Companies Act 2014

• (4) Subject to subsection (5), and notwithstanding anything in the constitution of a company, no member of the company shall be bound by an amendment made to the constitution after the date on which he or she became a member, if and so far as the amendment—

• (a) requires him or her to take or subscribe for more shares than the number held by him or her at the date on which the amendment is made, or

• (b) in any way increases his or her liability as at the date referred to in paragraph (a) to—

• (i) contribute to the share capital of the company, or

• (ii) otherwise pay money to the company.

• (5) Subsection (4) shall not apply in any case where the member agrees in writing, either before or after the amendment is made, to be bound by the amendment.

33. Publication of notices

33. (1) The Registrar shall publish in the CRO Gazette notice of the delivery to or the issue by the Registrar of the following documents and particulars—

• (a) any certificate of incorporation of the company;

• (b) the constitution of the company;

• (c) any document making or evidencing an amendment of its constitution;

• (d) every amended text of its constitution;

• (e) any return relating to its register of directors or notification of a change among its directors;

• (f) any return relating to the persons, other than the board of directors, authorised to enter into transactions binding the company, or notification of a change among such persons;

• (g) its annual return and the financial statements that are required to be published in accordance with Part 6;

• (h) any notice of the situation of its registered office, or of any change therein;

• (i) any copy of a winding up order in respect of the company;

• (j) any copy of an order for the dissolution of the company on a winding up;

• (k) any return by the liquidator of the final meeting of the company on a winding up;

• (l) any notice of the appointment of a liquidator in a voluntary winding up of the company.

• (2) The publication referred to in subsection (1) shall occur within 10 days after the date of the relevant delivery or issue.

34. Language of documents filed with Registrar

34. (1) Without prejudice to any other provisions on the language of documents, any document delivered to the Registrar shall be in the Irish or English language.

• (2) A translation of any such document may be delivered to the Registrar in any official language of the European Union.

• (3) Every translation referred to in subsection (2) shall be certified, in a manner approved by the Registrar, to be a correct translation.

• (4) In any case of a discrepancy between a document delivered as mentioned in subsection (1) and a translation of it delivered pursuant to subsection (2), the latter may not be relied upon by the company against a third party. A third party may, nevertheless, rely on that translation against the company, unless the company proves that the third party had knowledge of the document delivered as mentioned in subsection (1).

• (5) In subsection (4), “third party” means a person other than the company or a member, officer or employee of it.

35. Authorisation of an electronic filing agent

35. (1) A company may authorise a person (who shall be known and is in this Act referred to as an “electronic filing agent”) to do the following acts on its behalf.

• (2) Those acts are—

• (a) the electronic signing of documents that are required or authorised, by or under this Act or any other enactment, to be delivered by the company to the Registrar; and

• (b) the delivery to the Registrar, by electronic means, of those documents so signed.

• (3) The authorisation of a firm (not being a body corporate) by its firm name to do the foregoing acts on behalf of a company shall operate to authorise the following persons to do those acts on the company’s behalf, namely those persons who are from time to time during the currency of the authorisation the partners in that firm as from time to time constituted.

• (4) Subject to the following conditions being satisfied, an act of the foregoing kind done by such an agent on behalf of a company pursuant to an authorisation by the company under this section that is in force shall be as valid in law as if it had been done by the company (and the requirements of this Act or the other enactment concerned with respect to the doing of the act have otherwise been complied with (such as with regard to the period within which the act is to be done)).

• (5) The conditions mentioned in subsection (4) are—

• (a) that prior to the first instance of the electronic filing agent’s doing of an act of the kind referred to in subsection (2), pursuant to an authorisation by the company concerned under this section, the authorisation of the agent has been notified by the company to the Registrar in the prescribed form; and

• (b) the doing of the act complies with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of the Electronic Commerce Act 2000.

• (6) It shall be the joint responsibility of a company and the electronic filing agent authorised by it under this section to manage the control of the documents referred to in subsection (2).

• F20[(7) An electronic filing agent shall not, by virtue of his or her authorisation under this section to act as such, be regarded as an officer or servant of the company concerned for the purposes of F21[section 1535(2) or (3)].]

36. Revocation of the authorisation of an electronic filing agent

36. (1) A company may revoke an authorisation by it under section 35 of an electronic filing agent.

• (2) Such a revocation by a company shall be notified by it, in the prescribed form, to the Registrar.

• (3) Unless and until the revocation is so notified to the Registrar, the authorisation concerned shall be deemed to subsist and, accordingly, to be still in force for the purposes of section 35(4).

• (4) If a revocation, in accordance with this section, of an authorisation under section 35 constitutes a breach of contract or otherwise gives rise to a liability being incurred—

• (a) the fact that it constitutes such a breach or otherwise gives rise to a liability being incurred does not affect the validity of the revocation for the purposes of section 35; and

• (b) the fact of the revocation being so valid does not remove or otherwise affect any cause of action in respect of that breach or the incurring of that liability.

37. Copies of constitution to be given to members

37. (1) A company shall, on being so requested by any member, send to him or her a copy of its constitution—

• (a) free of charge, and

• (b) in the event of a second or subsequent such request by the member (the first request by him or her having been complied with) on payment to it of €5.00.

