Companies (Amendment) Act , 1983

PART I Preliminary

1 Short title, collective citation and commencement.

1.—(1) This Act may be cited as the Companies (Amendment) Act, 1983.

(2) The collective citation “the Companies Acts, 1963 to 1983” shall include this Act.

(3) This Act shall come into operation on such day as the Minister may appoint by order.

2 Interpretation.

2.—(1) In this Act unless the context otherwise, requires—

“the appointed day” means the day appointed by the Minister under section 1 (3) for the coming into operation of this Act;

“the appropriate rate”, in relation to interest, means five per cent. per annum or such other rate as may be specified by order made by the Minister under subsection (7);

“the authorised minimum” has the meaning assigned to it by section 19;

“balance sheet date”, in relation to a balance sheet, means the date as at which the balance sheet was prepared;

“called-up share capital”, in relation to a company, means so much of its share capital as equals the aggregate amount of the calls made on its shares, whether or not those calls have been paid, together with any share capital paid up without being called and any share capital to be paid on a specified future date under the articles, the terms of allotment of the relevant shares or any other arrangements for payment of those shares, and “uncalled share capital” shall be construed accordingly;

“the Companies Acts” means the Acts which by virtue of subsection (5) shall be construed as one Act;

“employees' share scheme” means any scheme for the time being in force, in accordance with which a company encourages or facilitates the holding of shares or debentures in the company or its holding company by or for the benefit of employees or former employees of the company or of any subsidiary of the company including any person who is or was a director holding a salaried employment or office in the company or any subsidiary of the company;

“equity security” has the meaning assigned to it by section 23(13);

“the general transitional period” means the period of 18 months commencing on the appointed day;

“hire-purchase agreement” has the same meaning as in the Hire- Purchase Act, 1946;

“the Minister” means the Minister for Trade, Commerce and Tourism;

“non-cash asset” means any property or interest in property other than cash (including foreign currency);

“old public limited company” has the meaning assigned to it by section 12(1);

“the Principal Act” means the Companies Act, 1963;

“public company” means a company which is not a private company;

“public limited company” means a public company limited by shares or a public company limited by guarantee and having a share capital, being a company—

(a) the memorandum of which states that the company is to be a public limited company; and

(b) in relation to which the provisions of the Companies Acts as to the registration or re-registration of a company as a public limited company have been complied with on or after the appointed day;

“the re-registration period” has the meaning assigned to it by section 13(1);

“the transitional period for share capital” means the period of 3 years commencing on the appointed day.

(2) In relation to an allotment of shares in a company, the shares shall be taken for the purposes of the Companies Acts to be allotted when a person acquires the unconditional right to be included in the company's register of members in respect of those shares.

(3) For the purposes of the Companies Acts—

(a) a share in a company shall be taken to have been paid up (as to its nominal value or any premium on it) in cash or allotted for cash if the consideration for the allotment or the payment up is cash received by the company or is a cheque received by the company in good faith which the directors have no reason for suspecting will not be paid or is the release of a liability of the company for a liquidated sum or is an undertaking to pay cash to the company at a future date; and

(b) in relation to the allotment or payment up of any shares in a company, references in the Companies Acts, except in section 23, to consideration other than cash and to the payment up of shares and premiums on shares otherwise than in cash include references to the payment of, or an undertaking to pay, cash to any person other than the company;

and for the purposes of determining whether a share is or is to be allotted for cash or paid up in cash, “cash” includes foreign currency.

(4) For the purposes of this Act—

(a) any reference to a balance sheet or to a profit and loss account shall include a reference to any notes thereon or document annexed thereto giving information which is required by the Companies Acts and is thereby allowed to be so given;

(b) any reference to the transfer or acquisition of a non-cash asset includes a reference to the creation or extinction of an estate or interest in, or a right over, any property and also a reference to the discharge of any person's liability, other than a liability for a liquidated sum; and

(c) the net assets of a company are the aggregate of its assets less the aggregate of its liabilities;

and in paragraph (c) “liabilities” includes any provision (within the meaning of the Sixth Schedule to the Principal Act) except to the extent that that provision is taken into account in calculating the value of any asset of the company.

(5) The Companies Act, 1963, the Companies (Amendment) Act, 1977, the Companies (Amendment) Act, 1982, and this Act shall be construed together as one Act.

(6) In this Act—

(a) a reference to a Part, section or Schedule is to a Part, section or Schedule of this Act unless it is indicated that a reference to some other enactment is intended;

(b) a reference to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended; and

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended by or under any other enactment, including this Act.

