Companies Act 2014

• (5) The persons who are specified in the statement required to be delivered to the Registrar by section 21(1)(a) as the directors, secretary or joint secretaries or assistant or deputy secretary or secretaries of the unlimited company to which the statement refers shall, on the incorporation of the company, be deemed to have been appointed as the first directors, secretary or joint secretaries or assistant or deputy secretary or secretaries, as the case may be, of the company.

• (6) Any indication in the constitution, as delivered under section 21 for registration, specifying a person as a director or secretary (including any assistant or deputy secretary) of a company shall be void unless such person is specified as a director or as secretary (or, as the case may be, assistant or deputy secretary) in the foregoing statement.

• (7) Subsection (5) does not operate to deem a person appointed as a director or secretary (including any assistant or deputy secretary) of an unlimited company where—

• (a) he or she is disqualified under this Act from being appointed a director, secretary, assistant or deputy secretary, as the case may be, of a company, or

• (b) in the case of a director or secretary, a provision of this Act provides that the person’s appointment as such in the circumstances is void.

1237. Provisions as to names of unlimited companies

1237. (1) The name of an unlimited company shall end with one of the following:

— unlimited company;

— cuideachta neamhtheoranta.

• (2) The words “unlimited company” may be abbreviated to “u.c.” or “uc” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the unlimited company.

• (3) The words “cuideachta neamhtheoranta” may be abbreviated to “c.n.” or “cn” (including either such abbreviation in capitalised form) in any usage after the company’s registration by any person including the unlimited company.

• (4) An unlimited company 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) F948[…]

• (6) This section is also subject to section 1247 (which makes transitional provision for an existing unlimited company as regards its name).

1238. Trading under a misleading name

1238. (1) Subject to subsection (6), neither a body that is not an unlimited company nor an individual shall carry on any trade, profession or business under a name which includes, as its last part, the words “unlimited company”, or “cuideachta neamhtheoranta” 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) An unlimited company 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 an unlimited company or that it is any other form of body corporate.

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

• (5) If an unlimited company contravenes subsection (3), the unlimited company 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 an unlimited company if it had been registered in the State.

1239. Capacity of an unlimited company

1239. (1) An unlimited company 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 to be a power to do any act or thing (whether the word “power” is used or not),

• (b) if an object is stated in the unlimited company’s memorandum without the following also being stated in relation to it, the capacity of the unlimited company 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 an unlimited company shall be read accordingly.

1240. Capacity not limited by the constitution of an unlimited company

1240. (1) The validity of an act done by an unlimited company shall not be called into question on the ground of lack of capacity by reason of anything contained in the company’s objects.

• (2) A member of an unlimited company may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the company’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 company.

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

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

1241. Alteration of objects clause by special resolution

1241. (1) Subject to subsection (2), an unlimited company 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) in the case of—

• (i) an ULC or a PUC by the holders of not less, in the aggregate, than 15 per cent in nominal value of the ULC’s or PUC’s issued share capital or any class thereof, or

• (ii) in the case of any type of unlimited company, by not less than 15 per cent of the company’s members,

or

• (b) in any case, by the holders of not less than 15 per cent of the unlimited company’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 unlimited company’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.

• (7) An order under this section may, if the court thinks fit, provide for the purchase by the unlimited company of the shares of any members of the company and for the reduction accordingly of its company capital and may make such alterations in the constitution of the company as may be required in consequence of that provision; and such a purchase may be so ordered notwithstanding anything in section 102.

1242. Supplemental provisions in relation to section 1241

1242. (1) Where an order under section 1241 requires the unlimited company 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 unlimited company 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 an unlimited company made by virtue of an order under section 1241, other than one made by resolution of the company, shall be of the same effect as if duly made by resolution of the company 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 an unlimited company’s objects is intended to be proposed shall be given to any holders of the company’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 company, 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 unlimited company’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 unlimited company’s constitution regulating the giving of notice to members shall apply.

• (6) Where an unlimited company passes a resolution altering its objects—

• (a) if no application is made under section 1241 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.

• (7) The court may, by order, at any time extend the time for delivery of documents to the Registrar under subsection (6)(b) for such period as the court may think proper.

• (8) If an unlimited company makes default in giving notice or delivering any document to the Registrar as required by subsection (6), the unlimited company and any officer of it who is in default shall be guilty of a category 4 offence.