• (2) Where an amendment is made of the constitution of a company, every copy of the constitution issued after the date of the amendment shall be in accordance with the amendment.

• (3) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 4 offence.

CHAPTER 3 Corporate capacity and authority

38. Capacity of private company limited by shares

38. (1) Subject to subsection (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State—

• (a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and

• (b) for the purposes of paragraph (a), full rights, powers and privileges.

• (2) Nothing in subsection (1) shall relieve a company from any duty or obligation under any enactment or the general law.

39. Registered person

39. (1) Where the board of directors of a company authorises any person as being a person entitled to bind the company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the company may notify the Registrar in the prescribed form of the authorisation and the Registrar shall register the authorisation.

• (2) A person so authorised, where his or her authorisation is registered in the foregoing manner, is referred to in this Act as a “registered person”; where, in a provision of this Act, that expression appears without qualification, it shall be taken as a reference to a registered person authorised by the board of the directors of the company to which the provision falls to be applied.

• (3) Where the board of directors of a company revokes an authorisation of a person as a person entitled to bind the company (being an authorisation notified to the Registrar in the prescribed form), the person shall, notwithstanding that revocation, continue to be regarded for the purposes of this Act as a registered person unless and until the company notifies the Registrar in the prescribed form of that revocation.

• (4) References in this section to a person’s entitlement to bind the company are references to his or her authority to exercise any power of the company and to authorise others to do so.

• (5) In subsection (4) “power of the company” does not include—

• (a) any power of management of the company exercisable by its board of directors (as distinct from any power of the board to enter into transactions with third parties), or

• (b) a power of the company which this Act requires to be exercised otherwise than by its board of directors.

• (6) For the avoidance of doubt, for the purposes of this section the provisions of a company’s constitution with regard to a person’s office or powers shall not, in themselves, be taken as an authorisation by the board of the directors of the company of the person as a person entitled to bind the company.

40. Persons authorised to bind company

40. (1) For the purposes of any question whether a transaction fails to bind a company because of an alleged lack of authority on the part of the person who exercised (or purported to exercise) the company’s powers, the following, namely—

• (a) the board of directors of the company; and

• (b) any registered person,

shall each be deemed to have authority to exercise any power of the company and to authorise others to do so.

• (2) Subsection (1) applies regardless of any limitations in the company’s constitution on the board’s authority or a registered person’s authority, but subject to subsections (5) and (8).

• (3) Subsection (1) is not to be read as preventing the exercise of a company’s powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists.

• (4) Subsection (1) does not affect—

• (a) a director’s duties (including a director’s duty to observe any limitations in the company’s constitution on the board’s authority), or his or her liability in respect of any breach of those duties; or

• (b) any duty arising on the part of any other person concerned in the transaction (including the registered person) or his or her liability in respect of any breach of that duty.

• (5) Where a company is purportedly a party to a transaction—

• (a) in connection with which the board of directors exceeded limitations in the company’s constitution on their authority; and

• (b) to which a person referred to in subsection (6) is also a party,

subsection (1) does not apply in favour of the person so referred to.

• (6) Each of the following is a person mentioned in subsection (5)(b):

• (a) a director or shadow director of the company or of its holding company;

• (b) a person connected with such a director;

• (c) a registered person;

• (d) a person connected with a registered person,

and in this subsection references to a person’s being connected with—

• (i) a director or shadow director are to be read in accordance with section 220; or

• (ii) a registered person are to be read in accordance with section 220 as that section is applied by subsection (7).

• (7) For the purpose of subsection (6)(ii), section 220 applies as if—

• (a) for each reference in subsections (1), (2), (3) and (8) to a director of a company there were substituted a reference to the registered person;

• (b) for the first reference and the third reference in subsection (5) to a director of a company there were substituted a reference to the registered person;

• (c) the references in subsection (5) to another director or directors included references to one or more other registered persons; and

• (d) the reference in subsection (6)(b) to a director included a reference to a registered person.

• (8) In subsection (1) “power of the company” does not include—

• (a) with reference to any registered person, the power of management referred to in section 39(5)(a), and

• (b) with reference to the board of directors or any registered person, the power referred to in section 39(5)(b).

• (9) Without prejudice to subsection (1), in determining any question whether a person had ostensible authority to exercise any of a companyÁs powers in a given case, no reference may be made to the company’s constitution.

• (10) In this section a reference—

• (a) to limitations in a companyÁs constitution includes a reference to limitations deriving from—

• (i) a resolution of the company or of any class of its members; or

• (ii) any agreement between the members of the company or of any class of its members;

• (b) to a transaction includes a reference to any act or omission.

• (11) This section is in addition to, and not in substitution for, the Rule in Royal British Bank v. Turquand.

41. Powers of attorney

41. (1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.

• (2) A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.

CHAPTER 4 Contracts and other transactions

42. Form of contracts

42. (1) Contracts on behalf of a company may be made as follows—

• (a) a contract which, if made between natural persons, would be by law required to be in writing and to be under seal, may be made on behalf of the company in writing under the common seal of the company;

• (b) a contract which, if made between natural persons, would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person acting under its authority, express or implied;

• (c) a contract which, if made between natural persons, would by law be valid although made by parol only, and not reduced into writing may be made by parol on behalf of the company by any person acting under its authority, express or implied.

