Companies Act 2014

• (i) no person may be appointed under this paragraph unless the person’s appointment has first been approved by the court on the application to it of the company concerned;

• (ii) the directors of each company may appoint the same person or persons for that purpose;

or

• (b) in relation to all the companies involved in the division, by one or more persons appointed for that purpose by the court, on the application to it of all of the companies so involved.

• (3) The person so appointed, or each person so appointed, is referred to in this Chapter as an “expert” and a reference in this Chapter to a report of an expert or other action (including an opinion) of an expert shall, in a case where there are 2 or more experts, be read as reference to a joint report or joint other action (including an opinion) of or by them.

• (4) A person shall not be appointed an expert unless the person is a qualified person.

• (5) A person is a qualified person for the purposes of this section if the person—

• (a) is a statutory auditor; and

• (b) is not—

• (i) a person who is or, within the period of 12 months before the date of the common draft terms of division has been, an officer or employee of any of the companies involved in the division;

• (ii) except with the leave of the court, a parent, spouse, civil partner, brother, sister or child of an officer of any of the companies involved in the division (and a reference in this subparagraph to a child of an officer shall be deemed to include a child of the officer’s civil partner who is ordinarily resident with the officer and the civil partner); or

• (iii) a person who is a partner, or in the employment, of an officer or employee of any of the companies involved in the division.

• (6) The report of the expert shall be made available not less than 30 days before the date of the passing of the resolution referred to in section 1159 by each of the companies involved in the division, shall be in writing and shall—

• (a) state the method or methods used to arrive at the proposed share exchange ratio;

• (b) give the opinion of the expert as to whether the proposed share exchange ratio is fair and reasonable;

• (c) give the opinion of the expert as to the adequacy of the method or methods used in the case in question;

• (d) indicate the values arrived at using each such method;

• (e) give the opinion of the expert as to the relative importance attributed to such methods in arriving at the values decided on; and

• (f) specify any special valuation difficulties which have arisen.

• (7) The expert may—

• (a) require each of the companies involved in the division and their officers to give to the expert such information and explanations (whether oral or in writing), and

• (b) make such enquiries,

as the expert thinks necessary for the purposes of making the report.

• (8) If a company involved in the division fails to give to the expert any information or explanation in the power, possession or procurement of that company, on a requirement being made of it under subsection (7)(a) by the expert, that company and any officer of it who is in default shall be guilty of a category 2 offence.

• (9) If a company involved in the division makes a statement (whether orally or in writing), or provides a document, to the expert that conveys or purports to convey any information or explanation the subject of a requirement made of it under subsection (7)(a) by the expert and—

• (a) that information is false or misleading in a material particular, and

• (b) the company knows it to be so false or misleading or is reckless as to whether it is so false or misleading,

the company and any officer of it who is in default shall be guilty of a category 2 offence.

• (10) If a person appointed an expert under subsection (2)(a) or (b) ceases to be a qualified person, that person—

• (a) shall immediately cease to hold office; and

• (b) shall give notice in writing of the fact of the person’s ceasing to be a qualified person to each company involved in the division and (in the case of an appointment under subsection (2)(b)) to the court within 14 days after the date of that cessation,

but without prejudice to the validity of any acts done by the person under this Chapter before that cessation.

• (11) A person who purports to perform the functions of an expert (in respect of the division concerned) under this Chapter after ceasing to be a qualified person (in respect of that division) shall be guilty of a category 2 offence.

• (12) This section shall not apply if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:

• (a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of each of the companies involved in the division have agreed that this section shall not apply; or

• (b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of any of the companies involved in the division is that a holder of securities of the company has consented thereto—

• (i) the agreement mentioned in paragraph (a) exists; and

• (ii) all of the holders of securities of the company or companies in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.

• (13) This section shall not apply in relation to a company involved in a division by formation of new companies where the shares in each of the successor companies are allocated to the shareholders of the transferor company in proportion to their rights in the capital of that company.

1156. Division financial statement

1156. (1) Subject to subsections (6) and (8), where the latest statutory financial statements of any of the companies involved in the division relate to a financial year ended more than 6 months before the date of the common draft terms of division then that company shall prepare a division financial statement in accordance with the provisions of this section.

• (2) The division financial statement shall be drawn up—

• (a) in the format of the last annual balance sheet, if any, of the company and in accordance with the provisions of Part 6; and

• (b) as at a date not earlier than the first day of the third month preceding the date of the common draft terms of division.

• (3) Valuations shown in the last annual balance sheet, if any, shall, subject to the exceptions provided for under subsection (4), only be altered to reflect entries in the accounting records of the company.

• (4) Notwithstanding subsection (3), the following shall be taken into account in preparing the division financial statement—

• (a) interim depreciation and provisions; and

• (b) material changes in actual value not shown in the accounting records.

• (5) The provisions of Part 6 relating to the statutory auditor’s report on the last statutory financial statements of the company concerned shall apply, with any necessary modifications, to the division financial statement required of the company by subsection (1).

• (6) This section shall not apply in relation to a company involved in a division which makes public a half-yearly financial report covering the first 6 months of its financial year pursuant to the provision referred to in subsection (7) if that company makes that report available for inspection pursuant to section 1158.

• (7) The provision referred to in subsection (6) is, as appropriate—

• (a) Regulation 6 of the Transparency (Directive 2004/109/EC) Regulations 2007 (S.I. No. 277 of 2007) which regulations are continued in force by Schedule 6; or

• (b) if regulations under section 1380 are made and those regulations—

• (i) replace the regulations referred to in paragraph (a) — the provision of those replacement regulations corresponding to the foregoing Regulation 6; or

• (ii) amend the foregoing Regulation 6 — that Regulation as it stands so amended.

