Companies Act 2014

• (a) of different nominal values;

• (b) of different currencies;

• (c) with different amounts payable on them; or

• (d) with a combination of 2 or more of the foregoing characteristics.

• (3) Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any share in a company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the company may from time to time by ordinary resolution determine.

• (4) Save to the extent that its constitution provides otherwise, a company may allot shares that are redeemable (which shall be known, and are referred to in this Act, as “redeemable shares”).

• (5) The shares or other interest of any member in a company shall be personal estate and shall not be of the nature of real estate.

• (6) Except as required by law, no person shall be recognised by a company as holding any share upon any trust and the company shall not be bound by or be compelled in any way to recognise (even when having notice of it)—

• (a) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share; or

• (b) save only as this Act or other law otherwise provides, any other rights in respect of any share, except an absolute right to the entirety of it in the registered holder.

• (7) Subsection (6) shall not preclude the company from requiring a member or a transferee of shares to furnish the company with information as to the beneficial ownership of any share when such information is reasonably required by the company.

• (8) In subsections (9) and (10) “bearer instrument” means an instrument, in relation to shares of a company, which entitles or purports to entitle the bearer thereof to transfer the shares that are specified in the instrument by delivery of the instrument.

• (9) A company shall not have power to issue any bearer instrument.

• (10) If a company purports to issue a bearer instrument, the shares that are specified in the instrument shall be deemed not to have been allotted or issued, and the amount subscribed therefor (and in the case of a non-cash asset subscribed therefor, the cash value of that asset) shall be due as a debt of the company to the purported subscriber thereof.

67. Numbering of shares

67. (1) Subject to subsections (2) and (3), each share in a company shall be distinguished by its appropriate number.

• (2) If at any time, all the issued shares in a company or all the issued shares in it of a particular class are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number, so long as it—

• (a) remains fully paid up; and

• (b) ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up.

• (3) Where new shares are issued by a company on the terms that, within a period not exceeding 12 months, they will rank pari passu for all purposes with all the existing shares, or with all the existing shares of a particular class in the company, neither the new shares nor the corresponding existing shares need have distinguishing numbers so long as all of them are fully paid up and rank pari passu.

• (4) However, in the circumstances mentioned in subsection (3), the share certificates of the new shares shall, if not numbered, be appropriately worded or enfaced.

CHAPTER 2 Offers of securities to the public

68. Limitation on offers of securities to the public

68. (1) Subject to the provisions of this section, a company shall not—

• (a) make—

• (i) any invitation to the public to subscribe for; or

• (ii) any offer to the public of,

any shares, debentures or other securities of the company; or

• (b) allot, or agree to allot, (whether for cash or otherwise) any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public or being the subject of an invitation to the public to subscribe for them.

• (2) F29[Subject to subsection (8A), a company shall]—

• (a) neither apply to have securities (or interests in them) admitted to trading or to be listed on; nor

• (b) have securities (or interests in them) admitted to trading or listed on,

any market, whether a regulated market or not, in the State or elsewhere.

• (3) Subsection (1) shall not apply to any of the following offers or allotments of debentures by a company (wherever they may be made)—

• (a) an offer of debentures addressed solely to qualified investors;

• (b) an offer of debentures addressed to fewer than 150 persons, other than qualified investors;

• (c) an offer of debentures addressed to investors who acquire securities for a total consideration of at least €100,000 per investor, for each separate offer;

• (d) an offer of debentures whose denomination per unit amounts to at least €100,000;

• (e) an offer of debentures with a total consideration in the European Union less than €100,000, which shall be calculated over a period of 12 months;

• (f) an allotment of debentures, or an agreement to make such an allotment, with a view to those debentures being the subject of any one or more of the offers referred to in paragraphs (a) to (e),

and the reference in this subsection to an offer of debentures includes an invitation to subscribe for them.

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

• (a) an offer of shares by a company (of any amount or wherever it may be made), being an offer addressed to—

• (i) qualified investors; or

• (ii) 149 or fewer persons; or

• (iii) both qualified investors and 149 or fewer other persons;

or

• (b) an allotment of shares, or an agreement to make such an allotment, with a view to those shares being the subject of an offer referred to in paragraph (a),

and the reference in this subsection to an offer of shares includes an invitation to subscribe for them.

• (5) Subsection (1) shall not apply to an offer by a company of those classes of instruments which are normally dealt in on the money market (such as treasury bills, certificates of deposit and commercial papers) having a maturity of less than 12 months, and the reference in this subsection to an offer of instruments includes an invitation to subscribe for them.

• (6) A word or expression that is used in this section and is also used in the Prospectus (Directive 2003/71/EC) Regulations 2005 (S.I. No. 324 of 2005) shall have in this section the same meaning as it has in those Regulations.

• (7) For the purposes of subsection (6), the Regulations referred to in that subsection shall have effect as if Regulation 8 were omitted therefrom.

• (8) Nothing in this section shall affect the validity of any allotment or sale of securities or of any agreement to allot or sell securities.

• F30[(8A) Subsection (2) shall not apply to securities (or interests in them) which were, prior to 1 June 2015, admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere.]

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

CHAPTER 3 Allotment of shares

69. Allotment of shares

69. (1) No shares may be allotted by a company unless the allotment is authorised, either specifically or pursuant to a general authority, by ordinary resolution or by the constitution of the company.

• (2) Without prejudice to subsection (1), in the case of a company whose constitution states an authorised share capital, no shares may be allotted by the company unless those shares are comprised in the authorised but unissued share capital of the company.

• (3) An authorisation for the purposes of subsection (1) (whether conferred by an ordinary resolution or the constitution) may stipulate a period during which the allotment may occur; if it so stipulates, then allotments occurring outside that period are not authorised by it.