• (2) A contract made according to this section shall bind the company and its successors and all other parties to it.

• (3) A contract made according to this section may be varied or discharged in the same manner in which it is authorised by this section to be made.

43. The common seal

43. (1) A company shall have a common seal or seals that shall state the company’s name, engraved in legible characters.

• (2) Save as otherwise provided by this Act or by the constitution of the company—

• (a) a company’s seal shall be used only by the authority of its directors, or of a committee of its directors authorised by its directors in that behalf; and

• (b) any instrument to which a company’s seal shall be affixed shall be—

• (i) signed by a director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them; and

• (ii) be countersigned by the secretary or by a second (if any) director of it or by some other person appointed for the purpose by its directors or by a foregoing committee of them.

• (3) Save as otherwise provided by the constitution of the company, if there be a registered person in relation to a company, the company’s seal may be used by such person and any instrument to which the company’s seal shall be affixed when it is used by the registered person shall be signed by that person and countersigned—

• (a) by the secretary or a director of the company; or

• (b) by some other person appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf.

43A. F24[Execution of instruments consisting of several documents in like form

F25[43A. (1) Subsections (2) to (4) apply in relation to a company notwithstanding any provision of—

• (a) section 43(2)(b) or (3), or

• (b) the company’s constitution.

• (2) As respects an instrument to be made or executed by a company, other than an instrument to which subsection (3) applies, such an instrument may consist of several documents in like form if—

• (a) one such document is signed by a person referred to in section 43(2)(b)(i),

• (b) one such document is signed by a person referred to in section 43(2)(b)(ii), and

• (c) one such document has the company’s seal affixed to it.

• (3) As respects an instrument to be made or executed by a registered person in exercise of the powers of a company, such an instrument may consist of several documents in like form if—

• (a) one such document is signed by the registered person,

• (b) one such document is signed by a person referred to in section 43(2)(b)(i),

• (c) one such document is signed by a person referred to in section 43(2)(b)(ii), and

• (d) one such document has the company’s seal affixed to it.

• (4) An instrument consisting of several documents that comply with subsection (2) or (3) shall be valid and effective for all purposes as if the documents were, taken together, one document.]]

44. Power for company to have official seal for use abroad

44. (1) In this section—

“official seal”, in relation to a company, means the official seal referred to in subsection (2);

“place abroad” means any territory, district or place not situate in the State.

• (2) A company may, if authorised by its constitution, have for use in any place abroad an official seal which shall resemble the common seal of the company with the addition on its face of the name of every place abroad where it is to be used.

• (3) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.

• (4) A company having an official seal for use in any place abroad may, by writing under its common seal, authorise any person appointed for the purpose in that place (the “agent”) to affix the official seal to any deed or other document to which the company is party in that place.

• (5) The authority of the agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until the notice of revocation or determination of the agent’s authority has been given to the person dealing with him or her.

• (6) The person affixing an official seal shall, by writing under his or her hand, certify on the deed or other instrument to which the seal is affixed, the date on which and the place at which it is affixed.

45. Pre-incorporation contracts

45. (1) Any contract or other transaction (including any application to any lawful authority) purporting to be entered into by a company prior to its formation, or by any person on behalf of the company prior to its formation, may be ratified by the company after its formation.

• (2) Upon such contract or other transaction being so ratified, the company shall become bound by it and entitled to the benefit of it as if the company had been in existence at the date of such contract or other transaction and had been a party to it.

• (3) Prior to such ratification (if any) by the company, the person or persons who purported to act in the name or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benefit of it.

46. Bills of exchange and promissory notes

46. A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company, if made, accepted or endorsed in the name of or by or on behalf or on account of, the company by a person acting under its authority.

47. Liability for use of incorrect company name

47. (1) If an officer of a company or any person on its behalf does any of the following things, the officer or person shall be guilty of a category 4 offence.

• (2) Those things are:

• (a) uses or authorises the use of any seal purporting to be a seal of the company on which its name is not engraved in legible characters;

• (b) issues or authorises the issue of any business letter of the company or any notice or other official publication of the company, or signs or authorises to be signed on behalf of the company any bill of exchange, promissory note, endorsement, cheque or order for money or goods, in which its name is not mentioned in the manner described in section 49;

• (c) issues or authorises the issue of any invoice, receipt or letter of credit of the company in which its name is not mentioned in the manner described in section 49.

• (3) In the circumstances of his or her doing a relevant thing mentioned in subsection (2) (b), the officer or other person shall be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless—

• (a) it is duly paid by the company; or

• (b) it appears to the court that no injustice will be done by imposing liability for the amount on the company.

48. Authentication by company of documents

48. A document or proceeding requiring authentication by a company may be signed by a director, secretary, registered person or other authorised officer of the company, and need not be under its common seal.

