as applicable, apply to an alteration under this section with the following modifications—

• (a) there shall be substituted for the printed copy of the altered memorandum required to be delivered to the registrar of companies a printed copy of the substituted memorandum and articles; and

• (b) on the delivery to the registrar of a printed copy of the substituted memorandum and articles or on the date when the alteration is no longer liable to be cancelled by order of the court, whichever last occurs, the substituted memorandum and articles shall apply to the company in the same manner as if it were a company registered under this Act with that memorandum and those articles, and the company's deed of settlement shall cease to apply to the company.

• (3) An alteration under this section may be made either with or without any alteration of the objects of the company under this Act.

• (4) In this section, “deed of settlement” includes any contract of co-partnery or other instrument constituting or regulating the company, not being a statute, charter or letters patent.

342 Power of court to stay or restrain proceedings.

342.—The provisions of this Act relating to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order shall, in the case of a company registered in pursuance of this Part, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.

343 Actions stayed on winding-up order.

343.—Where an order has been made for winding up a company registered in pursuance of this Part, no action or proceeding shall be commenced or proceeded with against the company or any contributory of the company in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.

PART X. Winding up of Unregistered Companies.

344 Meaning of unregistered company.

344.—For the purposes of this Part, “unregistered company” shall include any trustee savings bank certified under the Trustee Savings Banks Acts, 1863 to 1958, any partnership, whether limited or not, any association and any company with the following exceptions—

• (a) a company as defined by section 2;

• (b) a partnership, association or company which consists of less than eight members and is not formed outside the State.

345 Winding up of unregistered companies.

345.—(1) Subject to the provisions of this Part, any unregistered company may be wound up under this Act, and all the provisions of this Act relating to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in this section.

• (2) The principal place of business in the State of an unregistered company shall, for all the purposes of the winding up, be deemed to be the registered office of the company.

• (3) No unregistered company shall be wound up under this Act voluntarily.

• (4) The circumstances in which an unregistered company may be wound up are as follows—

• (a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;

• (b) if the company is unable to pay its debts;

• (c) if the court is of opinion that it is just and equitable that the company should be wound up.

• (5) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts—

• (a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding £50 then due, has served on the company, by leaving at its principal place of business in the State, or by delivering to the secretary or some director or principal officer of the company, or by serving otherwise in such manner as the court may approve or direct, a demand in writing requiring the company to pay the sum so due, and the company has, for 3 weeks after the service of the demand, neglected to pay the sum or to secure or compound for it to the satisfaction of the creditor;

• (b) if any action or other proceeding has been instituted against any member for any debt or demand due or claimed to be due, from the company, or from him in his character of member, and notice in writing of the institution of the action or proceeding having been served on the company by leaving the same at its principal place of business in the State, or by delivering it to the secretary, or some director or principal officer of the company, or by otherwise serving the same in such manner as the court may approve or direct, the company has not within 10 days after service of the notice paid, secured or compounded for the debt or demand, or procured the action or proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against the action or proceeding, and against all costs, damages and expenses to be incurred by him by reason of the same;

• (c) if in the State or in any country recognised by the Minister for the purposes of section 250, execution or other process issued on a judgment, decree or order obtained in any court in favour of a creditor against the company, or any member thereof as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied;

• (d) if it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts.

• (6) A petition for winding up a trustee savings bank may be presented by the Minister for Finance as well as by any person authorised under the other provisions of this Act to present a petition for winding up a company.

• (7) Where a company incorporated outside the State which has been carrying on business in the State ceases to carry on business in the State, it may be wound up as an unregistered company under this Part, notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.

• (8) Subject to such modifications as may be made by rules of court, the Bankruptcy Acts shall apply to limited partnerships as if limited partnerships were ordinary partnerships, and, upon all the partners of a limited partnership being adjudged bankrupt, the assets of the limited partnership shall vest in the Official Assignee.

346 Contributories in winding up of unregistered company.

346.—(1) In the event of an unregistered company being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves, or to pay or contribute to the payment of the costs and expenses of winding up the company, and every contributory shall be liable to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid.

• (2) In the event of the death or bankruptcy of any contributory, the provisions of this Act relating to the personal representatives of deceased contributories and to the assignees of bankrupt contributories respectively shall apply.

347 Power of court to stay or restrain proceedings.

347.—The provisions of this Act relating to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order shall, in the case of an unregistered company, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.

348 Actions stayed on winding-up order.

348.—Where an order has been made for winding up an unregistered company, no action or proceeding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.

349 Provisions of this Part to be cumulative.

349.—The provisions of this Part relating to unregistered companies shall be in addition to and not in restriction of any provisions hereinbefore contained in this Act relating to winding up companies by the court, and the court or liquidator may exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him in winding up companies formed and registered under this Act.

