Companies (Amendment) Act , 1983

(3) Where the liability mentioned in subsection (1) arises by virtue of an undertaking given to the company in, or in connection with, payment for any shares in the company, the court may, on an application under that subsection, exempt the applicant from that liability only if and to the extent that it appears to the court just and equitable to do so having regard to the following, namely—

(a) whether the applicant has paid or is liable to pay any amount in respect of any liability arising in relation to those shares under section 26, 29, 30 or 32; and

(b) whether any person other than the applicant has paid or is likely to pay (whether in pursuance of an order of the court or otherwise) any such amount.

(4) In determining in pursuance of an application under subsection (1) whether it should exempt the applicant in whole or in part from any liability, the court shall have regard to the following overriding principles, namely—

(a) that a company which has allotted shares should receive money or money's worth at least equal in value to the aggregate of the nominal value of those shares and the whole of any premium or, if the case so requires, so much of that aggregate as is treated as paid up; and

(b) subject to paragraph (a), that where such a company would, if the court did not grant that exemption, have more than one remedy against a particular person, it should be for the company to decide which remedy it should remain entitled to pursue.

(5) Where a person brings any proceedings against another (“the contributor”) for a contribution in respect of any liability to a company arising under any of sections 26 to 30 and 32 and it appears to the court that the contributor is liable to make such a contribution, the court may, if and to the extent that it appears to the court, having regard to the respective culpability in respect of the liability to the company of the contributor and the person bringing the proceedings, that it is just and equitable to do so—

(a) exempt the contributor in whole or in part from his liability to make such a contribution; or

(b) order the contributor to make a larger contribution than, but for this subsection, he would be liable to make.

(6) Where a person is liable to a company by virtue of section 32(7)(a), the court may, on an application under this subsection, exempt that person in whole or in part from that liability if and to the extent that it appears to the court just and equitable to do so having regard to any benefit accruing to the company by virtue of anything done by that person towards the carrying out of the agreement mentioned in that subsection.

35 Special provisions as to issue of shares to subscribers.

35.—Any shares taken by a subscriber to the memorandum of a public limited company in pursuance of an undertaking of his in the memorandum and any premium on the shares shall be paid up in cash.

36 Contravention of sections 26 to 35.

36.—(1) Where a company contravenes any of the provisions of sections 26 to 30, 32 and 35, the company and any officer of the company who is in default shall be guilty of an offence.

(2) Subject to section 34, an undertaking given by any person in or in connection with payment for shares in a company to do work or perform services or to do any other thing shall, if it is enforceable by the company apart from this Act, be so enforceable notwithstanding that there has been a contravention in relation thereto of section 26, 29 or 30 and where such an undertaking is given in contravention of section 32 in respect of the allotment of any shares it shall be so enforceable notwithstanding that contravention.

37 Application of sections 26 to 36 in special cases.

37.—(1) Subject to subsection (2), sections 26, 28 to 31 and 34 to 36 shall apply—

(a) to a company which has passed and not revoked a special resolution to be re-registered under section 9 or section 11;

(b) to a company whose directors have passed and not revoked a resolution to be re-registered under section 12; and

(c) to a joint stock company (within the meaning of section 329 of the Principal Act) which has passed and not revoked a resolution that the company be a public limited company;

as those sections apply to a public limited company.

(2) Section 26 and sections 28 to 31 shall not apply to the allotment of shares by a company, other than a public limited company registered as such on its original incorporation, where the contract for their allotment was entered into—

(a) except in a case falling within paragraph (b), before the end of the general transitional period;

(b) in the case of a company re-registered or registered as a public limited company in pursuance of a resolution of any description mentioned in subsection (1) that is passed before the end of that period, before the date on which that resolution is passed.

Class rights

38 Variation of rights attached to special classes of shares.

38.—(1) This section shall have effect with respect to the variation of the rights attached to any class of shares in a company whose share capital is divided into shares of different classes.

(2) Where the rights are attached to a class of shares in the company otherwise than by the memorandum, and the articles of the company do not contain provision with respect to the variation of the rights, those rights may be varied if, but only if—

(a) the holders of three-quarters in nominal value of the issued shares of that class consent in writing to the variation; or

(b) a special resolution passed at a separate general meeting of the holders of that class sanctions the variation;

and any requirement (howsoever imposed) in relation to the variation of those rights is complied with to the extent that it is not comprised in paragraphs (a) and (b).

(3) Where—

(a) the rights are attached to a class of shares in the company by the memorandum or otherwise;

(b) the memorandum or articles contain provision for the variation of those rights; and

(c) the variation of those rights is connected with the giving, variation, revocation or renewal of an authority for the purposes of section 20 or with a reduction of the company's share capital under section 72 of the Principal Act,

those rights shall not be varied unless—

(i) the condition mentioned in subsection (2) (a) or (b) is satisfied; and

(ii) any requirement of the memorandum or articles in relation to the variation of rights of that class is complied with to the extent that it is not comprised in the condition in subparagraph (i).

(4) Where the rights are attached to a class of shares in the company by the memorandum or otherwise and—

(a) where they are so attached by the memorandum, the articles contain provision with respect to their variation which had been included in the articles at the time of the company's original incorporation; or

(b) where they are so attached otherwise, the articles contain such provision (whenever first so included);

and in either case the variation is not connected as mentioned in subsection (3) (c), those rights may only be varied in accordance with that provision of the articles.

(5) Where the rights are attached to a class of shares in the company by the memorandum and the memorandum and articles do not contain provision with respect to the variation of the rights, those rights may be varied if all the members of the company agree to the variation.

(6) The provisions of sections 133 and 134 of the Principal Act and the provisions of the articles relating to general meetings shall, so far as applicable, apply in relation to any meeting of shareholders required by this section or otherwise to take place in connection with the variation of the rights attached to a class of shares, and shall so apply with the necessary modifications and subject to the following provisions, namely—

(a) the necessary quorum at any such meeting other than an adjourned meeting shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and at an adjourned meeting one person holding shares of the class in question or his proxy;

(b) any holder of shares of the class in question present in person or by proxy may demand a poll.

(7) Any alteration of a provision contained in the articles of a company for the variation of the rights attached to a class of shares or the insertion of any such provision into the company's articles shall itself be treated as a variation of those rights.

(8) Section 78 of the Principal Act shall apply in relation to subsection (2) as it applies in relation to a provision of the memorandum or articles of a company to the like effect.

(9) In this section and, except where the context otherwise requires,in any provision for the variation of the rights attached to a class of shares contained in the company's memorandum or articles references to the variation of those rights shall include references to their abrogation.

(10) Nothing in subsections (2) to (5) shall be construed as derogating from the powers of the court under section 15 or any of the following sections of the Principal Act, that is to say, sections 10, 201, 203 and 205.

(11) This section shall not apply in relation to any variation made by a company, other than a public limited company registered as such on its original incorporation, before the date on which the earlier of the following events occurs, that is to say, the re-registration or registration of the company as a public limited company and the end of the general transitional period.

39 Registration of particulars of special rights.

39.—(1) Where a company allots shares with rights which are not stated in its memorandum or articles or in any resolution or agreement to which section 143 of the Principal Act applies, the company shall, unless the shares are in all respects uniform with shares previously allotted, deliver to the registrar of companies within one month from allotting the shares a statement in the prescribed form containing particulars of those rights.

(2) Shares allotted with such rights shall not be treated for the purposes of subsection (1) as different from shares previously allotted by reason only of the fact that the former do not carry the same rights to dividends as the latter during the twelve months immediately following the former's allotment.

(3) Where the rights attached to any shares of a company are varied otherwise than by an amendment of the company's memorandum or articles or by resolution or agreement to which the said section 143 applies, the company shall within one month from the date on which the variation is made deliver to the registrar of companies a statement in the prescribed form containing particulars of the variation.