CHAPTER 5 Company name, registered office and service of documents

49. Publication of name by company

49. (1) A company—

• (a) shall display its name in a conspicuous position, in letters easily legible, outside every office or place in which its business is carried on and at its registered office; and

• (b) shall have its name mentioned in legible characters in each of the following:

• (i) all notices and other official publications of the company;

• (ii) all bills of exchange, promissory notes, endorsements, cheques and orders for money or goods purporting to be signed by or on behalf of the company;

• (iii) all invoices, receipts and letters of credit of the company.

• (2) If a company contravenes subsection (1)(a) or (b), the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (3) The use of the abbreviation “ltd” instead of “limited” or “teo” instead of “teoranta” shall not be regarded as constituting a contravention of this section.

• (4) This section is without prejudice to section 151.

50. Registered office of company

50. (1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed.

• (2) Particulars of the situation of the company’s registered office shall be specified in the statement delivered pursuant to section 21(1)(a) prior to the incorporation of the company.

• (3) Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change.

• (4) A company’s registered office may be constituted by a statement (contained in the statement or notice referred to in subsection (2) or (3)) to the effect that the office is care of a specified agent, being a company formed and registered under this Act, or an existing company, and which is approved for this purpose by the Registrar; where a registered office is constituted by those means, references in this Act to the situation of the company’s registered office shall be read accordingly.

• (5) The notification to the Registrar by the agent approved for that purpose of any change in the situation of the agent’s registered office shall, if made in the form prescribed for the purpose of subsection (3) and within the period there mentioned, be regarded as constituting compliance by the company concerned with subsection (3).

• (6) If default is made in complying with this section, the company concerned and any officer of it who is in default shall be guilty of a category 4 offence.

50A. F28[Registrar may request evidence of situation of registered office

50A. Without prejudice to section 24(4), the Registrar may request a company to provide such evidence of the situation of the company’s registered office as the Registrar requires for the purposes of—

• (a) satisfying himself or herself of the matters referred to in section 21(2), or

• (b) recording a change in the situation of the registered office of the company in accordance with section 50(3).

and where the Registrar has made such a request, he or she shall not register the constitution of the company under section 21 or record the change under section 50(3), as the case may be, unless such evidence is so provided. ]

51. Service of documents

51. (1) A document may be served on a company—

• (a) by leaving it at or sending it by post to the registered office of the company; or

• (b) if the company has not given notice to the Registrar of the situation of its registered office, by delivering it to the Registrar.

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

• (3) It shall be the duty of the Registrar to enter on the register a document that has, by the means referred to in subsection (1)(b), been served on a company.

52. Security for costs

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

53. Enforcement of orders and judgments against companies and their officers

53. (1) Any judgment or order against a company wilfully disobeyed may, by leave of the court, be enforced by—

• (a) sequestration against the property of the company,

• (b) attachment against the directors or other officers of the company, or

• (c) sequestration against the property of such directors or other officers.

• (2) An application may not be made, in the foregoing circumstances, for attachment against directors or other officers or for sequestration against their property unless the judgment or order of the court to which the application relates has contained a statement indicating the liability of such persons or of their property to attachment or sequestration, as the case may be, should the judgment or order be disobeyed by the company.

• (3) In this section “attachment” and “sequestration” have the same meaning as they have in rules of court concerning the jurisdiction of the High Court and the Supreme Court.

CHAPTER 6 Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply

54. Interpretation (Chapter 6)

54. (1) In this Chapter—

“mandatory provision” means a provision of any of Part 1, this Part or Parts 3 to 14 that is not an optional provision;

“optional provision” means a provision of any of Part 1, this Part or Parts 3 to 14 that—

• (a) contains a statement to the effect, or is governed by provision elsewhere to the effect, that the provision applies save to the extent that the constitution provides otherwise or unless the constitution states otherwise; or

• (b) is otherwise of such import;

“Table A” means Table A in the First Schedule to the Act of 1963.

• (2) A reference in this Chapter to a designated activity company is a reference to a designated activity company limited by shares.

• (3) A reference in this Chapter to Table A includes, where appropriate, a reference to any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963.

55. Status of existing private companies at end of transition period: general principle

55. As provided for in section 61, on the expiry of the transition period, unless it has re-registered as a designated activity company or one of the other circumstances specified in that section prevent the following happening—

• (a) an existing private company shall be deemed to have a constitution that comprises the provisions of its existing memorandum (other than the provisions excepted by subsection (1)(a) of that section) and of its existing articles and subject to subsection (3) of that section;

• (b) the company’s constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,

and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.

56. Conversion of existing private companies to designated activity companies: duties and powers in that regard

56. (1) An existing private company may re-register as a designated activity company by passing an ordinary resolution, not later than 3 months before the expiry of the transition period, resolving that the company be so registered; if it so re-registers, pursuant to such a resolution, before the expiry of the transition period, Part 16 shall, as provided in section 63(9), apply to it.

• (2) An existing private company shall re-register as a designated activity company before the expiry of the transition period if, not later than 3 months before the expiry of that period, a notice in writing requiring it to do so is served on it by a member or members holding shares in the company that confer, in aggregate, more than 25 per cent of the total voting rights in the company; on its so re-registering, in compliance with that notice, Part 16 shall, as provided in section 63(9), apply to it.

