COMPANIES ACT, 1990

• (a) restitution of any money or any other asset which is the subject matter of the arrangement or transaction is no longer possible, or the company has been indemnified in pursuance of subsection (2) (b) for the loss or damage suffered by it; or

• (b) any rights acquired bona fide for value and without actual notice of the contravention by any person other than the person for whom the transaction or arrangement was made would be affected by its avoidance.

• (2) Without prejudice to any liability imposed otherwise than by this subsection but subject to subsection (3), where an arrangement or transaction is made by a company for a director of the company or its holding company or person connected with such a director in contravention of section 31, that director and the person so connected and any other director of the company who authorised the transaction or arrangement shall (whether or not it has been avoided in pursuance of subsection (1)) be liable—

• (a) to account to the company for any gain which he has made directly or indirectly by the arrangement or transaction; and

• (b) (jointly and severally with any other person liable under this subsection) to indemnify the company for any loss or damage resulting from the arrangement or transaction.

• (3) Where an arrangement or transaction is entered into by a company and a person connected with a director of the company or its holding company in contravention of section 31 that director shall not be liable under subsection (2) if he shows that he took all reasonable steps to secure the company's compliance with that section and, in any case, a person so connected and any such other director as is mentioned in the said subsection (2) shall not be so liable if he shows that, at the time the arrangement or transaction was entered into, he did not know the relevant circumstances constituting the contravention.

39 Personal liability for company debts in certain cases.

39.—(1) If a company is being wound up and is unable to pay its debts, and the court considers that any arrangement of a kind described in section 32 has contributed materially to the company's inability to pay its debts or has substantially impeded the orderly winding up thereof, the court, on the application of the liquidator or any creditor or contributory of the company, may, if it thinks it proper to do so, declare that any person for whose benefit the arrangement was made shall be personally liable, without any limitation of liability, for all, or such part as may be specified by the court, of the debts and other liabilities of the company.

• (2) In deciding whether to make a declaration under subsection (1), the court shall have particular regard to whether, and to what extent, any outstanding liabilities arising under any arrangement referred to in that subsection were discharged before the commencement of the winding up.

• (3) In deciding the extent of any personal liability under this section, the court shall have particular regard to the extent to which the arrangement in question contributed materially to the company's inability to pay its debts or substantially impeded the orderly winding up of the company.

40 Criminal penalties for breach of section 31.

40.—(1) An officer of a company who authorises or permits the company to enter into a transaction or arrangement knowing or having reasonable cause to believe that the company was thereby contravening section 31 shall be guilty of an offence.

• (2) A person who procures a company to enter into a transaction or arrangement knowing or having reasonable cause to believe that the company was thereby contravening section 31 shall be guilty of an offence.

Disclosure of transactions involving directors and others

41 Substantial contracts, etc., with directors and others to be disclosed in accounts.

41.—(1) Subject to subsections (5) and (6) and to section 45, group accounts prepared by a holding company in accordance with the requirements of section 150 of the Principal Act in respect of the relevant period shall contain the particulars specified in section 42 of—

• (a) any transaction or arrangement of a kind described in section 31 entered into by the company or by a subsidiary of the company for a person who at any time during the relevant period was a director of the company or its holding company or was connected with such a director;

• (b) any agreement by the company or by a subsidiary of the company to enter into any such transaction or arrangement for a person who at any time during the relevant period was a director of the company or its holding company or was connected with such a director;

• (c) any other transaction or arrangement with the company or with a subsidiary of the company in which a person who at any time during the relevant period was a director of the company or its holding company had, directly or indirectly, a material interest.

• (2) Subject as aforesaid, accounts prepared by any company other than a holding company in respect of the relevant period shall contain the particulars specified in section 42 of—

• (a) any transaction or arrangement of a kind described in section 31 entered into by the company for a person who at any time during the relevant period was a director of the company or of its holding company or was connected with such a director;

• (b) any agreement by the company to enter into any such transaction or arrangement for a person who at any time during the relevant period was a director of the company or of its holding company or was connected with such a director;

• (c) any other transaction or arrangement with the company in which a person who at any time during the relevant period was a director of the company or of its holding company had, directly or indirectly, a material interest.

• (3) Particulars which are required by subsection (1) or (2) to be contained in any accounts shall be given by way of notes to those accounts.

• (4) Where by virtue of sections 150 (2) and 154 of the Principal Act a company does not produce group accounts in relation to any financial year, subsection (1) shall have effect in relation to the company and that financial year as if the word “group” were omitted.

• (5) For the purposes of subsections (1) (c) and (2) (c)—

• (a) a transaction or arrangement between a company and a director of the company or of its holding company or a person connected with such a director shall (if it would not otherwise be so treated) be treated as a transaction, arrangement or agreement in which that director is interested; and

• (b) an interest in such a transaction or arrangement is not material if in the opinion of the majority of the directors (other than that director) of the company which is preparing the accounts in question it is not material (but without prejudice to the question whether or not such an interest is material in any case where those directors have not considered the matter).

• (6) Subsections (1) and (2) do not apply, for the purposes of any accounts prepared by any company which is, or is the holding company of, a licensed bank, in relation to a transaction or arrangement of a kind described in section 31, or an agreement to enter into such a transaction or arrangement, to which that licensed bank is a party.

• (7) Subsections (1) and (2) do not apply in relation to the following transactions, arrangements and agreements—

• (a) a transaction, arrangement or agreement between one company and another in which a director of the first company or of its subsidiary or holding company is interested only by virtue of his being a director of the other;

• (b) a contract of service between a company and one of its directors or a director of its holding company or between a director of a company and any of that company's subsidiaries;

• (c) a transaction, arrangement or agreement which was not entered into during the relevant period for the accounts in question and which did not subsist at any time during that period; and

• (d) a transaction, arrangement or agreement which was made before the commencement of this section and which does not subsist thereafter.