• (4) Save to the extent that the constitution of the company provides otherwise—

• (a) shares of a company may only be allotted by the directors of the company;

• (b) the directors of a company may allot, grant options over or otherwise dispose of shares to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the company and its shareholders.

• (5) Any director of a company who knowingly contravenes, or knowingly permits or authorises a contravention of, a preceding provision of this section shall be guilty of a category 3 offence.

• (6) Subject to subsections (8) and (12) and section 70, a company proposing to allot any shares—

• (a) shall not allot any of those shares, on any terms—

• (i) to any non-member, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same or more favourable terms, a proportion of those relevant shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the shares of that class; or

• (ii) to any person who holds shares in the company, unless it has made an offer to each person who holds relevant shares, of the class concerned, in the company to allot to him or her, on the same terms, a proportion of those shares which is, as nearly as practicable, equal to the proportion in nominal value held by him or her of the aggregate of the relevant shares of that class;

and

• (b) shall not allot any of those shares to any person unless the period during which any such offer may be accepted (not being less than 14 days) has expired or the company has received notice of the acceptance or refusal of every offer so made.

• (7) In—

• (a) subsection (6) “relevant shares”, in relation to a company, means shares in the company other than shares which as respects dividends and capital carry a right to participate only to a specified amount in a distribution;

• (b) subsection (6)(a)(ii) “non-member” means a person who is not a holder of shares (as that expression is to be read by virtue of section 70(4)) in the company.

• (8) Where a company’s constitution contains provisions which—

• (a) require that the company, when proposing to allot shares of a particular class, shall not allot those shares unless it makes an offer of those shares to existing holders of shares of that class; and

• (b) specify that the minimum period during which that offer may be accepted is not less than 14 days,

then subsection (6) shall not apply to any allotments made in compliance with such provisions.

• (9) An offer which is required by—

• (a) subsection (6); or

• (b) the provisions of the company’s constitution referred to in subsection (8),

to be made to any person shall be made by serving it on him or her in the same manner in which notices are authorised to be given by sections 180, 181 and 218.

• (10) Any such offer as is mentioned in subsection (6) or (8) shall not be withdrawn before the end of the period that the offer referred to in subsection (6) or, as the case may be, the provisions of the company’s constitution referred to in subsection (8) specify as the period within which it may be accepted.

• (11) Nothing in subsection (6)(b), (9) or (10) shall invalidate provisions of the company’s constitution referred to in subsection (8) by reason that those provisions require or authorise an offer thereunder to be made in contravention of one or more of those subsections, but, to the extent that those provisions require or authorise such an offer to be so made, they shall be of no effect.

• (12) Subsection (6) shall not apply—

• (a) to the extent that—

• (i) the constitution of the company,

• (ii) a special resolution, or

• (iii) the terms of issue of already allotted shares,

provides or provide (either generally or in respect of a particular allotment or class of allotments), to the extent so provided;

• (b) to allotments of shares for a consideration wholly or partly paid for, otherwise than in cash;

• (c) to allotments of shares to the subscriber or subscribers to the company’s constitution upon the company’s incorporation, being the shares taken by that subscriber or those subscribers before such incorporation;

• (d) to allotments of shares to persons in pursuance of the terms of an employees’ share scheme established by the company;

• (e) to allotments of bonus shares.

70. Supplemental and additional provisions as regards allotments

70. (1) Shares which a company has offered to allot to a holder of shares in the company may be allotted to that holder or anyone in whose favour that holder has renounced his or her right to their allotment without contravening section 69(6)(b).

• (2) Notwithstanding that any authorisation conferred by a resolution or the constitution such as is mentioned in section 69(1) has expired, the directors of a company may allot shares in pursuance of an offer or agreement previously made by the company, if that authorisation enabled the company to make an offer or agreement which would or might require shares to be allotted after the authorisation’s expiry.

• (3) For the purposes of section 69 and this section—

• (a) “allot” includes “agreement to allot” (other than an agreement made subject to the passing of an ordinary or special resolution);

• (b) “shares” includes a right to subscribe for shares or to convert securities into shares,

and with the effect that—

• (i) in the case of paragraph (a), if an agreement to allot shares is entered into in compliance with section 69, subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to that agreement; and

• (ii) in the case of paragraph (b), if a right to subscribe for shares, or to convert securities into shares, is granted in compliance with section 69, subsections (3), (4) and (6) of that section shall not apply to an allotment of shares pursuant to the exercise of that right.

• (4) References in section 69 and this section (however expressed) to the holder of shares or the holder of shares of any class shall be read as including references to any person who held shares or, as the case may be, shares of that class on any day within the period of 28 days ending with the day immediately preceding the date of the offer which is specified by the directors of the company concerned as being the record date for the purposes of the offer.

• (5) A resolution of a company to give, vary, revoke or renew an authority for the purposes of section 69(1) may, notwithstanding that it alters the company’s constitution, be an ordinary resolution.

• (6) Where a company allots shares, the shares shall be taken, for the purposes of this Act, to be allotted when a person acquires the unconditional right to be included in the company’s register of members in respect of those shares.

• (7) Where a company allots shares, it shall, within 30 days after the date of allotment, deliver particulars of the allotment in the prescribed form to the Registrar.

• (8) If a company fails to comply with subsection (7), the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (9) Nothing in section 69 or this section shall affect the validity of any allotment of shares.

• (10) Where there is a contravention of section 69(6), the company and every officer of the company who knowingly authorised or permitted the contravention, shall be jointly and severally liable to compensate any person to whom an offer should have been made under section 69(6) for any loss, damage, costs or expenses which that person has sustained or incurred by reason of the contravention.

• (11) No proceedings to recover any such loss, damage, costs or expenses shall be commenced after the expiration of 2 years after the date of the delivery to the Registrar of the return of allotments in question or, where shares are agreed to be allotted, the agreement.