(4) Where a company (otherwise than by any such amendment, resolution or agreement as is mentioned in subsection (3)) assigns a name or other designation, or a new name or other designation, to any class of its shares it shall within one month from doing so deliver to the registrar of companies a notice in the prescribed form giving particulars thereof.

(5) If a company fails to comply with this section, the company and every 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 £250 together with, in the case of a continuing offence, a fine not exceeding £25 for every day on which the offence continues but not exceeding £500 in total.

Maintenance of capital

40 Obligation to convene extraordinary general meeting in event of serious loss of capital.

40.—(1) Subject to subsection (4), where the net assets of a company are half or less of the amount of the company's called-up share capital, the directors of the company shall, not later than 28 days from the earliest day on which that fact is known to a director of the company, duly convene an extraordinary general meeting of the company for a date not later than 56 days from that day for thepurpose of considering whether any, and if so what, measures should be taken to deal with the situation.

(2) If there is a failure to convene an extraordinary general meeting of a company as required by subsection (1), each of the directors of the company who—

(a) knowingly and wilfully authorises or permits that failure; or

(b) after the expiry of the period during which that meeting should have been convened, knowingly and wilfully authorises or permits that failure to continue,

shall be guilty of an offence.

(3) Nothing in this section shall be taken as authorising the consideration, at a meeting convened in pursuance of subsection (1), of any matter which could not have been considered at that meeting apart from this section.

(4) This section shall not apply where the day mentioned in subsection (1) is before the appointed day.

41 Restriction on company acquiring its own shares.

41.—(1) Subject to the following provisions of this section, no company limited by shares or limited by guarantee and having a share capital shall acquire its own shares (whether by purchase, subscription or otherwise).

(2) A company limited by shares may acquire any of its own fully paid shares otherwise than for valuable consideration.

(3) If a company purports to act in contravention of this section the company and every officer of the company who is in default shall be guilty of an offence and the purported acquisition shall be void.

(4) Subsection (1) shall not apply in relation to—

(a) the redemption of preference shares in pursuance of the articles;

(b) the acquisition of any shares in a reduction of capital duly made;

(c) the purchase of any shares in pursuance of an order of the court under section 15 or under section 10 or section 205 of the Principal Act; or

(d) the forfeiture of any shares, or the acceptance of any shares surrendered in lieu, in pursuance of the articles for failure to pay any sum payable in respect of those shares.

42 Acquisition of shares in a company by company's nominee.

42.—(1) Subject to subsections (5) and (6), where shares are issued to a nominee of a company referred to in section 41 (1) or are acquired by a nominee of such a company from a third party as partly paid up, then, for all purposes the shares shall be treated as held by the nominee on his own account and the company shall be regarded as having no beneficial interest in them.

(2) Subject to subsection (6), if a person is called on to pay any amount for the purpose of paying up, or paying any premium on, any shares in any such company which were issued to him, or which he otherwise acquired, as the nominee of the company and he fails to pay that amount within 21 days from being called on to do so, then—

(a) if the shares were issued to him as a subscriber to the memorandum by virtue of an undertaking of his in the memorandum, the other subscribers to the memorandum; or

(b) if the shares were otherwise issued to or acquired by him, the directors of the company at the time of the issue or acquisition,

shall be jointly and severally liable with him to pay that amount.

(3) If in proceedings for the recovery of any such amount from any such subscriber or director under this section it appears to the court that he is or may be liable to pay that amount, but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case, he ought fairly to be excused from liability, the court may relieve him, either wholly or partly, from his liability on such terms as the court thinks fit.

(4) Where any such subscriber or director has reason to apprehend that a claim will or might be made for the recovery of any such amount from him, he may apply to the court for relief and on the application the court shall have the same power to relieve him as it would have had in proceedings for the recovery of that amount.

(5) Subsection (1) shall not apply to shares acquired otherwise than by subscription by a nominee of a public limited company in a case falling within section 43 (1) (d).

(6) Subsections (1) and (2) shall not apply—

(a) to shares acquired by a nominee of a company where the company has no beneficial interest in those shares (disregarding any right which the company itself may have as trustee, whether as personal representative or otherwise, to recover its expenses or be remunerated out of the trust property); or

(b) to shares issued in consequence of an application made before the appointed day or transferred in pursuance of an agreement to acquire them made before that day.

43 Treatment of shares held by or on behalf of a public limited company.

43.—(1) Subject to subsections (12) and (15), this section applies to a public limited company—

(a) where shares in the company are forfeited, or are surrendered to the company in lieu, in pursuance of the articles for failure to pay any sum payable in respect of those shares;

(b) where shares in the company are acquired by the company otherwise than by any of the methods mentioned in section 41 (4) and the company has a beneficial interest in those shares;

(c) where the nominee of the company acquires shares in the company from a third person without financial assistance being given directly or indirectly by the company and the company has a beneficial interest in those shares; or

(d) where any person acquires shares in the company with financial assistance given to him directly or indirectly by the company for the purpose of or in connection with the acquisition and the company has a beneficial interest in those shares.

(2) In determining for the purposes of subsection (1) (b) and (c) whether a company has a beneficial interest in any shares, there shall be disregarded, in any case where the company is a trustee (whether as personal representative or otherwise), any right of the company (as trustee) to recover its expenses or be remunerated out of the trust property.

(3) Unless the shares or any interest of the company in them are previously disposed of, the company must not later than the end of the relevant period from their forfeiture or surrender or, in a case to which subsection (1) (b), (c) or (d) applies, their acquisition—

(a) cancel them and reduce the amount of the share capital by the nominal value of the shares; and

(b) where the effect of cancelling the shares will be that the nominal value of the company's allotted share capital is brought below the authorised minimum, apply for re-registration as another form of company, stating the effect of the cancellation,

and the directors may take such steps as are requisite to enable the company to carry out its obligations under this subsection without complying with sections 72 and 73 of the Principal Act, including passing a resolution in accordance with subsection (5).

(4) The company and, in a case falling within subsection (1) (c) or (d), the company's nominee or, as the case may be, the other shareholder must not exercise any voting rights in respect of the shares and any purported exercise of those rights shall be void.

(5) The resolution authorised by subsection (3) may alter the company's memorandum so that it no longer states that the company is to be a public limited company and may make such other alterations in the memorandum and articles as are requisite in the circumstances.

(6) The application for re-registration required by subsection (3) (b) must be in the prescribed form and signed by a director or secretary of the company and must be delivered to the registrar together with a printed copy of the memorandum and articles of the company as altered by the resolution.

(7) If a public limited company required to apply to be re-registered as another form of company under this section fails to do so before the end of the relevant period, section 21 shall apply to it as if it were a private company such as is mentioned in that section, but, except as aforesaid, the company shall continue to be treated for the purposes of the Companies Acts as a public limited company until it is re-registered as another form of company.

(8) If a company when required to do so by subsection (3) fails to cancel any shares in accordance with paragraph (a) of that subsection or to make an application for re-registration in accordance with paragraph (b) of that subsection, the company and every 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 £250 together with, in the case of a continuing offence, a fine not exceeding £25 forevery day on which the offence continues, but not exceeding £500 in total.

(9) If the registrar is satisfied that a company may be re-registered in accordance with this section he shall—

(a) retain the application and other documents delivered to him under subsection (6); and

(b) issue the company with an appropriate certificate of incorporation.

(10) Upon the issue of a certificate of incorporation under subsection (9)—

(a) the company shall by virtue of the issue of that certificate become the form of company stated in the certificate; and

(b) the alterations in the memorandum and articles set out in the resolution shall take effect accordingly.

