Companies Act 2014

• (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 body’s assets, liabilities and equity as at the balance sheet date.

1318. Requirements as to share capital of body corporate applying to register as a PLC

1318. A body corporate shall not be registered under this Chapter as a PLC unless, at the time the registration resolution is passed—

• (a) the nominal value of the body’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 body 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 body 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 body either—

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

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

1319. Shares allotted by body corporate applying to register as PLC between balance sheet date and passing of registration resolution

1319. (1) This section applies where—

• (a) shares are allotted by a body corporate applying to register under this Chapter as a PLC between the balance sheet date and the passing of the registration resolution, 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 body corporate shall not make an application under this Chapter to register as a PLC unless, before the making of the application—

• (a) the consideration for the allotment referred to in subsection (1) has been valued in accordance with the provisions of Chapter 3 of Part 17 that are applied by this section, and

• (b) a report with respect to the consideration’s value has been made to the body in accordance with those provisions during the 6 months immediately preceding the date of that allotment,

but this is subject to subsection (4).

• (3) Without prejudice to subsection (4), the following provisions of Chapter 3 of Part 17, namely—

• (a) section 1028(5) to (11),

• (b) section 1029(4), and

• (c) section 1030,

shall apply for the purposes of this section as they apply for the purposes of subsection (1) of section 1028 and as if the references in them to that subsection (1) were references to subsection (2) of this section and with any other necessary modifications.

• (4) The provisions of Chapter 3 of Part 17 that operate to disapply the requirement under section 1028(1) for a valuation of the consideration referred to in that provision to be carried out (and the making of a report thereon) shall operate to disapply the requirement under subsection (2) for a valuation of the consideration referred to in that subsection to be carried out (and the making of a report thereon).

• (5) For the purpose of those foregoing provisions (as they operate by virtue of the preceding subsection), those provisions shall apply as if the references in them to subsection (1) of section 1028 were references to subsection (2) of this section and with any other necessary modifications.

• (6) In this section “balance sheet date” means the date as of which the balance sheet referred to in section 1317(1)(a) is prepared.

1320. Application of certain other provisions of Part 17 on allotments to a body that passed resolution for registration as a PLC

1320. Sections 1025 to 1033 and 1036, 1037 and 1038 shall apply to a body corporate which has passed and not revoked a resolution that the body be registered under this Chapter as a PLC as those sections apply to a PLC.

1321. Regulations for special cases

1321. (1) With respect to—

• (a) an application that may be made by a body corporate, being a body corporate which does not have a share capital, to register under this Chapter as a company which does have a share capital, or

• (b) an application that may be made by a body corporate to register under this Chapter as a company that is not a PLC,

the Minister may make regulations specifying requirements, additional to those contained in the preceding provisions of this Chapter, that must be complied with before the application may be acceded to by the Registrar.

• (2) The requirements that may be so specified may, in the case of an application referred to in subsection (1)(a), include requirements analogous to those in section 1286.

• (3) Where it is proposed to make a regulation under this section a draft of the proposed regulation shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.

1322. Change of name for purposes of registration

1322. (1) Subject to subsection (2), where the name of a body seeking registration under this Chapter is one by which it may not be so registered by reason of the name being, in the opinion of the Registrar, undesirable, it may, with the approval of the Registrar signified in writing, change its name with effect from its registration under this Chapter.

• (2) The like assent of the members of the body shall be required to the change of name as is by section 1316(1) required to the registration under this Chapter.

1323. Registration and its effects

1323. (1) On compliance with the requirements of this Chapter with respect to registration, the Registrar shall certify in writing that the body applying for registration is incorporated, on a date specified by the Registrar, as the type of company specified in the application and shall issue to the company a certificate of incorporation in respect of it, and upon the foregoing date the company shall be so incorporated.

• (2) In this Chapter, the foregoing date is referred to as the “registration date”.

• (3) A certificate issued under this section in respect of a company shall be conclusive evidence that the requirements of this Chapter in respect of registration and of matters precedent and incidental thereto have been complied with and that the company is duly registered under this Act.

