Companies Act 2014

1181. Prohibition on certain provisions in constitution, etc. and issuing of shares

1181. (1) Any provision in the memorandum or articles of a CLG, or in any resolution of a CLG, purporting to give any person a right to participate in the divisible profits of the company, otherwise than as a member, shall be void.

• (2) Nothing in subsection (1) invalidates any distribution by a company limited by guarantee registered before 1 January 1901, on foot of a provision or resolution referred to in that subsection, if the distribution was made before the commencement of this section.

• (3) For the purposes of the provisions of this Part stipulating that a characteristic of a CLG is that it does not have a share capital and of this section, the following has effect—

• (a) every provision in the constitution, or in any resolution, of a CLG purporting to divide the undertaking of the CLG into shares or interests, shall be treated as a provision for a share capital, notwithstanding that the nominal amount or number of the shares or interests is not specified thereby, and

• (b) every such provision or resolution shall be void.

• (4) A CLG shall not purport to issue shares.

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

1182. Capacity of a CLG

1182. (1) A CLG shall have the capacity to do any act or thing stated in the objects set out in its memorandum.

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

• (a) the reference in it to an object includes a reference to anything stated in the memorandum as being a power to do any act or thing (whether the word “power” is used or not),

• (b) if an object is stated in the CLG’s memorandum without the following also being stated in relation to it, the capacity of the CLG extends to doing any act or thing that appears to it to be requisite, advantageous or incidental to, or to facilitate, the attainment of that object and that is not inconsistent with any enactment,

and a subsequent reference in this Part to an object of a CLG shall be read accordingly.

1183. Capacity not limited by a CLG’s constitution

1183. (1) The validity of an act done by a CLG shall not be called into question on the ground of lack of capacity by reason of anything contained in the CLG’s objects.

• (2) A member of a CLG may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the CLG’s capacity but no such proceedings shall lie in respect of any act to be done in fulfilment of a legal obligation arising from a previous act of the CLG.

• (3) Notwithstanding the enactment of subsection (1), it remains the duty of the directors to observe any limitations on their powers flowing from the CLG’s objects and action by the directors which, but for subsection (1), would be beyond the CLG’s capacity may only be ratified by the CLG by special resolution.

• (4) A resolution ratifying such action shall not affect any liability incurred by the directors or any other person; if relief from any such liability is to be conferred by the CLG it must be agreed to separately by a special resolution of it.

• (5) A party to a transaction with a CLG is not bound to enquire as to whether it is permitted by the CLG’s objects.

1184. Alteration of objects clause by special resolution

1184. (1) Subject to subsection (2), a CLG may, by special resolution, alter the provisions of its memorandum of association by abandoning, restricting or amending any existing object or by adopting a new object and any alteration so made shall be as valid as if originally contained therein, and be subject to alteration in like manner.

• (2) If an application is made to the court in accordance with this section for the alteration to be cancelled, it shall not have effect except in so far as it is confirmed by the court.

• (3) Subject to subsection (4), an application under this section may be made—

• (a) by not less than 15 per cent of the CLG’s members, or

• (b) by the holders of not less than 15 per cent of the CLG’s debentures, entitling the holders to object to alterations of its objects.

• (4) An application shall not be made under this section by any person who has consented to or voted in favour of the alteration.

• (5) An application under this section shall be made within 21 days after the date on which the resolution altering the CLG’s objects was passed and may be made on behalf of the persons entitled to make the application by such one or more of their number as they may appoint in writing for the purpose.

• (6) On an application under this section, the court may—

• (a) make an order cancelling the alteration or confirming the alteration, either wholly or in part, and on such terms and conditions as it thinks fit, and

• (b) if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissenting members and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement.

1185. Supplemental provisions in relation to section 1184

1185. (1) Where an order under section 1184 requires the CLG not to make any, or any specified, alteration in its constitution, then, notwithstanding anything in this Act, but subject to the provisions of the order, the CLG shall not have power, without the leave of the court, to make any such alteration in contravention of that requirement.

• (2) Any alteration in the constitution of a CLG made by virtue of an order under section 1184, other than one made by resolution of the CLG, shall be of the same effect as if duly made by resolution of the CLG and the provisions of this Act shall apply to the constitution as so altered accordingly.

• (3) Notice of the meeting at which the special resolution altering a CLG’s objects is intended to be proposed shall be given to any holders of the CLG’s debentures that entitle the holders to object to alterations of its objects; that notice shall be the same as that given to members of the CLG, so however that not less than 10 days’ notice shall be given to the holders of any such debentures.

• (4) If the written resolution procedure is used in the matter, notice, which shall not be less than 10 days, of the proposed use of that procedure shall, together with a copy of the proposed text of the resolution, be given to the debenture holders referred to in subsection (3).