(7) The Minister may by order specify that the appropriate rate of interest for the purposes of this Act shall be a rate other than five per cent. per annum.

3 Amendments, repeals and savings.

3.—(1) The provisions of the Principal Act specified in the First Schedule are hereby amended to the extent specified in that Schedule.

(2) The provisions of the Principal Act and the Companies (Amendment) Act, 1982, specified in the first column of the Third Schedule are hereby repealed to the extent specified in the second column of that Schedule.

(3) Paragraphs 24 and 25 of the First Schedule (which amend Table A and Tábla A respectively in the First Schedule to the Principal Act) and any repeal specified in the Third Schedule of anything contained in the said Table A and the said Tábla A shall not affect any company registered before the appointed day.

(4) In the Principal Act, a reference to a company registered under any specified enactment shall continue to have effect as a reference to a company registered under that enactment, notwithstanding that it has subsequently been re-registered under this Act.

PART II Name of public limited company, registration and re-registration of companies.

4 Name of a public limited company.

4.—(1) The name of a public limited company must end with the words “public limited company” or “cuideachta phoiblí theoranta” which may be abbreviated to “p.l.c.” or “c.p.t.” respectively and those words or abbreviations may not be preceded by the word “limited” or its abbreviation “ltd.” or “teoranta” or its abbreviation “teo.”.

(2) Subject to subsection (1), a resolution in accordance with section 12 that a company be re-registered as a public limited company may change the name of the company by deleting—

(a) the word “company” or the words “and company”; or

(b) the word “cuideachta” or the words “agus cuideachta”,

including any abbreviation of them, and no fee shall be payable in respect of any change of name mentioned in this subsection.

(3) The memorandum of a public limited company which is limited by shares shall be in the form set out in Part I of the Second Schedule or, if it is a company limited by guarantee and having a share capital, in the form set out in Part II of that Schedule or, in either case, as near thereto as circumstances admit; and those forms supersede in the case of a public limited company the forms of memorandum set out respectively in Tables B and D in the First Schedule to the Principal Act.

5 Registration of companies.

5.—(1) Where any memorandum is delivered for registration under section 17 of the Principal Act, the registrar shall not register the memorandum unless he is satisfied that all the requirements of the Companies Acts in respect of registration and of matters precedent and incidental thereto have been complied with.

(2) Where a memorandum which is so delivered states that the association to be registered is to be a public limited company, the amount of the share capital stated in the memorandum to be that with which the company proposes to be registered must not be less than the authorised minimum.

(3) Where the registrar registers an association's memorandum which states that the association is to be a public limited company, the certificate of incorporation given in respect of that association under section 18 of the Principal Act shall contain a statement that the company is a public limited company.

(4) A certificate of incorporation given under that section in respect of any association shall be conclusive evidence—

(a) that the requirements mentioned in subsection (1) have been complied with, and that the association is a company authorised to be registered and is duly registered under the Principal Act; and

(b) if the certificate contains a statement that the company is a public limited company, that the company is such a company.

(5) A statutory declaration in the prescribed form by a solicitor engaged in the formation of a company, or by a person named as a director or secretary of the company in the statement delivered under section 3 of the Companies (Amendment) Act, 1982 that the requirements mentioned in subsection (1) have been complied with shall be delivered to the registrar, and the registrar may accept such a declaration as sufficient evidence of compliance.

6 Restriction on commencement of business by a public limited company.

6.—(1) A company registered as a public limited company on its original incorporation shall not do business or exercise any borrowing powers unless the registrar of companies has issued it with a certificate under this section or the company is re-registered as another form of company.

(2) The registrar shall issue a public limited company with a certificate under this section if, on an application made to him in the prescribed form by the company, he is satisfied that the nominal value of the company's allotted share capital is not less than the authorised minimum, and there is delivered to him a statutory declaration complying with subsection (3).

(3) The statutory declaration shall be in the prescribed form and signed by a director or secretary of the company and shall state—

(a) that the nominal value of the company's allotted share capital is not less than the authorised minimum;

(b) the amount paid up, at the time of the application, on the allotted share capital of the company;

(c) the amount, or estimated amount, of the preliminary expenses of the company and the persons by whom any of those expenses have been paid or are payable; and

(d) any amount or benefit paid or given or intended to be paid or given to any promoter of the company, and the consideration for the payment or benefit.

(4) For the purposes of subsection (2), a share allotted in pursuance of an employees' share scheme may not be taken into account in determining the nominal value of the company's allotted share capital unless it is paid up at least as to one-quarter of the nominal value of the share and the whole of any premium on the share.

