COMPANIES ACT, 1990

shall be unlawful if any such payment is made otherwise than out of distributable profits of the company.

• (2) If the requirements of subsection (1) are not satisfied in relation to a contract—

• (a) in a case to which paragraph (a) of that subsection applies, no purchase by the company of its own shares in pursuance of that contract shall be lawful under this Part;

• (b) in a case to which paragraph (b) of that subsection applies, no such purchase following the variation shall be lawful under this Part; and

• (c) in a case to which paragraph (c) of that subsection applies, the purported release shall be void.

219 Effect of company's failure to redeem or purchase.

219.—(1) This section applies to—

• (a) redeemable shares issued after the coming into operation of this Part;

• (b) shares which have been converted into redeemable shares pursuant to section 210; and

• (c) shares which a company has agreed to purchase pursuant to section 213, 214 or 215.

• (2) Without prejudice to any other right of the holder of any shares to which this section applies a company shall not be liable in damages in respect of any failure on its part to redeem or purchase any such shares.

• (3) The court shall not grant an order for specific performance of the terms of redemption or purchase of the shares to which this section applies if the company shows that it is unable to meet the cost of redeeming or purchasing the shares out of profits available for distribution.

• (4) Where at the commencement of the winding up of a company any shares to which this section applies have not been redeemed or purchased then, subject to subsections (5), (6) and (7), the terms of redemption or purchase may be enforced against the company and the shares when so redeemed or purchased under this subsection shall be treated as cancelled.

• (5) Subsection (4) shall not apply if—

• (a) the terms of redemption or purchase provided for the redemption or purchase to take place at a date later than that of the commencement of the winding-up, or

• (b) during the period beginning with the date on which the redemption or purchase was to have taken place and ending with the commencement of the winding-up the company could not at any time have lawfully made a distribution equal in value to the price at which the shares were to have been redeemed or purchased.

• (6) There shall be paid in priority to any amount for which the company is liable by virtue of subsection (4) to pay in respect of any shares—

• (a) all other debts and liabilities of the company other than any due to members in their character as such, and

• (b) if other shares carry rights, whether as to capital or to income, which are preferred to the rights as to capital attaching to the first mentioned shares, any amount due in satisfaction of those preferred rights,

but subject as aforesaid, any such amount shall be paid in priority toany amounts due to members in satisfaction of their rights (whether as to capital or income) as members.

• (7) Where by virtue of the application by section 284 of the Principal Act of the rules of bankruptcy in the winding-up of insolvent companies a creditor of a company is entitled to payment of any interest only after payment of all other debts of the company, the company's debts and liabilities shall for the purposes of subsection (6) include the liability to pay that interest.

220 Redemption of existing redeemable preference shares.

220.—Section 64 of the Principal Act is hereby repealed but any redeemable preference shares issued by a company limited by shares before the coming into operation of this Part which could but for the repeal of section 64 have been redeemed under that section shall be subject to redemption in accordance with the provisions of this Part save that any premium payable on redemption may, notwithstanding section 207 (2) (e) and (f), be paid out of the share premium account instead of out of profits or may be paid partly out of that account and partly out of profits available for distribution.

221 Construction of references to redeemable preference shares.

221.—A reference to redeemable preference shares in—

• (a) section 69 (1) (e) of, and the Second, Third, Fourth and Sixth Schedules to, the Principal Act, and

• (b) section 55 (1) (h) of the Act of 1983,

shall be construed as a reference to redeemable shares.

222 Retention and inspection of documents.

222.—(1) Every company which enters into a contract under section 213, 214 or 215 shall, until the expiration of ten years after the contract has been fully performed, keep at its registered office a copy of that contract or, if it is not in writing, a memorandum of its terms.

• (2) Every document required to be kept under subsection (1) shall during business hours (subject to such reasonable restrictions as the company in general meeting may impose, so that not less than 2 hours in each day be allowed for inspection) be open to the inspection of any member and, if the company is a public limited company, of any other person.

• (3) 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.

• (4) In the case of a refusal of an inspection of a document required under subsection (2), the court may, on the application of a person who has requested an inspection and has been refused, by order require the company to allow the inspection of that document.

223 Application of section 108 (6) to dealings by company in its own securities.

223.—Subsection (6) of section 108, in its application to dealings by a company in its own securities, shall not preclude a company from dealing in its own shares at any time by reason only of information in the possession of an officer of that company if—

• (a) the decision to enter into the transaction was taken on its behalf by a person other than the officer, and

• (b) the information was not communicated to that person and no advice relating to the transaction was given to him by a person in possession of the information.

224 Holding by subsidiary of shares in its holding company.

224.—(1) Notwithstanding sections 32 and 60 of the Principal Act a company may, subject to the provisions of this section, acquire and hold shares in a company which is its holding company.

• (2) The acquisition and holding by a subsidiary under subsection (1) of shares in its holding company shall be subject to the following conditions:

• (a) The consideration for the acquisition of such shares shall be provided for out of the profits of the subsidiary available for distribution.

• (b) Upon the acquisition of such shares and for so long as the shares are held by the subsidiary—

• (i) the profits of the subsidiary available for distribution shall for all purposes be restricted by a sum equal to the total cost of the shares acquired;

• (ii) the shares shall, for the purposes of the consolidated accounts prepared by the holding company in accordance with sections 150 to 152 of the Principal Act, be treated in the same manner as is required in respect of shares held as treasury shares under section 43A of the Act of 1983 (inserted by section 232 (c) of this Act); and

• (iii) the subsidiary shall not exercise any voting rights in respect of the shares and any purported exercise of those rights shall be void.