• (5) In default of any provisions in the CLG’s constitution regulating the giving to the foregoing debenture holders of notice referred to in subsection (3) or (4), the provisions of Part 4 or, as the case may be, of the CLG’s constitution regulating the giving of notice to members shall apply.

• (6) Without prejudice to subsections (3) and (4), in the case of a CLG which is, by virtue of section 1180, permitted to omit the words “company limited by guarantee” or “cuideachta faoi theorainn ráthaíochta” from its name, notice of—

• (a) the meeting at which the special resolution altering a CLG’s objects is intended to be proposed; or

• (b) if the written resolution procedure is used in the matter, notice of the proposed use of that procedure, together with a copy of the proposed text of the resolution,

shall be given to the Registrar and subsections (3) to (5) shall apply as respects such notice as they apply as respects notice of the meeting or resolution to debenture holders.

• (7) Where a CLG passes a resolution altering its objects—

• (a) if no application is made under section 1184 with respect to the alteration, it shall, within 15 days after the end of the period for making such an application, deliver to the Registrar a copy of its memorandum of association as altered, and

• (b) if such an application is made, it shall—

• (i) forthwith give notice of that fact to the Registrar, and

• (ii) within 15 days after the date of any order cancelling or confirming the alteration, deliver to the Registrar a certified copy of the order and, in the case of an order confirming the alteration, a copy of the memorandum as altered.

• (8) The court may by order at any time extend the time for delivery of documents to the Registrar under subsection (7)(b) for such period as the court may think proper.

• (9) If a CLG makes default in giving notice or delivering any document to the Registrar as required by subsection (7), the CLG and any officer of it who is in default shall be guilty of a category 4 offence.

1186. Restriction of section 32(1) in relation to CLGs

1186. (1) Other than in respect of making an amendment of the type specified in subsection (2), section 32(1) shall not apply in relation to a CLG.

• (2) The amendment referred to in subsection (1) is an amendment of the amount referred to in section 1176(2)(e) that is specified in the CLG’s memorandum.

1187. Alteration of articles by special resolution

1187. (1) Subject to the provisions of this Act and to the conditions contained in its memorandum, a CLG may, by special resolution, alter or add to its articles.

• (2) Any alteration or addition so made in the articles shall, subject to the provisions of this Act, be as valid as if originally contained therein and be subject in like manner to alteration by special resolution.

1188. Power to alter provisions in memorandum which could have been contained in articles

1188. (1) Subject to subsection (2), sections 32(4) and (5) and 212, any provision contained in a CLG’s memorandum which could lawfully have been contained in articles instead of in the memorandum may, subject to the provisions of this section, be altered by the CLG by special resolution.

• (2) If an application is made to the court for the alteration to be cancelled, it shall not have effect except in so far as it is confirmed by the court.

• (3) This section shall not apply where the memorandum itself provides for or prohibits the alteration of all or any of the foregoing provisions, and shall not authorise any variation or abrogation of the special rights of any class of members.

• (4) section 1184(3) to (6) (other than subsection (3)(b)) and section 1185 (other than subsections (3) to (6)) shall apply in relation to any alteration and to any application made under this section as they apply in relation to alterations and to applications made under those sections.

1189. Status of existing guarantee company

1189. (1) In this section “existing guarantee company” means a company limited by guarantee, and not having a share capital, which—

• (a) was incorporated under any former enactment relating to companies (within the meaning of section 5), and

• (b) is in existence immediately before the commencement of this section.

• (2) An existing guarantee company shall, on and from the commencement of this section, continue in existence and be deemed to be a CLG to which this Part applies.

• (3) Section 1190 contains provisions—

• (a) for enabling such a company to continue to use, for a limited period, “limited” or “teoranta” in its name despite the foregoing status that it has assumed, and

• (b) subject to certain exceptions, deeming the name of such a company, after a specified period and in default of its having changed its name in that fashion, to be altered by the replacement of—

• (i) “company limited by guarantee” for “limited” at the end thereof, or

• (ii) “cuideachta faoi theorainn ráthaíochta” for “teoranta” at the end thereof, as the case may be.

• (4) Reference, express or implied, in this Act to the date of registration of a company mentioned in a preceding subsection shall be read as a reference to the date on which the company was registered under the Joint Stock Companies Act 1862, the Companies (Consolidation) Act 1908 or the prior Companies Acts, as the case may be.

1190. Transitional provision — use of “limited” or “teoranta” by existing guarantee company

1190. (1) In this section—

“existing guarantee company” has the same meaning as it has in section 1189;

“new provisions” means the provisions of this Part (and the relevant provisions of Part 2 as applied by this Part) relating to the use of either of the required sets of words (or their abbreviations) set out in subsection (2);

“transition period” means the period of 18 months beginning after the commencement of this section.