(11) A certificate of incorporation issued to a company under subsection (9) shall be conclusive evidence—

(a) that the requirements of this section in respect of re-registration and of matters precedent and incidental thereto have been complied with; and

(b) that the company is the form of company stated in the certificate.

(12) Where, after shares in a company—

(a) are forfeited in pursuance of the articles of the company or are surrendered to the company in lieu of forfeiture or are otherwise acquired by the company;

(b) are acquired by a nominee of the company in the circumstances mentioned in subsection (1)(c); or

(c) are acquired by any person in the circumstances mentioned in subsection (1) (d),

the company is re-registered as a public limited company, the foregoing provisions of this section shall apply to the company as if it had been a public limited company at the time of the forfeiture, surrender or acquisition and as if for any reference to the relevant period from the forfeiture, surrender or acquisition there were substituted a reference to the relevant period from the re-registration of the company as a public limited company.

(13) Where a public limited company or a nominee of a public limited company acquires shares in the company or an interest in such shares and those shares are or that interest is shown in a balance sheet of the company as an asset, an amount equal to the value of the shares or, as the case may be, the value to the company of its interest in the shares shall be transferred out of profits available for dividend to a reserve fund and shall not be available for distribution.

(14) In this section “relevant period”, in relation to any shares, means—

(a) in the case of shares forfeited or surrendered to the company in lieu of forfeiture or acquired as mentioned in subsection (1) (b) or (c), three years;

(b) in the case of shares acquired as mentioned in subsection (1)(d), one year.

(15) Notwithstanding anything in section 12 (2), a reference in this section to a public limited company does not include a reference to an old public limited company.

44 Charges taken by public limited companies on own shares.

44.—(1) A lien or other charge of a public limited company on its own shares (whether taken expressly or otherwise), except a charge permitted by subsection (2), is void.

(2) The following are permitted charges, that is to say—

(a) in the case of every description of company, a charge on its own shares (not being fully paid) for any amount payable in respect of the shares;

(b) in the case of a public limited company whose ordinary business includes the lending of money or consists of the provision of credit or the bailment or hiring of goods under a hire-purchase agreement, or both, a charge of the company on its own shares (whether fully paid or not) which arises in connection with a transaction entered into by the company in the ordinary course of its business;

(c) in the case of a company (other than a company in relation to which paragraph (d) applies) which is re-registered or is registered under section 18 as a public limited company, a charge on its own shares which was in existence immediately before its application for re-registration or, as the case may be, registration;

(d) in the case of any company which after the end of the re-registration period remains or remained an old public limited company and did not before the end of that period apply to be re-registered under section 12 as a public limited company, any charge on its own shares which was in existence immediately before the end of that period.

PART IV Restrictions on distribution of profits and assets.

45 Profits available for distribution.

45.—(1) A company shall not make a distribution (as defined by section 51) except out of profits available for the purpose.

(2) For the purposes of this Part, but subject to section 47(1), a company's profits available for distribution are its accumulated, realised profits, so far as not previously utilised by distribution or capitalisation, less its accumulated, realised losses, so far as not previously written off in a reduction or reorganisation of capital duly made.

(3) A company shall not apply an unrealised profit in paying up debentures or any amounts unpaid on any of its issued shares.

(4) For the purposes of subsections (2) and (3) any provision (within the meaning of the Sixth Schedule to the Principal Act) other than one in respect of any diminution in value of a fixed asset appearing ona revaluation of all the fixed assets or of all the fixed assets other than goodwill of the company, shall be treated as a realised loss.

(5) Subject to section 49(8), any consideration by the directors of a company of the value at any particular time of any fixed asset of the company shall be treated as a revaluation of that asset for the purposes of determining whether any such revaluation of the company's fixed assets as is required for the purposes of the exception from subsection (4) has taken place at that time; but where any such assets which have not actually been revalued are treated as revalued for those purposes by virtue of this subsection that exception shall only apply if the directors are satisfied that their aggregate value at the time in question is not less than the aggregate amount at which they are for the time being stated in the company's accounts.

(6) If, on the revaluation of a fixed asset, an unrealised profit is shown to have been made and, on or after the revaluation, a sum is written off or retained for depreciation of that asset over a period, then, an amount equal to the amount by which that sum exceeds the sum which would have been so written off or retained for depreciation of that asset over that period, if that profit had not been made, shall be treated for the purposes of subsections (2) and (3) as a realised profit made over that period.

(7) Where there is no record of the original cost of an asset of a company (whether acquired before, on or after the appointed day) or any such record cannot be obtained without unreasonable expense or delay, then, for the purposes of determining whether the company has made a profit or loss in respect of that asset, the cost of the asset shall be taken to be the value ascribed to it in the earliest available record of its value made on or after its acquisition by the company.

(8) Where the directors of a company are, after making all reasonable enquiries, unable to determine whether a particular profit made before the appointed day is realised or unrealised they may treat the profit as realised, and where after making such enquiries they are unable to determine whether a particular loss so made is realised or unrealised, they may treat the loss as unrealised.

(9) In this section “fixed asset” includes any other asset which is not a current asset.

46 Restriction on distribution of assets.

46.—(1) Subject to section 47, a public limited company may only make a distribution at any time—

(a) if at that time the amount of its net assets is not less than the aggregate of the company's called-up share capital and its undistributable reserves; and

(b) if, and to the extent that, the distribution does not reduce the amount of those assets to less than that aggregate.

(2) For the purposes of this section the undistributable reserves of a public limited company are—

(a) the share premium account;

(b) the capital redemption reserve fund;

(c) the amount by which the company's accumulated, unrealised profits, so far as not previously utilised by any capitalisation, exceed its accumulated, unrealised losses, so far asnot previously written off in a reduction or reorganisation of capital duly made; and

(d) any other reserve which the company is prohibited from distributing by any enactment, other than one contained in this Part, or by its memorandum or articles.

(3) Subsections (4) to (8) of section 45 shall apply for the purposes of this section as they apply for the purposes of that section.

(4) A public limited company shall not include any uncalled share capital as an asset in any account relevant for the purposes of this section.

47 Other distributions of investment companies.

47.—(1) Subject to the following provisions of this section, an investment company may also make a distribution at any time out of its accumulated, realised revenue profits, so far as not previously utilised by distribution or capitalisation, less its accumulated revenue losses (whether realised or unrealised), so far as not previously written off in a reduction or reorganisation of capital duly made—

(a) if at that time the amount of its assets is at least equal to one and a half times the aggregate of its liabilities; and

(b) if, and to the extent that, the distribution does not reduce that amount to less than one and a half times that aggregate.

(2) In subsection (1) “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 for the purposes of that subsection in calculating the value of any asset of the company in question, and subsection (4) of section 46 shall apply for those purposes as it applies for the purposes of that section.

(3) In this Part “investment company” means a public limited company which has given notice in writing (which has not been revoked) to the registrar of its intention to carry on business as an investment company (the “requisite notice”) and has since the date of that notice complied with the requirements set out in subsection (4).

(4) The requirements referred to in subsection (3) are—

(a) that the business of the company consists of investing its funds mainly in securities, with the aim of spreading investment risk and giving members of the company the benefit of the results of the management of its funds;

(b) that none of the company's holdings in companies other than companies which are for the time being investment companies represents more than 15 per cent. by value of the investing company's investment;

(c) that distribution of the company's capital profits is prohibited by its memorandum or articles of association;

(d) that the company has not retained, otherwise than in compliance with this Part in respect of any financial year more than 15 per cent. of the income it derives from securities.