• (3) Without prejudice to subsections (1) and (2) but subject to subsection (4), where anything is done by an existing private company, being a thing which (if the company were a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply) would not be in compliance with section 68, then the company shall re-register as a designated activity company before the expiry of the transition period and upon its so doing Part 16 shall, as provided in section 63(9), apply to it.

• (4) Instead of re-registering as a designated activity company as mentioned in subsection (3), an existing private company referred to in that subsection may, by passing a special resolution and otherwise complying with the requirements of Part 20, re-register as a type of company that is not a designated activity company before the expiry of the transition period.

• (5) The reference in subsection (2) to a voting right in a company shall be read as a reference to a right exercisable for the time being to cast a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.

57. Relief where company does not re-register as a designated activity company

57. (1) Where an existing private company does not, before the expiry of the transition period, re-register as a designated activity company under section 56 (whether it is obliged under that section to do so or not), the person or persons referred to in subsection (2) may apply to the court for an order directing that it shall re-register as such a company and the court shall, unless cause is shown to the contrary, make the order sought or make such other order as seems just.

• (2) The persons mentioned in subsection (1) are—

• (a) one or more members of the company who hold, or together hold, not less than 15 per cent in nominal value of the company’s issued share capital or any class thereof; or

• (b) one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects.

58. Applicable laws during transition period

58. (1) During the period beginning on the commencement of this Part and ending on the expiry of the transition period, Part 16 shall, subject to subsection (3) and without prejudice to subsection (7), apply to an existing private company as if it were a designated activity company, unless and until there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19.

• (2) If there is so delivered to the Registrar such a constitution in respect of that company then, on and from such delivery, this Part and Parts 1 and 3 to 15 shall apply to that company.

• (3) The provisions of the prior Companies Acts relating to the use of limited or teoranta (or their abbreviations) shall apply as respects the name of an existing private company referred to in subsection (1) during the period referred to in that subsection and not the provisions of section 969 and the other relevant provisions of Part 16.

• (4) The reference in subsection (3) to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.

• (5) An existing private company that has adopted, or is deemed to have adopted, in whole or in part, the regulations of Table A as its articles, shall, despite the repeal of the Act of 1963, continue to be governed by those regulations (or the parts of them concerned) after the repeal of that Act and, without prejudice to subsection (8), before the expiry of the transition period unless and until—

• (a) there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19; or

• (b) it re-registers as another type of company,

but, as regards the company continuing to be governed by the foregoing regulations—

• (i) this is save to the extent that those regulations are inconsistent with a mandatory provision;

• (ii) those regulations may be altered or added to under and in accordance with the conditions under which articles, whenever registered, are permitted by Part 16 to be altered or added to; and

• (iii) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.

• (6) Subject to paragraphs (ii) and (iii) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.

• (7) To take account of any interregnum between—

• (a) the delivery (in accordance with this Chapter and in the form provided under section 19) of a constitution in respect of an existing private company to the Registrar for registration; and

• (b) its registration by the Registrar,

it is declared that subsections (1) and (2) operate, and are to be read as operating, so as also to provide that Part 16 applies, subject to subsection (3), to that company as if it were a designated activity company during any such interregnum (and accordingly that the application of this Part, and Parts 1 and 3 to 15, to it is postponed until that registration is effected).

• (8) Likewise, to take account of any similar interregnum in the case of subsection (5), it is declared that that subsection operates, and is to be read as operating, so as also to provide that the whole or part (as the case may be) of the regulations of Table A continue to govern the company concerned during any such interregnum.

• (9) For the avoidance of doubt, the application of Part 16, in the circumstances under this section where that Part is stated to apply and notwithstanding that the course of action of delivering a constitution of the kind referred to in subsection (1) will not be adopted by such a company, extends to an existing private company falling within subsection (10) but—

• (a) the application of Part 16 to such a company does not affect the application of the provisions of the statute referred to in subsection (10) (or any other relevant statute) to the company; and

• (b) if, by virtue of the foregoing statute, the company was not required to include the word “limited” or “teoranta” in its name, that exemption is not affected by anything in this section or Part 16.

• (10) The existing private company referred to in subsection (9) is one that has been incorporated under a former enactment relating to companies (within the meaning of section 5) pursuant to, or in compliance with a requirement of, any statute.

59. Adoption of new constitution by members

59. (1) An existing private company—

• (a) by special resolution passed in accordance with its existing memorandum and articles; and

• (b) subject to compliance with the provisions of Part 16 as to the variation of rights and obligations of members,

may, after the commencement of this Part, adopt a new constitution in the form provided under section 19; where it does so and delivers, in the prescribed form, before the expiry of the transition period, the constitution to the Registrar for registration, it shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.

• (2) The constitution need not contain any supplemental regulations, to the extent that the provisions of this Part and Parts 1 and 3 to 15 regulate the matters which would be governed by those regulations; for the avoidance of doubt, the requirements of sections 19 and 26(1) relating to a company’s name shall apply despite any exemption of the kind referred to in section 61(3) that had been enjoyed by the company under the prior Companies Acts.

• (3) On registration of its constitution under this section, the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.

