Companies Act 2014

• (4) On any such application the court, after hearing the applicant and any other persons who apply to the court to be heard and appear to the court to be interested in the application, may, if it is satisfied having regard to all the circumstances of the case that the variation would unfairly prejudice the shareholders of the class represented by the applicant, disallow the variation and shall, if not so satisfied, confirm the variation.

• (5) The decision of the court on any such application shall be final but an appeal shall lie to the Supreme Court from the determination of the court on a question of law.

• (6) The company shall, within 21 days after the date on which an order is made by the court on any such application, deliver a certified copy of the order to the Registrar.

• (7) If a company contravenes subsection (6), the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (8) In this section “variation” includes abrogation, and “varied” shall be read accordingly.

90. Registration of particulars of special rights

90. (1) Where a company allots shares with rights which are not stated in its constitution or in any resolution or agreement to which section 198 applies, the company shall, unless the shares are in all respects uniform with shares previously allotted, deliver to the Registrar, within 30 days after the date of allotting the shares, a statement in the prescribed form containing particulars of those rights.

• (2) Shares allotted with such rights shall not be treated for the purposes of subsection (1) as different from shares previously allotted by reason only of the fact that the former do not carry the same rights to dividends as the latter during the 12 months after the date of the former’s allotment.

• (3) Where the rights attached to any shares of a company are varied otherwise than by an amendment of the company’s constitution or by resolution or agreement to which section 198 applies, the company shall within 30 days after the date on which the variation is made, deliver to the Registrar a statement in the prescribed form containing particulars of the variation.

• (4) Where a company (otherwise than by any such amendment, resolution or agreement as is mentioned in subsection (3)) assigns a name or other designation, or a new name or other designation, to any class of its shares it shall, within 30 days after the date of doing so, deliver to the Registrar a notice in the prescribed form giving particulars thereof.

• (5) 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.

91. Variation of company capital on reorganisation

91. (1) Subject to subsection (3), a company (the “relevant company”) may for any purpose F35[…] transfer or dispose of—

• (a) one or more assets;

• (b) an undertaking or part of an undertaking; or

• (c) a combination of assets and liabilities,

to a body corporate, on the terms that the consideration (or part of the consideration) therefor is as follows.

• (2) That consideration (or part of consideration) is one comprising shares or other securities of that body corporate paid (by the allotment of them) to the members of the relevant company or of its holding company rather than to the relevant company.

• (3) Subsection (2) applies whether or not the terms of the transfer or disposal referred to in subsection (1) also involve the payment of cash to the members of the relevant company or of its holding company or the relevant company.

• F36[(4) A transaction to which subsection (1) applies shall not be undertaken unless—

• (a) it is approved by the relevant company by employing the Summary Approval Procedure,

• (b) it is approved by special resolution passed by the relevant company that is confirmed by the court under section 85 as if that resolution were providing for a reduction of the company’s company capital (and the provisions of sections 84 to 87 shall apply accordingly with the necessary modifications), or

• (c) the relevant company has distributable reserves at least equivalent to the value (as stated in, or ascertainable from, the accounting records of the relevant company immediately before the transfer or disposal concerned) of the transferred or disposed assets and deducts an amount, equivalent to the value of the transferred or disposed assets, from those reserves.]

• (5) Where such a transaction F37[referred to in subsection (4)(a) or (b)] is so approved or confirmed by order of the court under section 85, there shall be deducted from such of the relevant company’s reserves and company capital as the relevant company shall, by ordinary resolution, resolve an amount equivalent to the value (as stated in, or ascertainable from, the accounting records of the company immediately before the transfer or disposal) of the transferred or disposed asset or assets, undertaking or part of an undertaking mentioned in subsection (1).

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

92. Notice to Registrar of certain alterations of share capital

92. (1) If a company has—

• (a) consolidated and divided its share capital into shares of larger amount than its existing shares; or

• (b) converted any shares into stock; or

• (c) reconverted stock into shares; or

• (d) subdivided its shares or any of them; or

• (e) redeemed any redeemable shares; or

• (f) redeemed any preference shares; or

• (g) cancelled any shares, otherwise than in connection with a reduction of company capital referred to in section 84,

it shall, within 30 days after the date of so doing, give notice thereof to the Registrar specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock reconverted.

• (2) 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.

93. Notice of increase of share capital

93. (1) This section applies to a company whose constitution states an authorised share capital.

• (2) If a company, whether its shares have or have not been converted into stock, has increased its share capital above the registered capital, it shall, within 30 days after the date on which it passes the resolution increasing its share capital, give to the Registrar notice of the increase and the Registrar shall record the increase.

• (3) That notice shall include such particulars as may be prescribed with respect to the classes of shares affected, and the conditions subject to which the new shares have been or are to be issued.

• (4) 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.

• F38[(5) F39[…]]

CHAPTER 5 Transfer of shares

94. Transfer of shares and debentures

94. (1) Subject to any restrictions in the company’s constitution and this section, a member may transfer all or any of his or her shares in the company by instrument in writing in any usual or common form or any other form which the directors of the company may approve.

• (2) The instrument of transfer of any share shall be executed by or on behalf of the transferor, save that if the share concerned (or one or more of the shares concerned) is not fully paid, the instrument shall be executed by or on behalf of the transferor and the transferee.