(5) An investment company may not make a distribution by virtue of subsection (1) unless its shares are listed on a recognised stockexchange and, during the period beginning with the first day of the financial year immediately preceding the financial year in which the proposed distribution is to be made or, where the distribution is proposed to be made during the company's first financial year, the first day of that financial year and ending with the date of the distribution (whether or not any part of those financial years falls before the appointed day), it has not—

(a) distributed any of its capital profits; or

(b) applied any unrealised profits or any capital profits (realised or unrealised) in paying up debentures or any amounts unpaid on any of its issued shares.

(6) An investment company may not make a distribution by virtue of subsection (1) unless the company gave the requisite notice—

(a) before the beginning of the appropriate period referred to in subsection (5); or

(b) where that period began before the appointed day, as soon as may be reasonably practicable after the appointed day; or

(c) where the company was incorporated on or after the appointed day, as soon as may be reasonably practicable after the date of its incorporation.

(7) A notice by a company to the registrar under subsection (3) may be revoked at any time by the company on giving notice to the registrar that it no longer wishes to be an investment company within the meaning of this section and, on giving such notice, the company shall cease to be such an investment company.

(8) In determining capital and revenue profits and losses for the purposes of this section an asset which is not a fixed asset or a current asset shall be treated as a fixed asset.

(9) An investment company shall include the expression “investment company” on its letters and order forms.

(10) Where a company fails to comply with subsection (9), the company and every 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 £250.

(11) Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.

(12) For the purposes of paragraph (b) of subsection (4)—

(a) “holding” means the shares or securities (whether of one class or more than one class) held in any one company;

(b) holdings in companies which are members of a group (whether or not including the investing company) and are not excluded from the said paragraph (b) shall be treated as holdings in a single company;

(c) where the investing company is a member of a group, money owed to it by another member of the group shall be treated as a security of the latter held by the investing company and accordingly as, or as part of, the holding of the investing company in the company owing the money,and for the purposes of this subsection “group” means a company and all companies which are its subsidiaries within the meaning of section 155 of the Principal Act.

48 Realised profits of assurance companies.

48.—(1) In the case of an assurance company carrying on life assurance business, or industrial assurance business or both, any amount properly transferred to the profit and loss account of the company from a surplus in the fund or funds maintained by it in respect of that business and any deficit in that fund or those funds shall be respectively treated for the purposes of this Part as a realised profit and a realised loss, and, subject to the foregoing, any profit or loss arising on the fund or funds maintained by it in respect of that business shall be left out of account for those purposes.

(2) In subsection (1)—

(a) the reference to a surplus in any fund or funds of an assurance company is a reference to an excess of the assets representing that fund or those funds over the liabilities of the company attributable to its life assurance or industrial assurance business, as shown by an actuarial investigation; and

(b) the reference to a deficit in any such fund or funds is a reference to the excess of those liabilities over those assets, as so shown.

(3) In this section—

“actuarial investigation” means an investigation to which section 5 of the Assurance Companies Act, 1909 applies;

“life assurance business” and “industrial assurance business” have the same meanings as in section 3 of the Insurance Act, 1936.

49 The relevant accounts.

49.—(1) Subject to the following provisions of this section, the question whether a distribution may be made by a company without contravening section 45, 46 or 47 (the relevant section) and the amount of any distribution which may be so made shall be determined by reference to the relevant items as stated in the relevant accounts, and the relevant section shall be treated as contravened in the case of a distribution unless the requirements of this section about those accounts are complied with in the case of that distribution.

(2) The relevant accounts for any company in the case of any particular distribution are—

(a) except in a case falling within paragraph (b) or (c), the last annual accounts that is to say, the accounts prepared in accordance with the requirements of the Principal Act which were laid in respect of the last preceding financial year in respect of which accounts so prepared were laid;

(b) if that distribution would be found to contravene the relevant section if reference were made only to the last annual accounts, such accounts (interim accounts) as are necessary to enable a reasonable judgment to be made as to the amounts of any of the relevant items;

(c) if that distribution is proposed to be declared during the company's first financial year or before any accounts are laid in respect of that financial year, such accounts (initial accounts) as are necessary as aforesaid.

(3) The following requirements apply where the last annual accounts of a company constitute the only relevant accounts in the case of any distribution, that is to say—

(a) those accounts must have been properly prepared or have been so prepared subject only to matters which are not material for the purpose of determining, by reference to the relevant items as stated in those accounts, whether that distribution would be in contravention of the relevant section;

(b) the auditors of the company must have made a report under section 163 of the Principal Act in respect of those accounts;

(c) if, by virtue of anything referred to in that report, the report is not an unqualified report, the auditors must also have stated in writing (either at the time the report was made or subsequently) whether, in their opinion, that thing is material for the purpose of determining, by reference to the relevant items as stated in those accounts, whether that distribution would be in contravention of the relevant section; and

(d) a copy of any such statement must have been laid before the company in general meeting.

(4) A statement under subsection (3) (c) suffices for the purposes of a particular distribution not only if it relates to a distribution which has been proposed but also if it relates to distributions of any description which include that particular distribution, notwithstanding that at the time of the statement it has not been proposed.

(5) The following requirements apply to interim accounts prepared for a proposed distribution by a public limited company, that is to say—

(a) the accounts must have been properly prepared or have been so prepared subject only to matters which are not material for the purpose of determining, by reference to the relevant items as stated in those accounts, whether that distribution would be in contravention of the relevant section;

(b) a copy of those accounts must have been delivered to the registrar of companies;

(c) if the accounts are in a language other than the English or Irish language, a translation into English or Irish of the accounts which has been certified in the prescribed manner to be a correct translation must also have been delivered to the registrar.

(6) The following requirements apply to initial accounts prepared for a proposed distribution by a public limited company, that is to say—

(a) those accounts must have been properly prepared or have been so prepared subject only to matters which are not material for the purpose of determining, by reference tothe relevant items as stated in those accounts, whether that distribution would be in contravention of the relevant section;

(b) the auditors of the company must have made a report stating whether in their opinion the accounts have been properly prepared;

(c) if, by virtue of anything referred to in that report, the report is not an unqualified report, the auditors must also have stated in writing whether, in their opinion, that thing is material for the purpose of determining, by reference to the relevant items as stated in those accounts, whether that distribution would be in contravention of the relevant section;

(d) a copy of those accounts, of the report made under paragraph (b) and of any such statement must have been delivered to the registrar of companies; and

(e) if the accounts are, or that report or statement is, in a language other than the English or Irish language, a translation into English or Irish of the accounts, the report or statement, as the case may be, which has been certified in the prescribed manner to be a correct translation, must also have been delivered to the registrar.

(7) For the purpose of determining by reference to particular accounts whether a proposed distribution may be made by a company, this section shall have effect, in any case where one or more distributions have already been made in pursuance of determinations made by reference to those same accounts, as if the amount of the proposed distribution was increased by the amount of the distributions so made.

(8) Where subsection (3) (a), (5) (a) or (6) (a) applies to the relevant accounts, section 45 (5) shall not apply for the purposes of determining whether any revaluation of the company's fixed assets affecting the amount of the relevant items as stated in those accounts has taken place, unless it is stated in a note to those accounts—

(a) that the directors have considered the value at any time of any fixed assets of the company without actually revaluing those assets;

(b) that they are satisfied that the aggregate value of those assets at the time in question is or was not less than the aggregate amount at which they are or were for the time being stated in the company's accounts; and

(c) that the relevant items affected are accordingly stated in the relevant accounts on the basis that a revaluation of the company's fixed assets which by virtue of section 45 (5) included the assets in question took place at that time.