350 Saving for enactments providing for winding up under former Companies Acts.

350.—Nothing in this Part shall affect the operation of any enactment which provides for any partnership, association or company being wound up, or being wound up as a company or as an unregistered company under the Companies (Consolidation) Act, 1908 or any enactment repealed by that Act.

PART XI. Companies Incorporated Outside the State Establishing a Place of Business Within the State.

351 Application of this Part.

351.—This Part shall apply to all companies incorporated outside the State which, after the operative date, establish a place of business within the State, and to companies incorporated outside the State which have, before the operative date, established a place of business within the State and continue to have an established place of business within the State on the operative date.

352 Documents to be delivered to registrar by certain companies incorporated outside the State.

352.—(1) Companies incorporated outside the State, which, after the operative date, establish a place of business within the State, shall, within one month of the establishment of the place of business, deliver to the registrar of companies for registration—

• (a) a certified copy of the charter, statutes or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company, and, if the instrument is not written in the English or Irish language, a certified translation thereof;

• (b) a list of the directors and secretary of the company containing the particulars mentioned in subsection (2);

• (c) the names and addresses of some one or more persons resident in the State authorised to accept on behalf of the company service of process and any notices required to be served on the company and also the address of the company's principal place of business in the State.

• (2) Subject to subsection (3), the list referred to in paragraph (b) of subsection (1) shall contain the following particulars—

• (a) in relation to each director—

• (i) in the case of an individual, his present Christian name and surname, and any former Christian name or surname, his usual residential address, his nationality (if not Irish) and his business occupation (if any), and particulars of any other directorships of bodies corporate incorporated in the State held by him; and

• (ii) in the case of a body corporate, its corporate name and registered or principal office;

• (b) in relation to the secretary or, where there are joint secretaries, in relation to each of them—

• (i) in the case of an individual, his present Christian name and surname, any former Christian name and surname and his usual residential address; and

• (ii) in the case of a body corporate, its corporate name and registered or principal office.

Paragraphs (b), (c) and (d) of subsection (12) of section 195 shall apply for the purpose of the construction of references in this subsection to present and former Christian names and surnames as they apply for the purpose of the construction of such references in that section.

• (3) Where all the partners in a firm are joint secretaries of the company, the name and principal office of the firm may be stated instead of the particulars mentioned in paragraph (b) of subsection (2).

• (4) Companies to which this Part applies, other than those mentioned in subsection (1), shall, if on the operative date they have not delivered to the registrar the documents and particulars specified in subsection (1) of section 274 of the Companies (Consolidation) Act, 1908, deliver the documents and particulars mentioned in subsection (1) of this section within 2 months after the operative date.

353 Return to be delivered to registrar where documents altered.

353.—If, in the case of any company to which this Part applies, any alteration is made in—

• (a) the charter, statutes or memorandum and articles of the company, or other instrument constituting or defining the constitution of the company; or

• (b) the directors or secretary of the company or the particulars contained in the list of the directors and secretaries; or

• (c) the names or addresses of the persons authorised to accept service on behalf of the company or the address of its principal place of business in the State;

the company shall, within the prescribed time, deliver to the registrar of companies for registration a return containing the prescribed particulars of the alteration.

354 Accounts of company to which this Part applies to be delivered to registrar.

354.—(1) Every company to which this Part applies shall, in every calendar year, make out a balance sheet and profit and loss account and, if the company is a holding company, group accounts, in such form and containing such particulars and including such documents, as under the provisions of this Act it would, if it had been a company within the meaning of this Act, have been required to make out and lay before the company in general meeting, and deliver copies of those documents to the registrar of companies.

• (2) If any such document as is mentioned in subsection (1) is not written in the English or Irish language, there shall be annexed to it a certified translation thereof.

• (3) The Minister may grant to any company or to any class of companies exemption from the obligation imposed by subsection (1) subject to such conditions as he may think fit.

• (4) Subsection (1) shall not apply to any company having provisions in its constitution that would entitle it to rank as a private company if it had been registered in the State.

355 Obligation to state name of company to which this Part applies, whether limited and country where incorporated.

355.—Every company to which this Part applies shall—

• (a) in every prospectus inviting subscriptions for its shares or debentures in the State state the country in which the company is incorporated; and

• (b) exhibit conspicuously on every place where it carries on business in the State the name of the company and the country in which the company is incorporated; and

• (c) cause the name of the company and of the country in which the company is incorporated to be stated in legible characters on all billheads and letter-paper, and in all notices and other official publications of the company; and

• (d) if the liability of the members of the company is limited, cause notice of that fact to be stated in legible characters in every such prospectus as aforesaid and in all billheads, letter-paper, notices and other official publications of the company in the State, and to be affixed on every place where it carries on its business.