• (12) If, before the commencement of section 69, the directors of a company have been granted authority, pursuant to section 20 of the Act of 1983, to allot relevant securities (within the meaning of that section 20) and that authority is in force immediately before that commencement—

• (a) neither section 69 nor this section shall apply to the allotment, after that commencement, of relevant securities by the directors pursuant to that authority (which authority shall, in accordance with its terms, be taken to remain in force); and

• (b) section 20 (other than subsections (4) and (9) thereof), and sections 23 and 24, of the Act of 1983 shall apply to that authority and any allotment of relevant securities on foot thereof,

but, on the expiry of that authority, section 69 and this section shall apply to any allotment thereafter of shares in the company (or the grant of any right to subscribe for shares in the company or to convert securities into such shares).

• (13) For the purposes of subsection (12)—

• (a) “Act of 1983” means the Companies (Amendment) Act 1983;

• (b) the reference to the grant of an authority includes a reference to the conferral, by the articles of the company, of an authority; and

• (c) the exclusion of the application of section 20(4) of the Act of 1983 by paragraph (b) of subsection (12) shall not be taken as preventing the renewal of the authority concerned under section 69 and this section, but if that authority is so renewed, section 69 and this section shall apply to any allotment, or the grant of any right, as mentioned in subsection (12), that occurs after that renewal of authority on foot thereof.

71. Payment of shares

71. (1) Shares may be paid up in money or money’s worth (including goodwill and expertise).

• (2) Shares of a company shall not be allotted at a discount to their nominal value.

• (3) Where shares are allotted in contravention of subsection (2), the allottee shall be liable to pay the company concerned an amount equal to the amount of the discount and interest thereon at the appropriate rate.

• (4) Subsections (1) and (2) shall not prevent a company from allotting bonus shares as provided by this Part.

• (5) Subject to F31[subsection (5A) and] sections 72, 73 and 75, any value received in respect of the allotment of a share in excess of its nominal value shall be credited to and form part of undenominated capital of the company and, for that purpose, shall be transferred to an account which shall be known, and in this Act is referred to, as the “share premium account”.

• F31[(5A) The share premium account may be applied by the company—

• (a) in writing off—

• (i) the preliminary expenses of the company, or

• (ii) the expenses of, or the commission paid on, any issue of shares or debentures of the company,

or

• (b) in providing for the premium payable on redemption of any redeemable preference shares issued by the company before 1 July 1991 or of any debentures of the company issued by a company before 1 June 2015.]

• (6) Where any person becomes a holder of any shares in respect of which—

• (a) there has been a contravention of this section; and

• (b) by virtue of that contravention, another is liable to pay any amount under this section,

the first-mentioned person in this subsection also shall be liable to pay that amount (jointly and severally with any other person so liable) unless either that first-mentioned person is a purchaser for value and, at the time of the purchase, he or she did not have actual notice of the contravention or he or she derived title to the shares (directly or indirectly) from a person who became a holder of them after the contravention and was not so liable.

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

72. Restriction of section 71(5) in the case of mergers

72. (1) This section applies where the issuing company has secured at least a 90 per cent equity share capital holding in another company in pursuance of an arrangement providing for the allotment of equity share capital in the issuing company, on terms that the consideration for the shares allotted is to be provided—

• (a) by the issue or transfer to the issuing company of equity shares in the other company; or

• (b) by the cancellation of any such shares not held by the issuing company.

• (2) If the equity shares in the issuing company, allotted in pursuance of the arrangement in consideration for the acquisition or cancellation of equity shares in the other company, are issued at a premium section 71(5) does not apply to the premiums on those shares.

• (3) Where the arrangement also provides for the allotment of any shares in the issuing company on terms that the consideration for those shares is to be provided by the issue or transfer to the issuing company of non-equity shares in the other company or by the cancellation of any such shares in that company not held by the issuing company, the restriction on the application of section 71(5) provided by subsection (2) extends to any shares in the issuing company allotted on those terms in pursuance of the arrangement.

• (4) Subject to subsection (5), the issuing company (“company X”) is to be regarded for purposes of this section as having secured at least a 90 per cent equity share capital holding in another company (“company Y”) in pursuance of such an arrangement as is mentioned in subsection (1) if in consequence of an acquisition or cancellation of equity shares in company Y (in pursuance of that arrangement)—

• (a) company X holds equity shares in company Y (whether all or any of those shares were acquired in pursuance of that arrangement, or not); and

• (b) the aggregate nominal value of the equity shares so held by company X equals 90 per cent or more of the nominal value of company Y’s equity share capital (excluding any shares in company Y held as treasury shares).

• (5) Where the equity share capital of the other company is divided into different classes of shares, this section does not apply unless the requirements of subsection (1) are satisfied in relation to each of those classes of shares taken separately.

• (6) Shares held by a company which is the issuing company’s holding company or subsidiary, or a subsidiary of the issuing company’s holding company, or by its or their nominees, are to be regarded for purposes of this section as held by the issuing company.

• F32[(7) In relation to a company and its shares and capital, the following definitions apply for the purposes of this section:

"arrangement" means any agreement, scheme or arrangement (including an arrangement sanctioned under section 453 or 601);

"company", other than in relation to the issuing company, includes any body corporate;

"equity share capital" means the company’s issued share capital excluding any part of it which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution;

"equity shares" means shares comprised in the company’s equity share capital;

"non-equity shares" means shares (of any class) not comprised in the company’s equity share capital.]

• (8) This section does not apply if the issue of shares took place before the commencement of this section.