1243. Application of section 1017 to PUCs and PULCs

1243. Section 1017 (official seal for sealing securities) shall apply to a PUC and a PULC as it applies to a PLC.

1244. Alteration of articles by special resolution

1244. (1) Subject to the provisions of this Act and to the conditions contained in its memorandum, an unlimited company 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.

1245. Power to alter provisions in memorandum which could have been contained in articles

1245. (1) Subject to subsection (2), sections 32(4) and (5) and 212, any provision contained in an unlimited company’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 unlimited company 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 1241(3) to (7) (other than subsection (3)(b)) and section 1242 (other than subsections (3) to (5)) 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.

1246. Status of existing unlimited company

1246. (1) In this section “existing unlimited company” means an unlimited company, whether it is a private or public such company having a share capital, or a public such one 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 unlimited company shall, on and from the commencement of this section, continue in existence and be deemed to be—

• (a) if it was a private unlimited company having a share capital before such commencement — an ULC to which this Part applies,

• (b) if it was a public unlimited company having a share capital before such commencement — a PUC to which this Part applies, and

• (c) if it was a public unlimited company not having a share capital before such commencement — a PULC to which this Part applies.

• (3) Section 1247 contains provisions—

• (a) for enabling such a company to omit, for a limited period, “unlimited company” or “cuideachta neamhtheoranta” from its name despite the foregoing status that it has assumed, and

• (b) 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 (subject to section 1237(5)) the addition of—

• (i) “unlimited company” at the end thereof, or

• (ii) “cuideachta neamhtheoranta” 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.

1247. Transitional provision — omission of “unlimited company” or “cuideachta neamhtheoranta” by existing unlimited company

1247. (1) In this section—

“existing unlimited company” has the same meaning as it has in section 1246;

“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) unlimited company,

• (b) cuideachta neamhtheoranta.

• (3) 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,

an existing unlimited company may omit the words “unlimited company” or “cuideachta neamhtheoranta” from its name.

• (4) 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 unlimited company.

• (5) Without prejudice to the generality of subsection (4), 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 unlimited company, as set out in its memorandum, shall, subject to section 1237(5), be deemed to be altered by the addition of—

• (a) “unlimited company” at the end thereof, or

• (b) “cuideachta neamhtheoranta” at the end thereof,

as the case may be.

• (6) Where an existing unlimited company’s name, as set out in its memorandum, is altered by virtue of subsection (5), 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

1248. Application of section 68 to PUCs and PULCs

1248. Section 68 shall apply to a PUC and a PULC 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).”.

1249. Authority to allot and pre-emption rights in the case of a PUC

1249. Sections 1021 to 1023 shall apply to a PUC.

1250. Variation of rights attached to special classes of shares

1250. Section 982 shall apply to a PUC and an ULC as if—

• (a) each reference in it to a DAC were a reference to a PUC or an ULC, as the case may be, and

• (b) in the case of a PUC, the reference in subsection (3)(c) to the giving, variation, revocation or renewal of an authority for the purposes of section 69(1) were a reference to the giving, variation, revocation or renewal of an authority for the purposes of section 1021(1).

1251. Variation of company capital

1251. Section 83 shall apply to an ULC and a PUC with the following modifications—

• (a) “special resolution” shall be substituted for “ordinary resolution” in subsection (1); and

• (b) in subsection (1)(b), the following shall be omitted:

“, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived”.

1252. Reduction of company capital

1252. (1) Save to the extent that its constitution otherwise provides, an ULC or PUC may, by special resolution, reduce its company capital in any way it thinks expedient and, without prejudice to the generality of the foregoing, may thereby—

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

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

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

• (2) A resolution shall not be valid for the purposes of subsection (1) if it would have the effect that the ULC or PUC no longer has any members.

• (3) Without prejudice to any contrary provision of—

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

• (b) the ULC’s or PUC’s constitution,

a reserve arising from the reduction of an ULC’s or PUC’s company capital is to be treated for all purposes as a realised profit.

1253. Application of section 94 to ULCs and PUCs

1253. Section 94 shall apply to an ULC and a PUC as if the following subsection were substituted for subsection (2):

• “(2) The instrument of transfer of any share shall be executed by or on behalf of the transferor and the transferee.”.

1254. Application of section 114 in relation to PULCs

1254. 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 PULC, a reference to becoming, and being, a member of the company otherwise than by means of acquiring and holding shares.