60. Preparation, registration, etc. of new constitution by directors

60. (1) The directors of an existing private company shall do each of the things specified in subsection (2) before the expiry of the transition period, unless the company—

• (a) has already adopted a constitution in accordance with section 59(1); or

• (b) is required, under section 56(2) or (3), to re-register as a designated activity company; or

• (c) is proceeding, in accordance with a resolution passed pursuant to section 56(1), to re-register as such a company or is proceeding, in accordance with section 56(4) and Part 20, to re-register as another type of company; or

• (d) is required by an order made under section 57 to re-register as a designated activity company or proceedings under that section are pending in relation to it.

• (2) The things referred to in subsection (1) are—

• (a) prepare a constitution for the company in the form provided under section 19;

• (b) deliver a copy of such constitution to each member; and

• (c) deliver, in the prescribed form, the constitution to the Registrar for registration,

and, where the things in the foregoing paragraphs are done (including the delivery of the constitution to the Registrar for registration), the company shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply, and the Registrar shall issue to it a certificate of incorporation in respect of it stating that it is a private company limited by shares registered under this Part.

• (3) The provisions of that constitution of the company, to be prepared by the directors as mentioned in subsection (2)(a), shall consist solely of—

• (a) the provisions of its existing memorandum, other than provisions that—

• (i) contain its objects; or

• (ii) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;

and

• (b) the provisions of its existing articles,

but, despite any exemption of the kind referred to in section 61(3) that had been enjoyed by the company under the prior Companies Acts, nothing in this subsection shall be read as overriding the requirements of sections 19 and 26(1) relating to a company’s name.

• (4) If, by reason of the company not having registered articles, the regulations in Table A are deemed to be the articles of the company, the constitution prepared under subsection (2)(a) shall state that the articles of the company comprise those regulations.

• (5) If the existing articles do not exclude or modify the regulations contained in the Table A, those regulations shall, so far as applicable, be the regulations of the existing private company in the same manner and to the same extent as if they were contained in the constitution prepared under subsection (2)(a).

• (6) For the purposes of subsections (4) and (5) and without prejudice to their application otherwise by a provision of this Chapter, the regulations contained in Table A shall, despite the repeal of the Act of 1963, continue in force but, as regards the company continuing, by virtue of subsection (4) or (5), to be governed (in whole or in part) by the foregoing regulations—

• (a) this is save to the extent that those regulations are inconsistent with a mandatory provision;

• (b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and

• (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.

• (7) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (6) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.

61. Deemed constitution

61. (1) Where there has not been delivered to the Registrar a constitution (in the form provided under section 19) in respect of an existing private company for registration within the transition period then, subject to subsection (4), from the expiry of that period—

• (a) the existing private company shall be deemed to have, in place of its existing memorandum and articles, a constitution that comprises—

• (i) the provisions of its existing memorandum, other than provisions that—

• (I) contain its objects; or

• (II) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;

and

• (ii) the provisions of its existing articles;

and

• (b) its constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,

and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.

• (2) In those circumstances the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.

• (3) Notwithstanding—

• (a) section 24, as originally enacted, of the Act of 1963; or

• (b) section 24, inserted in the Act of 1963 by section 88(1) of the Company Law Enforcement Act 2001, in place of the first-mentioned section,

and the continuing effect, for certain other types of company, provided elsewhere by this Act of an exemption conferred by or under either such section, any such exemption (whatever its basis) enjoyed, immediately before the expiry of the transition period, by an existing private company to which subsection (1) applies shall cease on that expiry; accordingly subsection (1)(a) shall be read as requiring such a company’s name to end with “limited” or “teoranta”, as appropriate, and subsection (2) shall have effect subject to this subsection.

• (4) Subsection (1) shall not apply if—

• (a) the existing company has re-registered before the expiry of the transition period as a designated activity company in accordance with section 56(1) or as another type of company in accordance with section 56(4) and Part 20;

• (b) the existing company is required under section 56(2) or (3) to re-register as such a company and has so re-registered; or

• (c) its operation would be inconsistent with an order of the court made under section 57 or otherwise.

• (5) If, by reason of section 58, an existing private company was, immediately before the expiry of the transition period or, if later, the end of the interregnum referred to in section 58(8), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and without prejudice to their application otherwise by a provision of this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and the existing articles of the company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but—

• (a) this is save to the extent that those regulations are inconsistent with a mandatory provision;

• (b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and

• (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.

• (6) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.

62. Relief for members and creditors

62. (1) Without limiting the generality of section 212, if any member of a company considers that his or her rights or obligations have been prejudiced by—

• (a) the exercise of any power under this Chapter;

• (b) the non-exercise of any such power; or

• (c) the exercise of any such power in a particular manner,

by the company or the directors of it, the member may apply to the court for an order under section 212.

• (2) In any such application where it is proved that the directors of the company have failed to comply with section 60 then, unless the members of the company have adopted a new constitution in accordance with section 59(1), it shall be presumed, until the contrary is proved, that the directors have exercised their powers in a manner oppressive to the applicant or in disregard of his or her interests as a member.