356 Service of documents on company to which this Part applies.

356.—(1) Subject to subsection (2), any process or notice required to be served on a company to which this Part applies shall be sufficiently served if addressed to any person whose name has been delivered to the registrar of companies under the foregoing provisions of this Part and left at or sent by post to the address which has been so delivered.

• (2) A document may be served on any such company by leaving it at or sending it by post to any place of business established by the company in the State—

• (a) where the company makes default in delivering to the registrar the name and address of a person resident in the State who is authorised to accept on behalf of the company service of process or notices; or

• (b) if at any time all the persons whose names and addresses have been so delivered are dead or have ceased so to reside, or refuse to accept service on behalf of the company, or for any reason cannot be served.

• (3) This section shall cease to apply to a company on the expiration of two years after it has given the notice referred to in section 357.

357 Notice to be given when company to which this Part applies ceases to carry on business in the State.

357.—If any company to which this Part applies ceases to have a place of business in the State, it shall forthwith give notice of the fact to the registrar of companies, and as from the date on which notice is so given, the obligation of the company to deliver any document to the registrar shall cease.

358 Penalties for non-compliance with this Part.

358.—If any company to which this Part applies fails to comply with any of the foregoing provisions of this Part, the company and every officer or agent of the company who knowingly and wilfully authorises or permits the default shall be liable to a fine not exceeding £100.

359 Construction of section 275 of Companies (Consolidation) Act, 1908.

359.— In its application to the State, section 275 of the Companies (Consolidation) Act, 1908, shall be deemed to have always applied as if—

• (a) the words “in Northern Ireland or in Great Britain or in a British possession” were substituted for the words “in a British possession”; and

• (b) the words “the State” were substituted for the words “the United Kingdom”.

360 Interpretation of this Part.

360.—For the purposes of this Part—

“certified” means certified in the prescribed manner to be a true copy or a correct translation;

“director” in relation to a company includes any person in accordance with whose directions and instructions the directors of the company are accustomed to act;

“place of business” includes a share transfer or share registration office;

“prospectus” has the same meaning as when used in relation to a company incorporated under this Act;

“secretary” includes any person occupying the position of secretary by whatever name called.

PART XII. Restrictions on Sale of Shares and Offers of Shares for Sale.

361 Prospectuses relating to companies incorporated outside the State.

361.—(1) Subject to subsection (2), it shall not be lawful for any person to issue, circulate or distribute in the State any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside the State, whether the company has or has not established or, when formed, will or will not establish a place of business in the State unless the prospectus is dated and—

• (a) contains particulars relating to the following matters—

• (i) the instrument constituting or defining the constitution of the company;

• (ii) the enactments or provisions having the force of an enactment, by or under which the incorporation of the company was effected;

• (iii) an address in the State where the said instrument, enactments or provisions or copies thereof, and if the same are in any language other than the English or Irish language, a translation thereof in English or Irish certified in the prescribed manner, can be inspected;

• (iv) the date on which and the country in which the company was incorporated;

• (v) whether the company has established a place of business in the State, and if so, the address of its principal place of business in the State;

• (b) subject to the provisions of this section, states the matters specified in Part I of the Third Schedule and sets out the reports specified in Part II of that Schedule, subject always to the provisions contained in Part III of that Schedule.

• (2) In the application of Part I of the Third Schedule for the purposes of subsection (1), paragraph 2 thereof shall have effect with the substitution, for the reference to the articles, of a reference to the constitution of the company.

• (3) Any condition requiring or binding an applicant for shares or debentures to waive compliance with any requirement imposed by paragraph (a) or paragraph (b) of subsection (1), or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.

• (4) Subject to subsection (5), it shall not be lawful for any person to issue to any person in the State a form of application for shares in or debentures of such a company or intended company as is mentioned in subsection (1) unless the form is issued with a prospectus which complies with this Part and the issue whereof in the State does not contravene the provisions of section 363.

• (5) Subsection (4) shall not apply if it is shown that the form of application was issued in connection with a bona fide invitation to a person to enter into an underwriting agreement relating to the shares or debentures.

• (6) Subject to subsection (7), in the event of non-compliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the non-compliance or contravention, if—

• (a) as regards any matter not disclosed, he proves that he did not know the same; or

• (b) he proves that the non-compliance or contravention arose from an honest mistake of fact on his part; or

• (c) the non-compliance or contravention was in respect of matters which, in the opinion of the court dealing with the case, were immaterial or were otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused.

• (7) In the event of failure to include in a prospectus a statement relating to the matters contained in paragraph 16 of the Third Schedule, no director or other person shall incur any liability in respect of the failure unless it is proved that he had knowledge of the matters not disclosed.

• (8) This section—

• (a) shall not apply to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; and

• (b) except in so far as it requires a prospectus to be dated, shall not apply to the issue of a prospectus or form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures issued within the preceding 2 years and for the time being dealt in or quoted on a recognised stock exchange;

but, subject as aforesaid, this section shall apply to a prospectus or form of application whether issued on, or with reference to, the formation of a company or subsequently.