• (2) For the purposes of this section, each of the following is a required set of words—

• (a) company limited by guarantee,

• (b) cuideachta faoi theorainn ráthaíochta.

• (3) The reference—

• (a) in the preceding definition of “new provisions”, and

• (b) in subsection (4),

to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.

• (4) During—

• (a) the transition period, or

• (b) if before the expiry of that period the company has changed its name to include either of the required sets of words, the period preceding the making of that change,

the provisions of the prior Companies Acts relating to the use of limited or teoranta (or their abbreviations) shall apply as respects the name of an existing guarantee company in place of the new provisions.

• (5) On and from—

• (a) the expiry of the transition period, or

• (b) the company changing its name to include either of the required sets of words,

whichever happens first, the new provisions shall apply as respects the name of an existing guarantee company.

• (6) Without prejudice to the generality of subsection (5) and subject, where appropriate, to section 1180(9) to (12), on the expiry of the transition period (and the company has not changed its name before then to include either of the required sets of words), the name of an existing guarantee company, as set out in its memorandum, shall be deemed to be altered by the replacement of—

• (a) “company limited by guarantee” for “limited” at the end thereof, or

• (b) “cuideachta faoi theorainn ráthaíochta” for “teoranta” at the end thereof,

as the case may be.

• (7) Where an existing guarantee company’s name, as set out in its memorandum, is altered by virtue of subsection (6), the Registrar shall issue to the company a fresh certificate of incorporation in respect of it, being a certificate of incorporation that is altered to meet the circumstances of the case.

CHAPTER 3 Share capital

1191. Limitation on offers by CLGs of securities to the public

1191. Section 68 shall apply to a CLG as if the following subsection were substituted for subsection (2):

• “(2) A company shall—

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

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

  any market, whether a regulated market or not, in the State or elsewhere; however nothing in this subsection prohibits the admission to trading or listing (or an application being made therefor) on any market of debentures (or interests in them) for the purposes of any of paragraphs (a) to (e) of subsection (3).”.

1192. Application of section 114 in relation to CLGs

1192. In its application to this Part, section 114 shall apply as if each reference in it to the acquisition and holding of shares in a company included, in a case where the holding company is a CLG, a reference to becoming, and being, a member of the company otherwise than by means of acquiring and holding shares.

1193. Uncertificated transfer of securities

1193. Sections 1085 to 1087 shall apply to securities of a CLG as they apply to securities of a PLC.

1193A. F936[Application of Chapter 3A of Part 16 to CLGs

1193A. Chapter 3A of Part 16, in so far as it applies to a designated activity company, shall apply to a CLG.]

CHAPTER 4 Corporate governance

1194. Directors

1194. (1) A CLG shall have at least 2 directors.

• (2) Nothing in Parts 1 to 14 that makes provision in the case of a company having a sole director shall apply to a CLG.

1195. Limitation on number of directorships

1195. For the purposes of this Part, section 142 shall apply as if the following subsection were substituted for subsection (1):

• “(1) A person shall not, at a particular time, be a director of more than—

  • (a) 25 companies limited by guarantee, or

  • (b) 25 companies, one, or more than one, of which is a company limited by guarantee and one, or more than one, of which is any other type of company capable of being wound up under this Act.”.

1196. Rotation of directors

1196. (1) Each provision of this section applies save to the extent that the CLG’s constitution provides otherwise.

• (2) At the first annual general meeting of the CLG all the directors shall retire from office.

• (3) At the annual general meeting in every subsequent year, one-third of the directors for the time being, or, if their number is not 3 or a multiple of 3, then the number nearest one-third shall retire from office.

• (4) The directors to retire in every year shall be those who have been longest in office since their last election but as between persons who became directors on the same day, those to retire shall (unless they otherwise agree among themselves) be determined by lot.

• (5) A retiring director shall be eligible for re-election.

• (6) The CLG, at the meeting at which a director retires in any of the foregoing instances, may fill the vacated office by electing a person to it.

• (7) In default of the CLG doing so, the retiring director shall, if offering himself or herself for re-election, be deemed to have been re-elected, unless—

• (a) at such meeting it is expressly resolved not to fill such vacated office, or

• (b) a resolution for the re-election of such director has been put to the meeting and lost.

1197. Remuneration of directors

1197. (1) Each provision of this section applies save to the extent that the CLG’s constitution provides otherwise.

• (2) The remuneration of the directors of a CLG shall be such as is determined, from time to time, by the CLG in general meeting and such remuneration shall be deemed to accrue from day to day.

• (3) The directors of a CLG may also be paid all travelling, hotel and other expenses properly incurred by them—

• (a) in attending and returning from—

• (i) meetings of the directors or any committee referred to in section 160(9), or

• (ii) general meetings of the CLG,

or

• (b) otherwise in connection with the business of the CLG.