• (3) The transferor shall be deemed to remain the holder of the share until the name of the transferee is entered in the register in respect thereof.

• (4) A company shall not register a transfer of shares in or debentures of the company unless a proper instrument of transfer has been delivered to the company.

• (5) Nothing in subsection (4) shall prejudice any power of the company to register as shareholder or debenture holder, any person to whom the right to any shares in, or debentures of the company, has been transmitted by operation of law.

• (6) A transfer of the share or other interest of a deceased member of a company made by his or her personal representative shall, although the personal representative is not himself or herself a member of the company, be as valid as if the personal representative had been such a member at the time of the execution of the instrument of transfer.

• (7) On application of the transferor of any share or interest in a company, the company shall enter in its register of members, the name of the transferee in the same manner and subject to the same conditions as if the application for the entry were made by the transferee.

• (8) Save to the extent that a company’s constitution regulates the execution of instruments by any particular company or other body corporate, this section is without prejudice to the Stock Transfer Act 1963.

95. Restrictions on transfer

95. (1) Save where the constitution of the company provides otherwise—

• (a) the directors of a company may in their absolute discretion and without assigning any reason for doing so, decline to register the transfer of any share;

• (b) the directors’ power to decline to register a transfer of shares (other than on account of a matter specified in subsection (2)) shall cease to be exercisable on the expiry of 2 months after the date of delivery to the company of the instrument of transfer of the share.

• (2) The directors of a company may decline to register any instrument of transfer unless—

• (a) a fee of €10.00 or such lesser sum as the directors may from time to time require, is paid to the company in respect of it;

• (b) the instrument of transfer is accompanied by the certificate of the shares to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; and

• (c) the instrument of transfer is in respect of one class of share only.

• (3) If the directors refuse to register a transfer they shall, within 2 months after the date on which the transfer was lodged with the company, send to the transferee notice of the refusal.

• (4) The registration of transfers of shares in a company may be suspended at such times and for such periods, not exceeding in the whole 30 days in each year, as the directors of the company may from time to time determine.

96. Transmission of shares

96. (1) Subsections (2) to (11) apply save to the extent that the company’s constitution provides otherwise.

• (2) In the case of the death of a member, the survivor or survivors where the deceased was a joint holder, and the personal representatives of the deceased where he or she was a sole holder, shall be the only persons recognised by the company as having any title to his or her interest in the shares.

• (3) Nothing in subsection (2) shall release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by him or her with other persons.

• (4) Any person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such evidence being produced as may from time to time properly be required by the directors of the company and subject to subsection (5), elect either—

• (a) to be registered himself or herself as holder of the share; or

• (b) to have some person nominated by him or her (being a person who consents to being so registered) registered as the transferee thereof.

• (5) The directors of the company shall, in either of those cases, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by that member before his or her death or bankruptcy, as the case may be.

• (6) If the person becoming entitled as mentioned in subsection (4)—

• (a) elects to be registered himself or herself, the person shall furnish to the company a notice in writing signed by him or her stating that he or she so elects; or

• (b) elects to have another person registered, the person shall testify his or her election by executing to that other person a transfer of the share.

• (7) All the limitations, restrictions and provisions of this Chapter relating to the right to transfer and the registration of a transfer of a share shall be applicable to a notice or transfer referred to in subsection (6) as if the death or bankruptcy of the member concerned had not occurred and the notice or transfer were a transfer signed by that member.

• (8) Subject to subsections (9) and (10), a person becoming entitled to a share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he or she would be entitled if he or she were the registered holder of the share.

• (9) Such a person shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the company.

• (10) The directors of the company may at any time serve a notice on any such person requiring the person to make the election provided for by subsection (4) and, if the person does not make that election (and proceed to do, consequent on that election, whichever of the things mentioned in subsection (6) is appropriate) within 90 days after the date of service of the notice, the directors may thereupon withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with.

• (11) The company may charge a fee not exceeding €10.00 on the registration of every probate, letters of administration, certificate of death, power of attorney, notice as to stock or other instrument or order.

• (12) The production to a company of any document which is by law sufficient evidence of probate of the will or letters of administration of the estate of a deceased person having been granted to some person shall be accepted by the company, notwithstanding anything in its constitution, as sufficient evidence of the grant.

97. Transmission of shares in special circumstances (including cases of mergers)

97. (1) The Minister may prescribe procedures whereby the registration of shares in a company may be validly effected in the following cases:

• (a) cases of a death of the sole member of a single-member company where that member had been the only director of the company;

• (b) other cases of difficulty in effecting such registration.

• (2) Without prejudice to this matter being provided for by the exercise of the Minister’s powers under subsection (1) (and subject, in that eventuality, to any regulations made in pursuance thereof), nothing in section 96 prejudices the adoption of alternative procedures to those specified in that section with respect to the registering of a transfer of shares in a company held by another company that are transmitted by operation of law in consequence of a merger between those companies.

• (3) Save to the extent that the constitution of the second-mentioned company in subsection (2) provides otherwise and subject—

• (a) as mentioned in subsection (2); and

• (b) in every case (that is to say, irrespective of what that constitution or those regulations provide), to any order made by the court in respect of the matter concerned under Part 9,

those alternative procedures shall be such as the directors of that second-mentioned company determine.