• (8) Subsections (1) and (2) apply whether or not—

• (a) the transaction or arrangement was prohibited by section 31;

• (b) the person for whom it was made was a director of the company or was connected with a director of the company at the time it was made;

• (c) in the case of a transaction or arrangement made by a company which at any time during a relevant period is a subsidiary of another company, it was a subsidiary of that other company at the time the transaction or arrangement was made.

• (9) In this section and in sections 43 and 45, “relevant period”, in relation to a company, means a financial year of the company ending not earlier than 6 months after the commencement of the section concerned.

42 Particulars required to be included in accounts by section 41.

42.—The particulars of a transaction, arrangement or agreement which are required by section 41 to be included in the annual accounts prepared by a company are particulars of the principal terms of the transaction, arrangement or agreement and (without prejudice to the generality of the foregoing provision)—

• (a) a statement of the fact either that the transaction, arrangement or agreement was made or subsisted, as the case may be, during the financial year in respect of which those accounts are made up;

• (b) the name of the person for whom it was made, and, where that person is or was connected with a director of the company or of its holding company, the name of that director;

• (c) in any case where subsection (1) (c) or (2) (c) of section 41 applies, the name of the director with the material interest and the nature of that interest;

• (d) in the case of a loan or an agreement for a loan or an arrangement within section 31 (2) or 31 (3) relating to a loan—

• (i) the amount of the liability of the person to whom the loan was or was agreed to be made, in respect of principal and interest, at the beginning and at the end of that period;

• (ii) the maximum amount of that liability during that period;

• (iii) the amount of any interest which, having fallen due, has not been paid; and

• (iv) the amount of any provision (within the meaning of the Sixth Schedule to the Principal Act or the Companies (Amendment) Act, 1986) made in respect of any failure or anticipated failure by the borrower to repay the whole or part of the loan or to pay the whole or part of any interest thereon;

• (e) in the case of a guarantee or security or an arrangement within section 31 (2) relating to a guarantee or security—

• (i) the amount for which the company (or its subsidiary) was liable under the guarantee or in respect of the security both at the beginning and at the end of the financial year in question;

• (ii) the maximum amount for which the company (or its subsidiary) may become so liable; and

• (iii) any amount paid and any liability incurred by the company (or its subsidiary) for the purpose of fulfilling the guarantee or discharging the security (including any loss incurred by reason of the enforcement of the guarantee or security); and

• (f) in the case of any transaction, arrangement or agreement, other than those mentioned in paragraphs (d) and (e) the value of the transaction or arrangement or, as the case may be, the value of the transaction or arrangement to which the agreement relates; and

• (g) in the case of arrangements to which section 32 relates, the aggregate value of such arrangements at the end of the financial year concerned, in relation to any persons specified in that section, expressed as a percentage of the company's relevant assets at that time; and

• (h) any amendment of the terms of any such arrangement in accordance with section 33.

43 Particulars of amounts outstanding to be included in accounts.

43.—(1) This section applies in relation to the following classes of transactions, arrangements and agreements—

• (a) loans, guarantees and securities relating to loans, arrangements of a kind described in section 31 (2) or 31 (3) relating to loans, and agreements to enter into any of the foregoing transactions and arrangements;

• (b) quasi-loans, guarantees and securities relating to quasi-loans, arrangements of a kind described in those subsections relating to quasi-loans and agreements to enter into any of the foregoing transactions and arrangements;

• (c) credit transactions, guarantees and securities relating to credit transactions and arrangements of a kind described in those subsections relating to credit transactions and agreements to enter into any of the foregoing transactions and arrangements.

• (2) The group accounts of a holding company prepared in accordance with the requirements of section 150 of the Principal Act and the accounts of any other company prepared in accordance with the requirements of section 148 of the Principal Act in respect of the relevant period shall contain a statement in relation to transactions, arrangements and agreements made by the company and, in the case of a holding company, by a subsidiary of the company for persons who at any time during the relevant period were officers of the company (but not directors) of the aggregate amounts outstanding at the end of the relevant period under transactions, arrangements and agreements within any paragraph of subsection (1) and the number of officers for whom the transactions, arrangements and agreements falling within each of those paragraphs were made.

• (3) Subsection (2) shall not apply, in relation to the accounts prepared by any company in respect of any relevant period, to transactions, arrangements and agreements made by the company or any of its subsidiaries for any officer of the company if the aggregate amount outstanding at the end of that period under the transactions, arrangements and agreements so made for that officer does not exceed £2,500.

• (4) Subsection (2) shall not apply in relation to any transaction, arrangement or agreement made by a licensed bank for any of its officers or for any of the officers of its holding company.

• (5) The group accounts of a company which is, or is the holding company of, a licensed bank prepared in accordance with the requirements of section 150 of the Principal Act, and the accounts of any other company which is a licensed bank, prepared in accordance with the requirements of section 148 of the Principal Act in respect of the relevant period shall contain a statement in relation to transactions, arrangements or agreements made by the company preparing the accounts, if it is a licensed bank, and (in the case of a holding company) by any of its subsidiaries which is a licensed bank, for persons who at any time during the relevant period were directors of the company, of the aggregate amounts outstanding at the end of the relevant period under transactions, arrangements and agreements within any paragraph of subsection (1) and the number of persons for whom the transactions, arrangements and agreements falling within each of those paragraphs were made.

• (6)
• (a) The statement referred to in subsection (5) shall also separately contain the like information as is referred to in that subsection in relation to transactions, arrangements or agreements made for persons who at any time during the relevant period were connected with a director of the company.

• (b) A transaction, arrangement or agreement to which paragraph (a) applies need not be included in the statement if—

• (i) it is entered into by the company concerned in the ordinary course of its business, and

• (ii) its value is not greater, and its terms no more favourable, in respect of the person for whom it is made, than that or those which—

• (I) the company ordinarily offers, or

• (II) it is reasonable to expect the company to have offered,

to or in respect of a person of the same financial standing but unconnected with the company.