• (4) On and from the registration date the following provisions have effect:

• (a) the provisions of this Act relating to the numbering of shares shall not apply to stock that had been issued, or shares, not numbered, that had been issued, by the company in its former status before that date;

• (b) for the purposes of any provision of this Act which requires delivery of a document or return to the Registrar, the company shall not be obliged to so deliver any document or return, which relates to the period prior to the registration date, if it would not have been required to deliver such document or return had it not registered as a company;

• (c) in the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the company in its former status contracted before the registration date, who is liable to pay or contribute to the payment of—

• (i) any debt or liability of the company in its former status contracted or incurred before that date,

• (ii) any sum for the adjustment of the rights of the members among themselves in respect of any such debt or liability, or

• (iii) the costs and expenses of winding up the company,

so far as relates to the foregoing debts or liabilities;

• (d) in the event of the company being wound up, every contributory shall be liable to contribute to the assets of the company, in the course of the winding up, all sums due from him or her in respect of any such liability as is mentioned in paragraph (c), and, in the event of the death or bankruptcy of any contributory, the provisions of this Act relating to the personal representatives of deceased contributories and to the assignees in bankruptcy of bankrupt contributories, respectively, shall apply.

• (5) All property, real and personal (including things in action), belonging to or vested in a body corporate registering under this Chapter as a company, shall, on the registration date, pass to and vest in that company for all the estate and interest of the body corporate therein.

• (6) Registration under this Chapter shall not affect—

• (a) the rights or liabilities of the company in its former status in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, it in its former status before the registration date, or

• (b) the priority of any mortgage, charge, pledge or other security or encumbrance created by the company in its former status before the registration date.

• (7) All actions and other legal proceedings which, at the registration date, are pending by or against the company in its former status, or any officer or member thereof, may be continued in the same manner as if the registration of it in its new status had not taken place.

1324. Supplemental provisions in relation to section 1323

1324. Without prejudice to the generality of section 1323(4) to (7), the following provisions shall have effect where a body corporate registers under this Chapter as a company, that is to say—

• (a) a reference (express or implied) to the body corporate in any instrument made, given, passed, or executed before the registration date shall be read as a reference to the company,

• (b) all contracts, agreements, conveyances, mortgages, deeds, leases, licences, other instruments, undertakings and notices (whether or not in writing) entered into by, made with, given to or by, or addressed to the body corporate (whether alone or with any other person) before the registration date and subsisting immediately before the registration date shall, to the extent that they were previously binding on and enforceable by, against, or in favour of the body corporate, be binding on and enforceable by, against, or in favour of the company as fully and effectually in every respect as if, instead of the body corporate, the company had been the person by whom they were entered into, with whom they were made, or to or by whom they were given or addressed as the case may be,

• (c) an instruction, order, direction, mandate, or authority given to the body corporate and subsisting immediately before the registration date shall be deemed to have been given to the company,

• (d) a security held by the body corporate as security for a debt or other liability to the body corporate incurred before the registration date shall be available to the company as security for the discharge of that debt or liability and, where the security extends to future or prospective debts or liabilities, shall be available as security for the discharge of debts or liabilities to the company incurred on or after the registration date, and, in relation to a security, the company, shall be entitled to all the rights and priorities (howsoever arising) and shall be subject to all liabilities to which the body corporate would have been entitled or subject if the body corporate had not become registered as a company,

• (e) all the rights and liabilities of the body corporate as bailor or bailee of documents or chattels shall be vested in and assumed by the company,

• (f) a negotiable instrument or order for payment of money which, before the registration date is drawn on or given to or accepted or endorsed by the body corporate or payable at a place of business of the body corporate shall, unless the context otherwise requires, have the same effect on and after the registration date as if it had been drawn on or given to or accepted or endorsed by the company instead of the body corporate or was payable at the place of business of the company,

• (g) nothing effected or authorised by this Chapter—

• (i) shall be regarded as placing the body corporate, or the company, or any other person, in breach of contract or confidence or as otherwise making any of them guilty of a civil wrong, or

• (ii) shall be regarded as giving rise to a right to any person to terminate or cancel any contract or arrangement or to accelerate the performance of any obligation, or

• (iii) shall be regarded as placing the body corporate or the company, or any other person in contravention or breach of any enactment or rule of law or contractual provision prohibiting, restricting or regulating the assignment or transfer of any property or the disclosure of any information, or

• (iv) shall release any surety, wholly or in part, from any obligation, or

• (v) shall invalidate or discharge any contract or security.