• (3) A contract for the acquisition (whether by allotment or transfer) by a subsidiary of shares in its holding company shall not be entered into without being authorised in advance both by the subsidiary and its holding company and the provisions of sections 212 to 217 shall apply, with the necessary modifications, to the granting, variation, revocation and release of such authority.

• (4) For the purposes of this section, a subsidiary's profits available for distribution shall not include the profits attributable to any shares in the subsidiary for the time being held by the subsidiary's holding company so far as they are profits for the period before the date on or from which the shares were acquired by the holding company.

• (5) This section shall not apply to shares held by a subsidiary in its holding company in the circumstances permitted by section 32 of the Principal Act.

• (6) This section, except subsection (2) (b) (iii), shall not apply to shares subscribed for, purchased or held by a subsidiary in its holding company pursuant to section 9 (1) of the Insurance Act, 1990.

225 Civil liability for improper purchase in holding company.

225.—(1) Where the winding-up of a company which has acquired shares in its holding company in accordance with section 224 commences within six months after such acquisition and the company is at the time of the commencement of the winding-up unable to pay its debts (taking into account the contingent and prospective liabilities), the court, on the application of a liquidator, creditor, employee or contributory of the company, may subject to subsection (2), declare that the directors of the company shall be jointly and severally liable to repay to the company the total amount paid by the company for the shares.

• (2) Where it appears to the court that any person in respect of whom a declaration has been sought under subsection (1) believed on reasonable grounds that the said purchase was in the best interests of the company, the court may relieve him, either wholly or in part, from personal liability on such terms as it may think fit.

226 Return to be made to registrar.

226.—(1) Every company which has purchased shares pursuant to this Part shall, within 28 days after delivery to the company of those shares, deliver to the registrar for registration a return in the prescribed form stating with respect to shares of each class purchased the number and nominal value of those shares and the date on which they were delivered to the company.

• (2) In the case of a public limited company, the return shall also state—

• (a) the aggregate amount paid by the company for the shares, and

• (b) the maximum and minimum prices paid in respect of each class purchased.

• (3) Particulars of shares delivered to the company on different dates and under different contracts may be included in a single return to the registrar, and in such a case the amount required to be stated under subsection (2) (a) shall be the aggregate amount paid by the company for all the shares to which the return relates.

• (4) If a company fails to comply with the requirements of this section, the company and every officer who is in default shall be guilty of an offence.

• (5) Summary proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.

227 Amendment of section 89 of the Principal Act.

227.—The following section is hereby substituted for section 89 of the Principal Act:

“Validation of invalid issue, redemption or purchase of shares.

89.—(1) If a company has created or issued shares in its capital, or acquired any of its shares by a redemption or purchase in purported compliance with Part XI of the Companies Act, 1990, and if there is reason to apprehend that such shares were invalidly created, issued or acquired as aforesaid, the court may, on the application of the company, any holder or former holder of such shares or any member or former member or creditor, or the liquidator, of the company, declare that such creation, issue or acquisition shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so and thereupon such shares shall from the creation, issue or acquisition thereof, as the case may be, be deemed to have been validly created, issued or acquired.

• (2) Where shares have been redeemed or purchased in contravention of paragraph (d), (e) or (f) of section 207 (2) or section 207 (3) of the Companies Act, 1990, then the court shall not make a declaration under subsection (1) above in respect of those shares.

• (3) The grant of relief by the court under this section shall, if the court so directs, not have the effect of relieving the company or its officers of any liability incurred under section 41 (3) of the Companies (Amendment) Act, 1983.”.

228 Regulations as to purchase of shares.

228.—(1) The Minister may make regulations governing the purchase by companies of their own shares or of shares in their holding company and the sale by companies of their own shares held as treasury shares and such regulations may relate to companies in general or to a particular category or class of company.

• (2) Without prejudice to the generality of subsection (1), regulations under this section may provide for in particular—

• (a) the class or description of shares which may (or may not) be purchased or sold,

• (b) the price at which they may be purchased or sold,

• (c) the timing of such purchases or sales,

• (d) the method by which the shares may be purchased or sold, and

• (e) the volume of trading in the shares which may be carried out by companies.

• (3) If a company fails to comply with the provisions of regulations made under this section, the company and every officer who is in default shall be guilty of an offence.

229 Duty of company to notify stock exchange.

229.—(1) Whenever shares for which dealing facilities are provided on a recognised stock exchange have been purchased either by the company which issued the shares or by a company which is that company's subsidiary, the company whose shares have been purchased shall be under an obligation to notify that stock exchange of that matter; and the stock exchange may publish, in such manner as it may determine, any information received by it under this subsection.

• (2) An obligation imposed by subsection (1) shall be fulfilled before the end of the day next following that on which it arises.

• (3) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence.

230 Duty of stock exchange in relation to unlawful purchases.

230.—(1) If it appears to a relevant authority of a recognised stock exchange that a company in the case of whose shares dealing facilities have been provided on that stock exchange has committed an offence under section 228 or 229, such authority shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to theDirector of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of such authority and relating to the matter in question, as the Director of Public Prosecutions may require.

• (2) Where it appears to a member of a recognised stock exchange that any person has committed an offence under section 228 or 229, he shall report the matter forthwith to a relevant authority of the recognised stock exchange concerned, who shall thereupon come under the duty referred to in subsection (1).