1255. Making of distributions unrestricted in the case of unlimited companies

1255. Neither the provisions of Chapter 7 of Part 3 nor any rule of law on the making of distributions out of a company’s assets shall apply in relation to an unlimited company.

1256. Uncertificated transfer of securities

1256. Sections 1085 to 1087 shall apply to securities of a PUC or a PULC as they apply to securities of a PLC.

CHAPTER 4 Corporate governance

1257. Directors

1257. (1) An unlimited company 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 an unlimited company.

1258. Limitation on number of directorships

1258. 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 unlimited companies (of whatever type), or

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

1259. Membership of a PULC

1259. (1) The subscribers to the memorandum of association of a PULC shall be deemed to have agreed to become members of the PULC, 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 PULC.

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

• (4) Where a PULC 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 in complying with subsection (4), the PULC and any officer of it who is in default shall be guilty of a category 4 offence.

• (6) The articles of a PULC may state the maximum number of persons who may be members of the PULC, 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 PULC, such notice to expire no earlier than the date of service of the notice of resignation.

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

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

1260. Personation of member: offence

1260. If any person falsely and deceitfully personates any member of a PULC 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.

1261. Register of members

1261. Section 169 shall apply to a PULC 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.

1262. Unlimited company, with 2 or more members, may not dispense with holding of a.g.m.

1262. Section 175(3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to an unlimited company if it has more than one member.

1263. Application of section 193 in relation to an unlimited company

1263. Section 193 shall apply to an unlimited company as if, in subsection (1), after “Notwithstanding any provision to the contrary in this Act”, there were inserted “and unless the constitution provides otherwise”.

1263A. F949[Application of Chapter 3A of Part 16 to PUCs and PULCs

1263A. Chapter 3A of Part 16, in so far as it applies to a designated activity company, shall apply to a PUC and a PULC.]

CHAPTER 5 Financial statements, annual return and audit

1264. Definitions (Chapter 5)

1264. In this Chapter—

“designated ULC” has the meaning assigned to it by section 1274;

“non-designated ULC” means a ULC that is not a designated ULC.

1265. Non-application of Part 6 to unlimited companies that are credit institutions or insurance undertakings

1265. Part 6 shall not apply to an unlimited company 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.

1266. Requirement for corporate governance statement and modification of certain provisions of Parts 5 and 6 as they apply to PUCs and PULCs

1266. Chapter 3 of Part 23 has effect in relation to, amongst other companies, a PUC and a PULC that have debentures admitted to trading on a regulated market in an EEA state.

1267. Modification of definition of “IAS Regulation” in the case of PUCs and PULCs

1267. Section 1116 (modification of definition of “IAS Regulation”) shall apply in the case of a PUC and a PULC as it applies in the case of PLC.

1267A. F950[Modification of definition of “ineligible entities” in case of PUCs and PULCs

1267A. The definition of "ineligible entities" in section 275(1) shall apply to a PUC or a PULC as if—

• (a) in paragraph (c), "undertakings," were substituted for "undertakings, or",

• (b) in paragraph (d)(ii), "shall be read accordingly, or" were substituted for "shall be read accordingly;2, and

• (c) the following paragraph were inserted after paragraph (d):

• "(e) are PUCs and PULCs;".]

1268. Application of section 297 to a PULC

1268. F951[…]

1269. Disclosures by unlimited company that is a credit institution

1269. In addition to its having effect in relation to a public limited company, section 1120 shall have effect in relation to an unlimited company.

1270. Disclosure of membership changes in PULC’s financial statements

1270. Section 318 (details of authorised share capital, allotted share capital and movements) shall not apply in relation to the financial statements of a PULC but where there are changes in the interests of members of a PULC in the financial year to which the financial statements of the PULC relate then particulars of those changes shall be given in the notes to those financial statements.

1271. Disapplication of sections 325(1)(c) and 329 to a PULC

1271. Sections 325(1)(c) and 329 shall not apply to a PULC.

1272. Application of section 362 to an ULC and obligation on other unlimited companies to have their financial statements audited

1272. (1) F952[…]

• (2) The directors of a PUC shall arrange for the statutory financial statements of the PUC for a financial year to be audited by statutory auditors.

• (3) The directors of a PULC shall arrange for the statutory financial statements of the PULC for a financial year to be audited by statutory auditors.