• (7) Particulars which are required by subsection (2), (5) or (6) to be contained in any accounts shall be given by way of notes to those accounts.

• (8) Where by virtue of sections 150 (2) and 154 of the Principal Act, a company does not produce group accounts in relation to any financial year, subsections (2), (5) and (6) shall have effect in relation to the company and that financial year as if the word “group” were omitted.

• (9) Subsections (2), (5) and (6) do not apply in relation to a transaction, arrangement or agreement which was made before the commencement of this section and which does not subsist thereafter.

• (10) For the purposes of this section, “amount outstanding” means the amount of the outstanding liabilities of the person for whom the transaction, arrangement or agreement in question was made, or, in the case of a guarantee or security, the amount guaranteed or secured.

44 Further provisions relating to licensed banks.

44.—(1) Subject to section 45, a company which is, or is the holding company of, a licensed bank, shall maintain a register containing a copy of every transaction, arrangement or agreement of which particulars would, but for section 41 (6), be required by subsection (1) or (2) of that section to be disclosed in the company's accounts or group accounts for the current financial year and for each of the preceding ten financial years (but excluding any financial year ending prior to the passing of this Act) or, if such a transaction, arrangement or agreement is not in writing, a written memorandum setting out its terms.

• (2) Subsection (1) shall not require a company to keep in its register a copy of any transaction, arrangement or agreement made for a connected person if—

• (a) it is entered into in the ordinary course of the company's business, and

• (b) its value is not greater, and its terms no more favourable, in respect of the person for whom it is made, than that or those which—

• (i) the company ordinarily offers, or

• (ii) it is reasonable to expect the company to have offered,

to or in respect of a person of the same financial standing but unconnected with the company.

• (3) Subject to section 45, a company which is, or is the holding company of, a licensed bank shall before its annual general meeting make available, at the registered office of the company for not less than the period of 15 days ending with the date of the meeting, for inspection by members of the company a statement containing the particulars of transactions, arrangements and agreements which the company would, but for section 41 (6), be required by subsection (1) or (2) of that section to disclose in its accounts or group accounts for the last complete financial year preceding that meeting and such a statement shall also be made available for inspection by the members at the annual general meeting.

• (4) Subsection (3) shall not require the inclusion in the statement of particulars of any transaction, arrangement or agreement if—

• (a) it is entered into in the ordinary course of the company's business, and

• (b) its value is not greater, and its terms no more favourable, in respect of the person for whom it is made, than that or those which—

• (i) the company ordinarily offers, or

• (ii) it is reasonable to expect the company to have offered,

to or in respect of a person of the same financial standing but unconnected with the company.

• (5) It shall be the duty of the auditors of the company to examine any such statement before it is made available to the members of the company in accordance with subsection (3) and to make a report to the members on that statement; and the report shall be annexed to the statement before it is made so available.

• (6) A report under subsection (5) shall state whether in the opinion of the auditors the statement contains the particulars required by subsection (3) and, where their opinion is that it does not, they shall include in the report, so far as they are reasonably able to do so, a statement giving the required particulars.

• (7) Subsection (3) shall not apply in relation to a licensed bank which is for the purposes of section 150 of the Principal Act the wholly owned subsidiary of a company incorporated in the State.

• (8) Where a company fails to comply with subsection (1) or (3), the company and every person who at the time of that failure is a director of the company shall be guilty of an offence and liable to a fine.

• (9) It shall be a defence in proceedings for an offence under subsection (8) for the defendant to prove that he took all reasonable steps for securing compliance with subsection (1) or (3), as the case may be.

45 Arrangements excluded from sections 41 and 44.

45.—(1) Section 41 (1) and (2) and section 44 do not apply to arrangements of the kind mentioned in section 32 (2) entered into by a company or by a subsidiary of the company for a person who at any time during the relevant period was a director of the company or of its holding company or was connected with such a director, if the aggregate of the values of each arrangement so made for that director or any person connected with him, less the amount (if any) by which the liabilities of the person for whom the arrangement was made has been reduced, did not at any time during the relevant period exceed £2,500.

• (2) Subsections (1) (c) and (2) (c) of section 41 do not apply, in relation to any accounts prepared by a company in respect of any relevant period, to any transaction or arrangement with a company or any of its subsidiaries in which a director of the company or of its holding company had, directly or indirectly, a material interest if—

• (a) the value of each transaction or arrangement within subsection (1) (c) or (2) (c), as the case may be, in which that director had, directly or indirectly, a material interest and which was made after the commencement of that relevant period with the company or any of its subsidiaries; and

• (b) the value of each such transaction or arrangement which was made before the commencement of that period less the amount (if any) by which the liabilities of the person for whom the transaction or arrangement was made have been reduced;

did not at any time during the relevant period exceed in the aggregate £1,000 or, if more, did not exceed £5,000 or one per cent of the value of the net assets of the company preparing the accounts in question as at the end of the relevant period for those accounts, whichever is the less and for this purpose, “net assets” has the same meaning as in section 29 (9).

46 Duty of auditors of company in breach of section 41 or 43.

46.—If in the case of any group or other accounts of a company the requirements of section 41 or 43 are not complied with, it shall be the duty of the auditors of the company by whom the accounts are examined to include in their report on the balance sheet of the company, so far as they are reasonably able to do so, a statement giving the required particulars.

47 Disclosure by directors of interests in contracts, etc.

47.—(1) Any reference in section 194 of the Principal Act to a contract shall be construed as including a reference to any transaction or arrangement (whether or not constituting a contract) made or entered into on or after the commencement of this section.

• (2) For the purposes of the said section 194, a transaction or arrangement of a kind described in section 31 made by a company for a director of the company or a person connected with such a director shall, if it would not otherwise be so treated (and whether or not prohibited by that section), be treated as a transaction or arrangement in which that director is interested.