73. Restriction of section 71(5) in the case of group reconstructions

73. (1) This section applies where the issuing company—

• (a) is a wholly-owned subsidiary of a body corporate (the “holding company”); and

• (b) allots shares to the holding company or to another wholly-owned subsidiary of the holding company in consideration for the transfer to the issuing company of assets other than cash, being assets of any body corporate (the “transferor”) which is a member of the group which comprises the holding company and all its wholly-owned subsidiaries.

• (2) Where the shares in the issuing company, allotted in consideration for the transfer, are issued at a premium, the issuing company is not required by section 71(5) to credit to undenominated capital any amount in excess of the minimum premium value.

• (3) In subsection (2) the “minimum premium value” means the amount (if any) by which the base value of the consideration for the shares allotted exceeds the aggregate nominal value of those shares.

• (4) For the purposes of subsection (3), the base value of the consideration for the shares allotted is the amount by which the base value of the assets transferred exceeds the base value of any liabilities of the transferor assumed by the issuing company as part of the consideration for the assets transferred.

• (5) For the purposes of subsection (4)—

• (a) the base value of assets transferred is to be taken as—

• (i) the cost of those assets to the transferor; or

• (ii) the amount at which those assets are stated in the transferor’s accounting records immediately before the transfer, whichever is the less,

and

• (b) the base value of the liabilities assumed is to be taken as the amount at which they are stated in the transferor’s accounting records immediately before the transfer.

• (6) Section 72 shall not apply to a case falling within this section.

74. Supplementary provisions in relation to sections 72 and 73

74. (1) An amount corresponding to one representing the premiums or part of the premiums on shares issued by an issuing company which, by virtue of section 72 or 73, is not included in the issuing company’s undenominated capital may also be disregarded in determining the amount at which any shares or other consideration provided for the shares issued is to be included in the company’s balance sheet.

• (2) References in sections 72 and 73 (however expressed) to—

• (a) the acquisition by a company of shares in a body corporate; and

• (b) the issue or allotment of shares to, or the transfer of shares to or by, a company or other body corporate,

include (respectively) the acquisition of any of those shares by, and the issue or allotment or (as the case may be) the transfer of any of those shares to or by, nominees of that company or body corporate; and the reference in section 72 to the company transferring the shares is to be read accordingly.

• (3) References in sections 72 and 73 to the transfer of shares in a body corporate include the transfer of a right to be included in the body corporate’s register of members in respect of those shares.

75. Restriction of section 71(5) in the case of shares allotted in return for acquisition of issued shares of body corporate

75. (1) This section applies where—

• (a) a company (the “issuer”) allots and issues shares to the shareholders of a body corporate in consideration for the acquisition by the issuer of all of the issued shares in the body corporate (the “acquired shares”) such that the body corporate becomes the wholly-owned subsidiary of the issuer;

• (b) the consolidated assets and liabilities of the issuer immediately after those shares are issued are exactly, except for any permitted cash payments, the same as—

• (i) if the body corporate was itself a holding company, the consolidated assets and liabilities of the body corporate immediately before those shares were issued, or

• (ii) if the body corporate was not a holding company, the assets and liabilities of the body corporate immediately before those shares were issued;

• (c) the absolute and relative interests that the shareholders in the body corporate have in the consolidated assets and liabilities of the issuer are in proportion to (or as nearly as may be in proportion to) the interest they had in—

• (i) if the body corporate was itself a holding company, the consolidated assets and liabilities of the body corporate immediately before the shares were issued;

• (ii) if the body corporate was not a holding company, the assets and liabilities of the body corporate immediately before the shares were issued;

and

• (d) the issuer does not account for its investment in the body corporate at fair value in the issuer’s entity financial statements.

• (2) Where the shares in the issuer allotted in consideration for the acquisition of the acquired shares are issued at a premium, the issuer—

• (a) is not required by section 71(5) to credit to undenominated capital any amount in excess of the minimum premium value; and

• (b) may disregard any such amount in determining the amount at which the shares or other consideration provided for the acquired shares is to be included in the issuer’s entity financial statements and, if such are prepared, group financial statements.

• (3) Nothing in this section shall permit any share in the issuer to be issued at a discount to the share’s nominal value.

• (4) In this section—

“base value of the consideration”, in relation to shares allotted by an issuer, means the carrying value of the assets and liabilities that would be shown in the balance sheet of the body corporate if that body corporate were to prepare entity financial statements in accordance with Part 6 immediately before the issue of the shares;

“consolidated assets and liabilities”, in relation to a holding company, means the assets and liabilities included in the group financial statements of the holding company prepared under section 293;

“minimum premium value”, in relation to shares allotted, means the amount (if any) by which the base value of the consideration for the acquisition of the acquired shares exceeds the aggregate nominal value of the shares issued;

“permitted cash payments” means—

• (a) cash payments to shareholders of the body corporate in relation to fractional share entitlements in the body corporate that are not being replicated in the issuer, whether on account of different nominal values of shares or otherwise;

• (b) such cash payments as may be ordered or permitted by the court, including by reason of the imposition on the issuer of disproportionate expense arising from compliance with requirements with respect to a prospectus or similar requirements.

76. Treatment of premiums paid on shares issued before a certain date

76. (1) Where before 1 April 1964 a company had issued any shares at a premium, section 71(5) (and the exceptions to that provision in sections 72 to 75) shall apply as if the shares had been issued after that date, but this is subject to subsection (2).

• (2) Where any part of a premium referred to in subsection (1) had been applied as mentioned in section 62(2) of the Act of 1963 such that it did not, on 1 April 1964, form an identifiable part of the company’s reserves (within the meaning of the Sixth Schedule to the Act of 1963) then that part shall continue to be disregarded in determining the sum to be included in the share premium account.

77. Calls on shares

77. (1) Each provision of this section and of section 78 applies save to the extent that the company’s constitution provides otherwise.

• (2) Subject to subsection (3), the directors of a company may from time to time make calls upon the members in respect of any moneys unpaid on their shares (whether on account of the nominal value of the shares or by way of premium).