• (3) If it appears to a court in any proceedings that any person has committed an offence as aforesaid, and that no report relating to the matter has been made to the Director of Public Prosecutions under subsection (1), that court may, on the application of any person interested in the proceedings concerned or of its own motion, direct a relevant authority of the recognised stock exchange concerned to make such a report, and on a report being made accordingly, this section shall have effect as though the report had been made in pursuance of subsection (1).

• (4) If, where any matter is reported or referred to the Director of Public Prosecutions under this section, he considers that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose shares are concerned, and of any other person who appears to the Director of Public Prosecutions to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the prosecution which he or they are reasonably able to give.

• (5) If it appears to the Minister, arising from a complaint to a relevant authority of a recognised stock exchange concerning an alleged offence under section 228 or 229, that there are circumstances suggesting that—

• (a) the relevant authority ought to use its powers under this section but has not done so, or

• (b) that a report ought to be made to the Director of Public Prosecutions under subsection (1), but that the relevant authority concerned has not so reported,

he may request the relevant authority to use such powers or make such a report, and on a report being made accordingly, this section shall have effect as though the report had been made in pursuance of subsection (1).

• (6) Where the Minister makes a request under subsection (5), the relevant authority concerned shall communicate the results of its investigations, or a copy of its report under subsection (1), as the case may be, to the Minister.

• (7) A relevant authority of a recognised stock exchange shall not be liable in damages in respect of anything done or omitted to be done by the authority in connection with the exercise by it of its functions under this section unless the act or omission complained of was done or omitted to be done in bad faith.

• (8) For the purposes of this section each of the following shall be a “relevant authority” in relation to a recognised stock exchange—

• (i) its board of directors, committee of management or other management body,

• (ii) its manager, however described.

• (9) A relevant authority shall have the same powers and duties for the purposes of this section as it has under sections 117 and 120.

• (10) Where the Minister considers it necessary or expedient to do so for the proper and effective administration of this section, he may make such regulations as he thinks appropriate in relation to—

• (a) the powers of authorised persons, or

• (b) the matters in respect of which, or the persons from whom, authorised persons may require information under section 117, as applied by subsection (9).

231 Amendments to the Principal Act in respect of share capital.

231.—(1) The Principal Act is hereby amended—

• (a) in section 62 (1) by the insertion after “except as provided in this section” of “and section 207 (2) of the Companies Act, 1990,”;

• (b) in section 62 (2) by the deletion of “preference” where it first appears and the insertion after “on redemption of any redeemable preference shares” of “in pursuance of section 220 of the Companies Act, 1990,”; and

• (c) in section 72 (1) by the deletion of “to purchase any of its shares or”.

• (2) The Sixth Schedule to the Principal Act is hereby amended by the substitution of the following subparagraph for subparagraph (d) of paragraph 12:

• “(d) the amounts respectively provided for purchase of the company's share capital, for redemption of share capital and for redemption of loans;”.

232 Amendments to the Act of 1983.

232.—The Act of 1983 is hereby amended—

• (a) by the substitution in section 41 (4) of the following paragraph for, paragraph (a):

• “(a) the redemption of preference shares in pursuance of section 65 of the Principal Act or the redemption or purchase of shares in pursuance of Part XI of the Companies Act, 1990;”;

• (b) by the deletion of section 43 (13);

• (c) by the insertion after section 43 of the following new section:

“Accounting for own shares.

43A.—Where a company or a nominee of a company holds shares in the company or an interest in such shares, such shares shall not be shown in the balance sheet of the company as an asset, but—

• (a) the deduction of the cost of the acquired shares from the profits available for distribution, and

• (b) the nominal value of such shares,

shall be disclosed in the notes to the accounts and the profits available for distribution shall accordingly be restricted by the amount of such deduction.”;

• (d) by the substitution in section 51 (2) of the following paragraph for paragraph (b):

• “(b) the redemption of preference shares pursuant to section 65 of the Principal Act out of the proceeds of a fresh issue of shares made for the purposes of redemption;”; and

• (e) by the addition of the following paragraph after the paragraph inserted by paragraph (d):

• “(bb) the redemption or purchase of shares pursuant to Part XI of the Companies Act, 1990 out of the proceeds of a fresh issue of shares made for the purposes of the redemption or purchase and the payment of any premium out of the company's share premium account on a redemption pursuant to section 220 in the said Part;”.

233 Amendments to the Companies (Amendment) Act, 1986.

233.—(1) Section 14 of the Companies (Amendment) Act, 1986, is hereby amended—

• (a) in paragraph (vi) by the substitution of “acquisition or disposal” for “disposal”; and

• (b) by the insertion of the following paragraph after paragraph (vi):

• “(vii) the reasons for the acquisition, lien or charge, as the case may be.”.

• (2) Part I of the Schedule to the Companies (Amendment) Act, 1986, is hereby amended—

• (a) by the deletion in Format 1 of the balance sheet formats of items A.III.7, B. III. 2 and H.IV. 2;

• (b) by the deletion in Format 2 of the balance sheet formats—

• (i) under “Assets”, of items A.III.7 and B.III.2 (Assets), and

• (ii) under “Liabilities”, of item A.IV.2; and

• (c) by the deletion of note (3) in the notes on the balance sheet formats following the aforesaid formats.