(9) In this section—

“properly prepared” means, in relation to any accounts of a company, that the following conditions are satisfied in relation to those accounts, that is to say—

(a) in the case of annual accounts, that they have been properly prepared in accordance with the provisions of the Principal Act;

(b) in the case of interim or initial accounts, that theycomply with the requirements of section 149 of the Principal Act and any balance sheet comprised in those accounts has been signed in accordance with section 156 of the Principal Act; and

(c) in either case, without prejudice to the foregoing, that, except where the company is entitled to avail itself, and has availed itself, of any of the provisions of Part III of the Sixth Schedule to the Principal Act—

(i) so much of the accounts as consists of a balance sheet gives a true and fair view of the state of the company's affairs as at the balance sheet date; and

(ii) so much of those accounts as consists of a profit and loss account gives a true and fair view of the company's profit or loss for the period in respect of which the accounts were prepared;

“relevant item” means any of the following, that is to say profits, losses, assets, liabilities, provisions (within the meaning of the Sixth Schedule to the Principal Act), share capital and reserves;

“reserves” includes undistributable reserves within the meaning of section 46(2);

“unqualified report” in relation to any accounts of a company, means a report, without qualification, to the effect that in the opinion of the person making the report the accounts have been properly prepared;

and for the purposes of this section, accounts are laid if section 148 of the Principal Act has been complied with in relation to those accounts.

(10) For the purpose of paragraph (b) of the definition of “properly prepared” in subsection (9), section 149 of, and the Sixth Schedule to, the Principal Act shall be deemed to have effect in relation to interim and initial accounts with such modifications as are necessary by reason of the fact that the accounts are prepared otherwise than in respect of a financial year.

50 Consequences of making unlawful distribution.

50.—(1) Where a distribution, or part of one, made by a company to one of its members is made in contravention of the provisions of this Part and, at the time of the distribution, he knows or has reasonable grounds for believing that it is so made, he shall be liable to repay it or that part, as the case may be, to the company or (in the case of a distribution made otherwise than in cash) to pay the company a sum equal to the value of the distribution or part at that time.

(2) The provisions of this section are without prejudice to any obligation imposed apart from this section on a member of a company to repay a distribution unlawfully made to him.

51 Ancillary provisions.

51.—(1) Where immediately before the appointed day a company is authorised by any provision of its articles to apply its unrealised profits in paying up in full or in part unissued shares to be allotted to members of the company as fully or partly paid bonus shares, that provision shall, subject to any subsequent alteration of the articles, continue to be construed as authorising those profits to be so applied after the appointed day.

(2) In this Part “distribution” means every description of distribution of a company's assets to members of the company, whether in cash or otherwise, except distributions made by way of—

(a) an issue of shares as fully or partly paid bonus shares;

(b) the redemption of preference shares out of the proceeds of a fresh issue of shares made for the purposes of the redemption and the payment of any premium on their redemption out of the company's share premium account;

(c) the reduction of share capital by extinguishing or reducing the liability of any of the members on any of its shares in respect of share capital not paid up or by paying off paid up share capital; and

(d) a distribution of assets to members of the company on its winding up.

(3) In this Part “capitalisation”, in relation to any profits of a company, means any of the following operations, whether carried out before, on or after the appointed day, that is to say, applying the profits in wholly or partly paying up unissued shares in the company to be allotted to members of the company as fully or partly paid bonus shares or transferring the profits to the capital redemption reserve fund.

(4) In this Part reference to profits and losses of any description are references respectively to profits and losses of that description made at any time, whether before, on, or after the appointed day and, except where the context otherwise requires, are references respectively to revenue and capital profits and revenue and capital losses.

(5) The provisions of this Part are without prejudice to any enactment or rule of law or any provision of a company's memorandum or articles restricting the sums out of which, or the cases in which, a distribution may be made.

(6) The provisions of this Part shall not apply to any distribution made by a company, other than a public limited company registered as such on its original incorporation, before the date on which the earlier of the following events occurs, that is to say, the re-registration or registration of the company as a public limited company and the end of the general transitional period.

PART V Change of status of certain companies

52 Re-registration of limited company as unlimited.

52.—(1) A company which, on the appointed day, is registered as limited or thereafter is so registered (otherwise than in pursuance of section 53) may be re-registered under the Principal Act as unlimited in pursuance of an application in that behalf complying with the requirements of subsection (2), made in the prescribed form and signed by a director or by the secretary of the company and delivered to the registrar together with the documents mentioned in subsection (3).

(2) The requirements referred to in subsection (1) are that the application must—

(a) set out such alterations in the company's memorandum as—

(i) if it is to have a share capital, are requisite to bring it, both in substance and in form into conformity with the requirements imposed by the Principal Act with respect to the memorandum of a company to be formed under that Act as an unlimited company having a share capital; or

(ii) if it is not to have a share capital, are requisite in the circumstances; and

(b) if articles have been registered, set out such alterations therein and additions thereto as—

(i) if it is to have a share capital, are requisite to bring them, both in substance and in form, into conformity with the requirements imposed by the Principal Act with respect to the articles of a company to be formed under that Act as an unlimited company having a share capital; or

(ii) if it is not to have a share capital, are requisite in the circumstances; and

(c) if articles have not been registered—

(i) have annexed thereto, and request the registration of, printed articles, bearing the same stamp as if they were contained in a deed, being, if the company is to have a share capital, articles complying with the said requirements; or

(ii) if it is not to have a share capital, articles appropriate to the circumstances.

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

(a) the prescribed form of assent to the company's being registered as unlimited subscribed by or on behalf of all members of the company;

(b) a statutory declaration made by the directors of the company that the persons by whom or on whose behalf the form of assent is subscribed constitute the whole membership of the company, and, if any of the members have not subscribed that form themselves, that the directors have taken all reasonable steps to satisfy themselves that each person who subscribed it on behalf of a member was lawfully empowered so to do;

(c) a printed copy of the memorandum incorporating the alterations therein set out in the application; and

(d) if articles have been registered, a printed copy thereof incorporating the alterations therein and additions thereto set out in the application.

(4) The registrar shall retain the application and other documents delivered to him under subsection (1), shall, if articles are annexed to the application, register them and shall issue to the company a certificate of incorporation appropriate to the status to be assumed by the company by virtue of this section, and upon the issue of the certificate—

(a) the status of the company shall, by virtue of the issue, be changed from limited to unlimited; and

(b) the alterations in the memorandum set out in the application and (if articles have been previously registered) any alterations and additions to the articles so set out shall, notwithstanding anything in the Principal Act, take effect as if duly made by resolution of the company and the provisions of the Principal Act shall apply to the memorandum and articles as altered or added to by virtue of this section accordingly.

(5) A certificate of incorporation issued by virtue of this section shall be conclusive evidence that the requirements of this section with respect to re-registration and of matters precedent and incidental thereto have been complied with, and that the company was authorised to be re-registered under the Principal Act in pursuance of this section and was duly so re-registered.

(6) Where a company is re-registered in pursuance of this section a person who, at the time when the application for it to be re-registered was delivered to the registrar, was a past member of the company and did not thereafter again become a member thereof shall not, in the event of the company's being wound up, be liable to contribute to the assets of the company more than he would have been liable to contribute thereto had it not been so re-registered.

(7) The re-registration of a limited company as an unlimited company pursuant to this Act shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.

(8) For the purposes of this section—

(a) subscription to a form of assent by the legal personal representative of a deceased member of a company shall be deemed to be subscription by him;

(b) a trustee in bankruptcy of a person who is a member of a company shall, to the exclusion of that person, be deemed to be a member of the company.

53 Re-registration of unlimited company as limited.

53.—(1) A company which, on the appointed day, is registered as unlimited or thereafter is so registered (otherwise than by virtue of section 52) may be re-registered under the Principal Act as limited if a special resolution that it should be so re-registered (complying with the requirements of subsection (2)) is passed and an application in that behalf, made in the prescribed form and signed by a director or by the secretary of the company, is delivered to the registrar, together with the documents mentioned in subsection (3) not earlier than the day on which the copy of the resolution forwarded to him in pursuance of section 143 of the Principal Act is received by him.