• (3) Subsection (2) does not apply to shares where the conditions of allotment of them provide for the payment of moneys in respect of them at fixed times.

• (4) Each member shall (subject to receiving at least 30 days’ notice specifying the time or times and place of payment) pay to the company, at the time or times and place so specified, the amount called on the shares.

• (5) A call may be revoked or postponed, as the directors of the company may determine.

• (6) A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed and may be required to be paid by instalments.

• (7) The joint holders of a share shall be jointly and severally liable to pay all calls in respect of it.

• (8) If a sum called in respect of a share is not paid before or on the day appointed for payment of it, the person from whom the sum is due shall pay interest on the sum from the day appointed for payment of it to the time of actual payment of such rate, not exceeding the appropriate rate, as the directors of the company may determine, but the directors may waive payment of such interest wholly or in part.

78. Supplemental provisions in relation to calls

78. (1) Any sum which, by the terms of issue of a share, becomes payable on allotment or at any fixed date (whether on account of the nominal value of the share or by way of premium) shall, for the purposes of this Act, be deemed to be a call duly made and payable on the date on which, by the terms of issue, that sum becomes payable.

• (2) In case of non payment of such a sum, all the relevant provisions of this Act as to payment of interest and expenses, forfeiture or otherwise, shall apply as if such sum had become payable by virtue of a call duly made and notified.

• (3) The directors of a company may, on the issue of shares, differentiate between the holders of different classes as to the amount of calls to be paid and the times of payment.

• (4) The directors of a company may, if they think fit—

• (a) receive from any member willing to advance such moneys, all or any part of the moneys uncalled and unpaid upon any shares held by him or her; and

• (b) pay, upon all or any of the money so advanced (until the amount concerned would, but for such advance, become payable) interest at such rate (not exceeding, unless the company in a general meeting otherwise directs, the appropriate rate) as may be agreed upon between the directors and the member paying such moneys in advance.

79. Further provisions about calls (different times and amounts of calls)

79. Save to the extent that the company’s constitution provides otherwise, a company may—

• (a) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares;

• (b) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him or her, although no part of that amount has been called up;

• (c) pay a dividend in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others; and

• (d) by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the company being wound up; upon the company doing so, that portion of its share capital shall not be capable of being called up except in that event and for those purposes.

80. Lien

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

• (2) A company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys (whether immediately payable or not) called, or payable at a fixed time, in respect of that share.

• (3) The directors of a company may at any time declare any share in the company to be wholly or in part exempt from subsection (2).

• (4) A company’s lien on a share shall extend to all dividends payable on it.

• (5) A company may sell, in such manner as the directors of the company think fit, any shares on which the company has a lien, but no sale shall be made unless—

• (a) a sum in respect of which the lien exists is immediately payable; and

• (b) the following conditions are satisfied.

• (6) Those conditions are—

• (a) a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is immediately payable, has been given to the registered holder for the time being of the share, or the person entitled thereto by reason of his or her death or bankruptcy; and

• (b) a period of 14 days after the date of giving of that notice has expired.

• (7) The following provisions apply in relation to a sale referred to in subsection (5)—

• (a) to give effect to any such sale, the directors may authorise some person to transfer the shares sold to the purchaser of them;

• (b) the purchaser shall be registered as the holder of the shares comprised in any such transfer;

• (c) the purchaser shall not be bound to see to the application of the purchase money, nor shall his or her title to the shares be affected by any irregularity or invalidity in the proceedings in reference to the sale; and

• (d) the proceeds of the sale shall be received by the company and applied in payment of such part of the amount in respect of which the lien exists as is immediately payable, and the residue, if any, shall (subject to a like lien for sums not immediately payable as existed upon the shares before the sale) be paid to the person entitled to the shares at the date of the sale.

81. Forfeiture of shares

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

• (2) If a member of a company fails to pay any call or instalment of a call on the day appointed for payment of it, the directors of the company may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a notice on the member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.

• (3) That notice shall—

• (a) specify a further day (not earlier than the expiration of 14 days after the date of service of the notice) on or before which the payment required by the notice is to be made; and

• (b) state that, if the amount concerned is not paid by the day so specified, the shares in respect of which the call was made will be liable to be forfeited.

• (4) If the requirements of that notice are not complied with, any share in respect of which the notice has been served may at any time after the day so specified (but before, should it occur, the payment required by the notice has been made) be forfeited by a resolution of the directors of the company to that effect.

• (5) A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the directors of the company think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the directors think fit.

• (6) A person whose shares have been forfeited shall cease to be a member of the company in respect of the forfeited shares, but shall, notwithstanding, remain liable to pay to the company all moneys which, at the date of forfeiture, were payable by him or her to the company in respect of the shares, but his or her liability shall cease if and when the company shall have received payment in full of all such moneys in respect of the shares.

• (7) A statement in writing that the maker of the statement is a director or the secretary of the company, and that a share in the company has been duly forfeited on a date stated in the statement, shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share.

• (8) The following provisions apply in relation to a sale or other disposition of a share referred to in subsection (5):

• (a) the company may receive the consideration, if any, given for the share on the sale or other disposition of it and may execute a transfer of the share in favour of the person to whom the share is sold or otherwise disposed of (the “disponee”);

• (b) upon such execution, the disponee shall be registered as the holder of the share;

• (c) the disponee shall not be bound to see to the application of the purchase money, if any, nor shall his or her title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share.

82. Financial assistance for acquisition of shares

82. (1) In subsection (2) “acquisition”, in relation to shares, means acquisition by subscription, purchase, exchange or otherwise.

• (2) It shall not be lawful for a company to give any financial assistance for the purpose of an acquisition made or to be made by any person of any shares in the company, or, where the company is a subsidiary, in its holding company.