1273. Qualification of section 338 in the case of a PULC

1273. Section 338 (circulation of statutory financial statements) shall apply to a PULC 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)”.

1274. No requirement to deliver financial statements, etc., with annual return in the case of certain ULCs

F953[1274. (1) Other than in the case of a designated ULC, sections 347 and 348 (which require documents to be annexed to annual returns) shall not apply to an ULC.

• (2) In this section "designated ULC" means—

• (a) an ULC that at any time during the relevant financial year—

• (i) has been a subsidiary undertaking of an undertaking which was at that time limited,

• (ii) has had rights exercisable in respect of it by or on behalf of 2 or more undertakings which were at that time limited, being rights which if exercisable by one of the undertakings would have made the ULC a subsidiary undertaking of it, or

• (iii) has been a holding company of an undertaking which was at that time limited,

• (b) an ULC which is a credit institution or an insurance undertaking or the holding company of a credit institution or an insurance undertaking,

• (c) an ULC, all of the members of which are—

• (i) companies limited by shares or by guarantee,

• (ii) unlimited companies, each of whose members is a limited company,

• (iii) partnerships which are not limited partnerships, each of whose members is a limited company,

• (iv) limited partnerships, each of whose general partners (within the meaning of the Limited Partnerships Act 1907) is a limited company, or

• (v) any combination of the types of bodies referred to in the preceding subparagraphs of this paragraph and paragraph (a),

or

• (d) an ULC, the direct or indirect members of which comprise any combination of ULCs and bodies referred to in paragraph (c) such that the ultimate beneficial owners enjoy the protection of limited liability.

• (3) References in subsection (2) to a limited company, an unlimited company, a partnership or a limited partnership shall include references to a body which is not governed by the law of the State but which is comparable to such a limited company, an unlimited company, a partnership or a limited partnership, as may be appropriate.

• (4) References in subsection (2)(a) to an undertaking being limited at a particular time are references to an undertaking (under whatever law established), the liability of whose members at that time is limited.

• (5) In this section—

"general partner" has the same meaning as it has in the Limited Partnerships Act 1907;

"limited partnership" means a partnership to which the Limited Partnerships Act 1907 applies;

"partnership" has the same meaning as it has in the Partnership Act 1890.]

1274A. F954[Non application of Part 26 to certain ULCs

1274A. Other than in the case of a designated ULC (within the meaning of section 1274), Part 26 shall not apply to an ULC.]

1275. Application of section 392 to a PULC

1275. Section 392 (report to Registrar and F955[Authority]: accounting records) shall apply to a PULC with the substitution, in subsection (6), of “its members” for “its shareholders”.

1276. Application of section 393 to a PULC

1276. Section 393 (report to Registrar and F956[Authority]: category 1 and 2 offences) shall apply to a PULC with the substitution, in subsection (4), of “its members” for “its shareholders”.

1277. Documents to be annexed to annual return of non-designated ULC

1277. (1) The statutory auditors of a non-designated ULC shall prepare, and furnish to the directors of the company, a separate report which—

• (a) confirms that the statutory auditors audited the financial statements of the company for the relevant financial year, and

• (b) includes within it the report made by them to the members of the company pursuant to section 391 on those financial statements.

• (2) Where a report is prepared in accordance with subsection (1) there shall be attached to the annual return of the non-designated ULC a copy of the report 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 non-designated ULC, 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).

• (3) F957[…]

• (4) F957[…]

• (5) This section shall not apply if the non-designated ULC is entitled to, and has availed itself of, the audit exemption conferred by Chapter 15 or 16 of Part 6 in the financial year concerned.

CHAPTER 6 Winding up

1278. Liability as contributories of past and present members

1278. (1) Subject to subsection (2), in the event of an unlimited company being wound up, every present and past member shall be liable to contribute to the assets of the unlimited company 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) 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;

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

• (c) 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;

• (d) 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 unlimited company are alone made liable in respect of the policy or contract;

• (e) a sum due to any member of the unlimited company, 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 unlimited company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.

1279. Payment of debts due by contributory to the unlimited company and extent to which set-off allowed

1279. (1) The court may make an order requiring any contributory for the time being on the list of contributories to pay, in a manner directed by the order, any money due from him or her or from the estate of the person whom he or she represents to the unlimited company, exclusive of any money payable by him or her or the estate by virtue of any call in pursuance of this Act.