1325. Consequential repeals

1325. (1) The statutes specified in Part 1 of Schedule 15 are repealed to the extent specified in the third column of that Part.

• (2) The charters or instruments specified in Part 2 of Schedule 15 are revoked to the extent specified in the second column of that Part.

CHAPTER 3 Winding up of unregistered company

1326. Chapter 3 — construction of expression “unregistered company”

1326. For the purposes of this Chapter “unregistered company” includes any trustee savings bank licensed under the Trustee Savings Banks Act 1989, any partnership whether limited or not, any association and any company other than—

• (a) a company as defined by section 2(1),

• (b) a partnership, association or company which consists of less than 8 members and is not formed outside the State.

1327. Restriction of this Chapter

1327. This Chapter is subject to Chapters I (general provisions) and III (secondary insolvency proceedings) of the Insolvency Regulation.

1328. Winding up of unregistered companies

1328. (1) Subject to the provisions of this Chapter, any unregistered company may be wound up under Part 11 and all the provisions of Part 11 relating to winding up shall apply to an unregistered company with the exceptions and additions mentioned in this section F968[and, 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 F969[and Directive (EU) 2019/879 of the European Parliament and of the Council of 20 May 2019¹⁷, Chapter 1A of Part 25].

• (2) The principal place of business in the State of an unregistered company shall, for all the purposes of the winding up, be deemed to be the registered office of the company.

• (3) No unregistered company shall be wound up under this Act voluntarily.

• (4) The circumstances in which an unregistered company may be wound up are as follows:

• (a) if the company is dissolved or has ceased to carry on business or is carrying on business only for the purpose of winding up its affairs;

• (b) if the company is unable to pay its debts;

• (c) if the court is of the opinion that it is just and equitable that the company should be wound up.

• (5) A petition for winding up a trustee savings bank licensed under the Trustee Savings Banks Act 1989 may be presented by the Minister for Finance as well as by any person authorised under the other provisions of this Act to present a petition for winding up a company.

• (6) Where a company incorporated outside the State which has been carrying on business in the State ceases to carry on business in the State it may be wound up as an unregistered company under this Part notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.

1329. Cases in which unregistered company shall be deemed to be unable to pay its debts

1329. (1) In any of the following 4 cases, that is to say, those to which subsections (2) to (5) relate, an unregistered company shall be deemed to be unable to pay its debts for the purposes of this Chapter.

• (2) This subsection relates to a case in which—

• (a) a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding €10,000 then due, has served on the company—

• (i) by leaving at its principal place of business in the State,

• (ii) by delivering to the secretary or some director or principal officer of the company, or

• (iii) by serving otherwise in such manner as the court may approve or direct,

a demand in writing requiring the company to pay the sum so due, and

• (b) the company has, for 21 days after the date of the service of the demand, neglected to pay the amount or to secure or compound for it to the satisfaction of the creditor.

• (3) This subsection relates to a case in which—

• (a) any action or other proceeding has been instituted against any person who is a member of the company for any debt or demand due, or claimed to be due, from the company or from the person in his or her character as member of it,

• (b) notice in writing that that action or proceeding has been instituted has been served, by the means referred to in subsection (2)(a)(i), (ii) or (iii), on the company, and

• (c) the company has not, within 10 days after the date of service of the notice, paid, secured or compounded for the debt or demand or procured the action or proceeding to be stayed or indemnified the defendant to his or her reasonable satisfaction against the action or proceeding and against all costs, damages and expenses to be incurred by the defendant by reason of the action or proceeding.

• (4) This subsection relates to a case in which, in the State or in any state recognised by the Minister for the purposes of section 1417 there has been returned unsatisfied execution or other process issued on a judgement, decree or order obtained in any court in favour of a creditor against—

• (a) the company,

• (b) any person, being a member of the company, in his or her character as such member, or

• (c) any person authorised to be sued as nominal defendant on behalf of the company.

• (5) This subsection relates to a case in which it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts.