(2) The said requirements are that the resolution must state whether the company is to be limited by shares or by guarantee and—

(a) if it is to be limited by shares, must state what the share capital is to be and provide for the making of such alterations in the memorandum as are necessary to bring it,both in substance and in form, into conformity with the requirements of the Companies Acts with respect to the memorandum of a company so limited, and such alterations in the articles as are requisite in the circumstances;

(b) if it is to be limited by guarantee, must provide for the making of such alterations in its memorandum and articles as are necessary to bring them, both in substance and in form, into conformity with the requirements of the Principal Act with respect to the memorandum and articles of a company so limited.

(3) The documents referred to in subsection (1) are a printed copy of the memorandum as altered in pursuance of the resolution and a printed copy of the articles as so altered.

(4) The registrar shall retain the application and other documents delivered to him under subsection (1) and shall issue to the company a certificate of incorporation appropriate to the status to be assumed by the company by virtue of this section; and upon the issue of the certificate—

(a) the status of the company shall, by virtue of the issue, be changed from unlimited to limited; and

(b) the alterations in the memorandum specified in the resolution and the alterations in, and additions to, the articles so specified shall, notwithstanding anything in the Principal Act, take effect.

(5) A certificate of incorporation issued by virtue of this section shall be conclusive evidence that the requirements of this section with respect to re-registration and of matters precedent and incidental thereto have been complied with, and that the company was authorised to be re-registered under the Principal Act in pursuance of this section and was duly so re-registered.

(6) Section 71 of the Principal Act shall have effect as if, for the reference to its resolution for registration as a limited company in pursuance of that Act, there were substituted a reference to its resolution for registration as a limited company in pursuance of that Act or re-registration as a limited company in pursuance of this section.

(7) In the event of the winding-up of a company re-registered in pursuance of this section, the following provisions shall have effect—

(a) notwithstanding paragraph (a) of subsection (1) of section 207 of the Principal Act, a past member of the company who was a member thereof at the time of re-registration shall, if the winding-up commences within the period of three years beginning with the day on which the company is re-registered, be liable to contribute to the assets of the company in respect of its debts and liabilities contracted before that time;

(b) where no persons who were members of the company at that time are existing members of the company, a person who, at that time, was a present or past member thereof shall, subject to paragraph (a) of the said subsection (1) and to paragraph (a) of this subsection, but notwithstanding paragraph (c) of the said subsection (1), be liable to contributeas aforesaid notwithstanding that the existing members have satisfied the contributions required to be made by them in pursuance of the Principal Act;

(c) notwithstanding paragraphs (d) and (e) of the said subsection (1), there shall be no limit on the amount which a person who, at that time, was a past or present member of the company is liable to contribute as aforesaid.

(8) The re-registration of an unlimited company as a limited company pursuant to this Act shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it in its former status may be continued or commenced against it in its new status.

54 Cesser of section 20 of Principal Act.

54.—No company shall register or re-register in pursuance of section 20 (1) of the Principal Act after the appointed day except upon an application in that behalf made before that day.

PART VI Miscellaneous

55 Public limited company to publish certain matters in Iris Oifigiúil.

55.—(1) A public limited company shall publish in Iris Oifigiúil notice of the delivery to the registrar of companies of the following documents—

(a) a statutory declaration under section 6 (2);

(b) a copy of a resolution which gives, varies, revokes or renews an authority for the purposes of section 20;

(c) a copy of a special resolution under section 24 (1), (2) or (3);

(d) any expert's valuation report on a non-cash consideration under section 31 (2);

(e) any expert's valuation report on a non-cash asset acquired from a subscriber under section 33 (2);

(f) any statement or notice under section 39 (1), (3) or (4);

(g) any return of allotments under section 58 (1) of the Principal Act;

(h) any notification of the redemption of preference shares under section 69 (1) of the Principal Act;

(i) a copy of a special resolution to reduce its share capital under section 72 (2) of the Principal Act;

(j) a copy of any resolution or agreement to which section 143 of the Principal Act applies and which—

(i) states the rights attached to any shares in the company, other than shares which are, in all respects, uniform (for the purposes of section 39 (1)) with shares previously allotted;

(ii) varies rights attached to any shares in the company; or

(iii) assigns a name or other designation, or a new name or other designation, to any class of shares in the company.

(2) The notice mentioned in subsection (1) shall be published within six weeks of the relevant delivery.

(3) Where a company fails to comply with this section, the company and every 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 £250.

(4) Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.

56 Trading under misleading name.

56.—(1) A person who is not a public limited company or (after the end of the general transitional period) is an old public limited company shall be guilty of an offence if he carries on any trade, profession or business under a name which includes, as its last part, the words “public limited company”, or “cuideachta phoiblí theoranta” or abbreviations of those words.

(2) A public limited company other than an old public limited company shall be guilty of an offence if, in circumstances in which the fact that it is a public limited company is likely to be material to any person, it uses a name which may reasonably be expected to give the impression that it is a company other than a public limited company.

(3) Where, within the re-registration period, an old public limited company applies to be re-registered under section 12 as a public limited company, then—

(a) during the twelve months following the re-registration, any provision of section 114 (1) (b) or (c) of the Principal Act; and

(b) during the three years following the re-registration, section 114(1) (a) of the Principal Act or any provision of any other Act or statutory instrument requiring or authorising the name of the company to be shown on any document or other object,

shall apply as if any reference in that provision to the name of the company were a reference to a name which either is its name or was its name before re-registration.

(4) Subsection (1) shall not apply to any company—

(a) to which Part XI of the Principal Act applies; and

(b) which has provisions in its constitution that would entitle it to rank as a public limited company if it had been registered in the State.

(5) A person guilty of an offence under subsection (1) or (2) and, if that person is a company, any officer of the company who is in default shall be liable on summary conviction to a fine not exceeding £500 together with, in the case of a continuing offence, a fine not exceeding £50 for every day on which the offence continues, but not exceeding £1,000 in total.

57 Penalties.

57.—(1) A company or other person guilty of an offence under section 20 or 36 shall be liable, on conviction on indictment, to a fine not exceeding £2,500.

(2) A company or other person guilty of an offence under section 24, 40 or 41 shall be liable, on conviction on indictment—

(a) in the case of a company, to a fine not exceeding £2,500;

(b) in the case of a person other than a company, to a fine not exceeding £2,500 or, at the discretion of the court, to imprisonment for a term not exceeding 2 years or to both the fine and the imprisonment.

(3) Any person guilty of an offence under section 31 shall be liable on conviction on indictment to a fine not exceeding £5,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years or to both the fine and the imprisonment.

(4) A Justice of the District Court shall have jurisdiction to try summarily an offence under section 20, 24, 31, 36, 40 or 41 if—

(a) the Justice is of the opinion that the facts proved or alleged against the defendant charged with any such offence constitute a minor offence fit to be tried summarily;

(b) the Director of Public Prosecutions consents; and

(c) the defendant (on being informed by the Justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this subsection the said defendant shall be liable—

(i) in the case where the defendant is guilty of an offence under section 20 or 36, to a fine not exceeding £500;

(ii) in the case where the defendant is guilty of an offence under section 24, 31, 40 or 41—

(I) in the case of a company, to a fine not exceeding £500;

(II) in the case of a person other than a company, to a fine not exceeding £500 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment.