• (8) This section shall not apply to a company involved in a division if the following condition is, or (as appropriate) the following 2 conditions are, satisfied:

• (a) other than in a case falling within paragraph (b), all of the holders of shares conferring the right to vote at general meetings of the company have agreed that this section shall not apply; or

• (b) where a requirement for the taking effect of a vote (whether a vote generally or of the type to which this subsection applies) by holders of shares of the company is that a holder of securities of the company has consented thereto—

• (i) the agreement mentioned in paragraph (a) exists; and

• (ii) all of the holders of securities in respect of which the requirement mentioned in this paragraph operates have agreed that this section shall not apply.

1157. Registration and publication of documents

1157. (1) Subject to subsection (3), each of the companies involved in the division shall—

• (a) deliver to the Registrar a copy of the common draft terms of division, signed and dated as required by section 1153(7);

• (b) cause to be published in the CRO Gazette notice of delivery to the Registrar of the common draft terms of division.

• (2) The requirements of subsection (1) shall be fulfilled by each of the companies involved in the division at least 30 days before the date of the general meeting of each such company which, by virtue of section 1159, is held to consider the common draft terms of division.

• (3) This section shall not apply in relation to a company involved in the division if the company—

• (a) publishes, free of charge on its website for a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 1159, is to consider the common draft terms of division and ending at least 30 days after that date, a copy of the common draft terms of division, signed and dated pursuant to section 1153(7); and

• (b) causes to be published in the CRO Gazette and once at least in 2 daily newspapers circulating in the district in which the registered office or principal place of business of the company is situate notice of publication on its website of the common draft terms of division.

• (4) Where, in the period referred to in subsection (3)(a), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (3)(a) shall be extended for a period corresponding to the period or periods of disruption.

1158. Inspection of documents

1158. (1) Subject to subsections (5) and (6), each of the companies involved in the division shall, in accordance with subsection (3), make available for inspection free of charge by any member of the company at its registered office during business hours—

• (a) the common draft terms of division;

• (b) subject to subsection (2), the statutory financial statements for the preceding 3 financial years of each company (audited, where required by that Part, in accordance with Part 6);

• (c) if such a report is required to be prepared by that section, each explanatory report in relation to the companies involved in the division referred to in section 1154;

• (d) if such a report is required to be prepared by that section, the expert’s report relating to each of the companies involved in the division referred to in section 1155;

• (e) each division financial statement, if any, in relation to one or, as the case may be, more than one of the companies involved in the division, required to be prepared by section 1156 or, as appropriate, its half-yearly financial report referred to in subsection (6) of that section.

• (2) For the purposes of paragraph (b) of subsection (1)—

• (a) if any of the companies involved in the division has traded for less than 3 financial years before the date of the common draft terms of division, then, as respects that company, that paragraph is satisfied by the statutory financial statements for those financial years for which the company has traded (audited, where required by that Part, in accordance with Part 6) being made available as mentioned in that subsection by each of the companies involved in the division, or

• (b) if, by reason of its recent incorporation, the obligation of any of the foregoing companies to prepare its first financial statements under Part 6 had not arisen as of the date of the common draft terms of division, then the reference in that paragraph to the financial statements of that company shall be disregarded.

• (3) The provisions of subsection (1) shall apply in the case of each of the companies involved in the division for a period of 30 days before the date of the meeting of each such company which, by virtue of section 1159, is held to consider the common draft terms of division.

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

• (5) Subsection (1)(e) shall not apply in relation to a company involved in a division by formation of new companies where the shares in each of the successor companies are allocated to the shareholders of the transferor company in proportion to their rights in the capital of that company.

• (6) Subject to subsection (7), subsection (1) shall not apply in relation to a company involved in a division if it publishes free of charge on its website the documents specified in that subsection for a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 1159, is to consider the common draft terms of division and ending at least 30 days after that date.

• (7) Subsection (6) shall not apply where the entitlement referred to in section 1159(4) does not apply in consequence of the application of section 1160(2).

• (8) Where, in the period referred to in subsection (6), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (6) shall be extended for a period corresponding to the period or periods of disruption.

• (9) A reference in this section to statutory financial statements shall be deemed to include a reference to a directors’ report and a reference to auditing shall, in the case of such a report, be read as a reference to the operation referred to in section 336(5).

1159. General meetings of companies involved in a division

1159. (1) In this section a reference to a general meeting, without qualification, is a reference to a general meeting referred to in subsection (2).

• (2) Subject to subsections (7) and (10) and without prejudice to section 1161, the subsequent steps under this Chapter in relation to the division shall not be taken unless the common draft terms of division have been approved by a special resolution passed at a general meeting of each of the companies involved in the division.

• (3) In addition, where the division is a division by formation of new companies, those subsequent steps shall not be taken unless the constitution or draft constitution of each of the new companies has been approved by a special resolution of the transferor company.

• (4) Subject to section 1160(2), the notice convening the general meeting referred to in subsection (2) shall contain a statement of every shareholder’s entitlement to obtain on request, free of charge, full or, if so desired, partial copies of the documents referred to in section 1158(1) (and, accordingly, every shareholder has, subject to the foregoing provision, that entitlement).

• (5) The directors of the transferor company shall inform—

• (a) the general meeting of that company, and

• (b) the directors of the successor companies,

of any material change in the assets and liabilities of the transferor company that occurs between the date of the common draft terms of division and the date of that general meeting.