• (3) Subsection (2) is subject to subsections (5) and (6).

• (4) The prohibition in subsection (2) applies whether the financial assistance is given—

• (a) directly or indirectly; or

• (b) by means of a loan or guarantee, the provision of security or otherwise.

• (5) Subsection (2) does not prohibit the giving of financial assistance in relation to the acquisition of shares in a company or its holding company if—

• (a) the company’s principal purpose in giving the assistance is not to give it for the purpose of any such acquisition; or

• (b) the giving of the assistance for that purpose is only an incidental part of some larger purpose of the company,

and the assistance is given in good faith in the interests of the company.

• (6) Without prejudice to the generality of subsection (5), subsection (2) does not prohibit—

• (a) the giving of financial assistance in accordance with the Summary Approval Procedure;

• (b) the payment by a company of a dividend or making by it of any distribution out of profits of the company available for distribution;

• (c) the discharge by a company of a liability lawfully incurred by it;

• (d) the—

• (i) purchase under section 105; or

• (ii) redemption under section 105 or 108,

of own shares or the giving of financial assistance, by means of a loan or guarantee, the provision of security or otherwise, for the purpose of such purchase or redemption;

• (e) where the lending of money is part of the ordinary business of the company, the lending of money by a company in the ordinary course of its business;

• (f) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase of, or subscription for, fully paid shares in the company or its holding company, being a purchase or subscription of or for shares to be held 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;

• (g) the making by a company of loans to persons, other than directors, bona fide in the employment of the company or any subsidiary of the company with a view to enabling those persons to purchase or subscribe for fully paid shares in the company or its holding company to be held by themselves as beneficial owners thereof;

• (h) the giving of financial assistance—

• (i) by means of a loan or guarantee, the provision of security or otherwise to discharge the liability under, or effect that which is commonly known as a refinancing of, any arrangement or transaction that gave rise to the provision of financial assistance, being financial assistance referred to in subsection (2) that has already been given by the company in accordance with the Summary Approval Procedure or section 60(2) of the Act of 1963; or

• (ii) by means of any subsequent loan or guarantee, provision of security or otherwise to effect a refinancing of—

• (I) refinancing referred to subparagraph (i); or

• (II) refinancing referred to in this subparagraph that has been previously effected (and this subparagraph shall be read as permitting the giving of financial assistance to effect such subsequent refinancing any number of times);

• (i) the making or giving by a company of one or more representations, warranties or indemnities to a person (or any affiliate of, or person otherwise connected with, the first-mentioned person or a director of such an affiliate or connected person that is a body corporate) who has purchased or subscribed for, or proposes to purchase or subscribe for, shares in the company or its holding company for the purpose of or in connection with that purchase or subscription;

• (j) the payment by a company of fees and expenses of—

• (i) the advisers to any subscriber for, or purchaser of, shares in the company that are incurred in connection with his or her subscription for, or purchase of, such shares; or

• (ii) the advisers to the company or its holding company that are incurred in connection with that subscription or purchase;

• (k) the incurring of any expense by a company in order to facilitate the admission to, or the continuance of, a trading facility of securities of its holding company on a stock exchange or securities market, including the expenses associated with the preparation and filing of documents required under the laws of any jurisdiction in which the securities in question are admitted to trading or are afforded a trading facility;

• (l) the incurring of any expenses by a company in order to ensure compliance by the company or its holding company with the Irish Takeover Panel Act 1997 or an instrument thereunder or any measures for the time being adopted by the State to implement Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids;

• (m) the reimbursement by a private limited subsidiary of an offeree (within the meaning of the Irish Takeover Panel Act 1997) of expenses of an offeror (within the meaning of that Act) pursuant to an agreement approved by, or on terms approved by, the Irish Takeover Panel;

• (n) in connection with an allotment of shares by a parent public company, the payment by a private limited subsidiary of that company of commissions, not exceeding 10 per cent of the money received in respect of such allotment, F33[…] and the payment by that subsidiary of professional fees;

• (o) to the extent that provision of this kind is not authorised by paragraph (f) or (g), the provision of financial assistance by a holding company or a subsidiary of it in connection with the holding company or subsidiary purchasing or subscribing for shares in the holding company on behalf of—

• (i) the present or former employees of the holding company or any subsidiary of it;

• (ii) an employees’ share scheme; or

• (iii) an employee share ownership trust referred to in section 519 of the Taxes Consolidation Act 1997.

• (7) Subject to subsection (8), a private limited subsidiary shall not provide financial assistance in accordance with the Summary Approval Procedure for the purpose of the acquisition of shares in its parent public company.

• (8) The Minister may, by regulations, specify circumstances in which a private limited subsidiary, in cases falling within subsection (7), may avail itself of the Summary Approval Procedure.

• (9) Any transaction in contravention of this section shall be voidable at the instance of the company against any person (whether a party to the transaction or not) who had notice of the facts which constitute such contravention.

• (10) Nothing in this section shall affect the operation of sections 84 to 87.

• (11) If a company contravenes this section, the company and any officer of it who is in default shall be guilty of a category 2 offence.

CHAPTER 4 Variation in capital

83. Variation of company capital

83. (1) Save to the extent that its constitution otherwise provides, a company may, by ordinary resolution, do any one or more of the following, from time to time—

• (a) consolidate and divide all or any of its shares into shares of a larger nominal value than its existing shares;

• (b) subdivide its shares, or any of them, into shares of a smaller nominal value, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;

• (c) increase the nominal value of any of its shares by the addition to them of any undenominated capital;

• (d) reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account;

• (e) convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares;

• (f) in the case of a company whose constitution states an authorised share capital (in addition to its power to do any of the foregoing things)—

• (i) increase its share capital by new shares of such amount as it thinks expedient; or

• (ii) cancel shares of its share capital which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.