• (3) The following shall be substituted for subsection (3) of the said section 194—

• “(3) Subject to subsection (4), for the purposes of this section, a general notice given to the directors of a company by a director to the effect that—

  • (a) he is a member of a specified company or firm and is to be regarded as interested in any contract which may, after the date of the notice, be made with that company or firm; or

  • (b) he is to be regarded as interested in any contract which may after the date of the notice be made with a specified person who is connected with him (within the meaning of section 26 of the Companies Act, 1990),

  shall be deemed to be a sufficient declaration of interest in relation to any such contract.”.

Supplemental

48 Power to alter financial limits under Part III.

48.—(1) The Minister may, by order, alter any of the financial limits specified in this Part.

• (2) Every order made under this section 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.

49 Cessation of section 192 of Principal Act.

49.—Section 192 of the Principal Act shall cease to have effect except—

• (a) in relation to accounts and directors' reports prepared in respect of any financial year ending before the commencement of this section; and

• (b) in relation to accounts and directors' reports prepared in respect of the first financial year ending after the commencement of this section but only in relation to loans and contracts entered into before the commencement of this section which do not subsist on or after that day.

50 Inspection of directors' service contracts.

50.—(1) Subject to the provisions of this section every company shall keep at an appropriate place—

• (a) in the case of each director whose contract of service with the company is in writing, a copy of that contract;

• (b) in the case of each director whose contract of service with the company is not in writing, a written memorandum setting out the terms of that contract;

• (c) in the case of each director who is employed under a contract of service with a subsidiary of the company, a copy of that contract or, if it is not in writing, a written memorandum setting out the terms of that contract;

• (d) a copy or written memorandum, as the case may be, of any variation of any contract of service referred to in paragraph (a), (b) or (c);

and all copies and memoranda kept by a company in pursuance of this subsection shall be kept at the same place.

• (2) Where a contract of service is only partially in writing, paragraphs (a), (b), (c) and (d), as appropriate, of subsection (1), and subsections (4) and (5), shall also apply to such a contract.

• (3) The following shall, as regards a company, be appropriate places for the purposes of subsection (1), namely—

• (a) its registered office;

• (b) the place where its register of members is kept if other than its registered office;

• (c) its principal place of business.

• (4) Every company shall send notice in the prescribed form to the registrar of companies of the place where copies and memoranda required by subsection (1) to be kept by it are kept and of any change in that place, save in a case in which they have at all times been kept at its registered office.

• (5) Subsection (1) shall not apply in relation to a director's contract of service with the company or with a subsidiary of the company if that contract required him to work wholly or mainly outside the State, but the company shall keep a memorandum—

• (a) in the case of a contract of service with the company, setting out the name of the director and the provisions of the contract relating to its duration;

• (b) in the case of a contract of service with a subsidiary of the company setting out the name of the director, the name and place of incorporation of the subsidiary and the provisions of the contract relating to its duration,

at the same place as copies and the memoranda are kept by the company in pursuance of subsection (1).

• (6) Every copy and memorandum required to be kept by subsections (1) and (5) shall, during business hours (subject to such reasonable restrictions as the company may in general meeting impose, so that not less than two hours in each day be allowed for inspection), be open to the inspection of any member of the company without charge.

• (7) If default is made in complying with subsection (1) or (5) or if an inspection required under subsection (6) is refused, the company and every officer of the company who is in default shall be liable on summary conviction to a fine not exceeding £1,000, and, for continued contravention, to a daily default fine not exceeding £50 and, if default is made for 14 days in complying with subsection (4), the company and every officer of the company who is in default shall be liable to a fine not exceeding £1,000 and, for continued contravention, to a daily default fine not exceeding £50.

• (8) In the case of a refusal of an inspection required under subsection (6) of a copy or memorandum the court may by order compel an immediate inspection thereof.

• (9) This section shall not require to be kept a copy of, or memorandum setting out the terms of, a contract or a copy of, or memorandum setting out the terms of a variation of, a contract at a time at which the unexpired portion of the term for which the contract is to be in force is less than three years or at a time at which the contract can, within the next ensuing three years, be terminated by the company without payment of compensation.

51 Register of directors and secretaries.

51.—The Principal Act is hereby amended by the substitution for section 195 of the following section—

“195.— (1) Every company shall keep at its registered office a register of its directors and secretaries.

• (2) Subject to subsection (3), the said register shall contain the following particulars relating to each director—

  • (a) his present forename and surname and any former forename and surname; and

  • (b) his date of birth; and

  • (c) his usual residential address; and

  • (d) his nationality; and

  • (e) his business occupation, if any; and

  • (f) particulars of any other directorships of bodies corporate, whether incorporated in the State or elsewhere, held by him or which have been held by him.

• (3) It shall not be necessary for the said register to contain on any day particulars of any directorship—

  • (a) which has not been held by a director at any time during the ten years preceding that day;

  • (b) which is held or was held by a director in bodies corporate of which the company is or was the wholly owned subsidiary or which are or were the wholly owned subsidiaries either of the company or of another body corporate of which the company is or was the wholly owned subsidiary;

  and for the purposes of this subsection a body corporate shall be deemed to be the wholly owned subsidiary of another if it has no members except that other and that other's wholly owned subsidiaries and its or their nominees.

• (4) Subject to subsection (5), the said register shall contain the following particulars relating to the secretary or, where there are joint secretaries, in relation to each of them—

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

  • (b) in the case of a body corporate, the corporate name and registered office.

• (5) Where all the partners in a firm are joint secretaries of a company, the name and principal office of the firm may be stated instead of the said particulars.

• (6) The company shall, within the period of 14 days from the happening of—

  • (a) any change among its directors or in its secretary, or

  • (b) any change in any of the particulars contained in the register,

  send to the registrar of companies a notification in the prescribed form of the change and of the date on which it occurred.

• (7) A notification sent to the registrar of companies pursuant to subsection (6) of the appointment of a person as a director, secretary or joint secretary of a company shall be accompanied by a consent signed by that person to act as director, secretary or joint secretary, as the case may be.