1198. Removal of directors

1198. Section 146 shall apply to a CLG with the omission of subsection (2) (exclusion of section’s application to a director holding office for life).

1199. Membership

1199. (1) The subscribers to the memorandum of association of a CLG shall be deemed to have agreed to become members of the CLG, and, on its registration, shall be entered as members in its register of members.

• (2) Such other persons—

• (a) being persons—

• (i) whom the directors admit to membership; or

• (ii) who are admitted to membership, pursuant to provisions that the constitution may contain in that behalf, whether provisions that—

• (I) provide a separate power to; or

• (II) supplement or limit, or exclude,

any power of the directors in that regard;

and

• (b) whose names are entered in its register of members,

shall be members of the CLG.

• (3) The articles of a CLG shall state the number of members with which the company proposes to be registered.

• (4) Where a CLG has increased the number of its members beyond the registered number, it shall, within 15 days after the date on which the increase was resolved on or took place, deliver particulars of the increase to the Registrar.

• (5) If default is made by a CLG in complying with subsection (4), the CLG and any officer of it who is in default shall be guilty of a category 4 offence.

• (6) The articles of a CLG may state the maximum number of persons who may be members of the CLG, subject to the power of the directors to register an increase in the number of members.

• (7) A member may resign his or her membership by serving notice to that effect upon the directors at the registered office of the CLG, such notice to expire no earlier than the date of service of the notice of resignation.

• (8) Save where the constitution of a CLG provides otherwise, the directors may require a member to resign his or her membership by serving notice upon the member terminating his or her membership to expire no earlier than the date of service of the notice of termination.

• (9) Save where the constitution of a CLG provides otherwise, every member shall have one vote.

• (10) The death or bankruptcy of a member shall terminate his or her membership.

1200. Personation of member: offence

1200. If any person falsely and deceitfully personates any member of a CLG and thereby—

• (a) receives or endeavours to receive any money due to any such member, or

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

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

1201. Register of members

1201. Section 169 shall apply to a CLG with the following modifications:

• (a) the following paragraph shall be substituted, in subsection (1), for paragraph (a):

• “(a) the names and addresses of the members;”;

and

• (b) subsection (5) shall be omitted.

1202. CLG, with 2 or more members, may not dispense with holding of a.g.m.

1202. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a CLG if it has more than one member.

1203. Convening of extraordinary general meeting on requisition

1203. Section 178 shall apply to a CLG with the following modifications:

• (a) subsections (1)(a) and (2) shall be omitted; and

• (b) the following subsection shall be substituted for subsection (3):

• “(3) The directors of a company shall, on the requisition of one or more members holding, or together holding, at the date of the deposit of the requisition, not less than 10 per cent of the total voting rights of all the members having, at the date of the deposit, the right to vote at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.”.

1204. Persons entitled to notice of general meetings

1204. Section 180 shall apply to a CLG with the omission of subsection (1)(b) and (c) and subsections (2) to (4).

1204A. F937[Disapplication of section 181(5)(d) in respect of certain CLGs

1204A. Section 181(5)(d) shall not apply to a CLG where the CLG’s constitution does not permit its members to appoint proxies.]

1205. Proxies

1205. Section 183 shall apply to a CLG with the following modifications:

• (a) in subsection (1) there shall be inserted “and save to the extent that the constitution provides otherwise” after “Subject to subsection (3)”;

• (b) in F938[subsection (9)], the words “or the transfer of the share in respect of which the proxy is given” shall be omitted; and

• F938[(c) in subsection (10), there shall be substituted "such death or revocation" for "such death, insanity, revocation or transfer".]

1206. Votes of members

1206. Section 188 shall apply to a CLG with the following modifications:

• (a) the following subsection shall be substituted for subsection (2):

• “(2) Where a matter is being decided (whether on a show of hands or on a poll), every member present in person and every proxy shall have one vote, but so that no individual member shall have more than one vote.”;

• (b) subsection (3) shall be omitted; and

• (c) the following subsection shall be substituted for subsection (6):

• “(6) No member shall be entitled to vote at any general meeting of a company unless all moneys immediately payable by him or her to the company have been paid.”.

1207. Right to demand a poll

1207. Section 189 shall apply to a CLG with the omission of subsection (2)(d).

1208. Application of section 193 in relation to a CLG

1208. Section 193 shall apply to a CLG as if, in subsection (1), after “Notwithstanding any provision to the contrary in this Act”, there were inserted “and unless the constitution provides otherwise”.