1330. Contributories in winding up of unregistered company

1330. (1) In the event of an unregistered company being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of—

• (a) any debt or liability of the company,

• (b) any sum for the adjustment of the rights of the members among themselves, or

• (c) the costs and expenses of winding up the company,

and every contributory shall be liable to contribute to the assets of the company, all sums due from him or her in respect of any such liability as is mentioned in the preceding paragraphs.

• (2) In the event of the death or bankruptcy of any contributory, the provisions of this Act relating to the personal representatives of deceased contributories and to the assignees in bankruptcy of bankrupt contributories, respectively, shall apply.

1331. Power of court to stay or restrain proceedings

1331. The provisions of this Act relating to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order shall, in the case of an unregistered company where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.

1332. Actions stayed on winding-up order

1332. Where an order has been made for winding up an unregistered company, no action or proceeding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the court and subject to such terms as the court may impose.

1333. Provisions of this Chapter to be cumulative

1333. The provisions of this Chapter relating to unregistered companies shall be in addition to and not in restriction of any provisions contained in Part 11 relating to winding up companies by the court and the court or liquidator may exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him or her in winding up companies formed and registered under this Act.

CHAPTER 4 Provisions concerning companies registered, but not formed, under former Acts and certain other existing companies

1334. Application of Act to companies registered but not formed under former Companies Acts

1334. (1) Subject to subsection (2), this Act shall apply to every company registered (in a register kept in the State) but not formed under—

• (a) the Joint Stock Companies Acts,

• (b) the Companies Act 1862,

• (c) the Companies (Consolidation) Act 1908, or

• (d) the prior Companies Acts,

in the same manner as it is in Chapter 5 declared to apply to companies registered but not formed under this Act.

• (2) In this Act a reference, express or implied, to the date of registration shall, in the case of a company registered but not formed under a foregoing enactment, be read as a reference to the date at which the company was registered under—

• (a) the Joint Stock Companies Acts,

• (b) the Companies Act 1862,

• (c) the Companies (Consolidation) Act 1908, or

• (d) the prior Companies Acts,

as the case may be.

1335. Application of Act to unlimited companies re-registered as limited companies under certain former enactments

1335. (1) Subject to subsection (2), this Act shall apply to every unlimited company registered (in a register kept in the State) as a limited company in pursuance of—

• (a) the Companies Act 1879, or

• (b) section 57 of the Companies (Consolidation) Act 1908,

in the same manner as it applies to an unlimited company re-registered in pursuance of this Act as a limited company.

• (2) In this Act a reference, express or implied, to the date of registration shall, in the case of an unlimited company registered as a limited company in pursuance of an enactment referred to in paragraph (a) or (b), as the case may be, of subsection (1), be read as a reference to the date on which it was registered as such in pursuance of the enactment referred to in that paragraph.

1336. Provisions as to companies registered under Joint Stock Companies Acts

1336. (1) A company registered under the Joint Stock Companies Acts may cause its shares to be transferred in manner hitherto in use, or in such other manner as the company may direct.

• (2) The power conferred by this Act on a company (not being a private company limited by shares) to alter its articles shall, in the case of an unlimited company formed and registered under the Joint Stock Companies Acts, extend to altering any regulations relating to the amount of capital or to its distribution into shares, notwithstanding that those regulations are contained in the memorandum.

CHAPTER 5 Registration of joint stock companies under this Act

1337. Interpretation (Chapter 5)

1337. In this Chapter—

“joint stock company” means a company—

• (a) having a permanent paid up or nominal share capital of fixed amount divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other; and

• (b) formed on the principle of having for its members the holders of those shares or that stock, and no other persons,

and such a company when registered with limited liability under this Chapter shall be deemed to be a company limited by shares;

“registration date” shall be read in accordance with section 1343(2);

“registration resolution” shall be read in accordance with section 1338(6).

1338. Companies capable of being registered

1338. (1) With the exceptions and subject to the provisions contained in this section, any—

• (a) company registered under the Joint Stock Companies Acts; or

• (b) joint stock company,

may at any time register under this Chapter as—

• (i) a private company limited by shares,

• (ii) a designated activity company,

• (iii) a company limited by guarantee, or

• (iv) an unlimited company,

and the registration shall not be invalid by reason that it has taken place with a view to the company’s being wound up.