• (9) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Act, apart from this section.

362 Exclusion of section 361 and relaxation of Third Schedule in case of certain prospectuses.

362.—(1) Where—

• (a) it is proposed to offer to the public by a prospectus issued generally any shares in or debentures of a company incorporated or to be incorporated outside the State, whether the company has or has not established, or when formed will or will not establish, a place of business in the State; and

• (b) application is made to a recognised stock exchange for permission for those shares or debentures to be dealt in or quoted on that stock exchange;

there may, on the request of the applicant, be given by or on behalf of that stock exchange a certificate of exemption, that is a certificate that, having regard to the proposals (as stated in the request) as to the size and other circumstances of the issue of shares or debentures, and as to any limitation as to the number and class of persons to whom the offer is to be made, compliance with the requirements of the Third Schedule would be unduly burdensome.

• (2) If a certificate of exemption is given and if the proposals aforesaid are adhered to and the particulars and information required to be published in connection with the application for permission to the stock exchange are so published, then—

• (a) a prospectus giving the particulars and information aforesaid in the form in which they are so required to be published shall be deemed to comply with the requirements of the Third Schedule; and

• (b) except in so far as it requires a prospectus to be dated and subject to paragraph (c), section 361 shall not apply to any issue, after the permission applied for is given, of a prospectus relating to the shares or debentures; and

• (c) subsection (4) of section 361 shall apply to any issue, after the permission applied for is granted, of a form of application relating to the shares or debentures as if the reference to a prospectus were a reference to a prospectus giving the particulars and information aforesaid in the form in which they are so required to be published.

363 Provisions as to expert's consent and allotment.

363.—(1) It shall not be lawful for any person to issue, circulate or distribute in the State any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside the State, whether the company has or has not established, or when formed will or will not establish, a place of business in the State—

• (a) if, where the prospectus includes a statement purporting to be made by an expert, he has not given, or has before delivery of the prospectus for registration withdrawn, his written consent to the issue of the prospectus with the statement included in the form and context in which it is included, or there does not appear in the prospectus a statement that he has given and has not withdrawn his consent as aforesaid; and

• (b) if the prospectus does not have the effect, where an application is made in pursuance thereof, of rendering all persons concerned bound by provisions corresponding to the provisions (other than penal provisions) of sections 56 and 57 so far as applicable.

• (2) In this section, “expert” includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him, and for the purposes of this section, a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.

364 Registration of prospectus.

364.—(1) It shall not be lawful for any person to issue, circulate or distribute in the State any prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside the State, whether the company has or has not established, or when formed will or will not establish, a place of business in the State, unless before the issue, circulation or distribution of the prospectus in the State, a copy thereof certified by the chairman and two other directors of the company as having been approved by a resolution of the managing body has been delivered for registration to the registrar of companies as defined in this Act and the prospectus states on the face of it that a copy of it has been so delivered and there is endorsed on or attached to the copy—

• (a) any consent to the issue of the prospectus required by section 363;

• (b) a copy of any contract required by paragraph 14 of the Third Schedule to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof or, if in the case of a prospectus deemed by virtue of a certificate granted under section 362 to comply with the requirements of that Schedule, a contract or a copy thereof or a memorandum of a contract is required to be available for inspection in connection with the application under that section to the stock exchange in question, a copy, or as the case may be, a memorandum of that contract; and

• (c) where the persons making any report required by Part II of that Schedule have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 29 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.

• (2) The references in paragraph (b) of subsection (1) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a language other than the English or Irish language, be taken as references to a copy of a translation of the contract in English or Irish or a copy embodying a translation in English or Irish, of the parts in the foreign language, as the case may be, being a translation certified in the prescribed manner to be a correct translation, and the reference to a copy of a contract required to be available for inspection shall include a reference to a copy of a translation thereof or a copy embodying a translation of parts thereof.

365 Penalty for contravention of sections 361 to 364.

365.—Any person who is knowingly responsible for the issue, circulation or distribution of a prospectus, or for the issue of a form of application for shares or debentures, in contravention of any of the provisions of sections 361 to 364 shall be liable—

• (a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine not exceeding £500 or 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.

366 Civil liability for mis-statements in prospectus.

366.—Section 49 shall extend to every prospectus offering for subscription shares in or debentures of a company incorporated or to be incorporated outside the State, whether the company has or has not established, or when formed will or will not establish, a place of business in the State with the substitution for references to section 46 of references to section 363.

367 Interpretation of provisions as to prospectuses.

367.—(1) Where any document by which any shares in or debentures of a company incorporated outside the State are offered for sale to the public would, if the company concerned had been a company within the meaning of this Act, have been deemed by virtue of section 51 to be a prospectus issued by the company, that document shall be deemed to be, for the purpose of this Part, a prospectus issued by the company.