98. Certification of shares

98. (1) The certification by a company of any instrument of transfer of shares in, or debentures of, the company shall be taken as a representation by the company to any person acting on the faith of the certification that there have been produced to the company such documents as on the face of them show a prima facie title to the shares or debentures in the transferor named in the instrument of transfer, but not as a representation that the transferor has any title to the shares or debentures.

• (2) Where any person acts on the faith of a false certification by a company made negligently, the company shall be under the same liability to him or her as if the certification had been made fraudulently.

• (3) For the purposes of this section—

• (a) an instrument of transfer shall be deemed to be certificated if it bears the words “certificate lodged” or words to the like effect;

• (b) the certification of an instrument of transfer shall be deemed to be made by a company if—

• (i) the person issuing the instrument is a person authorised to issue certificated instruments of transfer on the company’s behalf; and

• (ii) the certification is signed by a person authorised to certificate transfers on the company’s behalf or by any officer or employee either of the company or of a body corporate so authorised;

• (c) a certification shall be deemed to be signed by any person if—

• (i) it purports to be authenticated by his or her signature or initials (whether handwritten or not); and

• (ii) it is not shown that the signature or initials was or were placed there neither by himself or herself nor by any person authorised to use the signature or initials for the purpose of certificating transfers on the company’s behalf.

99. Share certificates

99. (1) A certificate under the common seal of the company specifying any shares held by any member shall be prima facie evidence of the title of the member to the shares.

• (2) A company shall, within 2 months after the date—

• (a) of allotment of any of its shares or debentures; or

• (b) on which a transfer of any such shares or debentures is lodged with the company,

complete and have ready for delivery the certificates of all shares and debentures allotted or, as the case may be, transferred, unless the conditions of issue of the shares or debentures otherwise provide.

• (3) In subsection (2) “transfer” means a transfer that is (where appropriate) duly stamped and is otherwise valid and does not include such a transfer as the company is, for any reason, entitled to refuse to register and does not register.

• (4) If any company on which a notice has been served requiring the company to make good any default in complying with the provisions of subsection (2), fails to make good the default within 10 days after the date of service of the notice, the person entitled to have the certificates or the debentures delivered to him or her may apply to the court for, and the court on such an application may grant, the following order.

• (5) That order is one directing the company and any officer of the company specified in the order to make good the default within such time as may be specified in the order, and any such order may provide that all costs of and incidental to the application shall be borne by the company or by any officer of it responsible for the default.

• (6) If a share certificate is defaced, lost or destroyed, it may be renewed on payment of €10.00 or such lesser sum and on such terms (if any) as to evidence and indemnity and the payment of out-of-pocket expenses of the company of investigating evidence as the directors of the company think fit.

• (7) If a member of a company so requests, the member shall be entitled to receive from the company one or more certificates for one or more shares held by the member upon payment, in respect of each certificate, of €10.00 or such lesser sum as the directors of the company think fit.

• (8) In respect of a share or shares in a company held jointly by several persons—

• (a) the company shall not be bound to issue more than one certificate; and

• (b) delivery by the company of a certificate for a share to one of several joint holders shall be sufficient delivery to all such holders.

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

100. Rectification of dealings in shares

100. (1) If—

• (a) a company has created, allotted, acquired or cancelled any of its shares; and

• (b) there is reason to apprehend that such shares were invalidly created, allotted, acquired or cancelled,

the court may, on the application of any of the following persons, declare that such creation, allotment, acquisition or cancellation shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.

• (2) The persons who may make such an application are—

• (a) the company;

• (b) any holder or former holder of such shares;

• (c) any member or former member or creditor of the company;

• (d) the liquidator of the company.

• (3) Where such a declaration is made, the shares shall from the creation, allotment, acquisition or cancellation thereof, as the case may be, be deemed to have been validly created, allotted, acquired or cancelled.

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

• (5) In this section “acquired”, in relation to shares, means acquired by redemption, purchase, surrender, forfeiture or other means.

101. Personation of shareholder: offence

101. If any person falsely and deceitfully personates any owner of any share or interest in a company and thereby—

• (a) obtains or endeavours to obtain any such share or interest;

• (b) receives or endeavours to receive any money due to any such owner; or

• (c) votes at any meeting as if the person were the true and lawful owner,

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

F40[CHAPTER 5A Dematerialisation of applicable securities]

101A. F41[Interpretation and application

101A. (1) In this Chapter –

"applicable securities" means transferable securities as defined in point (44) of Article 4(1) of Directive 2014/65/EU (or interests in them) that were, prior to 1 June 2015 –

• (a) issued by a relevant issuer, and

• (b) admitted to trading or listed on any market, whether a regulated market or not, in the State or elsewhere;

"central securities depository" has the same meaning as it has in section 1087A;

"certificate" means any certificate, or other document of, or evidencing, title to applicable securities, other than any register of securities;

"CSD Regulation" has the same meaning as it has in section 1087A;

"nominee" means, in respect of a central securities depository, any body as may from time to time be nominated by or on behalf of that central securities depository to hold applicable securities represented in that central securities depository’s securities settlement system;

"relevant issuer" means a company that has issued applicable securities.

• (2) This Chapter shall apply from 1 January 2025 to any applicable securities issued on or before 1 June 2015.]