1209. Application of section 198 in relation to a CLG

1209. Section 198 shall apply to a CLG with the following modifications:

• (a) the following paragraph shall be substituted for paragraph (c) of subsection (4):

• “(c) resolutions or agreements which have been agreed to by all the members of some class of membership but which if not so agreed to, would not have been effective for their purpose unless they had been passed by some particular majority or otherwise in some particular manner, and all resolutions or agreements which effectively bind all the members of any class of membership though not agreed to by all those members;”;

and

• (b) paragraphs (d) and (e) and (g) to (k) of subsection (4) shall be omitted.

1210. Application of Chapter 5 of Part 5 to a CLG

1210. (1) Subject to subsection (2), Chapter 5 of Part 5 shall apply to a CLG.

• (2) For the purposes of that application, Chapter 5 of Part 5 shall operate, so far as it relates to shares in a company, or shares in a body corporate of the same group as that company belongs to, as if it excluded references to—

• (a) that company where that company is a CLG, and

• (b) such a body corporate where that body corporate is a CLG.

CHAPTER 5 Financial statements, annual return and audit

1211. Non-application of Part 6 to CLGs that are credit institutions or insurance undertakings

1211. Part 6 shall not apply to a CLG that is a credit institution or an insurance undertaking—

• (a) to the extent provided by regulations made under section 3 of the European Communities Act 1972 to give effect to Community acts on accounts of credit institutions and insurance undertakings, respectively, or

• (b) to the extent provided by any other enactment.

1212. Requirement for corporate governance statement and modification of certain provisions of Parts 5 and 6 as they apply to CLGs

1212. Chapter 3 of Part 23 has effect in relation to, amongst other companies, a CLG that has debentures admitted to trading on a regulated market in an EEA state.

1213. Modification of definition of “IAS Regulation” in the case of CLGs

1213. Section 1116 (modification of definition of “IAS Regulation”) shall apply in the case of a CLG as it applies in the case of PLC.

1214. Application of section 297 to a CLG

1214. F939[…]

1215. Disclosures by CLG that is credit institution

1215. In addition to its having effect in relation to a public limited company, section 1120 shall have effect in relation to a CLG.

1216. Disclosure of membership changes in CLG’s financial statements

1216. Section 318 (details of authorised share capital, allotted share capital and movements) shall not apply in relation to the financial statements of a CLG but where there are changes in the interests of members of a CLG in the financial year to which the financial statements of the CLG relate then particulars of those changes shall be given in the notes to those financial statements.

1217. Disapplication of sections 325(1)(c) and 329 to a CLG

1217. Sections 325(1)(c) and 329 shall not apply to a CLG.

1218. Application of sections 334, 359 and 362 to a CLG

1218. (1) Section 334 shall apply to a CLG with the following modifications:

• (a) the following subsection shall be substituted for subsection (1):

• “(1) Any member of a company may serve a notice in writing on the company stating that that member does not wish the audit exemption to be available to the company in a financial year specified in the notice.”;

• (b) subsection (3) shall be omitted; and

• (c) the following subsection shall be substituted for subsection (4):

• “(4) For the avoidance of doubt, the reference in subsection (1) to the member’s not wishing the audit exemption to be available to the company in a specified financial year is, if the company is a subsidiary undertaking, a reference to the member’s not wishing the audit exemption to be available to the subsidiary undertaking irrespective of whether its holding company and any other undertakings in the group avail themselves of the audit exemption in that year.”.

• (2) F940[…]

• (3) F940[…]

1219. Qualification of section 338 in the case of a CLG

1219. Section 338 (circulation of statutory financial statements) shall apply to a CLG with the following modifications:

• (a) in subsection (1)(a), there shall be substituted “(but only if that person is entitled to receive notices of general meetings of the company)” for “(whether that person is or is not entitled to receive notices of general meetings of the company)”; and

• (b) in subsection (1)(b), there shall be substituted “(but only if that person is so entitled)” for “(whether that person is or is not so entitled)”.

1220. Exemption from filing with Registrar financial statements, etc.

1220. (1) Without prejudice to subsections (4) to (6) (which contain transitional provisions), sections 347 and 348 shall not apply to a CLG if it satisfies the following conditions:

• (a) it has been formed for charitable purposes; and

• (b) it stands exempted from those sections by an order made by the relevant authority (which order the relevant authority is, by virtue of this section, empowered to make),

and the exemption provided by that order may, as the relevant authority considers appropriate, be either for an indefinite or a limited period.

• (2) The following provisions have effect in relation to a CLG referred to in subsection (1)—

• (a) unless the CLG is entitled to and has availed itself of the audit exemption conferred by Chapter 15 or 16 of Part 6, the statutory auditors of the CLG shall prepare a separate report to the directors which—

• (i) confirms that they audited the relevant statutory financial statements for the relevant financial year, and

• (ii) includes within it the report made to the members of the CLG pursuant to section 391,

and

• (b) a copy of the report prepared under paragraph (a) shall be annexed to the annual return delivered by the CLG to the Registrar.