• (2) A cancellation of share capital under subsection (1)(f)(ii) shall be deemed not to be a reduction of company capital within the meaning of this Act.

• (3) Save to the extent that its constitution otherwise provides, a company may, by special resolution, and subject to the provisions of this Act governing the variation of rights attached to classes of shares and the amendment of a company’s constitution, convert any of its shares into redeemable shares.

• (4) Such a conversion shall not have effect with respect to any shares, the holder of which notifies the company, before the date of conversion, of his or her unwillingness to have his or her shares converted but, subject to that and the other provisions of this section, the conversion shall have effect according to its terms.

• (5) Subsection (4) shall not, where a shareholder objects to a conversion, prejudice any right he or she may have under this Act or otherwise to invoke the jurisdiction of the court to set aside the conversion or otherwise provide relief in respect of it.

• (6) A company shall deliver particulars, in the prescribed form, of any resolution referred to in subsection (1) to the Registrar within 30 days after the date of its being passed by the company.

• (7) If a company contravenes subsection (6), the company and any officer of it who is in default shall be guilty of a category 3 offence.

84. Reduction in company capital

84. (1) Save to the extent that its constitution otherwise provides, a company may, subject to the provisions of this section and sections 85 to 87, reduce its company capital in any way it thinks expedient and, without prejudice to the generality of the foregoing, may thereby—

• (a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;

• (b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or

• (c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the company.

• (2) A reduction of company capital under this section shall be effected either by the company—

• (a) employing the Summary Approval Procedure; or

• (b) passing a special resolution that is confirmed by the court.

• (3) Where the reduction has been approved by the Summary Approval Procedure, the reduction shall take effect—

• (a) if no date is specified in that behalf in the special resolution referred to in section 202(1)(a)(i), on the expiry of 12 months after the date of the passing of the special resolution; or

• (b) if such a date is so specified, on that date.

• (4) A company shall not purport to reduce its company capital otherwise than as provided for by this section.

• (5) Any transaction in contravention of this section shall be voidable at the instance of the company against any person (whether a party to the transaction or not) who had actual notice of the facts which constitute such contravention.

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

85. Application to court for confirming order, objections by creditors and settlement of list of such creditors

85. (1) Where a company has passed a special resolution under section 84(2)(b) for reducing its company capital it may apply to the court for an order confirming the resolution.

• F34[(2) If a company proposes to apply to the court for an order confirming the resolution, it shall cause notice of its intention to make such an application—

• (a) to be advertised once at least in one daily newspaper circulating in the district where the registered office or principal place of business of the company is situated, and

• (b) to be notified by electronic means to all creditors of the company who are resident, or have their principal place of business, outside the State,

and that advertisement and that notification shall indicate a means by which there will be notified by the company to any inquirer the date on which that hearing will take place (or any change in the date of such) and the company shall, accordingly, notify to any inquirer, by those means, the first-mentioned date on request being made by the inquirer therefor (and shall make satisfactory arrangements with the inquirer for the notification, by these means or such other means as may be agreed between them, to the inquirer of a change in that date).]

• (3) In determining any preliminary application for directions as to the hearing of an application under this section, the court shall have regard to compliance by the company with the requirements of subsection (2).

• (4) Where the proposed reduction of the company’s company capital involves either diminution of liability in respect of unpaid company capital, or the payment to any shareholder of any paid up company capital, and in any other case if the court so directs, the following provisions shall have effect (but subject to subsection (5))—

• (a) every creditor of the company who—

• (i) at the date fixed by the court, is entitled to a debt or claim that, if that date were the commencement of the winding up of the company, would be admissible in proof against the company; and

• (ii) can credibly demonstrate that the proposed reduction in company capital would be likely to put the satisfaction of that debt or claim at risk, and that no adequate safeguards have been obtained from the company,

is entitled to object to the reduction,

• (b) the court shall settle a list of creditors entitled to object, and for that purpose may publish notices fixing a day or days within which creditors are to claim to be entered on the list or are to be excluded from the right of objecting to the reduction of company capital, and

• (c) where a creditor entered on the list whose debt or claim is not discharged or has not terminated does not consent to the confirmation, the court may, if it thinks fit, dispense with the consent of that creditor, on the company securing payment of his or her debt or claim by appropriating, as the court may direct, the following amount—

• (i) if the company admits the full amount of the debt or claim, or, though not admitting it, is willing to provide for it, then the full amount of the debt or claim;

• (ii) if the company does not admit and is not willing to provide for the full amount of the debt or claim, or, if the amount is contingent or not ascertained, then an amount fixed by the court after the like inquiry and adjudication as if the company were being wound up by the court.

• (5) Where a proposed reduction of company capital involves either the diminution of any liability in respect of unpaid company capital or the payment to any shareholder of any paid up company capital, the court may, if, having regard to any special circumstances of the case, it thinks proper so to do, direct that subsection (4) shall not apply as regards any class or any classes of creditors.

• (6) If satisfied that the following requirement is satisfied, the court may make an order confirming the resolution on such terms and conditions as it thinks fit.

• (7) That requirement is that, in relation to every creditor of the company who, under this section is entitled to object to the confirmation, either—

• (a) the creditor’s consent to the confirmation has been obtained, or

• (b) the creditor’s debt or claim has been discharged or has terminated, or has been secured.

• (8) Where the court makes an order confirming the resolution, it may make an order requiring the company to publish, as the court directs, the reasons for reduction of its company capital or such other information in regard thereto as the court may think expedient, with a view to giving proper information to the public, and if the court thinks fit, the causes which led to that reduction.

• (9) References in this section to a debt or claim having terminated are references to the debt or claim ceasing to be enforceable or to its otherwise determining.