• (3) Part IV of the Schedule to the Companies (Amendment) Act, 1986, is hereby amended—

• (a) by the insertion of the following paragraph after paragraph 32:

“32A. Particulars of any restriction on profits available for distribution by virtue of section 224 (2) (b) (i) of the Companies Act, 1990, must also be stated.”; and

• (b) by the substitution of the following subparagraph for subparagraph (3) of paragraph 39:

• “(3) The amounts respectively provided for the purchase of the company's share capital, for redemption of share capital and for redemption of loans.”.

234 Offences under this Part.

234.—(1) A company which contravenes any of the following provisions shall be guilty of an offence, namely sections 207 to 211, 218 and 222 to 224.

• (2) Section 241 shall apply to an offence under this Part.

PART XII General

235 Amendment of section 2 of the Principal Act.

235.—(1) Unless the context otherwise requires, “the court”, used in any provision of the Companies Acts in relation to a company, means—

• (a) the High Court, or

• (b) where another court is prescribed for the purposes of that provision, that court.

• (2) The definition of “the court” in subsection (1) is in substitution for the definition in section 2 (1) of the Principal Act.

236 Qualifications of secretary of public limited company.

236.—It shall be the duty of the directors of a public limited company to take all reasonable steps to secure that the secretary (or each joint secretary) of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of secretary of the company and who—

• (a) on the commencement of this section held the office of secretary of the company; or

• (b) for at least three years of the five years immediately preceding his appointment as secretary held the office of secretary of a company; or

• (c) is a member of a body for the time being recognised for the purposes of this section by the Minister; or

• (d) is a person who, by virtue of his holding or having held any other position or his being a member of any other body,appears to the directors to be capable of discharging those functions.

237 Qualifications of liquidators and receivers.

237.—(1) The Minister may, if he considers it necessary or expedient to do so in the interests of the orderly and proper regulation of the winding-up of companies generally, by regulations add to the list of persons in section 300A of the Principal Act (inserted by section 146) who shall not be qualified for appointment as liquidator of a company.

• (2) The Minister may, if he considers it necessary or expedient to do so in the interests of the orderly and proper regulation of receiverships generally, by regulations add to the list of persons in section 315 of the Principal Act (inserted by section 170) who shall not be qualified for appointment as receiver of the property of a company.

• (3) Every regulation made by the Minister 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 regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

238 Amendment of section 61 of the Principal Act.

238.—Section 61 of the Principal Act is hereby amended by the insertion after subsection (2) of the following subsection:

• “(3) As respects debentures which, under the terms of issue, must be repaid within five years of the date of issue, an offer for subscription or sale to a person whose ordinary business is to buy or sell shares or debentures (whether as principal or agent) shall not be deemed an offer to the public for the purposes of this Part.”.

239 Power to make regulations for transfer of securities.

239.—(1) The Minister may make provision by regulations for enabling title to securities to be evidenced and transferred without a written instrument.

• (2) In this section—

• (a) “securities” means shares, stock, debentures, debenture stock, loan stock, bonds, units in undertakings for collective investments 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), and other securities of any description;

• (b) references to title to securities include any legal or equitable interest in securities; and

• (c) references to a transfer of title include a transfer by way of security.

• (3) The regulations may make provision—

• (a) for procedures for recording and transferring title to securities, and

• (b) for the regulation of those procedures and the persons responsible for or involved in their operation, and

• (c) for dispensing with the obligations of a company under section 86 of the Principal Act to issue certificates and providing for alternative procedures.

• (4) The regulations shall contain such safeguards as appear to the Minister appropriate for the protection of investors and for ensuring that competition is not restricted, distorted or prevented.

• (5)
• (a) The regulations may for the purpose of enabling or facilitating the operation of the new procedures make provision with respect to the rights and obligations of persons in relation to securities dealt with under the procedures.

• (b) The regulations shall be framed so as to secure that the rights and obligations in relation to securities dealt with under the new procedures correspond, so far as practicable, with those which would arise apart from any regulations under this section.

• (6)
• (a) The regulations may include such supplementary, incidental and transitional provisions as appear to the Minister to be necessary or expedient.

• (b) In particular, provision may be made for the purpose of giving effect to—

• (i) the transmission of title of securities by operation of law;

• (ii) any restriction on the transfer of title to securities arising by virtue of the provisions of any enactment or instrument, court order or agreement;

• (iii) any power conferred by any such provision on a person to deal with securities on behalf of the person entitled.

• (7) The regulations may for the purposes mentioned in this section make provision with respect, to the persons who are to be responsible for the operation of the new procedures and for those purposes may empower the Minister to delegate to any person willing and able to discharge them any functions of his under the regulations.

• (8) The regulations may make different provision for different cases.

• (9) Every regulation 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 regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

240 Offences.

240.—(1) A person guilty under any provision of the Companies Acts of an offence for which no punishment is specifically provided shall be liable—

• (a) on summary conviction, to a fine not exceeding £1,000 or, atthe discretion of the court, to imprisonment for a term not exceeding 12 months or to both, or

• (b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years or to both.

• (2) A person guilty under any provision of the Companies Acts of an offence made punishable by a fine of an unspecified amount shall be liable—

• (a) on summary conviction to a fine not exceeding £1,000, or

• (b) on conviction on indictment, to a fine not exceeding £10,000.

• (3) Every offence under the Companies Acts made punishable by a fine not exceeding £1,000 or by imprisonment for a term not exceeding 12 months, or by both, may be prosecuted summarily.

• (4) Summary proceedings in relation to an offence under the Companies Acts may be brought and prosecuted by the Director of Public Prosecutions or the Minister.