• (2) The court in making any such order may allow to the contributory by way of set-off any sum due to the contributory or to the estate which the contributory represents from the unlimited company on any independent dealing or contract with the company, but not any money due to him or her as a member of the company in respect of any dividend or profit.

• (3) When all the creditors are paid in full, any money due on any account whatever to a contributory from the unlimited company may be allowed to him or her by way of set-off against any subsequent call.

CHAPTER 7 Examinerships

1280. Petitions for examinerships

1280. Section 510 shall apply to an unlimited company 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 7A Winding Up

1280A. F958[Application of Chapter 7 of Part 11 to unlimited companies

1280A. For the purposes of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014², as amended by Directive (EU) 2017/2399 of the European Parliament and of the Council of 12 December 2017¹ F959[and Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019¹⁷, the application of certain provisions of Chapter 7 of Part 11 is modified, in relation to an unlimited company, as provided for in Chapter 1A of Part 25.]

CHAPTER 8 Investigations

1281. Application of section 747(2) to PUCs and PULCs

1281. (1) Section 747(2) shall apply to a PUC as if the following paragraph were substituted for paragraph (b):

• “(b) not less than 100 members of the company;”.

• (2) Section 747(2) shall apply to a PULC as if—

• (a) the following paragraph were substituted for paragraph (b):

• “(b) not less than 100 members of the company;”;

and

• (b) paragraph (c) were omitted therefrom.

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

1282. Application of Chapters 1, 2 and 4 of Part 23 to PUCs and PULCs

1282. 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 PUC and a PULC.

PART 20 RE-REGISTRATION

CHAPTER 1 Interpretation

1283. Interpretation (Part 20)

1283. (1) In this Part—

“resultant company” means the company that a company re-registering becomes on the issue to the latter of a certificate of incorporation under section 1285(6);

“resultant company type” means the type of company specified in the special resolution of a company under section 1285(1) as being the type of company which it wishes to be re-registered as;

“statement of compliance” shall be read in accordance with section 1285(4)(c);

“type of company” means a company of a type that may be formed and registered under this Act.

• (2) A word or expression used in this Part that is defined in a preceding Part of this Act shall, unless expressly provided otherwise, have the meaning given to it by that preceding Part.

CHAPTER 2 General provisions as to re-registration

1284. Company may re-register as another company type

1284. (1) This Part permits a company, subject to compliance with certain requirements, to re-register as another type of company.

• (2) This Part is in addition to—

• (a) the provisions of Chapter 6 of Part 2 requiring or enabling an existing private company (within the meaning of Part 2) to re-register as a designated activity company limited by shares during the period specified in that Chapter,

• (b) the provisions of sections 1040 and 1041 concerning the re-registration of a PLC as another type of company where the effect of the PLC cancelling its own shares will be that the nominal value of the PLC’s allotted share capital is brought below the authorised minimum.

1285. Procedure generally for re-registration

1285. (1) Subject to section 1286 and Chapter 3, a company may be re-registered as another type of company only if—

• (a) a special resolution of the company, complying with subsection (2), that it should be so re-registered is passed, and

• (b) an application for the purpose, in the prescribed form and signed by a director or secretary of the company, is delivered to the Registrar together with the documents specified in subsection (4).

• (2) The special resolution shall—

• (a) alter the company’s constitution so that it states that the company is to be a company of the type that the company wishes to be re-registered as,

• (b) make such other alterations in the company’s constitution as are necessary to bring it in substance and in form into conformity with the requirements of this Act with respect to the constitution of the resultant company type, and

• (c) make such other alterations in the company’s constitution as are requisite in the circumstances.

• (3) Without prejudice to the generality of subsection (2), where the resultant company type is a private company limited by shares, the alteration required by that subsection shall include the replacement of the memorandum and articles of the re-registering company by a constitution in conformity with section 19 and Schedule 1 (but nothing in this section authorises the alteration of the rights and obligations of members of the re-registering company, or of other persons, as set out in its memorandum and articles and, accordingly, where necessary, the foregoing replacement constitution shall include such supplemental regulations as will secure those rights and obligations).

• (4) The documents referred to in subsection (1) are—

• (a) a copy of the special resolution that the company should re-register as another type of company,

• (b) a copy of the constitution of the company as altered by the resolution,

• (c) a statement in the prescribed form (in this Part referred to as a “statement of compliance”) by a director or secretary of the company that the requirements of this Part as to re-registration as another type of company have been complied with by the company, including the passing of the special resolution for re-registration.