86. Registration of order and minute of reduction

86. (1) On the doing of both of the following—

• (a) the production to the Registrar of an order of the court under section 85 confirming the resolution of the company with respect to reduction of its company capital; and

• (b) the delivery to the Registrar of a copy of the order and of a minute approved by the court showing, with respect to the company capital of the company as altered by the order—

• (i) the amount of the share capital;

• (ii) the number of shares into which it is to be divided and the amount of each share; and

• (iii) the amount, if any, at the date of the registration deemed to be paid up on each share,

the Registrar shall register the order and minute.

• (2) On the registration of the order and minute and not before, the resolution for reducing company capital as confirmed by the order so registered shall take effect.

• (3) Notice of the registration of the order and minute shall be published in such manner as the court may direct.

• (4) The Registrar shall issue a certificate with respect to the registration of the order and minute, and that certificate shall be conclusive evidence that all the requirements of this Act relating to reduction of company capital have been complied with, and that the share capital of the company is such as is stated in the minute.

• (5) The minute, when registered, shall be deemed to be substituted for the corresponding part of the constitution of the company and shall be valid and capable of amendment as if it had been originally contained in it.

• (6) The substitution of any such minute for part of the constitution of the company shall be deemed to be an amendment of the constitution within the meaning of section 37(2).

87. Liability of members in respect of reduced calls

87. (1) In this section—

“confirmation” means confirmation by the court under section 85 of a resolution for reduction of company capital;

“minute” means the minute referred to in section 86(1)(b).

• (2) Subject to subsection (3), in the case of a reduction of company capital where future calls have been reduced, a member of the company, past or present, shall not be liable in respect of any share to any call or contribution exceeding in amount the difference, if any, between the amount of the share, as fixed by the minute and the amount paid, or the reduced amount, if any, which is to be deemed to have been paid, on the share, as the case may be.

• (3) If any creditor entitled, in respect of any debt or claim, to object to the confirmation, is, by reason of his or her not being aware of the proceedings for the confirmation or of their nature and effect with respect to his or her debt or claim, not entered on the list of creditors, and, after the reduction, the company is unable, within the meaning of the provisions of this Act relating to winding up by the court, to pay the amount of his or her debt or claim, then—

• (a) every person who was a member of the company at the date of the delivery for registration of the order in respect of the confirmation and the minute, shall be liable to contribute for the payment of that debt or claim an amount not exceeding the amount which he or she would have been liable to contribute if the company had commenced to be wound up on the day before that date; and

• (b) if the company is wound up, the court, on the application of any such creditor and proof of his or her not being aware as mentioned in this subsection may, if it thinks fit, settle accordingly a list of persons so liable to contribute, and make and enforce calls and orders on the contributories settled on the list, as if they were ordinary contributories in a winding up.

• (4) Nothing in this section shall affect the rights of the contributories among themselves.

• (5) If any officer of the company—

• (a) intentionally conceals the name of any creditor entitled to object to the confirmation; or

• (b) intentionally misrepresents the nature or amount of the debt or claim of any creditor,

he or she shall be guilty of a category 2 offence.

88. Variation of rights attached to special classes of shares

88. (1) This section shall have effect with respect to the variation of the rights attached to any class of shares in a company whose share capital is divided into shares of different classes, whether or not the company is being wound up.

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

• (a) the holders of 75 per cent, in nominal value, of the issued shares of that class, consent in writing to the variation; or

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

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

• (3) Where—

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

• (b) the constitution contains provision for the variation of those rights; and

• (c) the variation of those rights is connected with the giving, variation, revocation or renewal of an authority for the purposes of section 69(1) or with a reduction of the company’s company capital by either of the means referred to in section 84,

those rights shall not be varied unless—

• (i) the requirement in subsection (2)(a) or (b) is satisfied; and

• (ii) any requirement of the constitution in relation to the variation of rights of that class is complied with to the extent that it is not comprised in the requirement in subsection (2)(a) or (b).

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

• (a) where they are so attached by the constitution, it contains provision with respect to their variation which had been included in the constitution at the time of the company’s original incorporation; or

• (b) where they are so attached otherwise, the constitution contains such provision (whenever first so included),

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

• (5) Where the rights are attached to a class of shares in the company by the constitution and it does not contain provisions with respect to the variation of the rights, those rights may be varied if all the members of the company agree to the variation.

• (6) Where a resolution referred to in any of the preceding subsections is to be proposed at a meeting of members holding a particular class of shares—

• (a) the necessary quorum at any such meeting, other than an adjourned meeting, shall be 2 persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and at an adjourned meeting one person holding shares of the class in question or his or her proxy;

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

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

• (8) References to the variation of the rights attached to a class of shares in—

• (a) this section; and

• (b) except where the context otherwise requires, in any provision for the variation of the rights attached to a class of shares contained in the company’s constitution,

shall include references to their abrogation.

• (9) Nothing in subsections (2) to (5) shall be read as derogating from the powers of the court under sections 212, 451 and 455.

• (10) Save where the company’s constitution provides otherwise, the rights conferred upon the holders of the shares of any class issued by a company with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith.

89. Rights of holders of special classes of shares

89. (1) If in the case of a company, the share capital of which is divided into different classes of shares, the rights attached to any such class of shares are at any time varied pursuant to section 88, one or more members who hold, or together hold, not less than 10 per cent of the issued shares of that class, being members who did not consent to or vote in favour of the resolution for the variation, may apply to the court to have the variation cancelled.

• (2) Where any such application is made, the variation shall not have effect unless and until it is confirmed by the court.

• (3) An application under this section shall be made within 28 days (or such longer period as the court, on application made to it by any member before the expiry of the first mentioned 28 days, may allow) after the date on which the consent was given or the resolution was passed, as the case may be, and may be made on behalf of the members entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.