• (6) On being so informed of them, the directors of each such other company involved in the division shall inform the general meeting of that company of the matters referred to in subsection (5); this and the preceding subsection operate subject to subsections (10)(c) and (11).

• (7) Approval, by means of a special resolution, of the common draft terms of division is not required in the case of a successor company (in subsections (8) and (9) referred to as the “particular successor company”) if the conditions specified in subsection (8) have been satisfied.

• (8) The conditions referred to in subsection (7) are the following:

• (a) the provisions of sections 1157 and 1158 are complied with at least 30 days before the date of the general meeting of the transferor company; and

• (b) the right, conferred by subsection (9), to requisition a general meeting of the particular successor company has not been exercised during that period of 30 days.

• (9) One or more members of the particular successor company who hold or together hold not less than 5 per cent of the paid-up capital of the company which carries the right to vote at general meetings of the company (excluding any shares held as treasury shares) may require the convening of a general meeting of the company to consider the common draft terms of division, and section 178(3) to (7) apply, with any necessary modifications, in relation to the requisition.

• (10) Approval, by means of a special resolution, of the common draft terms of division is not required in the case of the transferor company if the following conditions have been satisfied:

• (a) the successor companies together hold all of the shares carrying the right to vote at general meetings of the transferor company;

• (b) the companies involved in the division comply with the provisions of sections 1157 and 1158 at least 30 days before the earlier of the dates specified in paragraphs (f) and (g) of section 1153(2); and

• (c) the condition specified in subsection (11).

• (11) The condition referred to in subsection (10)(c) is that the directors of the transferor company shall inform—

• (a) the members of that company, and

• (b) the directors of the successor companies,

of any material change in the assets and liabilities of the transferor company that has occurred since the date of the common draft terms of division and subsection (6) shall be read, as regards the information to which it applies, as referring to the foregoing information.

1160. Electronic means of making certain information available for purposes of section 1159

1160. (1) For the purposes of section 1159, but subject to subsection (2), where a shareholder has consented to the use by the company of electronic means for conveying information, the copies of the documents referred to in section 1158(1) may be provided, by electronic mail, to that shareholder by the company and the notice convening the general meeting referred to in section 1159(2) shall contain a statement to that effect.

• (2) The entitlement referred to in section 1159(4) shall not apply where, for the period specified in subsection (3), copies of the documents referred to in section 1158(1) are available to download and print, free of charge, from the company’s website by shareholders of the company.

• (3) The period referred to in subsection (2) is a continuous period of at least 2 months, commencing at least 30 days before the date of the general meeting which, by virtue of section 1159, is to consider the common draft terms of merger and ending at least 30 days after that date.

• (4) Where, in the period referred to in subsection (3), access to the company’s website is disrupted for a continuous period of at least 24 hours or for separate periods totalling not less than 72 hours, the period referred to in subsection (3) shall be extended for a period corresponding to the period or periods of disruption.

1161. Meetings of classes of shareholders

1161. (1) Where the share capital of any of the companies involved in the division is divided into shares of different classes the provisions referred to in subsection (2), with the exclusions specified in subsection (3), shall apply with respect to the variation of the rights attached to any such class that is entailed by the division.

• (2) Those provisions are:

• (a) if the particular company involved in the division is not a private company limited by shares, as appropriate—

• (i) section 982;

• (ii) section 1044;

• (iii) section 1250;

or

• (b) if the particular company involved in the division is a private company limited by shares, the provisions of Chapter 4 of Part 3 on the variation of the rights attached to any class of shares in a company.

• (3) There is excluded the following from the foregoing provisions:

• (a) section 88(9);

• (b) section 982(10) (including as it applies to a company other than a DAC);

• (c) section 89 (including as it applies to a company other than a private company limited by shares).

1162. Purchase of minority shares

1162. (1) Subject to subsection (5), any person being—

• (a) a shareholder in any of the companies involved in the division who voted against the special resolution of the company concerned relating to the common draft terms of division, or

• (b) in a case to which subsection (2) relates, any shareholder in the transferor company other than the successor company there referred to,

may, not later than 15 days after the relevant date, request the successor companies in writing to acquire his or her shares for cash.

• (2) This subsection relates to a case where a successor company (not being a company formed for the purpose of the division) holds 90 per cent or more (but not all) of the shares carrying the right to vote at general meetings of the transferor company.

• (3) Where a request is made by a shareholder in accordance with subsection (1), the successor companies (or such one, or more than one of them, as they may agree among themselves) shall purchase the shares of the shareholder at a price determined in accordance with the share exchange ratio set out in the common draft terms of division and the shares so purchased by any successor company shall be treated as treasury shares within the meaning of section 106.

• (4) Nothing in the preceding subsections limits the power of the court to make any order necessary for the protection of the interests of a dissenting minority in a company involved in a division.

• (5) This section shall not apply where the shares in each of the successor companies are allocated to the shareholders of the transferor company in proportion to their rights in the capital of that company.

• (6) In this section “relevant date” means—

• (a) in relation to a shareholder referred to in subsection (1)(a) — the date on which the resolution of the transferor company was passed;

• (b) in relation to a shareholder referred to in subsection (1)(b) — the date of publication of the notice of delivery of the common draft terms of division under section 1157(1)(b).

1163. Application for confirmation of division by court

1163. (1) An application under this section to the court for an order confirming a division shall be made jointly by all the companies involved in the division.