• (2) This section shall not apply to a company unless it has its registered office or principal place of business in the State.

• (3) A company having the liability of its members limited by statute or letters patent, and not being a joint stock company, shall not register under this Chapter.

• (4) A company, having the liability of its members limited by statute or letters patent, shall not register under this Chapter as an unlimited company or as a company limited by guarantee.

• (5) A company that is not a joint stock company shall not register under this Chapter as a company limited by shares.

• (6) A company shall not be registered under this Chapter as any particular type of company referred to in subsection (1) without the assent (in this Chapter referred to as a “registration resolution”) to its registration as that type of company given, subject to subsection (7), by a majority of such of its members as are present in person or by proxy at a general meeting summoned for the purpose.

• (7) Where a company, not having the liability of its members limited by statute or letters patent, is about to register as a limited company, the majority required to assent as mentioned in subsection (6) shall consist of not less than three-fourths of the members present in person or by proxy at the meeting.

• (8) Where a company is about to register as a company limited by guarantee, the assent to its being so registered shall be accompanied by a resolution declaring that each member undertakes to contribute to the assets of the company, in the event of its being wound up while he or she is a member, or within one year after the date on which he or she ceases to be a member—

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

• (b) for payment of the costs and expenses of winding up, and

• (c) for the adjustment of the rights of the contributories among themselves,

such amount as may be required, not exceeding an amount specified in the resolution.

• (9) In computing any majority under this section when a poll is demanded, regard shall be had to the number of votes to which each member is entitled according to the regulations of the company.

• (10) Section 1322 shall apply for the purposes of this section as it applies for the purposes of Chapter 2 with the substitution for the reference in subsection (2) of that section to section 1316(1) of a reference to subsection (6) or (7), as the case may be, of this section and any other necessary modifications.

1339. Requirements for registration of joint stock companies

1339. Before the registration of a joint stock company under this Chapter as a company, there shall be delivered to the Registrar the following documents—

• (a) a list showing the names, addresses and occupations of all persons who on a day named in the list, not being more than 6 days before the day of registration, were members of the company, specifying the shares or stock held by them respectively (distinguishing, in cases where the shares are numbered, each share by its number),

• (b) a copy of any statute, charter, letters patent, deed of settlement, contract of co-partnery or other instrument constituting or regulating the company, and

• (c) if the company is intended to be registered as a limited company, a statement specifying the following particulars in relation to that proposed limited company—

• (i) the nominal share capital of the company and the number of shares into which it is divided, or the amount of stock of which it consists,

• (ii) the number of shares taken and the amount paid on each share,

• (iii) the name of the company with the addition of, as appropriate—

• (I) “limited” or “teoranta”,

• (II) “designated activity company” or “cuideachta ghníomhaíochta ainmnithe”,

• (III) “company limited by guarantee” or “cuideachta faoi theorainn rathaiochta”,

• (IV) “unlimited company” or “cuideachta neamhtheoranta”, as the last word or words thereof, and

• (iv) in the case of a company intended to be registered as a company limited by guarantee, the resolution declaring the amount of the guarantee.

1340. Verifications of lists of members and directors of company for purposes of registration

1340. The lists of members and directors and any other particulars relating to the company required to be delivered under this Chapter to the Registrar shall be verified by a declaration of any 2 or more directors or other principal officers of the company.

1341. Registrar may require evidence as to nature of company

1341. The Registrar may require such evidence as the Registrar thinks necessary for the purpose of satisfying himself or herself whether any company which proposes to be registered under this Chapter is or is not a joint stock company.

1342. Addition of “limited” or “teoranta”, etc., to name

1342. (1) Subject to subsection (2), when a company registers under this Chapter with limited liability, the words—

• (a) “limited” or “teoranta”,

• (b) “designated activity company” or “cuideachta ghníomhaíochta ainmnithe”,

• (c) “company limited by guarantee” or “cuideachta faoi theorainn rathaiochta”,

as the case may be, shall form and be registered as part of its name.

• (2) Subsection (1) shall not be taken as excluding the operation of section 971 or 1180.

• (3) When a company registers under this Chapter with unlimited liability, the words “unlimited company” or “cuideachta neamhtheoranta” shall form and be registered as part of its name.