• (2) An offer of shares or debentures for subscription or sale to any person whose ordinary business it is to buy or sell shares or debentures, whether as principal or agent, shall not be deemed an offer to the public for the purposes of this Part.

• (3) This Part shall not apply to a prospectus or to a form of application for shares or debentures first published or issued in a country recognised for the purpose of this section if the prospectus or form of application complies with the law for the time being in force in the country in which the prospectus or form of application was first published or issued.

• (4) In this Part, “prospectus”, “shares” and “debentures” have the same meanings as when used in relation to a company incorporated under this Act and “recognised” means recognised by order made by the Minister.

PART XIII. General Provisions as to Registration.

368 Registration office.

368.—(1) For the purposes of the registration of companies under this Act, the Minister shall maintain and administer an office or offices in the State at such places as the Minister thinks fit.

• (2) The Minister may appoint such registrars and assistant registrars as he thinks necessary for the registration of companies under this Act, and may make regulations with respect to their duties and may remove any persons so appointed.

• (3) The Minister may direct a seal or seals to be prepared for the authentication of documents required for or connected with the registration of companies.

• (4) Whenever any act is by this Act or by any statute directed to be done to or by the registrar of companies, it shall, until the Minister otherwise directs, be done to or by the existing registrar of joint stock companies or, in his absence, to or by such person as the Minister may for the time being authorise.

369 Fees.

369.— (1) Subject to subsection (2), in respect of the several matters mentioned in the first column of the table set out in Part I of the Eighth Schedule, there shall, subject to the limitations imposed by Part II of that Schedule, be paid to the registrar the several fees specified in the second column of that table.

• (2) No fees shall be charged in respect of the registration in pursuance of Part IX of a company if it is not registered as a limited company, or if before its registration as a limited company, the liability of the shareholders was limited by statute or letters patent.

• (3) All fees paid to the registrar in pursuance of this Act shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance may direct.

370 Inspection, production and evidence of documents kept by registrar.

370.—(1) Any person may—

• (a) inspect the documents kept by the registrar of companies, on payment of such fee as may be fixed by the Minister;

• (b) require a certificate of the incorporation of any company, or a copy or extract of any other document or any part of any other document, to be certified by the registrar, on payment for the certificate, certified copy or extract of such fees as the Minister may fix.

• (2) No process for compelling the production of any document kept by the registrar shall issue from any court except with the leave of that court, and any such process if issued shall bear thereon a statement that it is issued with the leave of the court.

• (3) A copy of, or extract from, any document kept and registered at the office for the registration of companies, certified to be a true copy under the hand of the registrar, assistant registrar or other officer authorised by the Minister (whose official position it shall not be necessary to prove), shall in all legal proceedings be admissible in evidence as of equal validity with the original document.

371 Enforcement of duty to comply with Act.

371.—(1) If a company or any officer of a company having made default in complying with any provision of this Act fails to make good the default within 14 days after the service of a notice on the company or officer requiring it or him to do so, the court may, on an application made to the court by any member or creditor of the company or by the registrar of companies, make an order directing the company and any officer thereof to make good the default within such time as may be specified in the order.

• (2) Any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officers of the company responsible for the default.

• (3) Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a company or its officers in respect of any such default as aforesaid.

PART XIV. Miscellaneous Provisions relating to Banking Companies, Partnerships and Unregistered Companies.

Provisions relating to Banking Companies.

372 Prohibition of banking partnerships with more than ten members.

372.—No company, association or partnership consisting of more than ten persons shall be formed for the purpose of carrying on the business of banking, unless it is registered as a company under this Act, or is formed in pursuance of some other statute.

373 Notice to be given to customers on registration of banking company with limited liability.

373.—(1) Where a banking company which was in existence on the 7th day of August, 1862, proposes to register as a limited company under this Act, it shall, at least 30 days before so registering, give notice of its intention so to register to every person who has a banking account with the company, either by delivery of the notice to him, or by posting it to him at, or by delivering it at, his last known address.

• (2) If the company omits to give the notice required by this section then, as between the company and the person for the time being interested in the account in respect of which the notice ought to have been given, and so far as respects the account down to the time at which notice is given, but not further or otherwise, the certificate of registration with limited liability shall have no operation.

374 Liability of bank of issue unlimited in respect of notes.

374.—(1) Subject to subsection (2), a bank of issue which registers under this Act as a limited company shall not be entitled to limited liability in respect of its notes, and the members thereof shall be liable in respect of its notes in the same manner as if it had been registered as unlimited.

• (2) If, in the event of a company to which subsection (1) applies being wound up, the general assets are insufficient to satisfy the claims of both the note-holders and the general creditors, then the members, after satisfying the remaining demands of the note-holders, shall be liable to contribute towards payment of the debts of the general creditors a sum equal to the amount received by the note-holders out of the general assets.