• (2) The application shall be accompanied by a statement of the size of the shareholding of any shareholder who has requested the purchase of his or her shares under section 1162 and of the measures which the successor companies propose to take to comply with the shareholder’s request.

1164. Protection of creditors and allocation of liabilities

1164. (1) A creditor of any of the companies involved in a division who—

• (a) at the date of publication of the notice under section 1157(1)(b) is entitled to any debt or claim against the company, and

• (b) can credibly demonstrate that the proposed division would be likely to put the satisfaction of that debt or claim at risk and that no adequate safe-guards have been obtained from the company or a successor company,

shall be entitled to object to the confirmation by the court of the division.

• (2) If the court deems it necessary in order to secure the adequate protection of creditors of any of the companies involved in the division it may—

• (a) determine a list of creditors entitled to object and the nature and amount of their debts or claims, and may publish notices fixing a day or days within which creditors not entered on the list are to claim to be so entered or are to be excluded from the right of objecting to the confirmation,

• (b) 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 either—

• (i) 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;

• (ii) a successor company, on behalf of the company liable for the debt or claim, securing payment of the debt or claim.

• (3) If, having regard to any special circumstances of the case it thinks proper so to do, the court may direct that subsection (2) shall not apply as regards any class of creditors.

• (4) Without prejudice to subsection (5), where—

• (a) a liability of the transferor company is not allocated by the common draft terms of division, and

• (b) it is not possible, by reference to an interpretation of those terms, to determine the manner in which it is to be allocated,

the liability shall become, jointly and severally, the liability of the successor companies.

• (5) If provision is not made by the common draft terms of division for the allocation of a liability incurred by, or which otherwise becomes attached to, the transferor company on or after the date of those draft terms then, subject to any provision the court may make in an order under section 1166, the liability shall become, jointly and severally, the liability of the successor companies.

• (6) 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.

1165. Preservation of rights of holders of securities

1165. (1) Subject to subsection (2), holders of securities, other than shares, in the transferor company to which special rights are attached shall be given rights in one or more of the successor companies at least equivalent to those they possessed in the transferor company.

• (2) Subsection (1) shall not apply—

• (a) where the alteration of the rights in a successor company has been approved—

• (i) by a majority of the holders of such securities at a meeting held for that purpose, or

• (ii) by the holders of those securities individually,

or

• (b) where the holders of those securities are entitled under the terms of those securities to have their securities purchased by a successor company.

1166. Confirmation order

1166. (1) Where an application is made under section 1163 to the court for an order confirming a division this section applies.

• (2) The court, on being satisfied that—

• (a) the requirements of this Chapter have been complied with,

• (b) proper provision has been made for—

• (i) any shareholder in any of the companies involved in the division who has made a request under section 1162, and

• (ii) any creditor of any of the companies who objects to the division in accordance with section 1164,

• (c) the rights of holders of securities other than shares in the transferor company are safeguarded in accordance with section 1165, and

• (d) where applicable, the relevant provisions referred to in section 1161(2) on the variation of the rights attached to any class of shares in any of the companies involved in the division have been complied with,

may make an order confirming the division with effect from such date as the court appoints (the “effective date”).

• (3) In the case of an asset or liability (including any contractual right or obligation or the obligation to make any cash payment), references in subsequent provisions of this section to the relevant successor company or companies are references to such one or (as the case may be) more than one of the successor companies—

• (a) as provided for in respect of the matter concerned by the common draft terms of division, or

• (b) in the cases or circumstances specified in whichever of the following is applicable, namely, section 1153(5) or (6) or section 1164(4) or (5)—

• (i) subject to where it permits such provision by an order of the court, as provided for in that applicable provision (including, where relevant, as regards the nature of the joint liability), or

• (ii) as provided for in an order of the court under this section.

• (4) The order of the court confirming the division shall, from the effective date, have the following effects:

• (a) each asset and liability of the transferor company is transferred to the relevant successor company or companies;

• (b) where no request has been made by shareholders under section 1162, all remaining members of the transferor company except any successor company (if it is a member of the transferor company) become members of the successor companies or any of them as provided by the common draft terms of division;

• (c) the transferor company is dissolved;

• (d) all legal proceedings pending by or against the transferor company shall be continued with the substitution, for the transferor company, of the successor companies or such of them as the court before which the proceedings have been brought may order;

• (e) the relevant successor company or companies is or are obliged to make to the members of the transferor company any cash payment required by the common draft terms of division;

• (f) every contract, agreement or instrument to which the transferor company is a party shall, notwithstanding anything to the contrary contained in that contract, agreement or instrument, be read and have effect as if—

• (i) the relevant successor company or companies had been a party or parties thereto instead of the transferor company,

• (ii) for any reference (however worded and whether express or implied) to the transferor company there were substituted a reference to the relevant successor company or companies, and

• (iii) any reference (however worded and whether express or implied) to the directors, officers, representatives or employees of the transferor company, or any of them—

• (I) were, respectively, a reference to the directors, officers, representatives or employees of the relevant successor company or companies or to such director, officer, representative or employee of that company or those companies as that company nominates or, as the case may be, those companies nominate for that purpose, or

• (II) in default of such nomination, were, respectively, a reference to the director, officer, representative or employee of the relevant successor company or companies who corresponds as nearly as may be to the first-mentioned director, officer, representative or employee;

• (g) every contract, agreement or instrument to which the transferor company is a party becomes a contract, agreement or instrument between the relevant successor company or companies and the counterparty with the same rights, and subject to the same obligations, liabilities and incidents (including rights of set-off), as would have been applicable thereto if that contract, agreement or instrument had continued in force between the transferor company and the counterparty;

• (h) any money due and owing (or payable) by or to the transferor company under or by virtue of any such contract, agreement or instrument as is mentioned in paragraph (g) shall become due and owing (or payable) by or to the relevant successor company or companies instead of the transferor company; and

• (i) an offer or invitation to treat made to or by the transferor company before the effective date shall be read and have effect, respectively, as an offer or invitation to treat made to or by the relevant successor company or companies.