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

• (6) Where, in relation to a contravention of any provision of the Companies Acts, it is provided that for continued contravention a person shall be liable to a daily default fine, he shall be guilty of contravening the provision on every day on which the contravention continues after conviction of the original contravention and for each such offence he shall be liable to a fine not exceeding the amount specified in the provision, instead of the penalty specified for the original contravention.

241 Offences by certain bodies.

241.—(1) Where an offence under section 19, 21, 79 or 242 which is committed by a body to which any such section applies is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person being a director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity, that person shall also be guilty of an offence under that section.

• (2) Where the affairs of a body are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director or manager of the body.

242 Furnishing false information.

242.—(1) A person who, in purported compliance with any provision of the Companies Acts, answers a question, provides an explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false, or recklessly answers a question, provides an explanation, makes a statement or produces, lodges or delivers any such document false in a material particular shall be guilty of an offence.

• (2) Where a person is guilty of an offence under subsection (1) and the court is of opinion that any act, omission or conduct which constituted that offence has—

• (a) substantially contributed to a company being unable to pay its debts;

• (b) prevented or seriously impeded the orderly winding-up of the company; or

• (c) substantially facilitated the defrauding of the creditors of the company or creditors of any other person,

that person shall be liable on conviction on indictment to imprisonment for a term not exceeding 7 years or to a fine not exceeding £10,000 or to both.

243 Penalisation of destruction, mutilation or falsification of documents.

243.—(1) A person, being an officer of any such body as is mentioned in paragraphs (a) to (e) of section 19 (1) who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of any book or document affecting or relating to the property or affairs of the body, or makes or is privy to the making of a false entry therein, shall, unless he proves that he had no intention to defeat the law, be guilty of an offence.

• (2) Any such person who fraudulently either parts with, alters or makes an omission in any such book or document, or who is privy to fraudulent parting with, fraudulent altering or fraudulent making of an omission in, any such book or document, shall be guilty of an offence.

244 Increase of penalties.

244.—Sections 125 (2), 126 (4), 127 (2) and 128 (3) of the Principal Act shall have effect as if for the sums mentioned therein there were substituted “£1,000” in each case.

245 Amendment of section 12 of Companies (Amendment) Act, 1982.

245.—Section 12 (1) of the Companies (Amendment) Act, 1982 (which relates to failure to make annual returns) is hereby amended by the substitution for “three consecutive years” of “two consecutive years”.

246 Restoration to register of company struck off.

246.—The Principal Act is hereby amended by the insertion after section 311 of the following section—

“311A.—(1) Without prejudice to the provisions of section 311 (8) of this Act and section 12 (6) of the Companies (Amendment) Act, 1982, if a company feels aggrieved by having been struck off the register, the registrar of companies, on an application made in the prescribed form by the company before the expiration of twelve months after the publication in Iris Oifigiúil of the notice striking the company name from the register, and provided he has received all annual returns outstanding, if any, from the company, may restore the name of the company to the register.

• (2) Upon the registration of an application under subsection (1) and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off.

• (3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration.”.

247 System of classification of information.

247.—(1) Where, under the Companies Acts, any information relating to any person is required to be delivered to the registrar of companies and is so received by him, the registrar may apply such system of classification as he considers appropriate to such information and may assign symbols of identification to persons or classes of persons to whom any such information relates.

• (2) The Minister may make regulations requiring that the symbol assigned under subsection (1) to any person or persons of any class shall be entered on all documents which, under any provision of the Companies Acts, are required to contain the name of that person.

• (3) Regulations under subsection (2) may, in particular, specify particular persons whose duty it shall be to comply or ensure compliance with the regulations.

• (4) A person who makes default in complying with regulations under subsection (2) shall be guilty of an offence and liable to a fine.

248 Delivery to the registrar of documents in legible form.

248.—(1) This section applies to the delivery to the registrar under any provision of the Companies Acts of documents in legible form.

• (2) The document must—

• (a) state in a prominent position the registered number of the company to which it relates,

• (b) satisfy any requirements prescribed for the purposes of this section as to the form and content of the document, and

• (c) conform to such requirements as may be prescribed for the purpose of enabling the registrar to copy the document.

• (3) If a document is delivered to the registrar which does not comply with the requirements of this section, he may serve on the person by whom the document was delivered (or, if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

• (4) Where the registrar serves such notice, then, unless a replacement document—

• (a) is delivered to him within 14 days after the service of the notice, and

• (b) complies with the requirement of this section or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

• (5) For the purposes of any provision imposing a penalty for failure to deliver a document, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after the service of the registrar's notice under subsection (3).

• (6) Regulations made for the purposes of this section may make different provision as to the form and content of the document with respect to different descriptions of document.

• (7) Every regulation made under this section shall be laid beforeeach House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

• (8) In this section, “document” includes any periodic account, abstract, statement or return required to be delivered to the registrar.

249 Delivery to the registrar of documents otherwise than in legible form.

249.—(1) This section applies to the delivery to the registrar under any provision of the Companies Acts of documents otherwise than in legible form (whether by electronic means or otherwise).

• (2) Any requirement to deliver a document to the registrar, or to deliver a document in the prescribed form, shall be satisfied by the communication to the registrar of the requisite information in any non-legible form prescribed for the purposes of this section.

• (3) Where any document is required to be signed or sealed, it shall instead be authenticated in such manner as may be prescribed for the purposes of this section.

• (4) The document must—

• (a) contain in a prominent position the registered number of the company to which it relates,

• (b) satisfy any requirements prescribed for the purposes of this section, and

• (c) be furnished in such manner and conform to such requirements as may be prescribed for the purposes of enabling the registrar to read and copy the document.