• (3) Where in relation to an existing private company a constitution in the form provided under section 19 comes into being, the person or persons referred to in subsection (5) may apply under this subsection to the court for relief if the constitution prejudices any interest of the person or persons (but only if the person or persons has or have a legal or equitable right to that interest).

• (4) On the hearing of an application under subsection (3), the court may grant such relief to the applicant or applicants as the court thinks just.

• (5) The persons mentioned in subsection (3) are one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects.

• (6) The jurisdiction of the court under section 212 as provided for under subsection (1) and the jurisdiction of the court under subsection (3) shall each be exercised having regard to, and, where appropriate subject to, any exercise by the court of its jurisdiction under section 57 in relation to the company concerned.

• (7) In this section a reference to a constitution in the form provided under section 19 coming into being is a reference to such a constitution coming into being by reason of—

• (a) its being adopted and registered under section 59; or

• (b) its being prepared by the directors and registered under section 60; or

• (c) the operation of section 61.

63. Procedure for re-registration as designated activity company under this Chapter

63. (1) This section contains the procedure for re-registration by an existing private company as a designated activity company under section 56(1), (2) or (3) or pursuant to an order of the court under section 57(1).

• (2) Either—

• (a) in the case of re-registration under section 56(1), the ordinary resolution referred to in that provision; or

• (b) in the case of re-registration under subsection (2) or (3) of section 56 or pursuant to an order of the court under section 57(1), a resolution of the directors of the company passed for the purpose in consequence of that subsection’s operation or that order,

shall alter the company’s memorandum so that it states that the company is to be a designated activity company and shall, unless this Act provides that on re-registration the company shall continue to enjoy an exemption conferred by or under either of the sections referred to in section 61(3), alter that document and the articles so that there is substituted “designated activity company” or “cuideachta ghníomhaíochta ainmnithe” for “limited” or “teoranta”, as the case may be, in the company’s name.

• (3) An application for the purpose of re-registration, in the prescribed form and signed by a director or secretary of the company, shall be delivered by the company to the Registrar together with the documents specified in subsection (4).

• (4) Those documents are—

• (a) a copy of the ordinary resolution or the resolution of the directors referred to in subsection (2)(a) or (b);

• (b) a copy of the memorandum and articles of the company as altered by the resolution; and

• (c) a statement in the prescribed form (in this section referred to as a “statement of compliance”) by a director or secretary of the company that the requirements of this Chapter as to re-registration as a designated activity company have been complied with by the company, including the passing of the resolution referred to in paragraph (a).

• (5) The Registrar may accept the statement of compliance as sufficient evidence that the resolution referred to in subsection (4)(a) has been duly passed and the other conditions of this Chapter for re-registration as a designated activity company have been satisfied and that the company is entitled to be re-registered as that type of company.

• (6) If, on an application under subsection (3) for re-registration of an existing private company as a designated activity company, the Registrar is satisfied that a company is entitled to be so re-registered, the Registrar shall—

• (a) retain the application and the other documents delivered to him or her under this section; and

• (b) issue to the company a certificate of incorporation in respect of it, being a certificate of incorporation that—

• (i) is altered to meet the circumstances of the case; and

• (ii) states that it is issued on re-registration of the company and the date on which it is issued.

• (7) If the existing private company had not registered articles and, by reason of section 58, the regulations in Table A are, immediately before the making by the company of an application under subsection (3), deemed to be its articles, then each of the references in the preceding subsections of this section to articles shall be disregarded, but in such a case the application under subsection (3) shall be accompanied by a statement in the prescribed form that the articles of the company comprise those regulations.

• (8) Upon the issue to a company of a certificate of incorporation on re-registration under subsection (6)—

• (a) the company shall, by virtue of the issue of that certificate, become a designated activity company; and

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

• (9) A certificate of incorporation issued on re-registration to a company under subsection (6) shall be conclusive evidence—

• (a) that the requirements of this Chapter as to re-registration and of matters precedent and incidental thereto have been complied with; and

• (b) that the company is the type of company which is set out in the certificate,

and, accordingly, without prejudice to section 58, Part 16, on and from the issue of the certificate, shall apply to the company as a designated activity company.

• (10) If, by reason of section 58, an existing private company was, immediately before the making by the company of an application under subsection (3), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and in addition to the other cases where their continuance in force for a particular purpose is provided for by this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and upon the issue of the aforementioned certificate of incorporation the articles of the designated activity company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but—

• (a) this is save to the extent that those regulations are inconsistent with a mandatory provision;

• (b) those regulations may be altered or added to under and in accordance with the conditions under which the designated activity company’s articles are permitted by Part 16 to be altered or added to; and

• (c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.

• (11) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (10) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.

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

• (13) The procedures under this section may be followed, after consultation by the company with the relevant Minister, by an existing private company that has been incorporated under a former enactment relating to companies (within the meaning of section 5) pursuant to, or in compliance with a requirement of, any statute (in subsection (11) referred to as the “relevant statute”) and may be so followed notwithstanding that statute but—

• (a) the provisions otherwise of that statute (and any other relevant statute) shall apply to the designated activity company that the foregoing company re-registers as under this section as they apply to the foregoing company before such re-registration; and

• (b) if the foregoing company is a company to which section 1446 applies, the provision made by subsection (1) requiring the substitution of certain words in its name shall be taken to be omitted from that subsection.