• (5) The following provisions have effect for the purposes of subsection (4)—

• (a) “instrument” in that subsection includes—

• (i) a lease, conveyance, transfer or charge or any other instrument relating to real property (including chattels real); and

• (ii) an instrument relating to personalty;

• (b) paragraph (f)(ii) of that subsection applies in the case of references to the transferor company and its successors and assigns as it applies in the case of references to the transferor company personally;

• (c) paragraph (g) of that subsection applies in the case of rights, obligations and liabilities mentioned in that paragraph whether they are expressed in the contract, agreement or instrument concerned to be personal to the transferor company or to benefit or bind (as appropriate) the transferor company and its successors and assigns.

• (6) Without prejudice to subsections (7) and (8), such of the successor companies as is or are appropriate shall comply with registration requirements and any other special formalities required by law and as directed by the court for the transfer of the assets and liabilities of the transferor company to be effective in relation to other persons.

• (7) There shall be entered by the keeper of any register in the State—

• (a) upon production of a certified copy of the order under subsection (2); and

• (b) without the necessity of there being produced any other document (and, accordingly, any provision requiring such production shall, if it would otherwise apply, not apply),

the name of the relevant successor company (or, as appropriate, the names of the relevant successor companies) in place of the transferor company in respect of the information, act, ownership or other matter in that register and any document kept in that register.

• (8) Without prejudice to the generality of subsection (7), the Property Registration Authority, as respects any deed (within the meaning of section 32 of the Registration of Deeds and Title Act 2006) registered by that Authority or produced for registration by it, shall, upon production of the document referred to in subsection (7)(a) but without the necessity of there being produced that which is referred to in subsection (7)(b), enter the name of the relevant successor company (or, as appropriate, the names of the relevant successor companies) in place of the transferor company in respect of such deed.

• (9) Without prejudice to the application of subsection (7) to any other type of register in the State, each of the following shall be deemed to be a register in the State for the purposes of that subsection:

• (a) the register of members of a company referred to in section 169;

• (b) the register of holders of debentures of a public limited company kept pursuant to section 1121;

• (c) the register kept by a public limited company for the purposes of sections 1048 to 1053;

• (d) the register of charges kept by the Registrar pursuant to section 414;

• (e) the Land Registry;

• (f) any register of shipping kept under the Mercantile Marine Act 1955.

• (10) The court may, either by the order confirming the division or by a separate order, make provision for such matters as the court considers necessary to secure that the division shall be fully and effectively carried out.

• (11) If the taking effect of the division would fall at a time (being the time ascertained by reference to the general law and without regard to this subsection) on the particular date appointed under subsection (2) that is a time that would not, in the opinion of the court, be suitable having regard to the need of the parties to co-ordinate various transactions, the court may, in appointing a date under subsection (2) with respect to when the division takes effect, specify a time, different from the foregoing, on that date when the division takes effect and, where such a time is so specified—

• (a) the division takes effect on that time of the date concerned, and

• (b) references in this section to the effective date shall be read accordingly.

1167. Certain provisions not to apply where court so orders

1167. F934[(1)] Where the court makes an order confirming a division under this Chapter, the court may, if it sees fit for the purpose of enabling the division properly to have effect, include in the order provision permitting—

• (a) the giving of financial assistance which may otherwise be prohibited under section 82,

• (b) a reduction in company capital which may otherwise be restricted under section 84.

• F934[(2) Section 84 and subsection (1)(b) shall not have effect in respect of a company to which the resolution tools, powers or mechanisms provided for in Part 4 of the Bank Recovery and Resolution Regulations are applied or exercised.]

1168. Registration and publication of confirmation of division

1168. (1) If the court makes an order confirming a division, a certified copy of the order shall forthwith be sent to the Registrar by such officer of the court as the court may direct.

• (2) Where the Registrar receives a certified copy of the order of the court in accordance with subsection (1), the Registrar shall—

• (a) on, or as soon as practicable after, the effective date — register that certified copy and the dissolution of the transferor company, and

• (b) within 14 days after the date of that delivery — cause to be published in the CRO Gazette notice that a copy of an order of the court confirming the division has been delivered to him or her.

1169. Civil liability of directors and experts

1169. (1) Any shareholder of any of the companies involved in the division who has suffered loss or damage by reason of misconduct in the preparation or implementation of the division by a director of any such company or by the expert, if any, who has made a report under section 1155 shall be entitled to have such loss or damage made good to him or her by—

• (a) in the case of misconduct by a person who was a director of that company at the date of the common draft terms of division — that person;

• (b) in the case of misconduct by any expert who made a report under section 1155 in respect of any of the companies involved in the division — that person.