• (5) If a document is delivered to the registrar which does not comply with the requirements of this section, he may serve on the person by whom the document was delivered (or if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

• (6) Where the registrar serves such notice, then, unless a replacement document—

• (a) is delivered to him within 14 days after the service of the notice, and

• (b) complies with the requirement of this section or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

• (7) For the purposes of any provision imposing a penalty for failure to deliver a document, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after the service of the registrar's notice under subsection (5).

• (8) The Minister may by regulations make further provision with respect to the application of this section in relation to instantaneous forms of communication.

• (9) Regulations made for the purpose of this section may make different provision with respect to different descriptions of documents and different forms of communication.

• (10) Every regulation 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 regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

• (11) In this section, “document” includes any periodic account, abstract, statement or return required to be delivered to the registrar.

250 Amendment of section 377 of, and Ninth Schedule to, the Principal Act.

250.—(1) The Principal Act is hereby amended—

• (a) by the substitution for section 377 (1) of the following subsection—

• “(1) The provisions specified in the Ninth Schedule shall apply to all bodies corporate incorporated in and having a principal place of business in the State, other than those mentioned in subsection (2), as if they were companies registered under this Act and subject to such adaptations and modifications (if any) as may be prescribed.”, and

• (b) by the substitution for the Ninth Schedule of the provisions set out in the Schedule to this Act.

• (2) The Minister may, if he considers it necessary to do so in the interests of the orderly and proper regulation of the business of unregistered companies, make regulations adding to, or subtracting from, the list of the provisions of the Companies Acts specified in the Ninth Schedule to the Principal Act.

• (3) Every regulation made by the Minister 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 regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

251 Application of certain provisions to companies not in liquidation.

251.—(1) This section applies in relation to a company that is not being wound up where—

• (a) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

• (b) it is proved to the satisfaction of the court that the company is unable to pay its debts, taking into account the contingent and prospective liabilities of the company, and

it appears to the court that the reason or the principal reason for its not being wound up is the insufficiency of its assets.

• (2) The following sections, with the necessary modifications, shall apply to a company to which this section applies, notwithstanding that it is not being wound up—

• (a) sections 139, 140, 203, and 204 of this Act, and

• (b) the provisions of the Principal Act mentioned in the Table to this section.

• (3) References in the sections mentioned in subsection (2) to the commencement of the winding-up of a company, the appointment of a provisional liquidator or the making of a winding up order and to the “relevant date” shall, for the purposes of this section, be construed as references to the date—

• (a) of the judgment, decree or order mentioned in subsection (1) (a); or

• (b) on which the court determines that the company is unable to pay its debts.

• (4) Where, by virtue of this section, proceedings are instituted under section 139, 140 or 204 of this Act or section 245A, 297A or 298 of the Principal Act, section 297A (7) (b) of the Principal Act shall apply in relation to any order made as a result of those proceedings.

• (5) Where section 295 of the Principal Act is applied by virtue of this section, it shall apply as if the words “which is subsequently ordered to be wound up or subsequently passes a resolution for voluntary winding-up” were deleted therefrom

TABLE

Sections of Principal Act to which this section applies

Section	Subject	Comment
243	Inspection of books by creditors and contributories
245	Power of court to summon persons for examination	Inserted by section 126 of this Act
245A	Order for payment or delivery of property against person examined under section 245	Inserted by section 127 of this Act
247	Power to arrest absconding contributory
295	Frauds by officers of companies which have gone into liquidation
297	Criminal liability for fraudulent trading	Inserted by section 137 of this Act
297A	Civil liability for fraudulent trading	Inserted by section 138 of this Act
298	Power of court to assess damages against directors	Amended by section 142 of this Act

PART XIII Investment Companies

252 Interpretation of this Part.

252.—(1) In this Part—

“the Bank” means the Central Bank of Ireland;

“investment company” means a company to which this Part applies and “company” shall be construed accordingly;

“property” means real or personal property of whatever kind (including securities);

“the UCITS Regulations” means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989).

• (2) For the purposes of the application by this Part of certain provisions of the UCITS Regulations to investment companies, the said provisions shall be construed as one with the Companies Acts.

253 Share capital of investment companies.

253.—(1) Notwithstanding anything in the Companies Acts, the memorandum of a company to which this Part applies may in respect of the share capital of the company state in lieu of the matters specified in paragraph (a) of section 6 (4) of the Principal Act—

• (a) that the share capital of the company shall be equal to the value for the time being of the issued share capital of the company, and

• (b) the division of that share capital into a specified number of shares without assigning any nominal value thereto,

and the form of memorandum set out in Table B of the First Schedule to the Principal Act or Part I of the Second Schedule to the Companies (Amendment) Act, 1983, as may be appropriate, shall have effect with respect to such company with the necessary modifications.

• (2) This Part applies to a company limited by shares (not being a company to which the UCITS Regulations apply)—

• (a) the sole object of which is stated in its memorandum to be the collective investment of its funds in property with the aim of spreading investment risk and giving members of the company the benefit of the results of the management of its funds; and

• (b) the articles or memorandum of which provide—

• (i) that the actual value of the paid up share capital of the company shall be at all times equal to the value of the assets of any kind of the company after the deduction of its liabilities, and

• (ii) that the shares of the company shall, at the request of any of the holders thereof, be purchased by the company directly or indirectly out of the company's assets.