1343. Certificate of registration of existing company

1343. (1) On compliance with the requirements of this Chapter with respect to registration, the Registrar shall certify in writing that the company applying for registration is incorporated, on a date specified by the Registrar, as the type of company specified in the application and shall issue to the company a certificate of incorporation in respect of it, and upon the foregoing date the company shall be so incorporated.

• (2) In this Chapter, the foregoing date is referred to as the “registration date”.

• (3) A certificate issued under this section in respect of a company shall be conclusive evidence that the requirements of this Chapter in respect of registration and of matters precedent and incidental thereto have been complied with and that the company is duly registered under this Act.

1344. Effects of registration under this Chapter

1344. (1) When a company is registered under this Chapter, the following provisions shall have effect.

• (2) Section 1323(5) and (6) and, subject to subsection (3), section 1323(7) shall apply to the company as they apply to a body corporate that has registered under Chapter 2 as a company.

• (3) Notwithstanding section 1323(7), execution shall not issue against the effects of any individual member of the company on any judgment, decree or order obtained in any such action or proceeding as is mentioned in section 1323(7), but in the event of the property and effects of the company being insufficient to satisfy the judgment, decree or order, an order may be obtained for winding up the company.

• (4) Subsection (5) applies unless the company has registered under this Chapter as a private company limited by shares.

• (5) All provisions contained in any statute or instrument constituting or regulating the company, including, in the case of a company registered as a company limited by guarantee, the resolution declaring the amount of the guarantee, shall be deemed to be conditions and regulations of the company, in the same manner and with the same incidents as if—

• (a) so much of them as would, if the company had been formed under this Act, have been required to be inserted in the memorandum, were contained in a registered memorandum, and

• (b) the residue of them were contained in registered articles.

• (6) If the company has registered under this Chapter as a private company limited by shares, all provisions contained in any statute or instrument constituting or regulating the company shall be deemed to be conditions and regulations of the company, in the same manner and with the same incidents as if they were contained in a registered constitution.

• (7) All the provisions of this Act shall apply to the company and the members, contributories and creditors thereof, in the same manner in all respects as if it had been formed under this Act, subject as follows—

• (a) the provisions of this Act relating to the numbering of shares shall not apply to any stock that had been issued, or shares, not numbered, that had been issued, by the company in its former status before the registration date,

• (b) subject to the provisions of this section, the company shall not have power to alter any provision contained in any statute relating to the company,

• (c) subject to the provisions of this section, the company shall not have power, without the sanction of the Minister, to alter any provision contained in any letters patent relating to the company,

• (d) the company shall not have power to alter any provision contained in a charter or letters patent relating to the objects of the company,

• (e) in the event of the company being wound up, every person shall be a contributory, in respect of the debts and liabilities of the company in its former status contracted before registration, who is liable to pay or contribute to the payment of—

• (i) any debt or liability of the company in its former status contracted or incurred before the registration date,

• (ii) any sum for the adjustment of the rights of the members among themselves in respect of any such debt or liability,

• (iii) the costs and expenses of winding up the company,

so far as relates to the foregoing debts or liabilities,

• (f) in the event of the company being wound up, every contributory shall be liable to contribute to the assets of the company, in the course of the winding up, all sums due from him or her in respect of any such liability as is mentioned in paragraph (e), and in the event of the death or bankruptcy of any contributory, the provisions of this Act relating to the personal representatives of deceased contributories and to the assignees in bankruptcy of bankrupt contributories, respectively, shall apply.

• (8) The provisions of this Act relating to—

• (a) the registration of an unlimited company as limited,

• (b) the powers of an unlimited company on registration as a limited company to increase the nominal amount of its share capital and to provide that a portion of its share capital shall not be capable of being called up except in the event of winding up,

• (c) the power of a limited company to determine that a portion of its share capital shall not be capable of being called up except in the event of winding up,

shall apply notwithstanding any provisions contained in any statute, charter or other instrument constituting or regulating the company.

• (9) Nothing in this section shall authorise the company, not being a private company limited by shares, to alter any such provisions contained in any instrument constituting or regulating the company as would, if the company had originally been formed under this Act, have been required to be contained in the memorandum and are not authorised to be altered by this Act.