• (14) In subsection (13) “relevant Minister” means the Minister of the Government concerned in the administration of the relevant statute.

• (15) For the avoidance of doubt, references in Part 6, and in particular section 349 (which exempts a company from having to annex financial statements to its first annual return), to the incorporation of a company are references to its original incorporation.

PART 3 SHARE CAPITAL, SHARES AND CERTAIN OTHER INSTRUMENTS

CHAPTER 1 Preliminary and interpretation

64. Interpretation (Part 3)

64. (1) In this Part—

“capital conversion reserve fund”, in relation to a company, means the amount equivalent to the aggregate diminution in share capital consequential upon renominalisation of share capital under section 26 of the Economic and Monetary Union Act 1998;

“cash” includes funds in any currency or currencies;

“company capital”, in relation to a company, means—

• (a) the aggregate value, expressed as a currency amount, of the consideration received by the company in respect of the allotment of shares of the company; and

• (b) that part of the company’s undenominated capital constituted by the transfer of sums referred to in sections 106(4) and 108(3),

and subsection (2) supplements this definition;

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

“nominal value”, in relation to a share, means a monetary amount, expressed as an amount, multiple, fraction or percentage of any currency or currencies or combination thereof;

“parent public company” means a public limited company which has one or more private limited subsidiaries;

“private limited subsidiary” means a subsidiary that is a private company limited by shares but, for the purposes of this definition, a company shall not be regarded as a subsidiary if it is such only by virtue of section 7(2)(a)(ii) or (e);

“redeemable shares” includes shares which are liable at the option of the company or the shareholder to be redeemed;

“securities” means—

• (a) shares in a company;

• (b) debentures of a company, including debenture stock, bonds and any other debt instruments of a company whether constituting a charge on the assets of the company or not;

• (c) those classes of securities which are negotiable on the capital market, such as:

• (i) shares in bodies corporate and other securities equivalent to shares in bodies corporate, partnerships or other entities, and depositary receipts in respect of shares;

• (ii) bonds or other forms of securitised debt, including depositary receipts in respect of such securities;

• (iii) any other securities giving the right to acquire or sell any such transferable securities or giving rise to a cash settlement determined by reference to transferable securities, currencies, interest rates or yields, commodities or other indices or measures with the exception of instruments of payment;

“share capital”, in relation to a company, means the aggregate amount or value of the nominal value of shares of the company;

“undenominated capital”, in relation to a company, means the amount of the company capital from time to time which is in excess of the nominal value of its issued shares and shall be deemed to include any sum transferred as referred to in sections 106(4) and 108(3).

• (2) There is included in the definition of “company capital” in subsection (1) any amounts standing, immediately before the commencement of this section, to the credit of—

• (a) the company’s share premium account (within the meaning of the prior Companies Acts);

• (b) its capital redemption reserve fund (within the meaning of those Acts); and

• (c) its capital conversion reserve fund.

• (3) For the purposes of this Part a share in a company shall be taken to have been paid up (as to its nominal value or any premium on it) in cash or allotted for cash if the consideration for the allotment or the payment up is—

• (a) cash received by the company; or

• (b) a cheque received by the company in good faith which the directors have no reason for suspecting will not be paid; or

• (c) the release of a liability of the company for a liquidated sum; or

• (d) an undertaking to pay cash to the company on demand or at an identified or identifiable future date which the directors have no reason for suspecting will not be complied with.

• (4) In relation to the allotment or payment up of any shares in a company, references in this Act, other than in section 69(12)(c), to consideration other than cash and to the payment up of shares and premiums on shares otherwise than in cash include references to the payment of, or an undertaking to pay, cash to any person other than the company.

65. Powers to convert shares into stock, etc.

65. (1) Each provision of this section applies save to the extent that the company’s constitution provides otherwise.

• (2) A company may, by ordinary resolution—

• (a) convert any of its paid up shares into stock; and

• (b) reconvert any stock into paid up shares of any denomination.

• (3) Subject to subsection (4), the holders of stock may transfer the stock, or any part of it, in the same manner and subject to the same regulations as, and subject to which the shares from which the stock arose might, previously to conversion, have been transferred, or as near thereto as circumstances admit.

• (4) The directors of a company may from time to time fix the minimum amount of stock that is capable of being transferred but any such minimum so fixed shall not exceed the nominal amount of each share from which the stock arose.

• (5) Subject to subsection (6), the holders of stock shall, according to the amount of stock held by them, have the same rights, privileges and advantages in relation to dividends, voting at meetings of the company and other matters as if they held the shares from which the stock arose.

• (6) No such right, privilege or advantage (except participation in the dividends and profits of the company and in the assets on winding up) shall be conferred by an amount of stock which would not, if existing in shares, have conferred that right, privilege or advantage.

• (7) Such of the regulations of a company as are applicable to paid up shares shall apply to stock of the company, and the words “share” and “shareholder” in those regulations shall be read as including “stock” and “stockholder”, respectively.

66. Shares

66. (1) Shares in the capital of a company shall have a nominal value.

• (2) A company may allot shares—