• (5) The Registrar may accept the statement of compliance as sufficient evidence that the special resolution has been duly passed and the other conditions of this Part for re-registration have been satisfied and that the company is entitled to be re-registered as the type of company concerned.

• (6) If, on an application for re-registration of a company as another type of company under subsection (1), the Registrar is satisfied that a company is entitled to be so re-registered, the Registrar shall—

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

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

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

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

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

• (a) the company shall, by virtue of the issue of that certificate, become a company of the type described in the certificate, and

• (b) any alterations in the constitution set out in the special resolution shall take effect accordingly.

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

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

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

and, accordingly, the law applicable to the resultant company type shall, on and from the issue of the certificate, apply to the company.

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

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

1286. Additional statements required of company that is to have a share capital on its re-registration

1286. (1) In addition to the requirements of section 1285, in the case of a company, being a company which does not have a share capital, that proposes to re-register as a company which does have share capital, there shall, as part of the application under that section, be delivered to the Registrar—

• (a) a statement under subsection (2) — in this section referred to as a “statement of initial shareholdings”, and

• (b) a statement under subsection (3) — in this section referred to as a “statement of share capital”.

• (2) The statement of initial shareholdings shall state with respect to each member of the company—

• (a) the number and nominal value of the shares to be taken by him or her on re-registration, and

• (b) the amount (if any) payable in respect of each share on re-registration, whether on account of the nominal value or by way of a premium.

• (3) The statement of share capital—

• (a) shall, if the resultant company will be other than a private company limited by shares, state with respect to the company’s share capital to be allotted on re-registration—

• (i) the total number of shares of the company,

• (ii) the aggregate nominal value of those shares,

• (iii) for each class of shares—

• (I) the total number of shares of that class,

• (II) the aggregate nominal value of shares of that class, and

• (III) the amount paid up and the amount (if any) unpaid on each share (whether on account of the nominal value of the share or by way of premium);

or

• (b) if the resultant company will be a private company limited by shares, state either (depending on whether it is to have an authorised share capital or not)—

• (i) the particulars specified in paragraph (a)(i) to (iii), or

• (ii) that the share capital of the company shall, at the time of its re-registration, stand divided into shares of the fixed amount specified in the copy of the constitution delivered under section 1285 and such of the other particulars specified in paragraph (a) as, having regard to that intended position, the circumstances permit to be stated.

1287. PLC’s resolution to re-register as a private company limited by shares or DAC may be cancelled by court

1287. (1) Subject to subsection (2), where a special resolution by a PLC to be re-registered as a private company limited by shares or a designated activity company has been passed, an application to the court for the cancellation of the resolution may be made by—

• (a) the holders of not less in the aggregate than 5 per cent in nominal value of the PLC’s issued share capital or any class of the PLC’s issued share capital (disregarding any shares held by the PLC as treasury shares), or

• (b) not less than 50 of the PLC’s members.

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

• (3) An application under this section shall be made within 28 days after the date on which the resolution 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.

• (4) If an application is made under this section—

• (a) the PLC shall forthwith give notice of that fact to the Registrar, and

• (b) within 15 days after the date of the court making its order on the application, or such longer period as the court may at any time direct, the PLC or the resultant company shall deliver to the Registrar a certified copy of the order.

• (5) On the hearing of an application under this section, the court shall make an order either cancelling or confirming the resolution.

• (6) The powers of the court on an application under this section extend to—

• (a) providing that the re-registration, notwithstanding the confirmation, shall not take effect unless such terms and conditions as the court thinks fit and specifies are satisfied,

• (b) if it thinks fit, adjourning the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and

• (c) giving such directions and making such order as it thinks expedient for facilitating or carrying into effect any such arrangement.

• (7) Without prejudice to the generality of subsection (6), the order of the court may, if the court thinks fit—

• (a) provide for the purchase by the PLC or the resultant company of the shares of any of its members and for the reduction accordingly of the PLC’s or the resultant company’s company capital, and

• (b) make such alteration in the PLC’s or the resultant company’s constitution as may be required in consequence of that provision, and such a purchase may be so ordered notwithstanding anything in section 102.

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

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

• (10) If a company (whether the PLC or the resultant company) fails to comply with subsection (4), the company and any officer of it who is in default shall be guilty of a category 3 offence.