• (8) Without prejudice to subsection (6), a person who has ceased to be a director or secretary of a company may send to the registrar of companies a notification in the prescribed form of such cessation, and of the date on which it occurred.

• (9) Subsection (6) shall not apply to any change in the particulars contained in a company's register of directors and secretaries made solely by reason of the coming into force of section 51 of the Companies Act, 1990 but if after any such change has occurred and before the company makes its next annual return, any other change in those particulars occurs, the company shall send to the registrar of companies a notification in the prescribed form of any such earlier changes and the date on which they occurred at the same time as it notifies the registrar of the later changes in accordance with this section.

• (10) The register to be kept under this section shall, during business hours (subject to such reasonable restrictions as the company may by its articles or in general meeting impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member of the company without charge, and of any other person, on payment of one pound or such less sum as the company may prescribe, for each inspection.

• (11) It shall be the duty of each director and secretary of a company to give information in writing to the company as soon as may be of such matters as may be necessary to enable the company to comply with this section.

• (12) If any inspection required under this section is refused or if default is made in complying with subsection (1), (2), (4), (6) or (7), the company and every officer of the company who is in default shall be liable to a fine not exceeding £1,000 and, for continued contravention, to a daily default fine not exceeding £50.

• (13) In the case of any such refusal, the court may by order compel an immediate inspection of the register.

• (14) A person who fails to comply with subsection (11) shall be guilty of an offence and liable to a fine.

• (15) For the purposes of this section—

  • (a) in the case of a person usually known by a title different from his surname, the expression ‘surname’ means that title;

  • (b) references to a ‘former forename’ or ‘surname’ do not include—

    • (i) in the case of a person usually known by a title different from his surname, the name by which he was known previous to the adoption of or succession to the title; or

    • (ii) in the case of any person, a former forename or surname where that name or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years; or

    • (iii) in the case of a married woman, the name or surname by which she was known previous to the marriage.”.

52 Directors to have regard to interests of employees.

52.—(1) The matters to which the directors of a company are to have regard in the performance of their functions shall include the interests of the company's employees in general, as well as the interests of its members.

• (2) Accordingly, the duty imposed by this section on the directors shall be owed by them to the company (and the company alone) and shall be enforceable in the same way as any other fiduciary duty owed to a company by its directors.

PART IV Disclosure of Interests in Shares

Chapter 1 Share Dealings by Directors, Secretaries and their Families

53 Obligation of director or secretary to notify interests in shares or debentures of company.

53.—(1) Subject to the provisions of this section a person who, at the commencement of this section is a director or secretary of a company and is then interested in shares in, or debentures of, the company or any other body corporate, being the company's subsidiary or holding company or a subsidiary of the company's holding company or thereafter becomes a director or secretary of a company and, at the time when he becomes a director or secretary of a company, is so interested, shall notify the company in writing—

• (a) of the subsistence of his interests at that time, and

• (b) of the number of shares of each class in, and the amount of debentures of each class of, the company or any such other body corporate as aforesaid in which each interest of his subsists at that time.

• (2) A director or secretary of a company shall notify the company in writing of the occurrence, while he is a director or secretary, of any of the following events and the date on which it occurred—

• (a) any event in consequence of whose occurrence he becomes, or ceases to be, interested in shares in, or debentures of, the company or any other body corporate, being the company's subsidiary or holding company or a subsidiary of the company's holding company;

• (b) the entering into by him of a contract to sell any such shares or debentures;

• (c) the assignment by him of a right granted to him by the company to subscribe for shares in, or debentures of, the company; and

• (d) the grant to him by another body corporate, being the company's subsidiary or holding company or a subsidiary of the company's holding company, of a right to subscribe for shares in, or debentures of, that other body corporate, the exercise of such a right granted to him and the assignment by him of such a right so granted;

stating the number or amount, and class, of shares or debentures involved.

• (3) The provisions of section 54 shall have effect for the interpretation of, and otherwise in relation to, subsections (1) and (2).

• (4) Section 56 shall have effect with respect to the periods within which obligations imposed by subsections (1) and (2) on persons must be fulfilled by them.

• (5) Section 57 shall have effect with respect to certain circumstances in which obligations imposed by subsections (1) and (2) are to be treated as not discharged.

• (6) In the case of a person who is a director or secretary of a company at the time when this section comes into operation subsection (2) shall not require the notification by him of the occurrence of an event before that time; and that subsection shall not require the notification by a person of the occurrence of an event whose occurrence comes to his knowledge after he has ceased to be a director or secretary.

• (7) A person who fails to fulfil, within the proper period, an obligation to which he is subject by virtue of subsection (1) or (2) shall be guilty of an offence.

• (8) An obligation imposed by this section shall be treated as not being fulfilled unless the notice by means of which it purports to be fulfilled is expressed to be given in fulfilment of that obligation.

• (9) This section applies to shadow directors as to directors, but the making of a notification by a person under this section shall not, in itself, be proof that the person making the notification is a shadow director.

• (10) Nothing in this section shall operate so as to impose an obligation with respect to shares in a body corporate which is the wholly owned subsidiary of another body corporate; and for this purpose a body corporate shall be deemed to be the wholly owned subsidiary of another if it has no members but that other and that other's wholly owned subsidiaries and its or their nominees.

• (11) This section and sections 54, 56, 57 and 59 shall have effect in place of section 190 of the Principal Act and of so much of section 193 of that Act as relates to section 190, and that section and so much of section 193 as relates thereto shall, accordingly, cease to have effect.

54 Nature of an interest within section 53.

54.—(1) The provisions of this section shall apply in determining for the purposes of section 53 whether a person has an interest in shares or debentures.

• (2) Any reference to an interest in shares or debentures shall be read as including a reference to any interest of any kind whatsoever in shares or debentures; and accordingly there shall be disregarded any restraints or restrictions to which the exercise of any right attached to the interest is or may be subject.