• (3) For the purposes of subsection (2) (b) (ii), action taken by a company to ensure that the stock exchange value of its shares does not deviate from its net asset value by more than a percentage specified in its articles (which deviation shall not be so specified as greater than 5 per cent) shall be regarded as the equivalent of purchase of its shares by the company.

• (4) The memorandum or articles of a company shall be regarded as providing for the matters referred to in paragraphs (a) and (b) of subsection (2) notwithstanding the inclusion in the memorandum or articles with respect thereto of incidental or supplementary provisions.

• (5) In the Companies Acts—

• (a) a reference to a company limited by shares shall be construed as including an investment company within the meaning of this Part and a reference to a share in, or the share capital of, a company limited by shares shall be construed accordingly, and

• (b) a reference to the nominal value of an issued or allotted share in, or of the issued or allotted share capital of, a company limited by shares shall be construed, in the case of an investment company, as a reference to the value of the consideration for which the share or share capital (as the case may be) has been issued or allotted.

254 Power of company to purchase own shares.

254.—(1) Subject to subsection (2), the purchase by an investment company of its own shares shall be on such terms and in such manner as may be provided by its articles.

• (2) An investment company shall not purchase its own shares unless they are fully paid.

• (3) For the avoidance of doubt, nothing in the Companies Acts shall require an investment company to create any reserve account.

255 Treatment of purchased shares.

255.—(1) Shares of an investment company which have been purchased by the company shall be cancelled and the amount of the company's issued share capital shall be reduced by the amount of the consideration paid by the company for the purchase of the shares.

• (2)
• (a) Where a company has purchased or is about to purchase any of its own shares, it shall have the power to issue an equal number of shares in place of those purchased and for the purposes of section 68 of the Finance Act, 1973, the issue of those replacement shares shall constitute a chargeable transaction if, but only if, the actual value of the shares so issued exceeds the actual value of the shares purchased at the date of their purchase and, where the issue of shares does constitute a chargeable transaction for those purposes, the amount on which stamp duty on the relevant statement relating to that transaction is chargeable under section 69 of the Finance Act, 1973, shall be the difference between—

• (i) the amount on which the duty would be so chargeable if the shares had not been issued in place of shares purchased under this section, and

• (ii) the value of the shares purchased at the date of their purchase.

• (b) Where new shares are issued before the purchase of the old shares, the new shares shall not, so far as relates to stamp duty, be deemed to have been issued in pursuance of paragraph (a) unless the old shares are purchased within one month after the issue of the new shares.

256 Authorisation by Bank.

256.—(1) An investment company shall not carry on business in the State unless it has been authorised to do so by the Bank on the basis of criteria approved by the Minister.

• (2) A person shall not carry on business on behalf of an investment company, insofar as relates to the purchase or sale of the shares of the investment company, unless the investment company has been authorised in the manner referred to in subsection (1).

• (3) The Bank shall not authorise an investment company to carry on business in the State unless the company has paid up share capital which, in the opinion of the Bank, will be sufficient to enable it to conduct its business effectively and meet its liabilities.

• (4) An application by an investment company for the authorisation referred to in subsection (1) shall be made in writing to the Bank and contain such information as the Bank may specify for the purpose of determining the application (including such additional information as the Bank may specify in the course of determining the application).

• (5) Where the Bank proposes to grant an authorisation to an investment company under this section and the Bank is satisfied that the company will raise capital by promoting the sale of its shares to the public, the Bank shall, in granting the authorisation, designate the company as an investment company which may raise capital in that manner, and “designated company” in this section and section 257 shall be construed accordingly.

• (6) In the event that a designated company does not promote the sale of its shares to the public within a period, not greater than six months, which shall be specified in the authorisation under this section, the company shall, on the expiry of the period so specified, be deemed to have ceased to be a designated company.

• (7) An investment company which is not a designated company shall not raise capital by promoting the sale of its shares to the public.

• (8) A company incorporated outside the State which, if it were incorporated in the State, would be a company to which this Part applies shall not advertise or market its shares in any way in the State without the approval of the Bank, which approval may be subject to such conditions as the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of so much of the business of companies of that type as is conducted in the State.

• (9) This section is without prejudice to sections 6 and 19 of the Companies (Amendment) Act, 1983.

257 Powers of Bank.

257.—(1) Notwithstanding any other powers which may be available to the Bank under any other enactment, order or regulation, the Bank may impose such conditions for the granting of an authorisation to a company under section 256 as it considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment companies.

• (2) Conditions imposed under subsection (1) may be imposed generally, or by reference to particular classes of company or business (including, but not limited to, whether or not an investment company is a designated company), or by reference to any other matter the Bank considers appropriate and prudent for the purposes of the orderly and proper regulation of the business of investment companies.

• (3) The power to impose conditions referred to in subsection (1) shall include a power to impose such further conditions from time to time as the Bank considers appropriate and prudent for the purposesof the orderly and proper regulation of the business of investment companies.

• (4) Without prejudice to the generality of subsections (1), (2) and (3), conditions imposed by the Bank on an investment company may make provision for any or all of the following matters—

• (a) the prudential requirements of the investment policies of the company,

• (b) prospectuses and other information disseminated by the company,

• (c) the vesting of the assets or specified assets of the company in a person nominated by the Bank with such of the powers or duties of a trustee with regard to the company as are specified by the Bank,

• (d) such other supervisory and reporting requirements and conditions relating to its business as the Bank considers appropriate and prudent to impose on the company from time to time for the purposes referred to in the aforesaid subsections.