1288. Re-registration upon reduction of company capital of a PLC

1288. (1) If—

• (a) the court makes an order confirming a reduction of the company capital of a PLC, and

• (b) that reduction has the effect of bringing the nominal value of the company’s allotted share capital below the authorised minimum,

the court may authorise the PLC to be re-registered as another type of company without its having passed a special resolution for that purpose.

• (2) Where the court makes an order authorising a PLC to so re-register, the court shall specify in the order the alterations in the PLC’s constitution to be made in connection with that re-registration.

• (3) In its application to a PLC that applies to be re-registered as another type of company in pursuance of an authority given under subsection (1), this Part shall have effect with the following modifications—

• (a) references in section 1285 to the special resolution of the company shall be read as references to the order of the court under subsection (1),

• (b) section 1285(1)(a) and (2) shall not apply and, in the event of an application to re-register the PLC as a private company limited by shares, section 1290(a) shall not apply, and, in the event of an application to re-register the PLC as a designated activity company, section 1298(1)(a) or 1299(1)(a), as the case may be, shall not apply, and

• (c) section 1285(6) shall be read as if the following were substituted for all the words preceding paragraphs (a) and (b) of it:

• “(6) On receipt of an application for re-registration under this section made in pursuance of an order of the court under section 1288(1), the Registrar shall—”.

CHAPTER 3 Special requirements for re-registration

1289. What this Chapter does and references to relevant Chapter 2 requirements

1289. (1) This Chapter—

• (a) makes provision in the following cases, namely—

• (i) a case in which an application is not made under section 1287; and

• (ii) a case in which an application is made under that section;

and, in the latter case, the provision made by this Chapter is by reference to the particular course that the application takes; and

• (b) specifies requirements, additional to those in Chapter 2, that must be complied with in certain cases before a re-registration may be effected.

• (2) In this Chapter a reference to the relevant Chapter 2 requirements is a reference to—

• (a) subject to paragraph (b), the requirements of section 1285,

• (b) in the case of a company that does not have a share capital and that proposes to re-register as a company that does have share capital, the requirements of sections 1285 and 1286.

1290. Particular requirements for re-registration as a private company limited by shares

1290. A company may be re-registered as a private company limited by shares if, in addition to compliance by the company with the relevant Chapter 2 requirements, the following requirements are complied with—

• (a) where the company is a PLC—

• (i) the period during which an application under section 1287 for the cancellation of the special resolution has expired without any such application having been made, or

• (ii) where such an application has been made, the application has been withdrawn, or

• (iii) either—

• (I) an order, not falling within clause (II), has been made under section 1287 confirming the resolution, or

• (II) if an order has been made under that section confirming the resolution but providing that re-registration shall not take effect unless specified terms and conditions are satisfied, those terms and conditions are satisfied,

and, in either case, a certified copy of that order has been delivered to the Registrar,

and

• (b) where the company is an unlimited company, the special resolution required by section 1285(1)(a) includes a statement that the liability of the members of the resultant company is to be limited by shares and—

• (i) if the resultant company is to have an authorised share capital, specifying what is to be that authorised share capital and the fixed amount of the shares into which that share capital is to be divided, or

• (ii) if the resultant company is not to have an authorised share capital, specifying the fixed amount of the shares into which the company’s share capital is to be divided.

1291. Particular requirements for re-registration of company as a PLC

1291. (1) A company may be re-registered as a PLC if, in addition to compliance by the company with the relevant Chapter 2 requirements and section 1292, the following requirements are complied with—

• (a) the company delivers the following documents to the Registrar:

• (i) a copy of a balance sheet of the company prepared as at a date not more than 7 months before the date on which the application for re-registration is received by the Registrar;

• (ii) an unqualified report by the company’s statutory auditors on that balance sheet;

• (iii) a copy of a written statement by the statutory auditors of the company that, in their opinion, that, at the balance sheet date, the amount of the company’s net assets was not less than the aggregate of its called-up share capital and undistributable reserves; and

• (iv) a copy of any report prepared under F960[section 1293],

• (b) the statement of compliance includes a statement by a director or secretary of the company confirming that, between the balance sheet date and the date of the making by the company of the application for re-registration, there has been no change in the financial position of the company that has resulted in the amount of the company’s net assets becoming less than the aggregate of its called-up share capital and undistributable reserves, and

• (c) where the company is an unlimited company, the special resolution required by section 1285(1)(a) includes a statement that the liability of the members of the resultant company is to be limited by shares and specifying what is to be the authorised share capital of the resultant company and the fixed amount of the shares into which that share capital is to be divided.