• (3) For the purposes of this section, “the general assets” means the funds available for payment of the general creditors as well as the note-holders.

• (4) Any bank of issue registered under this Act as a limited company may state on its notes that the limited liability does not extend to its notes, and that the members of the company are liable in respect of its notes in the same manner as if it had been registered as an unlimited company.

375 Privileges of banks making annual return.

375.—(1) Where a company carrying on the business of bankers has duly forwarded to the registrar of companies the annual return required by section 125 and has added thereto a statement of the names of the several places where it carries on business, the company shall not be required to furnish any returns under the Bankers (Ireland) Act, 1825, or section 22 of the Bankers (Ireland) Act, 1845.

• (2) The fact of the said annual return and statement having been duly forwarded may be proved in any legal proceedings by the certificate of the registrar.

Prohibition of Partnerships with more than twenty Members.

376 Prohibition of partnerships with more than twenty members.

376.—No company, association or partnership consisting of more than twenty persons shall be formed for the purpose of carrying on any business (other than the business of banking), that has for its object the acquisition of gain by the company, association or partnership, or by the individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of some other statute.

Application of certain Provisions of this Act to Unregistered Companies.

377 Application of certain provisions of this Act to unregistered companies.

377.—(1) The provisions of this Act specified in the second column of the Ninth Schedule (which respectively relate to the matters referred to in the first column of that Schedule) shall apply to all bodies corporate incorporated in and having a principal place of business in the State, other than those mentioned in subsection (2), as if they were companies registered under this Act and subject to any limitations mentioned in relation to those provisions respectively in the third column of that Schedule and to such adaptations and modifications (if any) as may be prescribed.

• (2) The said provisions shall not apply by virtue of this section to any of the following bodies—

• (a) any body corporate incorporated by or registered under any public general statute; and

• (b) any body corporate not formed for the purpose of carrying on a business which has for its object the acquisition of gain by the body or by the individual members thereof; and

• (c) any body corporate which is prohibited by statute or otherwise from making any distribution of its income or property among its members while it is a going concern or when it is in liquidation; and

• (d) any body corporate for the time being exempted by direction of the Minister.

• (3) The said provisions shall apply also in like manner in relation to any unincorporated body of persons entitled by virtue of letters patent to any of the privileges conferred by the Chartered Companies Act, 1837, and not registered under any other public general statute, but subject to the like exceptions as are provided for in the case of bodies corporate by paragraphs (b), (c) and (d) of subsection (2).

• (4) This section shall not repeal or revoke in whole or in part any enactment, charter or other instrument constituting or regulating any body in relation to which the said provisions are applied by virtue of this section, or restrict the power of the Government to grant a charter in lieu of or supplementary to any such charter as aforesaid; but in relation to any such body, the operation of any such enactment, charter or instrument shall be suspended in so far as it is inconsistent with any of the said provisions as they apply for the time being to that body.

• (5) Every body to which this section applies and which was in existence before the operative date shall within six months after the operative date deliver to the registrar of companies for registration a certified copy of the charter, statutes, memorandum and articles, or other instrument constituting or defining the constitution of the body.

• (6) Every body to which this section applies and which comes into existence on or after the operative date shall within three months after coming into existence deliver to the registrar of companies for registration a certified copy of the charter, statutes, memorandum and articles or other instrument constituting or defining the constitution of the body.

• (7) If default is made in complying with subsection (5) or (6), the body and every officer of the body who is in default shall be liable to a fine not exceeding £100.

PART XV. General.

Form of Registers.

378 Form of registers, minute books and books of account.

378.—(1) Any register, index, minute book or book of account required by this Act to be kept by a company or by the registrar of companies may be kept either by making entries in bound books or by recording the matters in question in any other manner.

• (2) Where any register, index, minute book or book of account to be kept by a company is not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating its discovery, and where default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding £50.

Service of Documents.

379 Service of documents on a company.

379.—(1) A document may be served on a company by leaving it at or sending it by post to the registered office of the company or, if the company has not given notice to the registrar of companies of the situation of its registered office, by registering it at the office for the registration of companies.

• (2) For the purposes of this section, any document left at or sent by post to the place for the time being recorded by the registrar of companies as the situation of the registered office of a company shall be deemed to have been left at or sent by post to the registered office of the company notwithstanding that the situation of its registered office may have been changed.

Offences.

380 Penalty for false statements.

380.—If any person in any return, report, certificate, balance sheet or other document required by or for the purposes of any of the provisions of this Act specified in the Tenth Schedule, wilfully makes a statement false in any material particular, knowing it to be false, he shall be liable

• (a) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine not exceeding £500 or both; or

• (b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £100 or both.