• (3) The reference in subsection (2) to a copy of the report prepared under paragraph (a) of it is a reference to a copy that satisfies the following conditions:

• (a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy; and

• (b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).

• (4) Sections 347 and 348 shall not apply to an existing guarantee company that, immediately before the commencement of this section, stood exempted from the requirements of section 128 of the Act of 1963 by virtue of subsection (4)(c) or (5) of that section, but this is subject to subsections (5) and (6).

• (5) If, by reason of a change of circumstances set out in section 128(4) of the Act of 1963 relating to the company concerned (were that section 128(4) to remain in force after the commencement of section 4 (repeals and revocations)), an existing guarantee company would no longer comply with that section 128(4), then, thereupon, sections 347 and 348 shall apply to that company.

• (6) If—

• (a) circumstances arise affecting an existing guarantee company that stood exempted, immediately before the commencement of this section, from the requirements of section 128 of the Act of 1963 by virtue of subsection (5) of the latter, and

• (b) those circumstances are such as would, but for the repeal of that section 128, warrant the relevant authority exercising the power of revocation that but, for that repeal, would have been available to them in relation to the particular order that had subsisted, under that subsection (5), in relation to that company,

then the relevant authority shall, by virtue of those circumstances, be empowered to declare in writing that sections 347 and 348 shall, on and from a date specified in the declaration, apply to that company and, where the relevant authority so declares, sections 347 and 348 shall apply to that company on and from the date so specified.

• (7) F941[…]

• (8) F941[…]

• (9) In this section—

“existing guarantee company” has the same meaning as it has in section 1189;

“relevant authority” means—

• (a) before the establishment day (within the meaning of the Charities Act 2009), the Commissioners of Charitable Donations and Bequests for Ireland; and

• (b) on or after the foregoing day, the Charities Regulatory Authority.

1221. Application of section 392 to a CLG

1221. Section 392 (report to Registrar and F942[Authority]: accounting records) shall apply to a CLG as if, in subsection (6), there were substituted “its members” for “its shareholders”.

1222. Application of section 393 to a CLG

1222. Section 393 (report to Registrar and F943[Authority]: category 1 and 2 offences) shall apply to a CLG as if, in subsection (4), there were substituted “its members” for “its shareholders”.

CHAPTER 6 Liability of contributories in winding up

1223. Liability as contributories of past and present members and provision concerning winding up after certain re-registration

1223. (1) Subject to subsection (2), in the event of a CLG being wound up, every present and past member shall be liable to contribute to the assets of the CLG to an amount sufficient for payment of its debts and liabilities, and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves.

• (2) The following qualifications apply in relation to subsection (1):

• (a) no contribution shall be required from any member exceeding the amount undertaken to be contributed by him or her to the assets of the CLG in the event of its being wound up;

• (b) a past member shall not be liable to contribute if he or she has ceased to be a member for one year or more before the commencement of the winding up;

• (c) a past member shall not be liable to contribute in respect of any debt or liability of the CLG contracted after he or she ceased to be a member;

• (d) a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;

• (e) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the CLG are alone made liable in respect of the policy or contract;

• (f) a sum due to any member of the CLG, in his or her character of a member, by way of distributions, profits or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself or herself and any other creditor not a member of the CLG, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.

• (3) Without prejudice to the application of that section to a CLG, and its adaptation generally, by section 1173 of section 665 (winding up of company that had been an unlimited company before re-registration), paragraph (c) of section 665 shall apply as if the reference in it to section 655(2)(a) were, in the case of a CLG, a reference to subsection (2)(a) of this section.

CHAPTER 7 Examinerships

1224. Petitions for examinerships

1224. Section 510 shall apply to a CLG as if the following subsections were substituted for subsections (2) and (3):

• “(2) Where the company referred to in section 509 is an insurer or the holding company of an insurer, a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.

• (3) Where the company referred to in section 509 is—

  • (a) a credit institution or the holding company of a credit institution,

  • (b) a company which one or more trustee savings banks have been reorganised into pursuant to an order under section 57 of the Trustee Savings Banks Act 1989, or

  • (c) a company which a building society has converted itself into under Part XI of the Building Societies Act 1989,

  a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.”.

CHAPTER 8 Investigations

1225. Application of section 747(2) to CLGs

1225. Section 747(2) shall apply to a CLG as if paragraph (c) were deleted therefrom.

CHAPTER 9 Public offers of securities, prevention of market abuse, etc.

1226. Application of Chapters 1, 2 and 4 of Part 23 to CLGs

1226. Chapters 1, 2 and 4 of Part 23, so far as they are applicable to companies other than public limited companies, shall apply to a CLG.