• (2) The Registrar shall not, on foot of the application to re-register a company as a PLC, issue a certificate of incorporation under section 1285(6) if it appears to the Registrar that—

• (a) by, either of the means specified in section 84(2), a reduction of the company’s company capital has taken place after the date of the passing of the special resolution that the company should be re-registered as a PLC, and

• (b) the reduction has the effect of bringing the nominal value of the company’s allotted share capital below the authorised minimum.

• (3) A qualification shall be treated for the purposes of the definition of an “unqualified report” in subsection (6) as being not material in relation to any balance sheet if, but only if, the person making the report states in writing that the thing giving rise to the qualification is not material for the purposes of determining, by reference to that balance sheet, whether, at the balance sheet date, the amount of the company’s net assets was not less than the aggregate of its called-up share capital and undistributable reserves.

• (4) For the purposes of the making, in relation to the foregoing balance sheet, of a report falling within the definition of an “unqualified report” in subsection (6), section 290 and the other relevant provisions of Part 6 (so far as applicable to balance sheets as distinct from the other elements of financial statements) shall be deemed to have effect in relation to that balance sheet with the following modifications.

• (5) Those modifications are such modifications as are necessary by reason of the fact (if such is the case) that that balance sheet is prepared otherwise than in respect of a financial year.

• (6) In this section—

“undistributable reserves” has the same meaning as in section 1082;

“unqualified report” means, in relation to the balance sheet of a company, a report stating without material qualification—

• (a) that, in the opinion of the person making the report, the balance sheet complies with section 290 and the other relevant provisions of Part 6 (so far as applicable to balance sheets as distinct from the other elements of financial statements); and

• (b) without prejudice to paragraph (a), that in the opinion of that person, the balance sheet gives a true and fair view of the company’s assets, liabilities and equity as at the balance sheet date.

1292. Requirements as to share capital of a company applying to re-register as a PLC

1292. (1) Subject to subsection (2), a company shall not be re-registered under this Part as a PLC unless, at the time the special resolution that the company should be re-registered as a PLC is passed—

• (a) the nominal value of the company’s allotted share capital is not less than the authorised minimum,

• (b) each of its allotted shares is paid up at least as to one-quarter of the nominal value of that share and the whole of any premium on it,

• (c) where any share in the company or any premium payable on it has been fully or partly paid up by an undertaking given by any person that that person or another should do work or perform services for the company or another, the undertaking has been performed or otherwise discharged, and

• (d) where shares have been allotted as fully or partly paid up to their nominal value or any premium payable on them otherwise than in cash and the consideration for the allotment consists of or includes an undertaking (other than one to which paragraph (c) applies) to the company either—

• (i) that undertaking has been performed or otherwise discharged, or

• (ii) there is a contract between the company and any person pursuant to which that undertaking must be performed within 5 years after that time.

• (2) Subject to subsection (3), any share allotted by the company—

• (a) which was allotted prior to 13 October 1986, or

• (b) which was allotted in pursuance of an employees’ share scheme and by reason of which the company would, but for this subsection, be precluded under subsection (1)(b), but not otherwise, from being re-registered as a PLC,

may be disregarded for the purpose of determining whether subsection (1)(b) to (d) is complied with in relation to the company, and a share so disregarded shall be treated for the purposes of subsection (1)(a) as if it were not part of the allotted share capital of the company.

• (3) A share shall not be disregarded by virtue of subsection (2)(a) if the aggregate in nominal value of that share and the other shares which it is proposed so to disregard is more than one-tenth of the nominal value of the company’s allotted share capital (not including any share disregarded by virtue of subsection (2)(b)).

1293. Shares allotted by company applying to re-register as PLC between balance sheet date and passing of special resolution

1293. (1) This section applies where—

• (a) shares are allotted by a company applying to re-register as a PLC between the balance sheet date and the passing of the special resolution to re-register, and

• (b) those shares have been allotted as fully or partly paid up as to their nominal value, or any premium on them, otherwise than in cash.

• (2) Where this section applies the company shall not make an application for re-registration as a PLC under this Part unless, before the making of the application—