101B. F42[Abolition of certificates in respect of applicable securities

101B. A relevant issuer is not required to issue certificates in respect of applicable securities under this Act or any other enactment, and any certificates in issue in respect of applicable securities shall have no legal effect for the purpose of evidence of ownership of those securities or otherwise.]

101C. F43[Transfer of applicable securities of company

101C. Notwithstanding section 94, section 2 (1) of the Stock Transfer Act 1963 or any other enactment, a written instrument of transfer shall not be necessary to transfer the title to applicable securities that are transferred–

• (a) from a central securities depository or its nominee to any holder of the rights or interests in those securities,

• (b) from one central securities depository or its nominee to another central securities depository or its nominee, or

• (c) to a central securities depository or its nominee from any holder of the rights or interests in those securities.]

101D. F44[Disapplication of certain provisions to applicable securities

101D. Section 99(2), (3), (4), (5) and (9) shall not apply to applicable securities.]

101E. F45[Disapplication of requirement for certificate in respect of applicable securities

101E. Any provision contained in –

• (a) a company’s constitution,

• (b) any resolution of a company, a company’s directors or the holders of applicable securities of a company, or

• (c) the terms of issue of any applicable securities,

(however worded and whether express or implied), requiring a certificate in respect of applicable securities of the company shall not apply.]

101F. F46[Representation of applicable securities

101F. Nothing in this Chapter shall affect or restrict a company arranging for applicable securities to be represented in book-entry form as immobilisation or dematerialisation by a central securities depository or its nominee.]

CHAPTER 6 Acquisition of own shares

102. Company acquiring its own shares, etc. — permissible circumstances and prohihibitions

102. (1) Subject to the provisions of this Chapter, a company may acquire its own fully paid shares—

• (a) by transfer or surrender to the company otherwise than for valuable consideration;

• (b) by cancellation pursuant to a reduction of company capital by either of the means referred to in section 84;

• (c) pursuant to an order of the court under section 212;

• (d) where those shares are redeemable shares, by redemption or purchase under section 105;

• (e) by purchase under section 105;

• (f) where those shares are preference shares referred to in section 108, by redemption under that section; F47[…]

• (g) pursuant to a merger or division under Chapter 3 or 4 F48[of Part 9; or]

• F49[(h) pursuant to a conversion, merger or division under the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023).]

• (2) Without prejudice to the powers of a company with respect to forfeiture of its own shares as provided by this Part or to accept any of its own shares surrendered in lieu for failure to pay any sum payable in respect of those shares, a company may not acquire any of its own shares otherwise than as described in the preceding subsection, but nothing in that subsection or any other provision of this section affects the lawfulness of F48[a merger effected in accordance with Chapter 3 of Part 9 or a scheme of arrangement sanctioned under that Part, or a conversion, merger or division effected in accordance with the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (S.I. No. 233 of 2023)].

• (3) If a company purports to act in contravention of subsection (2), the company and any officer of it who is in default shall be guilty of a category 2 offence and the purported acquisition is void.

• (4) Subject to section 103, a private limited subsidiary shall not—

• (a) subscribe for the shares of its parent public company; or

• (b) purchase shares in its parent public company which are not fully paid.

• (5) If a private limited subsidiary purports to act in contravention of subsection (4)(a), that subsidiary and any officer of it who is in default shall be guilty of a category 2 offence and the purported subscription is void.

• (6) Where shares in a parent public company are subscribed for by a nominee of a private limited subsidiary, then for all purposes the shares shall be treated as held by the nominee on his or her own account and the private limited subsidiary shall be regarded as having no beneficial interest in them, and the provisions of section 104 shall, with any necessary modifications, apply.

• (7) Without prejudice to any other requirements contained in or penalties imposed by this Act, where a private limited subsidiary purchases, subscribes for or holds shares in its parent public company, and—

• (a) in the case of a purchase, the shares were not fully paid when they were purchased; or

• (b) the authorisation required by section 114(3) has not been obtained; or

• (c) by virtue of their being treated (under subsection (2) of section 109) as shares held as treasury shares by the parent public company for the purposes of the limit provided by subsection (1) of that section, that limit is exceeded by the parent public company; or

• (d) the purchase or subscription was in contravention of section 82(7),

then, unless the shares or any interest of the private limited subsidiary in them are previously disposed of, the provisions of sections 1040 and 1041 shall apply to the private limited subsidiary in respect of such shares, with the modification that the “relevant period” (as that expression is used in those sections) in relation to any shares shall be 12 months and with any other necessary modifications.

103. Supplemental provisions in relation to section 102

103. (1) Section 102 shall not affect or prohibit—

• (a) subject to subsection (2), the subscription for, acquisition or holding of shares in its parent public company by a private limited subsidiary where the private limited subsidiary is concerned as personal representative or where it is concerned as trustee;

• (b) without prejudice to subsection (3), the allotment to, or holding by, a private limited subsidiary of shares in its parent public company in the circumstances set out in section 113(6);

• (c) the subscription, acquisition or holding of shares in its parent public company by a private limited subsidiary where the subscription, acquisition or holding is effected on behalf of a person other than the person subscribing, acquiring or holding the shares, who is neither the parent public company itself nor a subsidiary of that parent public company; or

• (d) the subscription, acquisition or holding of shares in its parent public company by a private limited subsidiary which is a member of an authorised market operator acting in its capacity as a professional dealer in securities in the normal course of its business.