(5) The registrar may accept a statutory declaration delivered to him under subsection (2) as sufficient evidence of the matters stated therein.

(6) A certificate under this section in respect of any public limited company shall be conclusive evidence that the company is entitled to do business and exercise any borrowing powers.

(7) If a public limited company does business or exercises borrowing powers in contravention of this section, the company and any officer of the company who is in default shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(8) The provisions of this section are without prejudice to the validity of any transaction entered into by a public limited company; but if a public limited company enters into a transaction in contravention of those provisions and fails to comply with its obligations in connection therewith within 21 days from being called upon to do so, the directors of the company shall be jointly and severally liable to indemnify the other party to the transaction in respect of any loss or damage suffered by him by reason of the failure of the company to comply with those obligations.

7 Prohibition on formation of public company limited by guarantee and having a share capital.

7.—On or after the appointed day, no company shall be formed as, or become, a public company limited by guarantee and having a share capital.

8 Power of registrar to strike public limited company off register.

8.—(1) Where a public limited company registered as such on its original incorporation has not been issued with a certificate under section 6 within one year from the date on which it was registered, the registrar may send to the company, by registered post, a letter stating that a notice will be published in Iris Oifigiúil with a view to striking the name of that public limited company off the register unless such a certificate has been issued to the company within one month from the date of that letter.

(2) Where a certificate referred to in section 6 has not been issued within one month from the date of the letter referred to in subsection (1), the registrar may publish such notice and may proceed to strike the name of the public limited company off the register in accordance with section 311 (5) of the Principal Act.

(3) Section 311 (6), (7) and (8) of the Principal Act shall apply to a public limited company the name of which has been struck off the register in accordance with subsection (2) as those subsections apply for the purposes of the said section 311.

9 Re-registration of private company as public limited company.

9.—(1) Subject to section 11, a private company may be re-registered as a public limited company if—

(a) a special resolution, complying with subsection (2) that it should be so re-registered is passed; and

(b) an application for the purpose, in the prescribed form and signed by a director or secretary of the company, is delivered to the registrar together with the documents mentioned in subsection (3); and

(c) the conditions specified in subsection (5)(a) and (b) (where applicable) and section 10(1) (a) to (d) are satisfied in relation to the company.

(2) The special resolution must—

(a) alter the company's memorandum so that it states that the company is to be a public limited company;

(b) make such other alterations in the memorandum as are necessary to bring it in substance and in form into conformity with the requirements of this Act with respect to the memorandum of a public limited company; and

(c) make such alterations in the company's articles as are requisite in the circumstances.

(3) The documents referred to in subsection (1) are—

(a) a printed copy of the memorandum and articles as altered in pursuance of the resolution;

(b) a copy of a written statement by the auditors of the company that in their opinion the relevant balance sheet shows that at the balance sheet date the amount of the company's net assets was not less than the aggregate of its called-up share capital and undistributable reserves;

(c) a copy of the relevant balance sheet, together with a copy of an unqualified report by the company's auditors in relation to that balance sheet;

(d) a copy of any report prepared under subsection (5)(b); and

(e) a statutory declaration in the prescribed form by a director or secretary of the company—

(i) that the special resolution mentioned in subsection (1) (a) has been passed and that the conditions specified in subsection (1)(c) have been satisfied; and

(ii) that, between the balance sheet date and the application of the company for re-registration, there has been no change in the financial position of the company that has resulted in the amount of the company's net assets becoming less than the aggregate of its called-up share capital and undistributable reserves.

(4) The registrar may accept a statutory declaration under subsection (3) (e) as sufficient evidence that the special resolution has been passed and the said conditions have been satisfied.

(5) Where shares are allotted by the company between the balance sheet date and the passing of the special resolution as fully or partly paid up as to their nominal value or any premium on them otherwise than in cash, the company shall not make an application for re-registration under this section unless before the making of the application—

(a) the consideration for that allotment has been valued in accordance with the provisions of section 30 applied by this subsection and section 31; and

(b) a report with respect to its value has been made to the company in accordance with those provisions during the six months immediately preceding the allotment of the shares;

and subsections (2) to (8) and (12) to (14) of section 30 shall apply for the purposes of this subsection as they apply for the purposes of that section and as if the references to subsection (1) of section 30 were references to this subsection.

(6) If the registrar is satisfied on an application made under subsection (1) that a company may be re-registered under this section as a public limited company, he shall—

(a) retain the application and other documents delivered to him under that subsection; and