381 Penalty for improper use of word “limited” or “teoranta”.

381.—If any person or persons trade or carry on business under any name or title of which “limited” or “teoranta” or any contraction or imitation of either word, is the last word, that person or those persons shall, unless duly incorporated with limited liability, be liable to a fine not exceeding £100.

382 Prosecution of companies on indictment.

382.—(1) Where a company is charged either alone or jointly with some other person with an indictable offence the subsequent provisions of this section shall have effect.

• (2) The company may appear at all stages of the proceedings by a representative and the answer to any question to be put to a person charged with an indictable offence may be made on behalf of the company by that representative but if the company does not so appear it shall not be necessary to put the questions and the District Court may, notwithstanding its absence, take depositions and send forward the company for trial.

• (3) Any right of objection or election conferred upon the accused person by any enactment may be exercised on behalf of the company by its representative.

• (4) Any plea which may be entered or signed by an accused person, whether before the District Court or before the trial judge, may be entered in writing on behalf of the company by its representative, and, if the company does not appear by its representative or, though it does so appear, fails to enter any such plea, the trial shall proceed as though the company had duly entered a plea of not guilty.

• (5) In this section, “representative” in relation to a company means a person duly appointed by the company to represent it for the purpose of doing any act or thing which the representative of a company is by this section authorised to do, but a person so appointed shall not, by virtue only of being so appointed, be qualified to act on behalf of the company before any court for any other purpose.

• (6) A representative for the purpose of this section need not be appointed under the seal of the company and a statement in writing purporting to be signed by a managing director of the company or by some other person (by whatever name called) having, or being one of the persons having, the management of the affairs of the company, to the effect that the person named in the statement has been appointed as the representative of the company for the purposes of this section shall be admissible without further proof as evidence that that person has been so appointed.

• (7) In this section, “company” includes a company incorporated outside the State which has an established place of business in the State.

383 Meaning of “officer in default”.

383.—For the purpose of any provision in this Act which provides that an officer of a company who is in default shall be liable to a fine or penalty, “officer who is in default” means any officer of the company who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the provision.

384 Production and inspection of books when offence suspected.

384.—(1) If on an application to a Judge of the High Court by the Attorney General, the Minister or a Superintendent of the Garda Síochána, there is shown to be reasonable cause to believe that any person has, while an officer of a company, committed an offence in connection with the management of the company's affairs and that evidence of the commission of the offence is to be found in any books or papers of or under the control of the company, an order may be made—

• (a) authorising any person named therein to inspect the said books or papers or any of them for the purpose of investigating and obtaining evidence of the offence; or

• (b) requiring the secretary of the company or such other officer thereof as may be named in the order to produce the said books or any of them to a person named in the order at a place so named.

• (2) Subsection (1) shall apply also in relation to any books or papers of a person carrying on the business of banking so far as they relate to the company's affairs, as it applies to any books or papers of or under the control of the company, except that no such order as is referred to in paragraph (b) thereof shall be made by virtue of this subsection.

• (3) The decision of a Judge of the High Court on an application under this section shall be final subject to an appeal to the Supreme Court on a question of law.

• (4) In this section, “company” includes a company incorporated outside the State which has an established place of business in the State.

385 Summary proceedings.

385.—(1) All offences under this Act made punishable by any term of imprisonment not exceeding 6 months or by any fine not exceeding £100 or by such imprisonment and such fine, may be prosecuted summarily.

• (2) Summary proceedings in relation to an offence under this Act may be brought and prosecuted by the Attorney General or by the Minister.

• (3) Notwithstanding subsection (4) of section 10 of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be instituted within 3 years from the date of the offence.

386 Minimum, fine for second or subsequent offences.

386.—Where a person is convicted of an offence under this Act and is subsequently convicted of another offence under this Act, the fine to be imposed by the court in respect of such second or subsequent offence shall not be less than £50 unless the court, having regard to all the circumstances of the case, otherwise decides.

387 Saving for privileged communications.

387.—Where proceedings are instituted under this Act against any person, nothing in section 170 or 299 shall be taken to require any person who has acted as solicitor for the company to disclose any privileged communication made to him otherwise than as such solicitor.

388 Proof of incorporation of companies incorporated outside the State.

388.—A copy of any Act by which a corporation is incorporated, purporting to be published by the Government publishers of any country prescribed by the Minister for the purposes of this section, shall without further proof be prima facie evidence of the incorporation of that corporation.

389 Proof of certificates as to incorporation.

389.—A certificate signed by any person purporting to hold the office of registrar of companies or assistant registrar of companies or any office similar thereto in any country prescribed by the Minister for the purposes of this section, certifying that a company named in such certificate has been incorporated in that country, shall be prima facie evidence of such incorporation without proof of the signature of the person signing such certificate and without proof that the person signing such certificate holds that office.