• (2) The restriction on the application of section 102 by subsection (1)(a) does not have effect (in the case of a trust) if the parent public company or a subsidiary of it is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.

• (3) Where shares in a parent public company—

• (a) are allotted to, or held by, a private limited subsidiary as mentioned in subsection (1)(b); and

• (b) by virtue of their being treated (under subsection (2) of section 109) as shares held as treasury shares by the parent public company for the purposes of the limit provided by subsection (1) of that section, that limit is exceeded by the parent public company,

then, unless the shares or any interest of the private limited subsidiary in them are previously disposed of, the provisions of sections 1040 and 1041 shall apply to the private limited subsidiary in respect of such shares, with the modification that the “relevant period” (as that expression is used in those sections) in relation to any shares shall be 3 years and with any other necessary modifications.

104. Shares of a company held by a nominee of a company

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

• (2) If a person is called on to pay any amount for the purpose of paying up, or paying any premium on, any shares in a company which were issued to him or her, or which he or she otherwise acquired, as the nominee of the company and he or she fails to pay that amount within 21 days after the date on which he or she is called on to do so, then—

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

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

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

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

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

• (5) Subsections (1) and (2) shall not apply—

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

• (b) to shares issued in consequence of an application made for them before 13 October 1983 or transferred in pursuance of an agreement to acquire them made before that date.

105. Acquisition of own shares

105. (1) A company may acquire its own shares by purchase, or in the case of redeemable shares, by redemption or purchase.

• (2) Any such acquisition is subject to payment in respect of the shares’ acquisition being made out of—

• (a) profits available for distribution; or

• (b) where the company proposes to cancel, pursuant to section 106, shares on their acquisition, the proceeds of a fresh issue of shares made for the purposes of the acquisition, but subject to the restriction contained in subsection (3) as respects such proceeds being used to pay a premium there referred to.

• (3) Where the shares being acquired were issued at a premium, some or all of the premium payable on their acquisition (being an acquisition to which subsection (2)(b) applies) may be paid out of the proceeds of a fresh issue of shares made for the purposes of the acquisition, up to an amount equal to—

• (a) the aggregate of the premiums received by the company on the issue of the shares acquired; or

• (b) the current amount of the company’s undenominated capital (including any sum transferred to its share premium account in respect of premiums on the new shares),

whichever is less, and in any such case the amount of the company’s share premium account or other undenominated capital shall be reduced by a sum corresponding (or by sums in the aggregate corresponding) to the amount of any payment made by virtue of this subsection out of the proceeds of the issue of the new shares.

• (4) Subject to this Part, the acquisition by a company of its own shares shall be authorised by—

• (a) the constitution of the company;

• (b) the rights attaching to the shares in question; or

• (c) a special resolution.

• (5) A special resolution under subsection (4) shall not be effective for the purposes of this section if any member of the company holding shares to which the resolution relates exercises the voting rights carried by any of those shares in voting on the resolution and the resolution would not have been passed if he or she had not done so.

• (6) With respect to subsection (4) and the matter of passing a special resolution for the purpose thereof by the written means provided for under this Act—

• (a) the procedure under section 193 (unanimous written resolutions) is not available for that purpose;

• (b) if a resolution referred to in section 194 (majority written resolutions) for the purpose of subsection (4) is signed by a member of the company who holds shares to which the resolution relates, then, in determining whether the requirement under section 194(4)(a)(ii) — that the resolution be signed by the requisite majority — has been fulfilled, no account shall be taken of the percentage of voting rights conferred by the foregoing shares of that member.

• (7) Notwithstanding anything contained in section 189 or in the company’s constitution, any member holding one or more shares in the company conferring the right to vote at the meeting concerned may demand a poll on a special resolution under subsection(4).

• (8) Where a purchase of shares is proposed to be authorised by special resolution—

• (a) the proposed contract of purchase or, if the contract is not in writing, a written memorandum of its terms shall be furnished to the members of the company on request or made available for inspection by the members at the registered office of the company from the date of the notice of the meeting at which the resolution is to be proposed and at the meeting itself;

• (b) any memorandum of the terms of the contract of purchase made available for the purposes of paragraph (a) shall include the names of any members holding shares to which the contract relates, and any copy of the contract made available for those purposes shall have annexed to it a written memorandum specifying any such names which do not appear in the contract itself.

• (9) With respect to the proposed authorisation of a purchase of shares by a resolution referred to in section 194, the requirements of subsection (8) shall also apply but with the modification that in paragraph (a) of that subsection “during the period of 21 days before the date of the signing of the resolution by the last member to sign” shall be substituted for “from the date of the notice of the meeting at which the resolution is to be proposed and at the meeting itself”.

• (10) A company may agree to a variation of an existing contract of purchase authorised pursuant to a special resolution under this section only if the variation is authorised by special resolution of the company before it is agreed to, and subsections (5) to (9) shall apply in relation to that authority, save that a copy or memorandum (as the case may require) of the existing contract shall also be available for inspection in accordance with subsection (8).

• (11) A company shall only make a purchase of its own shares in pursuance of an option if the terms of the option have been authorised by a special resolution of the company in accordance with subsections (5) to (9) and, for the purposes of this subsection, subsection (8) shall have effect as if the references in it to the contract of purchase were references to the contract under which the option arises.