• (2) Without prejudice to the generality of subsection (1), any shareholder of any of the companies involved in the division who has suffered loss or damage arising from the inclusion of any untrue statement in any of the following, namely:

• (a) the common draft terms of division;

• (b) the explanatory report, if any, referred to in section 1154;

• (c) the expert’s report, if any, under section 1155;

• (d) the division financial statement, if any, prepared under section 1156;

shall, subject to subsections (3) and (4), be entitled to have such loss or damage made good to him or her—

• (i) in the case of the document or report referred to in paragraph (a), (b) or (d) — by every person who was a director of that company at the date of the common draft terms of division, or

• (ii) in the case of the report referred to in paragraph (c) — by the person who made that report in relation to that company.

• (3) A director of a company shall not be liable under subsection (2) if he or she proves—

• (a) that the document or report referred to in subsection (2)(a), (b) or (d), as the case may be, was issued without his or her knowledge or consent and that, on becoming aware of its issue, he or she forthwith informed the shareholders of that company that it was issued without his or her knowledge or consent, or

• (b) that as regards every untrue statement he or she had reasonable grounds, having exercised all reasonable care and skill, for believing and did, up to the time the division took effect, believe that the statement was true.

• (4) A person who makes a report under section 1155 in relation to a company shall not be liable in the case of any untrue statement in the report if he or she proves—

• (a) that, on becoming aware of the statement, he or she forthwith informed that company and its shareholders of the untruth, or

• (b) that he or she was competent to make the statement and that he or she had reasonable grounds for believing and did up to the time the division took effect believe that the statement was true.

1170. Criminal liability for untrue statements in division documents

1170. (1) Where any untrue statement has been included in—

• (a) the common draft terms of division,

• (b) the explanatory report, if any, referred to in section 1154, or

• (c) the division financial statement, if any, prepared under section 1156,

the following:

• (i) each of the persons who was a director of any of the companies involved in the division at the date of the common draft terms of division or, in the case of the foregoing explanatory report or division financial statement, at the time of the report’s or statement’s preparation; and

• (ii) any person who authorised the issue of the document;

shall be guilty of a category 2 offence.

• (2) Where any untrue statement has been included in the expert’s report prepared under section 1155, the expert and any person who authorised the issue of the report shall be guilty of a category 2 offence.

• (3) In any proceedings against a person in respect of an offence under subsection (1) or (2), it shall be a defence to prove that, having exercised all reasonable care and skill, the defendant had reasonable grounds for believing and did, up to the time of the issue of the document concerned, believe that the statement concerned was true.

CHAPTER 18 Public offers of securities, prevention of market abuse, etc.

1171. Application of Chapters 1, 2 and 4 of Part 23 to PLCs

1171. Chapters 1, 2 and 4 of Part 23 shall apply to a PLC.

PART 18 GUARANTEE COMPANIES

CHAPTER 1 Preliminary and definitions

1172. Definitions (Part 18)

1172. In this Part—

“company limited by guarantee” or “CLG” means a company which does not have a share capital and which, as provided under section 1176(2)(e), has the liability of its members limited by the constitution to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up;

“constitution” shall be read in accordance with section 1176(1).

1173. Application of Parts 1 to 14 to CLGs

1173. (1) The provisions of Parts 1 to 14 apply to a CLG except to the extent that they are disapplied or modified by—

• (a) this section, or

• (b) any other provision of this Part.

• (2) For the purposes of that application, section 10(1) shall have effect as if it read—

• “(1) Unless expressly provided otherwise, a reference in Parts 2 to 14 to a company is a reference to a CLG.”.

• (3) Any of Parts 1 to 14 that makes provision by reference to—

• (a) membership arising by virtue of a shareholding, or

• (b) right or incidents of membership, including the right to vote or receive a distribution, arising by virtue of a shareholding,

shall be read, in the case of a CLG, as making such provision in the analogous context in which membership, or rights or incidents of membership, may arise in the case of a CLG.

• (4) Subsection (3) is without prejudice to the generality of the application and adaptation of Parts 1 to 14 provided by subsections (1) and (2) or any specific adaptation provided by a subsequent section of this Part.

• (5) The provisions of this Act specified in the Table to this section shall not apply to a CLG.

• (6) The specification in the foregoing Table of a provision (a “specified provision”) of Parts 1 to 14 also operates to disapply to a CLG any other provision of those Parts (notwithstanding that it is not specified in that Table) that makes consequential, incidental or supplemental provision on, or in relation to, the specified provision.

Table

Subject matter	Provision disapplied
Way of forming a private company limited by shares	Section 17
Company to carry on activity in the State and prohibition of certain activities	Section 18
Form of the constitution	Section 19
Certificate of incorporation to state that company is a private company limited by shares	Section 25(3)
Provisions as to names of companies	Section 26(1) to (4)
Trading under a misleading name	Section 27
Capacity of private company limited by shares	Section 38
Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply	Chapter 6 of Part 2
Power to convert shares into stock, etc.	Section 65
Shares	Section 66
Numbering of shares	Section 67
Allotment of shares and variation in capital	Chapters 3 and 4 of Part 3
Transfer of shares	Chapter 5 of Part 3 (save section 94 in so far as it relates to debentures)
Acquisition of own shares	Chapter 6 of Part 3 (save sections 113 to 116)
Procedures for declarations, payments, etc., of dividends and other things	Section 124
Supplemental provisions in relation to section 124	Section 125
Bonus issues	Section 126
Directors	Section 128
Share qualifications of directors	Section 136
Director voting on contract, etc., in which director is interested	Section 161(7)
Holding of any other office or place of profit under the company by a director	Section 162
Majority written resolutions	Section 194
Supplemental provisions in relation to section 194	Section 195
Holding of own shares	Section 320(1)
Directors’ report as it relates to dividends	Section 326(1)(d)
Acquisition of shares	Chapter 2 of Part 9
Liability as contributories of past and present members	Section 655

CHAPTER 2 Incorporation and consequential matters

1174. Way of forming a CLG

1174. (1) A CLG may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the relevant provisions of—

• (a) Chapter 2 of Part 2, as applied by this Part, and

• (b) this Part,

in relation to registration of a CLG.