PART 19 UNLIMITED COMPANIES

CHAPTER 1 Preliminary and definitions

1227. Interpretation (Part 19)

1227. In this Part—

“constitution” shall be read in accordance with section 1233 or 1234, as the case may be;

“PUC” shall be read in accordance with section 1228(1)(b);

“PULC” shall be read in accordance with section 1228(1)(c);

“ULC” shall be read in accordance with section 1228(1)(a).

1228. Three types of unlimited company and uniform words to be affixed to name

1228. (1) This Part makes provision for, and there is permitted to be formed and registered under this Part, the following 3 types of unlimited company:

• (a) a private unlimited company — referred to in this Part as a “ULC”;

• (b) a public unlimited company — referred to in this Part as a “PUC”; and

• (c) a public unlimited company that has no share capital — referred to in this Part as a “PULC”.

• (2) Irrespective of the type of unlimited company that the particular company constitutes, the name of any such company shall, as provided under section 1237 and subject to that section and section 1247, end with the words “unlimited company” or “cuideachta neamhtheoranta”.

1229. References to unlimited company to mean ULC, PUC or PULC

1229. A reference in this Part to an unlimited company shall, unless expressly provided otherwise, be read as a reference to any of the 3 types of unlimited company referred to in section 1228.

1230. Application of Parts 1 to 14 to unlimited companies

1230. (1) The provisions of Parts 1 to 14 apply to an unlimited company 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 an unlimited company.”.

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

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

• (b) rights 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 PULC, as making such provision in the analogous context in which membership, or rights or incidents of membership, may arise in the case of a PULC.

• (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 Part 1 of the Table to this section shall not apply to an ULC.

• (6) The provisions of this Act specified in Part 2 of the Table to this section shall not apply to a PUC.

• (7) The provisions of this Act specified in Part 3 of the Table to this section shall not apply to a PULC.

• (8) The specification in the foregoing Table of a provision (a “specified provision”) of Parts 1 to 14 also operates to disapply to the particular type of unlimited company concerned 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

Part 1

Provisions disapplied to ULCs

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
Effect of registration	Section 25
Provisions as to names of companies	Section 26(1) to (4)
Trading under a misleading name	Section 27
Amendment of constitution by special resolution	Section 32(1)
Capacity of private company limited by shares	Section 38
Security for costs	Section 52
Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply	Chapter 6 of Part 2
Returns of allotments	Section 70(7) and (8)
Variation in capital	Chapter 4 of Part 3 (other than sections 83, 89, 90, 92 and 93)
F944[Acquisition of own shares]	F944[Section 105(2) and (3)]
F944[Supplemental provisions in relation to section 105]	F944[Section 106(4)]
Directors	Section 128
Certain particulars to be shown on all business letters	Section 151(2) to (4)
Majority written resolutions	Section 194
Supplemental provisions in relation to section 194	Section 195
Directors’ compliance statement and related statement	Section 225
Liability as contributories of past and present members	Section 655
Payment of debts due by contributory to the company and extent to which set-off allowed	Section 659

Part 2

Provisions disapplied to PUCs

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
Effect of registration	Section 25
Provisions as to names of companies	Section 26(1) to (4)
Trading under a misleading name	Section 27
Amendment of constitution by special resolution	Section 32(1)
Capacity of private company limited by shares	Section 38
Security for costs	Section 52
Allotment of shares	Section 69
Supplemental and additional provisions as regards allotments	Section 70
Variation in capital	Chapter 4 of Part 3 (other than sections 83, 89, 90, 92 and 93)
F944[Acquisition of own shares]	F944[Section 105(2) and (3)]
F944[Supplemental provisions in relation to section 105]	F944[Section 106(4)]
Directors	Section 128
Certain particulars to be shown on all business letters	Section 151(2) to (4)
Majority written resolutions	Section 194
Supplemental provisions in relation to section 194	Section 195
Directors’ compliance statement and related statement	Section 225
F945[Qualification of company based on size of company]	F945[Sections 280A to 280G]
Exemption from consolidation: size of group	F946[…]
Statutory financial statements must be audited (unless audit exemption availed of)	Section 333
Exclusions, exemptions and special arrangements with regard to public disclosure of financial information	Chapter 14 of Part 6
Audit exemption	Chapter 15 of Part 6
Special audit exemption for dormant companies	Chapter 16 of Part 6
Small and medium companies	Section 377
Liability as contributories of past and present members	Section 655
Payment of debts due by contributory to the company and extent to which set-off allowed	Section 659