(5) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under the said section 20, 24, 31, 36, 40 and 41 as if, in lieu of the penalties specified in subsection (3) of the said section 13, there were specified therein the penalty provided for by subsection (4) of this section, and the reference in subsection 2 (a) of the said section 13 to the penalties provided for in subsection (3) of the said section 13 shall be construed and have effect accordingly.

58 Revocation of power under section 24 of Principal Act to dispense with “limited” in name of public limited companies.

58.—(1) No licence under section 24 of the Principal Act shall be granted in respect of a public limited company or an association about to be formed into a public limited company or have effect in respect of such a company.

(2) Any such licence already granted to a company shall cease to have effect if, after the appointed day, the company is registered or re-registered as a public limited company.

59 Power by order to prescribe forms and to revoke and amend orders.

59.—(1) The Minister may by order prescribe forms to be used in connection with any of the provisions of this Act.

(2) The Minister may by order revoke or amend an order (other than an order made under section 1 (3) made under this Act.

60 Laying of orders before Houses of Oireachtas.

60.—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.

61 Expenses.

61.—The expenses incurred 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.

FIRST SCHEDULE Minor and Consequential Amendments to the Companies Act, 1963.

“(1) The memorandum of every company must state—

(a) in the case of a public limited company, the name of the company, with ‘public limited company’ or ‘cuideachta phoiblí theoranta’ as the last words of the name;

(b) in the case of a company (other than a public limited company) which is limited by shares or by guarantee, the name of the company, with ‘limited’ or ‘teoranta’ as the last word of the name;

(c) the objects of the company.”.

(a) in subsection (6) by deleting “so, however, that no part of the capital of the company shall be expended in any such purchase.”; and

(b) by inserting after subsection (6) the following new subsections—

“(6A) An order under this section may, if the court thinks fit, provide for the purchase by the company of the shares of any members of the company and for the reduction accordingly of the company's capital and may make such alterations in the memorandum and articles of the company as may be required in consequence of that provision.

(6B) Where an order under this section requires the company not to make any, or any specified, alteration in its memorandum or articles, then, notwithstanding anything in the Companies Acts, 1963 to 1983, thecompany shall not have power without the leave of the court to make any such alteration in breach of that requirement.

(6C) Any alteration in the memorandum or articles of a company made by virtue of an order under this section, other than one made by resolution of the company, shall be of the same effect as if duly made by resolution of the company, and the provisions of the Companies Acts, 1963 to 1983 shall apply to the memorandum or articles as so altered accordingly.”.

“(2) The use of the abbreviation ‘Ltd.’ for ‘Limited’ or ‘Teo.’ for ‘Teoranta’ or ‘p.l.c.’ for ‘public limited company’ or ‘c.p.t.’ for ‘cuideachta phoiblí theoranta’ shall not of itself render such registration necessary.”.

“35.—(1) Subject to subsection (2), if a company, being a private company, alters its articles in such a manner that they no longer include the provisions which, under section 33, are required to be included in the articles of a company in order to constitute it a private company, the company shall cease to be a private company.

(2) The alteration referred to in subsection (1) shall not take effect unless the company has been re-registered as a public limited company in accordance with section 9 of the Companies (Amendment) Act, 1983 or as an unlimited public company in accordance with section 52 of that Act.

(3) Where an application is made to re-register a private company as an unlimited public company, there shall be delivered with the application for re-registration a statement in lieu of prospectus in the form and containing the particulars set out in Part I of the Second Schedule, and, in the cases mentioned in Part II of that Schedule, setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule.

(4) A statement in lieu of prospectus need not be delivered under subsection (3) if a prospectus relating to the company which complies, or is deemed by virtue of a certificate of exemption under section 45 to comply, with the Third Schedule, is issued and is delivered to the registrar of companies as required by section 47.

(5) Every statement in lieu of prospectus delivered under subsection (3) shall, where the persons making any such report as referred to in that subsection have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of Part III of the Second Schedule, have endorsed thereon or attached thereto a written statement signed by those persons, setting out the adjustments and giving the reasons therefor.

(6) If default is made in complying with subsection (2), (3) or (5), the company and every 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.

(7) Where a statement in lieu of prospectus, delivered to the registrar under subsection (3) includes any untrue statement, any person who authorised the delivery of the statement in lieu of prospectus for registration shall be guilty of an offence and shall be liable—

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

(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £500 or both;

unless he proves either that the untrue statement was immaterial or that he had reasonable ground to believe and did, up to the time of the delivery for registration of the statement in lieu of prospectus, believe that the untrue statement was true.

(8) For the purposes of this section—

(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included, and

(b) a statement shall be deemed to be included in a statement in lieu of prospectus if it is contained therein or in any report or memorandum appearing on the face thereof, or by reference incorporated therein.”.

“(3) This section shall not apply to—

(a) a private company; or

(b) a public limited company within the meaning of the Companies (Amendment) Act, 1983.”.

“(1) An allotment made by a company to an applicant in contravention of section 53 or 54 shall be voidable at the instance of the applicant within one month after the date of the allotment, and not later, and shall be so voidable notwithstanding that the company is in the course of being wound up.”.

“(15A) Subsections (2) to (11) shall not apply to a public limited company originally incorporated as such or to a company registered or re-registered as a public limited company under the Companies (Amendment) Act, 1983 unless a special resolution as provided under subsection (2) was passed before the company's application for registration or re-registration.

(15B) A public limited company may, in accordance with subsection (13), give financial assistance to any person only if the company's net assets are not thereby reduced or, to the extent that those assets are thereby reduced, if the financial assistance is provided out of profits which are available for dividend.

(15C) In this section “net assets” means the aggregate of the company's assets less the aggregate of its liabilities; and “liabilities” includes any provision (within the meaning of the Sixth Schedule) except to the extent that that provision is taken into account in calculating the value of any asset to the company.”.

(a) in subsection (1) by substituting the following paragraph for paragraph (c)—

“(c) the premium, if any, payable on redemption must have been provided for out of the profits of the company which would otherwise be available for dividend or out of the company's share premium account before the shares are redeemed;”;

and

(b) in subsection (6) by substituting “to be allotted” for “to be issued ”.

“(5) The use of the abbreviation ‘Ltd.’ for ‘Limited’ or ‘Teo.’ for ‘Teoranta’ or ‘p.l.c.’ for ‘public limited company’ or ‘c.p.t.’ for ‘cuideachta phoiblí theoranta’ shall not be a breach of the provisions of this section.”.

“, or

(d) a public limited company registered as such on its original incorporation under the Companies (Amendment) Act, 1983.”.

“(j) resolutions of the directors of a company passed by virtue of sections 12(3) (a) and 43(3) of the Companies (Amendment) Act, 1983.”.

“or section 42 of the Companies (Amendment) Act, 1983”.

“(h) after the end of the general transitional period, within the meaning of the Companies (Amendment) Act, 1983, the company is an old public limited company within the meaning of that Act;

(i) after the end of the transitional period for share capital, within the meaning of the Companies (Amendment) Act, 1983, the company has not complied with the conditions specified in section 12 (9) of that Act.”.

“and

(f) a petition for winding up on the grounds mentioned in section 213(h) or (i), may be presented by the registrar of companies.”.

“(iii) the name of the company with the addition of the word ‘limited’ or ‘teoranta’ as the last word thereof or, in the case of a public limited company, with the addition of the words ‘public limited company’ or ‘cuideachta phoiblí theoranta’ as the last words thereof; and”

“(1) Subject to subsection (2), when a company registers in pursuance of this Part with limited liability, the word ‘limited’ or ‘teoranta’ or in the case of a public limited company the words ‘public limited company’ or ‘cuideachta phoiblí theoranta’ shall form and be part of its name.”.

(a) by being renumbered as subsection (1) thereof; and

(b) by inserting the following new subsection—

“(2) A certificate given under this section in respect of a company shall be conclusive evidence that the requirements of this Part in respect of registration and of matters precedent and incidental thereto have been complied with.”.