• (5) A company shall comply with any conditions relating to its authorisation or business imposed by the Bank.

258 Adaptation of certain provisions of UCITS Regulations.

258.—Regulations 14, 30, 63, 83 (2) to (7), and 99 to 105 of the UCITS Regulations shall apply to an investment company as they apply to the bodies to which those Regulations relate subject to the following modifications—

• (a) a reference in those Regulations to a term or expression specified in the second column of the Table to this section at any reference number shall be construed, where the context admits, as a reference to the term or expression specified in the third column of the said Table at that reference number, and

• (b) references to cognate terms or expressions in those Regulations shall be construed accordingly.

TABLE

Ref. No.	Term or expression referred to in UCITS Regulations	Construction of term or expression for purposes of this section
(1)	(2)	(3)
1.	“repurchase”	purchase”
2.	“these Regulations”	“Part XIII of the Companies Act, 1990”
3.	“UCITS”	“investment company”
4.	“unit”	“share”
5	“unit-holder”	“shareholder”

259 Default of investment company or failure in performance of its investments.

259.—An authorisation by the Bank under section 256 of an investment company shall not constitute a warranty by the Bank as to the creditworthiness or financial standing of that company and the Bank shall not be liable by virtue of that authorisation or by reason of its exercise of the functions conferred on it by this Part (or any regulations made under this Part) in relation to investment companies for any default of the company unless the Bank acted in bad faith in exercising such functions.

260 Restriction of certain provisions of Companies Acts.

260.—(1) None of the following provisions of the Principal Act shall apply to an investment company, namely sections 60, 69, 70, 72, 119 and 125.

• (2) None of the following provisions of the Companies (Amendment) Act, 1983, shall apply to an investment company, namely sections 5 (2), 23 to 25, 40, 41 and Part IV.

• (3) Section 14 of the Companies (Amendment) Act, 1986, shall not apply to an investment company.

• (4) None of the following provisions of this Act shall apply to an investment company, namely Chapters 2 to 4 of Part IV, and Part XI.

261 Power to make supplementary regulations.

261.—The Minister may make such regulations as he considers necessary for the purposes of giving full effect to the provisions of this Part.

262 Offences.

262.—Where a company contravenes—

• (a) any of the provisions of this Part, or

• (b) any regulations made in relation thereto (whether under this Part or under any other enactment), or

• (c) any condition in relation to its authorisation or business imposed by the Bank under section 257,

the company and every officer thereof who is in default shall be guilty of an offence.

SCHEDULE Provisions Substituted for Ninth Schedule to Principal Act

“NINTH SCHEDULE

Provisions Applied to Unregistered Companies

Section 377.

PRINCIPAL ACT

Subject matter	Provisions applied
Acts done by company (ultra vires rule).	Section 8.
Pre-incorporation contracts.	Section 37 (1) and (2).
Prospectuses and allotments.	Sections 43 to 52, 56, 57, 61 and the Third Schedule.
Registered office.	Section 113 (inserted by the Companies (Amendment) Act, 1982).
Annual Return.	Sections 125 to 129 and the Fifth Schedule.
Accounts and Audit.	Sections 148 to 153, 155 to 161, 191 and the Sixth Schedule (except subparagraphs (a) to (d) of paragraph 2, subparagraphs (c) to (e) of paragraph 3 and subparagraph (d) of paragraph 8), as amended by the Companies (Amendment) Act, 1986.
Validity of acts of directors	Section 178.
Register of directors and secretaries. Particulars relating to directors to be shown on all business letters of the company.	Sections 195 (inserted by the Companies Act, 1990) and 196.
Registration of documents, enforcement and other supplemental matters.	Sections 2, 193, 369 to 371, 378, 379, 383, 384, 386, 387, 395 (1) and the Eighth Schedule.
Liability of officers and others for negligence etc	Sections 200 and 391

COMPANIES (AMENDMENT) ACT, 1977

Subject matter	Provisions applied
Share certificates.	Sections 2 and 3.
Company records.	Section 4.

COMPANIES (AMENDMENT) ACT, 1983

Subject matter	Provisions applied
Maintenance of capital. Restrictions on distribution of profits and assets.	Sections 40 to 42, 45, 45A (inserted by the Companies (Amendment) Act, 1986) and 49 to 51. Sections 43, 44, 46 and 47, with the modification that those sections shall apply to all bodies corporate to which section 377 (1) of the Principal Act applies other than those which, if they were registered, would be private companies.

EUROPEAN COMMUNITIES (STOCK EXCHANGE) REGULATIONS, 1984 (S.I. No. 282 of 1984)

Provisions applied

All of the Regulations.

COMPANIES (AMENDMENT) ACT, 1986

Subject matter	Provisions applied
Power to alter form of accounts.	Section 24.

EUROPEAN COMMUNITIES (MERGERS AND DIVISIONS OF COMPANIES) REGULATIONS, 1987 (S.I. No. 137 of 1987)

Provisions applied

All of the Regulations.

COMPANIES (AMENDMENT) ACT, 1990

Provisions applied

The whole Act.

COMPANIES ACT, 1990

Provisions applied

Parts I to III.
Part IV, with the modification that Chapter 2 of that Part shall apply to all bodies corporate to which section 377 (1) of the Principal Act applies other than those which, if they were registered, would be private companies and Chapter 3 of that Part shall apply to all such bodies corporate which, if they were registered, would be private companies.
Part V.
Part VI, except sections 122, 128 to 131 and 133.
Parts VII, IX, X and XII.

Footnotes