• (2) Without prejudice to the means by which a CLG may be formed under the relevant provisions referred to in subsection (1), a company may be registered as a CLG by means of—

• (a) the re-registration or registration as a CLG of a body corporate pursuant to Part 20 or 22,

• (b) the merger of 2 or more companies pursuant to Chapter 3 of Part 9, or

• (c) the division of a company pursuant to Chapter 4 of Part 9.

• (3) The certificate of incorporation issued under section 25(1) shall state that the company is a company limited by guarantee.

1175. CLG to carry on activity in the State

1175. A CLG shall not be formed and registered unless it appears to the Registrar that the CLG, when registered, will carry on an activity in the State, being an activity that is mentioned in its memorandum.

1176. The form of a CLG’s constitution

1176. (1) Subject to subsection (3), the constitution of a CLG shall be in the form of a memorandum of association and articles of association which together are referred to in this Part as a “constitution”.

• (2) The memorandum of association of a CLG shall state—

• (a) its name,

• (b) that it is a company limited by guarantee registered under this Part,

• (c) its objects,

• (d) that the liability of its members is limited, and

• (e) that each member undertakes that, if the company is wound up while he or she is a member, or within one year after the date on which he or she ceases to be a member, he or she will contribute to the assets of the company such amount as may be required for—

• (i) payment of the debts and liabilities of the company contracted before he or she ceases to be a member,

• (ii) payment of the costs, charges and expenses of winding up, and

• (iii) adjustment of the rights of contributories among themselves, not exceeding an amount specified in the memorandum.

• (3) The constitution of a CLG shall—

• (a) be in accordance with the form set out in Schedule 10 or as near thereto as circumstances permit,

• (b) be printed in an entire format, that is to say the memorandum and articles shall be contained in the one document, being a document either in legible form or (as long as it is capable of being reproduced in legible form) in non-legible form, and

• (c) either—

• (i) be signed by each subscriber in the presence of at least one witness who shall attest the signature, or

• (ii) be authenticated in the manner referred to in section 888.

• (4) Where, subsequent to the registration of the constitution, an amendment of the memorandum of association is made affecting a matter referred to in subsection (2), that subsection shall be read as requiring the memorandum to state the matter as it stands in consequence of that amendment.

1177. Supplemental provisions in relation to constitution and continuance in force of existing memorandum and articles

1177. (1) This section—

• (a) contains provisions as to the articles of a CLG,

• (b) provides that, in certain circumstances, a default position shall obtain in relation to the articles of a CLG, and

• (c) continues in force the memorandum and articles of a company limited by guarantee registered under the prior Companies Acts.

• (2) In this section—

“mandatory provision” means a provision of any of Parts 1 to 14 (as applied by this Part) or of this Part that is not an optional provision;

“optional provision” means a provision of any of Parts 1 to 14 (as applied by this Part) or of this Part that—

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

• (b) is otherwise of such import.

• (3) The articles of a CLG may contain regulations in relation to the CLG.

• (4) So far as the articles of a CLG do not exclude or modify an optional provision, that optional provision shall apply in relation to the CLG.

• (5) Subject to their compliance with section 1199(3) (articles must state the number of members with which the company proposes to be registered), articles may otherwise consist solely of a statement to the effect that the provisions of the Companies Act 2014 are adopted and, if the articles contain such a statement, subsection (4) shall apply.

• (6) The memorandum and articles of a company limited by guarantee registered before the commencement of this section shall—

• (a) save to the extent that they are inconsistent with a mandatory provision, and

• (b) in the case of the memorandum, subject to section 1190(6),

continue in force but may be altered or added to under and in accordance with the conditions under which memorandums or articles, whenever registered, are permitted by this Act to be altered or added to.

• (7) References in the provisions of a memorandum or articles so continued in force to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.

• (8) To the extent that a company limited by guarantee registered before the commencement of this section was, immediately before that commencement, governed by—

• (a) the regulations of Table C in the First Schedule to the Act of 1963, or

• (b) the regulations of any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963,

it shall, after that commencement, continue to be governed by those regulations but—

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

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

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

1178. Provisions as to names of CLGs

1178. (1) The name of a CLG shall end with one of the following:

— company limited by guarantee;

— cuideachta faoi theorainn ráthaíochta.

• (2) The words “company limited by guarantee” may be abbreviated to “c.l.g.” or “clg” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the CLG.

• (3) The words “cuideachta faoi theorainn ráthaíochta” may be abbreviated to “c.t.r.” or “ctr” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the CLG.

• (4) A CLG carrying on business under a name other than its corporate name shall register in the manner directed by law for the registration of business names but the use of the abbreviations set out in subsection (2) or (3) shall not of itself render such registration necessary.

• (5) This section is subject to F935[section 1190] (which makes transitional provision for an existing guarantee company as regards its name).

1179. Trading under a misleading name

1179. (1) Subject to subsection (5), neither a body that is not a CLG nor an individual shall carry on any trade, profession or business under a name which includes, as its last part, the words “company limited by guarantee”, or “cuideachta faoi theorainn ráthaíochta” or abbreviations of those words.