• (12) In subsection (11) “option” means an entitlement of the company, or an obligation on the part of the company, to purchase any of its shares that may arise under a contract entered into, being a contract that does not amount to a contract to purchase those shares.

106. Supplemental provisions in relation to section 105

106. (1) Shares acquired by a company under section 105, or otherwise acquired by it under [F50section 102(1)(a) or (g)], shall be cancelled or held by it (as “treasury shares”).

• (2) Where a company—

• (a) has acquired, under section 105, shares and cancelled them; or

• (b) is about to so acquire shares and cancel them upon their acquisition,

it shall have power to issue shares up to the nominal amount of the shares so acquired, or to be so acquired, as if those shares had never been issued.

• (3) No cancellation of shares under subsection (1) shall be taken as reducing the amount of the company’s authorised share capital (if any).

• (4) Where the shares are—

• (a) under section 105, acquired wholly out of the profits available for distribution; or

• (b) under section 105, acquired wholly or partly out of the proceeds of a fresh issue and the aggregate amount of those proceeds (disregarding any part of those proceeds used to pay any premium on the acquisition) is less than the aggregate nominal value of the shares acquired (the “aggregable difference”),

then a sum equal to, in the case of paragraph (a), the nominal value of the shares acquired and, in the case of paragraph (b), the aggregable difference shall be transferred to undenominated capital of the company, other than its share premium account.

• (5) The amount by which the consideration paid for the acquisition of redeemable preference shares allotted before 1 February 1990 exceeds the consideration received by the company on the issue of those shares may be paid from undenominated capital.

• (6) Section 105 shall not apply to the redemption of preference shares referred to in section 108 and no such shares may be the subject of purchase under section 105.

107. Assignment or release of company’s right to purchase own shares

107. (1) Any purported assignment of the rights of a company under any contract authorised under section 105 shall be void.

• (2) Nothing in subsection (1) shall prevent a company from releasing its right under any contract authorised under section 105 provided that the release has been authorised by special resolution of the company before the release is entered into, and any such purported release by a company which has not been authorised in that manner shall be void.

• (3) Subsections (5) to (9) of section 105 shall apply to a resolution under subsection (2) and, for the purposes of this subsection, subsection (8) of section 105 shall have effect as if the references in it to the contract of purchase were references to the release concerned.

108. Power to redeem preference shares issued before 5 May 1959

108. (1) Subject to the provisions of this section, a company may, if so authorised by its constitution, redeem any preference shares issued by it before 5 May 1959 provided that—

• (a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for distribution or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;

• (b) no such shares shall be redeemed at a sum greater than the issue price of such shares;

• (c) the redemption of such shares and the terms and the manner of the redemption shall have been authorised by a special resolution of the company;

• (d) notice of the meeting at which the special resolution referred to in paragraph (c) is to be proposed and a copy of that resolution shall be published in Iris Oifigiúil and in at least one daily newspaper circulating in the district in which the registered office of the company is situated not less than 14 days and not more than 30 days before the date of the meeting;

• (e) no holder of such shares shall be obliged to accept redemption of them;

• (f) the redemption shall have been sanctioned by the court.

• (2) The powers conferred by this section may be availed of only by means of an offer made to all the holders of the preference shares concerned.

• (3) Where any such shares are redeemed otherwise than out of the proceeds of a fresh issue, there shall, out of profits which would otherwise have been available for distribution be transferred to undenominated capital, other than the share premium account a sum equal to the nominal amount of the shares redeemed.

• (4) Subject to the provisions of this section, the redemption of preference shares under this section may be effected on such terms and in such manner as may be provided by the special resolution referred to in subsection (1)(c).

• (5) The redemption of preference shares under this section by a company shall not be taken as reducing the amount of the company’s authorised share capital (if any).

• (6) Where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued.

109. Treasury shares

109. (1) The nominal value of treasury shares held by a company may not, at any one time, exceed 10 per cent of its company capital.

• (2) For the purposes of subsection (1), the following shall also be deemed to be treasury shares held by the company—

• (a) shares held in the company by any subsidiary in pursuance of section 114;

• (b) shares held in the company by any person acting in his or her own name but on the company’s F51[behalf;]

• F52[(c) shares previously issued by a successor company, and held by a transferor company, which are acquired by a successor company pursuant to section 480 or 503.]

• (3) For the purposes of subsection (1), shares of the company acquired by it otherwise than for valuable consideration shall not be deemed to be treasury shares.

• (4) For so long as the company holds shares as treasury shares—

• (a) the company shall not exercise any voting rights in respect of those shares and any purported exercise of those rights shall be void; and

• (b) no dividend or other payment (including any payment in a winding up of the company) shall be payable to the company in respect of those shares.

• (5) The manner in which shares held by a company as treasury shares are to be treated in the company’s entity financial statements is provided for in section 320(1) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided).

• (6) Treasury shares may either be—

• (a) cancelled by the company in which case section 106 shall apply as if the shares had been cancelled on their acquisition; or

• (b) subject to subsections (7) to (9), re-issued as shares of any class or classes.

• (7) A re-issue of shares under this section shall be deemed for all the purposes of this Act to be an issue of shares but the issued share capital of the company shall not be regarded for any purpose as having been increased by the re-issue of the shares.