Legal Proceedings.

390 Security for costs by company.

390.—Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.

391 Power of court to grant relief to officers of company.

391.—(1) If in any proceeding for negligence, default, breach of duty or breach of trust against an officer of a company or a person employed by a company as auditor, it appears to the court hearing the case that that officer or person is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably, and that, having regard to all the circumstances of the case, including those connected with his appointment, he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, that court may relieve him, either wholly or partly from his liability on such terms as the court may think fit.

• (2) Where any such officer or person as aforesaid has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the court for relief, and the court on any such application shall have the same power to relieve him as under this section it would have had if it had been a court before which proceedings against that person for negligence, default, breach of duty or breach of trust had been brought.

• (3) Where any case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant ought in pursuance of that subsection to be relieved, either in whole or in part, from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury, and direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.

General Provisions as to the Minister.

392 Annual report by the minister.

392.—The Minister shall cause a general annual report of matters within this Act to be prepared and laid before both Houses of the Oireachtas.

393 Expenses.

393.—The expenses incurred by the Minister in the administration of this Act shall to such extent as may be sanctioned by the Minister for Finance be paid out of moneys provided by the Oireachtas.

394 Authentication of documents issued by the Minister.

394.—Any approval, sanction, direction or licence or revocation of licence which under this Act may be given or made by the Minister may be under the hand of any person authorised in that behalf by the Minister.

395 Power to alter Tables and Forms.

395.—(1) The Minister shall have power by order to alter or add to the requirements of this Act as to the matters to be stated in a company's balance sheet, profit and loss account and group accounts, and in particular of those of the Sixth Schedule; and any reference in this Act to the Sixth Schedule shall be construed as a reference to that Schedule with any alterations or additions made by orders for the time being in force under this subsection.

• (2) The Minister may by order—

• (a) alter Table A, Tábla A and the Third, Seventh and Eighth Schedules; and

• (b) alter or add to Tables B, C, D and E in the First Schedule and the form in Part II of the Fifth Schedule;

but no alteration made by the Minister in Table A or in Tábla A shall affect any company registered before the alteration, or repeal in relation to that company any portion of Table A or Tábla A.

396 Laying of orders before Houses of Oireachtas and power to revoke or amend orders and to prescribe forms.

396.—(1) Every order made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

• (2) The Minister may by order revoke or amend an order (other than an order made under subsection (2) of section 1) made under this Act.

• (3) The Minister may by order prescribe forms to be used in connection with any of the provisions of this Act other than those relating to the winding up of companies.

Supplemental.

397 Restriction of section 58 of Solicitors Act, 1954.

397.—Notwithstanding section 58 of the Solicitors Act, 1954, a person to whom paragraph (a) or (b) of subsection (1) of section 162 applies may draw or prepare any document for the purposes of this Act other than a deed or a memorandum or articles of association.

398 Provisions as to winding-up proceedings commenced before the operative date.

398.—(1) The provisions of this Act relating to winding up (other than subsections (2) and (3)) shall not apply to any company of which the winding up commenced before the operative date but every such company shall be wound up in the same manner and with the same incidents as if this Act (apart from the enactments aforesaid) had not been passed, and for the purposes of the winding up, the Act or Acts under which the winding up commenced shall be deemed to remain in full force.

• (2) An office copy of every order staying the proceedings in a winding up commenced as aforesaid shall forthwith be forwarded by the company or by such person as the court may direct, to the registrar of companies for registration.

• (3) If a company fails to comply with subsection (2), the company and every officer of the company who is in default shall be liable to a fine not exceeding £25, and if any other person fails to comply with subsection (2) such person shall be liable to a fine not exceeding £25.

399 Amendments of other Acts.

399.—The enactments set out in the Eleventh Schedule shall have effect subject to the amendments specified in that Schedule.

SCHEDULES FIRST SCHEDULE.

Table A, Tábla A, and Tables B, C, D and E.

TABLE A.

Part I.

REGULATIONS FOR MANAGEMENT OF A COMPANY LIMITED BY SHARES NOT BEING A PRIVATE COMPANY.

Interpretation.

“the Act” means the Companies Act, 1963 (No. 33 of 1963);

“the directors” means the directors for the time being of the company or the directors present at a meeting of the board of directors and includes any person occupying the position of director by whatever name called;

“the register” means the register of members to be kept as required by section 116 of the Act;

“secretary” means any person appointed to perform the duties of the secretary of the company;

“the office” means the registered office for the time being of the company;

“the seal” means the common seal of the company.

Expressions referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography, and any other modes of representing or reproducing words in a visible form.

Unless the contrary intention appears, words or expressions contained in these regulations shall bear the same meaning as in the Act or in any statutory modification thereof in force at the date at which these regulations become binding on the company.

Share Capital and Variation of Rights.