“(2) The Minister may by order—

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

(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; and

(c) alter the forms set out in the Second Schedule to the Companies (Amendment) Act, 1983;

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.”.

(a) by substituting the following regulation for regulation 3—

“3. If at any time the share capital is divided into different classes of shares, the rights attached to any class may, whether or not the company is being wound up, be varied or abrogated with the consent in writing of the holders of three-fourths of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of the class.”;

(b) by substituting the following regulation for regulation 5—

“5. Subject to the provisions of these regulations relating to new shares, the shares shall be at the disposal of the directors, and they may (subject to the provisions of the Companies Acts, 1963 to 1983) allot, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the company and its shareholders, but so that no share shall be issued at a discount and so that, in the case of shares offered to the public for subscription by a public limited company, the amount payable on application on each share shall not be less than one-quarter of the nominal amount of the share and the whole of any premium thereon.”;

(c) in regulation 79 by inserting after “or any part thereof, and” the following “, subject to section 20 of the Companies (Amendment) Act, 1983”;

(d) in regulation 80 by substituting “the Companies Acts, 1963 to 1983” for “the Act”;

(e) by substituting the following regulation for regulation 118—

“118. No dividend or interim dividend shall be paid otherwise than in accordance with the provisions of Part IV of the Companies (Amendment) Act, 1983 which apply to the company.”;

(f) by inserting after regulation 130 the following new regulation—

“130A. The company in general meeting may on the recommendation of the directors resolve that it is desirable to capitalise any part of the amount for the time being standing to the credit of any of the company's reserve accounts or to the credit of the profit and loss account which is not available for distribution by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares to those members of the company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions), and the directors shall give effect to such resolution.”;

(g) in regulation 131 by substituting “Whenever a resolution is passed in pursuance of regulation 130 or 130A” for “Whenever such a resolution as aforesaid shall have been passed”.

(a) by substituting the following regulation for regulation 3—

“3. Más rud é tráth ar bith go roinnfear an scairchaipiteal ina scaireanna de chineálacha éagsúla, féadfar na cearta a ghabhfaidh le haon chineál, cibé acu a bheidh an chuideachta á foirceannadh nó nach mbeidh, a athrú nó a aisghairm le toiliú i scríbhinn ó shealbhóirí trí cheathrú de na scaireanna eisithe den chineál sin, nó le ceadú faoi rún speisialta a ritheadh ag cruinniú ginearálta ar leith de shealbhóirí na scaireanna den chineál sin.”;

(b) by substituting the following regulation for regulation 5—

“5. Faoi réir na bhforálacha de na rialacháin seo a bhaineann le scaireanna nua, beidh na scaireanna ar a n-urláimh ag na stiúrthóirí, agus féadfaidh siad (faoi réir fhorálacha Achtanna na gCuideachtaí, 1963 go 1983) iad a leithroinnt ar cibé daoine, nó roghanna orthu a dheonú dóibh, nó iad a dhiúscairt chucu i slí eile, ar cibé téarmaí agus coinníollacha, agus cibé tráthanna, is dóigh leo is fearr a bheadh le leas na cuideachta agus a scairshealbhóirí, ach sa dóigh nach n-eiseofar aon scair faoi lascaine agus sa dóigh, i gcás scaireanna a thairgfidh cuideachta phoiblí theoranta don phobal lena suibscríobh, nach mbeidh an tsuim is iníoctha tráth an iarratais ar gach scair faoi bhun an ceathrú cuid de mhéid ainmniúil na scaire agus iomlán aon phréimhe uirthi.”;

(c) in regulation 79 by inserting after “a mhorgáistiú nó a mhuirearú, agus,” the following: “faoi réir alt 19 d'Acht na gCuideachtaí (Leasú), 1983”;

(d) in regulation 80 by substituting “le hAchtanna na gCuideachtaí, 1963 go 1983” for “leis an Acht” and “faoi réir fhorálacha Achtanna na gCuideachtaí, 1963 go 1983” for “faoi réir forálacha an Achta”;

(e) by substituting the following regulation for regulation 118—

“118. Ní íocfar díbhinn ná díbhinn eatramhach ar bith seachas de réir na bhforálacha de Chuid IV d'Acht na gCuideachtaí (Leasú), 1983 a bhfuil feidhm acu maidir leis an gcuideachta.”;

(f) by inserting after regulation 130 the following new regulation—

“130A. Féadfaidh an chuideachta, i gcruinniú ginearálta, ar mholadh na stiúrthóirí, a bheartú gur inmhianaithe aon chuid den méid a bheidh de thuras na huaire i gcreidiúint d'aon cheann de chúlchuntais na cuideachta nó i gcreidiúint don chuntas sochair agus dochair nach mbeidh ar fáil chun a dháilte a chaipitliú tríd an tsuim sin a chur chun feidhme do láníoc scaireanna neamheisithe a bheidh le leithroinnt mar scaireanna bónais láníoctha ar na comhaltaí sin den chuideachta a bheadh i dteideal na suime sin dá ndéanfaí í a dháileadh i modh díbhinne (agus sna cionúireachtaí céanna) agus tabharfaidh na stiurthóirí éifeacht don rún sin.”;

(g) in regulation 131 by substituting “Aon uair a rithfear rún de bhun rialachán 130 nó 130A” for “Aon uair a rithfear rún mar a dúradh”.

“(2A) Where shares in a public limited company, other than an old public limited company within the meaning of the Companies (Amendment) Act, 1983 are acquired by the company by forfeiture or surrender in lieu of forfeiture, or in pursuance of section 41 of that Act, or are acquired by another person in circumstances where paragraph (c) or (d) of section 43(1) of that Act applies or are made subject to a lien or charge taken (whether expressly or otherwise) by the company and permitted by section 44(2) (a), (c) or (d) of that Act—

(a) the number and nominal value of the shares so acquired by the company, acquired by another person in such circumstances and so charged respectively during the financial year;

(b) the maximum number and nominal value of shares which, having been so acquired by the company, acquired by another person in such circumstances or so charged (whether or not during the financial year) are held at any time by the company or that other person during that year;

(c) the number and nominal value of the shares so acquired by the company, acquired by another person in such circumstances or so charged (whether or not during that year) which are disposed of by the company or that other person or cancelled by the company during that year;

(d) where the number and nominal value of the shares of any particular description are stated in pursuance of any of the preceding paragraphs, the percentage of the called-up share capital which shares of that description represent;

(e) where any of the shares have been so charged, the amount of the charge in each case; and

(f) where any of the shares have been disposed of by the company or the person who acquired them in such circumstances for money or money's worth, the amount or value of the consideration in each case.

(2B) Any distribution by an investment company within the meaning of Part IV of the Companies (Amendment) Act, 1983, which reduces the amount of its net assets to less than the aggregate of its called-up share capital and undistributable reserves. In this subparagraph ‘net assets’ and ‘called up share capital’ have the same meanings as in section 2 of the Companies (Amendment) Act, 1983 and ‘undistributable reserves’ has the same meaning as in section 46 (2) of that Act.”.

“5. Whether, in their opinion, there exists at the balance sheet date within the meaning of the Companies (Amendment) Act, 1983 a financial situation which under section 40 (1) of that Act would require the convening of an extraordinary general meeting of the company.”.

(a) in the first column after “Register of directors and secretaries” the following: “Particulars relating to directors to be shown on all business letters of the company”; and

(b) in the second column after “Section 195” the following: “Section 196”.

“130 Statutory meeting and statutory report.”.

SECOND SCHEDULE Forms of Memorandum of Association of a Public Limited Company

PART I