• (3) Where any property is held on trust and any interest in shares or debentures is comprised in that property, any beneficiary of that trust who, apart from this subsection, does not have an interest in the shares or debentures shall be taken to have such an interest; but this subsection is without prejudice to the following provisions of this section.

• (4) A person shall be taken to have an interest in shares or debentures if—

• (a) he enters into a contract for their purchase by him (whether for cash or other consideration); or

• (b) not being the registered holder, he is entitled to exercise any right conferred by the holding of those shares or debentures or is entitled to control the exercise of any such right.

• (5) A person shall be taken to be interested in shares or debentures if a body corporate is interested in them and—

• (a) that body corporate or its directors are accustomed to act in accordance with his directions or instructions; or

• (b) he is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of that body corporate.

• (6) Where a person is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of a body corporate and that body corporate is entitled to exercise or control the exercise of any of the voting power at general meetings of another body corporate (the “relevant voting power”), then, for the purposes of subsection (5) (b), the relevant voting power shall be taken to be exercisable by that person.

• (7) A person shall be taken to have an interest in shares or debentures if, otherwise than by virtue of having an interest under a trust—

• (a) he has a right to call for delivery of the shares or debentures to himself or to his order; or

• (b) he has a right to acquire an interest in shares or debentures or is under an obligation to take an interest in shares or debentures;

whether in any case the right or obligation is conditional or absolute.

• (8) For the purposes of subsection (4) (b) a person shall be taken to be entitled to exercise or control the exercise of any right conferred by the holding of shares or debentures if he has a right (whether subject to conditions or not) the exercise of which would make him so entitled or is under an obligation (whether so subject or not) the fulfilment of which would make him so entitled.

• (9) A person shall not by virtue of subsection (4) (b) be taken to be interested in any shares or debentures by reason only that he has been appointed a proxy to vote at a specified meeting of a company or of any class of its members and at any adjournment of that meeting or has been appointed by a body corporate to act as its representative at any meeting of a company or of any class of its members.

• (10) Without prejudice to subsection (2), rights or obligations to subscribe for any shares or debentures shall not be taken for the purposes of subsection (7) to be rights to acquire, or obligations to take, any interest in shares or debentures.

• (11) Where persons have a joint interest each of them shall be deemed to have that interest.

• (12) It is immaterial that shares or debentures in which a person has an interest are unidentifiable.

• (13) Delivery to a person's order of shares or debentures in fulfilment of a contract for the purchase thereof by him or in satisfaction of a right of his to call for delivery thereof, or failure to deliver shares or debentures in accordance with the terms of such a contract or on which such a right falls to be satisfied, shall be deemed to constitute an event in consequence of the occurrence of which he ceases to be interested in them, and so shall the lapse of a person's right to call for delivery of shares or debentures.

55 Interests to be disregarded.

55.—(1) The following interests shall be disregarded for the purposes of section 54 and sections 56 to 58—

• (a) where property is held on trust and an interest in shares or debentures is comprised in that property, an interest in reversion or remainder or of a bare trustee and any discretionary interest;

• (b) an interest of a person subsisting by virtue of—

• (i) his holding units in—

• (I) a registered unit trust scheme within the meaning of section 3 of the Unit Trusts Act, 1972;

• (II) a unit trust to which section 31 of the Capital Gains Tax Act, 1975, as amended by section 34 of the Finance Act, 1977 relates;

• (III) an undertaking for collective investment in transferable securities, within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989);

• (ii) a scheme made under section 46 of the Charities Act, 1961;

• (c) an interest for the life of himself or another of a person under a settlement in the case of which the property comprised in the settlement consists of or includes shares or debentures, and the conditions mentioned in subsection (3) are satisfied;

• (d) an interest in shares or debentures held by a member of a recognised stock exchange carrying on business as a stock broker which is held by way of security only for the purposes of a transaction entered into by the person or body concerned in the ordinary course of business of such person or body;

• (e) such interests, or interests of such a class, as may be prescribed for the purposes of this paragraph by regulations made by the Minister.

• (2) A person shall not by virtue of section 54 (4) (b) be taken to be interested in shares or debentures by reason only that he has been appointed a proxy to vote at a specified meeting of a company or of any class of its members and at any adjournment of that meeting, or has been appointed by a body corporate to act as its representative at any meeting of a company or of any class of its members.

• (3) The conditions referred to in subsection (1) (c) are, in relation to a settlement—

• (a) that it is irrevocable, and

• (b) that the settlor (within the meaning of section 96 of the Income Tax Act, 1967) has no interest in any income arising under, or property comprised in, the settlement.

56 Periods within which obligations under section 53 must be discharged.

56.—(1) An obligation imposed on a person by section 53 (1) to notify an interest must, if he knows of the existence of the interest on the relevant day (that is to say, in a case in which he is a director or secretary at the beginning of the day on which that section comes into operation, the last previous day, and, in a case in which he thereafter becomes a director or secretary, the day on which he becomes it), be fulfilled before the expiration of the period of five days beginning with the day next following the relevant day; otherwise it must be fulfilled before the expiration of the period of five days beginning with the day next following that on which the existence of the interest comes to his knowledge.

• (2) An obligation imposed on a person by section 53 (2) to notify the occurrence of an event must, if at the time at which the event occurs he knows of its occurrence, be fulfilled before the expiration of the period of five days beginning with the day next following that on which it occurs; otherwise, it must be fulfilled before the expiration of the period of five days beginning with the day next following that on which the occurrence of the event comes to his knowledge.

57 Circumstances in which obligation under section 53 is not discharged.

57.—(1) Where an event of whose occurrence a director or secretary is, by virtue of section 53 (2) (a), under obligation to notify a company consists of his entering into a contract for the purchase by him of shares or debentures, the obligation shall be taken not to be discharged in the absence of inclusion in the notice of a statement of the price to be paid by him under the contract, and an obligation imposed on a director or secretary by virtue of section 53 (2) (b) shall be taken not to be discharged in the absence of inclusion in the notice of the price to be received by him under the contract.