• (2) If a body or individual contravenes subsection (1), the body or individual and, in the case of a body, any officer of it who is in default, shall be guilty of a category 3 offence.

• (3) A CLG shall not, in the following circumstances, use a name which may reasonably be expected to give the impression that it is any type of a company other than a CLG or that it is any other form of body corporate.

• (4) Those circumstances are circumstances in which the fact that it is a CLG is likely to be material to any person.

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

• (6) Subsection (1) shall not apply to any company—

• (a) to which Part 21 applies, and

• (b) which has provisions in its constitution that would entitle it to rank as a CLG if it had been registered in the State.

1180. Power to dispense with “company limited by guarantee” or Irish equivalent in name of charitable and other companies

1180. (1) A CLG shall, notwithstanding its registration as a company with limited liability, be exempt from the provisions of this Act relating to the use of the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” as part of its name and the publishing of its name, but shall enjoy all the privileges and shall (subject to this section) be subject to all the obligations of a CLG, where—

• (a) its objects are the promotion of commerce, art, science, education, religion, charity or any other prescribed object, and

• (b) its constitution—

• (i) requires its profits (if any) or other income to be applied to the promotion of its objects,

• (ii) prohibits the making of distributions to its members, and

• (iii) requires all the assets which would otherwise be available to its members to be transferred on its winding up to another company whose objects comply with paragraph (a) and which meets the requirements of this paragraph,

and

• (c) a director or secretary of the company (or, in the case of an association about to be formed as a limited company, one of the persons who are to be the first directors or the person who is to be the first secretary of the company) has delivered to the Registrar a statement in the prescribed form that the company complies or, where applicable, will comply with the requirements of paragraphs (a) and (b).

• (2) The Registrar shall refuse to register as a CLG any association about to be formed as a CLG by a name which does not include the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” unless a statement, as provided for under subsection (1)(c), has been delivered to the Registrar.

• (3) An application by a company registered as a CLG for a change of name, being a change that includes or consists of the omission of the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta”, shall be made in accordance with section 30 and the Registrar shall refuse to accede to the application unless a statement, as provided for under subsection (1)(c), has been delivered to the Registrar.

• (4) A CLG which is exempt under subsection (1) and which is permitted to omit the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” from its name shall not alter its constitution so that it ceases to comply with the requirements of that subsection.

• (5) If it appears to the Registrar that a CLG which is registered under a name not including the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta”—

• (a) has carried on any business other than the promotion of any of the objects mentioned in subsection (1)(a),

• (b) has applied any of its profits or other income otherwise than in promoting such objects, or

• (c) has made a distribution to any of its members,

the Registrar may, in writing, direct the CLG to change its name within such period as may be specified in the direction so that its name ends with the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta”, and the change of name shall be made in accordance with section 30.

• (6) A CLG which has received a direction under subsection (5) shall not thereafter be registered by a name which does not include the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” without the approval of the Registrar.

• (7) A person who—

• (a) alters the constitution of a CLG in contravention of subsection (4), or

• (b) fails to comply with a direction from the Registrar under subsection (5),

shall be guilty of a category 3 offence.

• (8) Subsections (9) to (12) have effect notwithstanding—

• (a) the repeal by the Act of 2001 of section 24, as originally enacted, of the Act of 1963 (the “original section 24”), or

• (b) the repeal by this Act of section 24, inserted by section 88(1) of the Act of 2001, of the Act of 1963 (the “substituted section 24”) or of the Act of 2001.

• (9) A licence that—

• (a) had been granted by the Minister pursuant to subsection (1) or (2) of the original section 24 to a company limited by guarantee, and

• (b) is in force immediately before the commencement of this section,

shall, on and from whichever thing referred to in section 1190(5)(a) or (b) happens first, continue to have effect but with the modification that it shall operate to exempt the company from the use of the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” as part of its name and the publishing of its name.

• (10) Subsections (4) to (7) of the original section 24 shall continue in force in relation to the foregoing licence as if that section 24 had never been repealed, except that references in those subsections to the Minister, wherever occurring, shall be read as references to the Registrar.

• (11) An exemption that immediately before the repeal of the Act of 2001 operated, by virtue of the substituted section 24, in favour of a company limited by guarantee shall, on and from whichever thing referred to in section 1190(5)(a) or (b) happens first, continue to have effect but—

• (a) with the modification that it shall operate to exempt the company from the use of the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” as part of its name and the publishing of its name; and

• (b) subject to subsection (12).

• (12) Subsections (4) to (7) shall, with the necessary modifications, apply to a foregoing exemption as they apply to an exemption under subsection (1).

• (13) Subsections (9) to (12) are without prejudice to section 1190(4) (which saves for a limited period the effect of provisions of the prior Companies Acts (including section 88(2) of the Act of 2001) that impose a requirement, or confer an exemption from a requirement, with regard to the use of “limited” or “teoranta” or their abbreviations).

• (14) In relation to—

• (a) a CLG that avails itself of the exemption under subsection (1) or continues to avail itself of a licence or exemption referred to in subsection (9) or (11), and

• (b) an existing guarantee company (within the meaning of section 1189) that avails itself, during the period specified in section 1190(4), of an exemption conferred by a provision of the prior Companies Acts with regard to the use of “limited” or “teoranta” or their abbreviations,

section 151 shall have effect as if, in addition to the particulars specified in subsection (2)(a) to (c) of that section to be included on all business letters and order forms of the CLG, there were specified in that subsection the fact of the CLG being a limited company.

• (15) In this section “Act of 2001” means the Company Law Enforcement Act 2001.