• (8) Unless the case falls within subsection (9), the maximum and minimum prices at which treasury shares may be re-allotted (the “re-allotment price range”) shall be determined by special resolution of the company passed before any contract for the re-allotment of the shares is entered into.

• (9) In a case where the whole or a part of the treasury shares to be re-allotted are derived from shares acquired by the company under this Part on foot of the authority of a special resolution of the company, the re-allotment price range of the whole or such part (as the case may be) of those shares shall be determined by special resolution of the company passed at the meeting at which the first-mentioned resolution in this subsection has been passed.

• (10) Any determination referred to in subsection (8) or (9)—

• (a) may fix different maximum and minimum prices for different shares; and

• (b) shall, for the purposes of subsection (8) or (9), as the case may be, remain effective with respect to those shares for the requisite period.

• (11) The company may from time to time, by special resolution, vary or renew a determination of re-allotment price range under subsection (8) or (9) with respect to particular treasury shares before any contract for re-allotment of those shares is entered into and any such variation or renewal shall, for the purposes of this subsection, remain effective as a determination of the re-allotment price range of those shares for the requisite period.

• (12) A re-allotment by a company of treasury shares in contravention of subsection (8), (9), (10) or (11) shall be unlawful.

• (13) In this section “requisite period” means the period of 18 months after the date of the passing of the resolution determining the re-allotment price range or varying or renewing (as the case may be) such determination or such lesser period as the resolution may specify.

110. Incidental payments with respect to acquisition of own shares

110. (1) Any payment made by a company in consideration of—

• (a) acquiring any right with respect to the purchase of its own shares in pursuance of a contract authorised under section 105;

• (b) the variation of a contract authorised under section 105; or

• (c) the release of any of the company’s obligations with respect to the purchase of any of its own shares under a contract authorised under section 105,

shall be unlawful if any such payment is made otherwise than out of distributable profits of the company or, in the circumstances in which the proceeds of such an issue are permitted to be used by this Part for the purpose of the purchase of the shares, the proceeds of a new issue of shares.

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

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

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

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

111. Effect of company’s failure to redeem or purchase

111. (1) This section applies to—

• (a) redeemable shares issued after 1 February 1991;

• (b) shares which have been converted into redeemable shares; and

• (c) shares which a company has agreed to purchase pursuant to section 105.

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

• (3) Neither the High Court nor the Circuit Court shall grant an order for specific performance of the terms of redemption or purchase of the shares to which this section applies if the company shows that it is unable to meet the cost of redeeming or purchasing the shares out of profits available for distribution.

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

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

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

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

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

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

• (b) if other shares carry rights, whether as to capital or to income, which are preferred to the rights as to capital attaching to the first-mentioned shares, any amount due in satisfaction of those preferred rights, but subject to that, any such amount shall be paid in priority to any amounts due to members in satisfaction of their rights (whether as to capital or income) as members.

• (7) Where, by virtue of the application by section 619 of the rules of bankruptcy in the winding up of insolvent companies, a creditor of a company is entitled to payment of any interest only after payment of all other debts of the company, the company’s debts and liabilities shall for the purposes of subsection (6) include the liability to pay that interest.

112. Retention and inspection of documents

112. (1) A company which enters into a contract under section 105 shall, until the expiration of 10 years after the date on which the contract has been fully performed, keep at its registered office a copy of that contract or, if it is not in writing, a memorandum of its terms.

• (2) Every document required to be kept under subsection (1) shall during business hours be open to the inspection of any member.

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

• (4) Section 127(1) (access to documents during business hours) shall apply in relation to subsection (2) as it applies in relation to the relevant provisions of Part 4.

• (5) 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.

113. Membership of holding company

113. (1) Subject to section 114 and the other provisions of this Act, a company cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.

• (2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary of it is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.

• (3) This section shall not prevent a subsidiary which on 5 May 1959 was a member of its holding company from continuing to be a member.

• (4) This section shall not prevent a company which, at the date on which it becomes a subsidiary of another company is a member of that other company, from continuing to be a member.

• (5) This section shall not prevent the subscription, acquisition or holding of shares in its parent public company by a company which is a member of an authorised market operator acting in its capacity as a professional dealer in securities in the normal course of its business.

• (6) This section shall not prevent a subsidiary which is a member of its holding company from accepting and holding further shares in the capital of its holding company if—

• (a) such further shares are allotted to it in consequence of a capitalisation by such holding company; and

• (b) the terms of such capitalisation are such that the subsidiary is not thereby involved in any obligation to make any payment or to give other consideration for such further shares.

• (7) Subject to subsection (2), a subsidiary which is a member of its holding company shall have no right to vote at meetings of the holding company or any class of members of it.

• (8) The manner in which shares held (in the circumstances permitted by this section) in a holding company by the subsidiary are to be treated in—

• (a) the subsidiary’s entity financial statements is provided for in section 320(2) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided); and

• (b) the group financial statements, if any, of the holding company is provided for in section 320(3).

• (9) Subject to subsection (2), this section shall apply in relation to a nominee for the company firstly referred to in subsection (1), as if references in this section to such a company included references to a nominee for it.

• (10) Where a holding company makes an offer of shares to its members, it may sell, on behalf of a subsidiary, any such shares which the subsidiary could, but for this section, have taken by virtue of shares already held by it in the holding company and pay the proceeds of sale to the subsidiary.