• (2) An obligation imposed on a director or secretary by virtue of section 53 (2) (c) to notify a company shall be taken not to be discharged in the absence of inclusion in the notice of a statement of the consideration for the assignment (or, if it be the case that there is no consideration, that fact), and where an event of whose occurrence a director is, by virtue of section 53 (2) (d), under obligation to notify a company consists in his assigning a right, the obligation shall be taken not to be discharged in the absence of inclusion in the notice of a similar statement.

• (3) Where an event of whose occurrence a director or secretary is, by virtue of section 53 (2) (d), under obligation to notify a company consists in the grant to him of a right to subscribe for shares or debentures, the obligation shall not be taken to be discharged in the absence of inclusion in the notice of a statement of—

• (a) the date on which the right was granted,

• (b) the period during which or time at which the right is exercisable,

• (c) the consideration for the grant (or, if it be the case that there is no consideration, that fact), and

• (d) the price to be paid for the shares or debentures.

• (4) Where an event of whose occurrence a director or secretary is, by virtue of section 53 (2) (d), under obligation to notify a company consists in the exercise of a right granted to him to subscribe for shares or debentures, the obligation shall be taken not to be discharged in the absence of inclusion in the notice of a statement of—

• (a) the number of shares or amount of debentures in respect of which the right was exercised, and

• (b) if it be the case that they were registered in his name, that fact, and, if not, the name or names of the person or persons in whose name or names they were registered,

together (if they were registered in the names of two persons or more) with the number or amount thereof registered in the name of each of them.

• (5) For the purposes of this section any reference, however expressed, to any price paid, given or received in respect of any interest in shares or debentures shall be construed as including a reference to any consideration other than money given or received in respect of any such interest.

58 Other provisions relating to notification.

58.—(1) Where a person authorises any other person (“the agent”) to acquire or dispose of, on his behalf, interests in shares in, or debentures of, a company, he shall secure that the agent notifies him immediately of acquisitions or disposals of interests in such shares or debentures effected by the agent which will or may give rise to any obligation on his part to make a notification under this Chapter with respect to his interest in those shares or debentures.

• (2) An obligation to make any notification imposed on any person by this Chapter shall be treated as not being fulfilled unless the notice by means of which it purports to be fulfilled identifies him and gives his address.

• (3) Where a person fails to fulfil, within the proper period, an obligation to which he is subject by virtue of section 53, no right or interest of any kind whatsoever in respect of the shares or debentures concerned shall be enforceable by him, whether directly or indirectly, by action or legal proceeding.

• (4) Where any right or interest is restricted under subsection (3), any person in default under that subsection or any other person affected by such restriction may apply to the court for relief against a disability imposed by or arising out of subsection (3) and the court on being satisfied that the default was accidental, or due to inadvertence, or some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may grant such relief either generally, or as respects any particular right or interest on such terms and conditions as it sees fit.

• (5) Where an applicant for relief under subsection (4) is a person referred to in subsection (3), the court may not grant such relief if it appears that the default has arisen as a result of any deliberate act or omission on the part of the applicant.

• (6) Subsection (3) shall not apply to an obligation relating to a person ceasing to be interested in shares in, or debentures of, a company.

• (7) A person who fails without reasonable excuse to comply with subsection (1) shall be guilty of an offence.

59 Register of interests.

59.—(1) Every company shall keep a register for the purposes of section 53.

• (2) Whenever the company receives information from a director or secretary in consequence of the fulfilment of an obligation imposed on him by that section, the company shall enter in the register, against the name of that person, that information and the date of the entry.

• (3) Every company shall, whenever it grants to a director or secretary a right to subscribe for shares in, or debentures of, the company, enter in the register against his name—

• (a) the date on which the right is granted,

• (b) the period during which or time at which it is exercisable,

• (c) the consideration for the grant (or, if it be the case that there is no consideration, that fact), and

• (d) the description of shares or debentures involved and the number or amount thereof, and the price to be paid therefor.

• (4) Whenever such a right as is mentioned in subsection (3) is exercised by a director or secretary, the company shall enter in the said register against his name that fact (identifying the right), the number or amount of shares or debentures in respect of which it is exercised and, if it be the case that they were registered in his name, that fact, and, if not, the name or names of the person or persons in whose name or names they were registered, together (if they were registered in the names of two persons or more) with the number or amount thereof registered in the name of each of them.

• (5) This section applies to shadow directors as to directors.

60 Provisions relating to register.

60.—(1) The register to be kept under section 59 shall be so made up that the entries therein against the several names inscribed therein appear in chronological order.

• (2) An obligation imposed by section 59 (2) to (4) shall be fulfilled before the expiration of the period of 3 days beginning with the day next following that on which it arises.

• (3) The nature and extent of an interest recorded in the said register of a director or secretary in any shares or debentures shall, if he so requires, be recorded in the said register.

• (4) The company shall not, by virtue of anything done for the purposes of this section, be affected with notice of, or put upon inquiry as to, the rights of any person in relation to any shares or debentures.

• (5) The said register shall—

• (a) if the company's register of members is kept at its registered office, be kept there;

• (b) if the company's register of members is not so kept, be kept at the company's registered office or at the place where its register of members is kept;

and shall during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than two hours in each day be allowed for inspection) be open to the inspection of any member of the company without charge and of any other person on payment of 30p or such less sum as the company may prescribe for each inspection.

• (6) The company shall send notice to the registrar of companies of the place where the said register is kept and of any change in that place, save in a case in which it has at all times been kept at its registered office.

• (7) Unless the said register is in such a form as to constitute in itself an index, the company shall keep an index of the names entered therein which shall—

• (a) in respect of each name, contain a sufficient indication to enable the information inscribed against it to be readily found; and

• (b) be kept at the same place as the said register;

and the company shall, within 14 days after the date on which a name is entered in the said register, make any necessary alteration in the index.