Part 3

Provisions disapplied to PULCs

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
Effect of registration	Section 25
Provisions as to names of companies	Section 26(1) to (4)
Trading under a misleading name	Section 27
Amendment of constitution by special resolution	Section 32(1)
Capacity of private company limited by shares	Section 38
Security for costs	Section 52
Conversion of existing private company to private company limited by shares to which Parts 1 to 15 apply	Chapter 6 of Part 2
Powers 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
Certain particulars to be shown on all business letters	Section 151(2) to (4)
Definition of member	Section 168
Majority written resolutions	Section 194
Supplemental provisions in relation to section 194	Section 195
Directors’ compliance statement and related statement	Section 225
F947[Qualification of company based on size of company]	F947[Sections 280A to 280G]
Holding of own shares	Section 320(1)
Directors’ report as it relates to dividends	Section 326(1)(d)
Statutory financial statements must be audited (unless audit exemption availed of)	Section 333
Exclusions, exemptions and special arrangements with regard to public disclosure of financial information	Chapter 14 of Part 6
Audit exemption	Chapter 15 of Part 6
Special audit exemption for dormant companies	Chapter 16 of Part 6
Small and medium companies	Section 377
Acquisition of shares	Chapter 2 of Part 9
Liability as contributories of past and present members	Section 655
Payment of debts due by contributory to the company and extent to which set-off allowed	Section 659

CHAPTER 2 Incorporation and consequential matters

1231. Way of forming an unlimited company

1231. (1) An unlimited company 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 an unlimited company.

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

• (a) the re-registration, or registration, as an unlimited company 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.

1232. Unlimited company to carry on activity in the State

1232. An unlimited company shall not be formed and registered unless it appears to the Registrar that the company, when registered, will carry on an activity in the State, being an activity that is mentioned in its memorandum.

1233. The form of the constitution of an ULC or PUC

1233. (1) Subject to subsection (3), the constitution of an ULC or PUC 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 an ULC or PUC shall state—

• (a) its name,

• (b) that it is, as the case may be, a private unlimited company or public unlimited company registered under this Part,

• (c) its objects,

• (d) the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount, and

• (e) the fact that its members have unlimited liability.

• (3) The constitution of an ULC or PUC shall—

• (a) in addition to the matters specified in subsection (2), state the number of shares (which shall not be less than one) taken by each subscriber to the constitution,

• (b) be in accordance with the form set out in—

• (i) Schedule 11 — in the case of an ULC, or

• (ii) Schedule 12 — in the case of a PUC,

or, in either case, as near thereto as circumstances permit,

• (c) 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

• (d) 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 the matter of share capital, or another 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.

1234. The form of the constitution of a PULC

1234. (1) Subject to subsection (3), the constitution of a PULC 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 PULC shall state—

• (a) its name,

• (b) that it is a public unlimited company, that has no share capital, registered under this Part,

• (c) its objects, and

• (d) the fact that its members have unlimited liability.

• (3) The constitution of a PULC shall—

• (a) be in accordance with the form set out in Schedule 13 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.

1235. Supplemental provisions in relation to constitution referred to in section 1233 or 1234 and continuance in force of existing memorandum and articles

1235. (1) This section—

• (a) contains provisions as to the articles of an unlimited company,

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

• (c) continues in force the memorandum and articles of an unlimited company 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 an unlimited company may contain regulations in relation to the company.

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

• (5) In the case of an ULC or PUC, articles, instead of containing any regulations in relation to the unlimited company, may consist solely of a statement to the effect that the provisions of the Companies Act 2014 are adopted and, if the articles consist solely of such a statement, subsection (4) shall apply.

• (6) In the case of a PULC, subject to the articles’ compliance with section 1259(3) (articles must state the number of members with which the company proposes to be registered), articles of such an unlimited company 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.

• (7) The memorandum and articles of an unlimited company registered before the commencement of this section shall, save to the extent that they are inconsistent with a mandatory provision, 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.

• (8) 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.

• (9) To the extent that an unlimited company registered before the commencement of this section was, immediately before that commencement, governed by—

• (a) the regulations of Part II or III of Table E 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.

1236. Effect of registration

1236. (1) On the registration of the constitution of an unlimited company, the Registrar shall certify in writing that the company is incorporated and shall issue to the company a certificate of incorporation in respect of it.

• (2) From the date of incorporation mentioned in the certificate of incorporation, the subscriber or subscribers to the constitution, together with such other persons as may from time to time become members of the unlimited company, shall be a body corporate with the name contained in the constitution, having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Part.

• (3) The certificate of incorporation issued under subsection (1) shall state that the company is—

• (a) a private unlimited company,

• (b) a public unlimited company, or

• (c) a public unlimited company that has no share capital,

as the case may be.

• (4) A certificate of incorporation issued under subsection (1) shall be conclusive evidence that the requirements of section 21 and of this Chapter have been complied with, and that the unlimited company is duly registered under this Act.