114. Holding by subsidiary of shares in its holding company

114. (1) Notwithstanding section 82 or 113, a company may, subject to the provisions of this section, acquire and hold shares in a company which is its holding company.

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

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

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

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

• (ii) the manner in which shares so held by the subsidiary are to be treated in—

• (I) the subsidiary’s entity financial statements is provided for in section 320(2) (which also contains provision restricting the profits available for distribution by reference to the accounting treatment of such shares there provided); and

• (II) the group financial statements, if any, of the holding company is provided for in section 320(3).

• (3) A contract for the acquisition (whether by allotment or transfer) by a subsidiary of shares in its holding company shall not be entered into without being authorised in advance both by the subsidiary and its holding company and the provisions of sections 105 and 107 shall apply, with the necessary modifications, to the granting, variation, revocation and release of such authority.

• (4) For the purposes of this section and section 320, a subsidiary’s profits available for distribution shall not include the profits attributable to any shares in the subsidiary for the time being held by the subsidiary’s holding company, so far as they are profits for the period before the date on or from which the shares were acquired by the holding company.

• (5) This section shall not apply to shares held by a subsidiary in its holding company in the circumstances permitted by section 113.

• (6) No authorisation is required to be given under subsection (3) by any body corporate unless it is a company formed and registered under this Act or an existing company.

• (7) Nothing in this section limits the operation of section 102(4).

115. Civil liability for improper purchase in holding company

115. (1) This section applies where—

• (a) the winding up of a company which has acquired shares in its holding com5pany in accordance with section 114 commences within 6 months after the date of such acquisition; and

• (b) the company is, at the time of the commencement of the winding up, unable to pay its debts (taking into account the contingent and prospective liabilities).

• (2) Where this section applies the court, on the application of a liquidator, creditor, employee or contributory of the company, may, subject to subsection (3), declare that the directors of the company shall be jointly and severally liable to repay to the company the total amount paid by the company for the shares.

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

116. Return to be made to Registrar

116. (1) A company which has acquired shares pursuant to this Part shall, within 30 days after the date of delivery to the company of those shares, deliver to the Registrar a return in the prescribed form stating, with respect to shares of each class acquired, the number and nominal value of those shares and the date on which they were delivered to the company.

• (2) Particulars of shares delivered to the company on different dates and under different contracts may be included in a single return to the Registrar.

• (3) 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.

CHAPTER 7 Distributions

117. Profits available for distribution

117. (1) A company shall not make a distribution except out of profits available for the purpose.

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

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

• F53[(4) For the purposes of subsections (2) and (3)—

• (a) where the company prepares Companies Act entity financial statements, any provision or value adjustment (within the meaning of Schedule 3, 3A or 3B, as the case may be) shall be treated as a realised loss other than a value adjustment in respect of any diminution in value of a fixed asset appearing on a revaluation of all the fixed assets or of all the fixed assets other than goodwill (and this qualification is referred to in subsections (5) and (6) as "the exception to subsection (4)(a)"), and

• (b) where the company prepares IFRS financial statements, a provision or value adjustment of any kind shall be treated as a realised loss.]

• (5) Subject to section 121(6) and the next subsection, any consideration by the directors of a company of the value at any particular time of any fixed asset of the company shall be treated as a revaluation of that asset for the purposes of determining whether any such revaluation of the company’s fixed assets, as is required for the purposes of the exception to subsection (4)(a), has taken place at that time.

• (6) However where any such assets which have not actually been revalued are treated as revalued for those purposes by virtue of the preceding subsection, the exception to subsection (4)(a) shall only apply if the directors are satisfied that the aggregate value of those assets at the time in question is not less than the aggregate amount at which they are for the time being stated in the company’s Companies Act entity financial statements.

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

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

• (9) Notwithstanding anything in the preceding subsections of this section, but without prejudice to any contrary provision of—

• (a) an order of, or undertaking given to, the court;

• (b) the resolution for, or any other resolution relevant to, the reduction of company capital; or

• (c) the company’s constitution,

a reserve arising from the reduction of a company’s company capital is to be treated, both for the purposes of this section and for purposes otherwise, as a realised profit.

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

118. Prohibition on pre-acquisition profits or losses being treated in holding company’s financial statements as profits available for distribution

118. (1) Subject to subsections (3) and (4), any amount of the accumulated profits or losses attributable to any shares in a subsidiary for the time being held by a holding company or any other of its subsidiaries shall not, for any purpose, be treated in the holding company’s financial statements as profits available for distribution so far as that amount relates to accumulated profits or losses for the period before the date on or as from which the shares were acquired by the company or any of its subsidiaries (which period is referred to in subsection (2) as the “pre-acquisition period”).

• (2) For the purpose of determining whether any profits or losses are to be treated as profits or losses for the pre-acquisition period, the profit or loss for any financial year of the subsidiary may, if it is not practicable to apportion it with reasonable accuracy by reference to the facts, be treated as accruing from day to day during that year and be apportioned accordingly.

• (3) If the Summary Approval Procedure is followed in respect of such treatment, subsection (1) does not prohibit—

• (a) the whole of the amount referred to in that subsection; or

• (b) such proportion of that amount as is specified in the declaration referred to in section 205,

being treated as profits available for distribution by the holding company for the period, and the period only, referred to in section 202(1)(a) (as that provision applies by virtue of section 202(2) and (3)).