• (8) Any member of the company or other person may require a copy of the said register, or of any part thereof, on payment of 15p or such less sum as the company may prescribe, for every hundred words or fractional part thereof required to be copied.

The company shall cause any copy so required by any person to be sent to that person within the period of 10 days beginning with the day next following that on which the requirement is received by the company.

• (9) The said register shall also be and remain open and accessible to any person attending the company's annual general meeting at least one quarter hour before the appointed time for the commencement of the meeting and during the continuance of the meeting.

• (10) If default is made in compliance 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 to a fine not exceeding £1,000; and if default is made for 14 days in complying with subsection (6) the company and every officer of the company who is in default shall be liable to a fine not exceeding £1,000; and if default is made in complying with section 59 or with subsection (1), (2) or (7) of this section or if an inspection required under this section is refused or any copy required thereunder is not sent within the proper period the company and every officer of the company who is in default shall be liable to a fine not exceeding £1,000.

• (11) In the case of a refusal of an inspection required under this section of the said register, the court may by order compel an immediate inspection thereof; and in the case of a failure to send within the proper period a copy required under this section, the court may by order direct that the copy required shall be sent to the person requiring it.

61 Removal of entries from register.

61.—(1) A company may remove an entry against a person's name from the register of interests in shares and debentures kept under section 59 if more than 6 years has elapsed since the date of the entry being made, and either—

• (a) that entry recorded the fact that the person in question has ceased to have an interest notifiable under this Chapter in shares in, or debentures of, the company, or

• (b) it has been superseded by a later entry made under the said section 59 against the same person's name;

and in a case within paragraph (a) the company may also remove that person's name from the register.

• (2) Where a name is removed from a company's register of interests in shares or debentures in pursuance of subsection (1), the company shall within 14 days of the date of that removal make any necessary alterations in any associated index.

• (3) If default is made in complying with subsection (2), the company and every officer of it who is in default shall be guilty of an offence and liable to a fine.

62 Entries, when not to be removed.

62.—(1) Entries in a company's register of interests in shares and debentures under this Chapter shall not be deleted except in accordance with section 61.

• (2) If an entry is deleted from a company's register of interests in shares in contravention of subsection (1), the company shall restore that entry to the register as soon as is reasonable and practicable.

• (3) If default is made in complying with subsection (1) or (2), the company and every officer of it who is in default shall be guilty of an offence and liable to a fine.

63 Disclosure of interests in directors' report.

63.—(1) Subject to subsection (2), the directors' report or the notes to the company's accounts in respect of a financial year shall, as respects each person who, at the end of that year, was a director of the company, state—

• (a) whether or not he was, at the end of that year, interested in shares in, or debentures of, the company or any other body corporate being the company's subsidiary or holding company or a subsidiary of the company's holding company;

• (b) if he was so interested—

• (i) the number and amount of shares in, and debentures of, each body (specifying it) in which he was then interested,

• (ii) whether or not he was, at the beginning of that year (or, if he was not then a director, when he became a director), interested in shares in, or debentures of, the company or any other such body corporate, and,

• (iii) if he was, the number and amount of shares in, and debentures of, each body (specifying it) in which he was interested at the beginning of that year or, as the case may be, when he became a director.

• (2) The reference in subsection (1) to the directors' report and the notes to the company's accounts are references to the report and notes respectively which are required by virtue of the Companies (Amendment) Act, 1986 to be annexed to the Annual Return and where a company does not annex the report of the directors, as permitted by section 10 (2) of the aforementioned Act, the information required in subsection (1) shall be contained in the notes to the company's accounts.

• (3) The references in subsection (1) to the time when a person became a director shall, in the case of a person who became a director on more than one occasion, be construed as referring to the time when he first became a director.

• (4) For the purposes of this section “the directors' report” means the report by the directors of a company which, by section 158 (1) of the Principal Act, is required to be attached to every balance sheet of the company.

• (5) The information required by subsection (1) to be given in respect of the directors of the company shall also be given in respect of the person who was the secretary of the company at the end of the financial year concerned.

64 Extension of section 53 to spouses and children.

64.—(1) For the purposes of section 53—

• (a) an interest of the spouse of a director or secretary of a company (not being himself or herself a director or secretary thereof) in shares or debentures shall be treated as being the director's or secretary's interest, and

• (b) the same applies to an interest of a minor child of a director or secretary of a company (not being himself or herself a director or secretary thereof) in shares or debentures.

• (2) For those purposes—

• (a) a contract, assignment or right of subscription entered into, exercised or made by, or grant made to, the spouse of a director or secretary of a company (not being himself or herself a director or secretary thereof) shall be treated as having been entered into, exercised or made by, or, as the case may be, as having been made to, the director or secretary, and

• (b) the same applies to a contract, assignment or right of subscription entered into, exercised or made by, or grant made to, a minor child of a director or secretary of a company (not being himself or herself a director or secretary thereof).

• (3) A director or secretary of a company shall be under obligation to notify the company in writing of the occurrence, while he or she is director or secretary, of either of the following events, namely—

• (a) the grant to his or her spouse or minor child by the company, of a right to subscribe for shares in, or debentures of, the company; and

• (b) the exercise by the spouse or minor child of such a right as aforesaid granted by the company to the spouse or child.

• (4) In a notice given to the company under subsection (3) there shall be stated—

• (a) in the case of the grant of a right, the like information as is required by section 53 to be stated by the director or secretary on the grant to him by another body corporate of a right to subscribe for shares in, or debentures of, that other body corporate, and

• (b) in the case of the exercise of a right, the like information as is required by that section to be stated by the director or secretary on the exercise of a right granted to him by another body corporate to subscribe for shares in, or debentures of, that other body corporate.

• (5) An obligation imposed by subsection (3) on a director or secretary must be fulfilled by him before the expiration of the period of 5 days beginning with the day next following that on which the occurrence of the event that gives rise to it comes to his knowledge.