• (10) None of the provisions of this Act (apart from section 212(4)) shall derogate from any power of altering its constitution or regulations which may, by virtue of any statute or other instrument constituting or regulating the company, be vested in the company.

• (11) In this section “instrument” includes deed of settlement, contract of co-partnery and letters patent.

1345. Power to substitute memorandum and articles for deed of settlement

1345. (1) Subject to subsections (2) to (4), a company registered under this Chapter may, by special resolution, alter the form of its constitution by substituting a memorandum and articles for a deed of settlement.

• (2) The provisions of sections 974 and 975 relating to applications to the court for cancellation of alterations of the objects of a designated activity company and matters consequential on the passing of resolutions for such alterations shall, so far as applicable, apply to an alteration under this section with the following modifications:

• (a) there shall be substituted for the copy of the altered memorandum, required to be delivered to the Registrar, a copy of the substituted memorandum and articles; and

• (b) on the delivery to the Registrar of a copy of the substituted memorandum and articles or on the date when the alteration is no longer liable to be cancelled by order of the court, whichever last occurs, the substituted memorandum and articles shall apply to the company in the same manner as if it were a company registered under this Act, with that memorandum and those articles, and the company’s deed of settlement shall cease to apply to the company.

• (3) An alteration under this section may be made either with or without any alteration of the objects of the company under this Act.

• (4) In this section “deed of settlement” includes any contract of co-partnery or other instrument constituting or regulating the company, not being a statute, charter or letters patent.

1346. Power of court to stay or restrain proceedings

1346. The provisions of this Act relating to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order shall, in the case of a company registered under this Chapter, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.

1347. Actions stayed on winding-up order

1347. Where an order has been made for winding up a company registered under this Chapter, no action or proceeding shall be commenced or proceeded with against the company or any contributory of the company, in respect of any debt of the company except by leave of the court and subject to such terms as the court may impose.

PART 23 PUBLIC OFFERS OF SECURITIES, FINANCIAL REPORTING BY TRADED COMPANIES, PREVENTION OF MARKET ABUSE, ETC.

CHAPTER 1 Public offers of securities

1348. Interpretation (Chapter 1)

1348. (1) In this Chapter—

F970[…]

“body corporate” includes a company;

F971["delegated act" means a delegated act, for the time being in force, adopted by the Commission of the European Union in accordance with Article 44 of the Prospectus Regulation;]

F971["Domestic Regulations" means the law of the State (other than, save where the context otherwise admits, this Chapter) giving further effect to the Prospectus Regulation;]

F972["EU prospectus law" means—

• (a) the Prospectus Regulation, and

• (b) the delegated acts;]

“expert” F973[…] includes engineer, valuer, accountant and any other individual or body (whether incorporated or unincorporated) the profession of whom, or the profession of members, officers or employees of which, gives authority to a statement made by the individual or body;

F972["Irish prospectus law" means—

• (a) the Domestic Regulations, and

• (b) the law of the State giving effect or further effect to the delegated acts;]

“issuer” means a body corporate or other legal entity which issues or proposes to issue securities;

F972["local offer" means an offer of securities to the public in the State where—

• (a) the offer expressly limits the amount of the total consideration for the offer to more than €100,000 and less than €8,000,000 (and the means by which that limit shall be calculated, in particular in the case of a series of such offers of securities, shall be the same as that provided for by the Domestic Regulations in relation to analogous limits specified by the Domestic Regulations for any purpose),

• (b) the securities are other than those referred to in any of—

• (i) points (a) to (f) of Article 1(2),

• (ii) Article 1(4)(j), or

• (iii) point (i) of the first subparagraph of Article 1(5),

of the Prospectus Regulation, and

• (c) the offer is not of a kind described in any of—

• (i) points (a) to (d) of Article 1(4), or

• (ii) Article 5(1),

of the Prospectus Regulation;]

“Minister” means the Minister for Finance;

F973[…]

“offering document” means a document prepared for a local offer which document, if prepared in connection with an offer to which the F974[Prospectus Regulation], would be a prospectus;

“offeror” means a body corporate or other legal entity or an individual which or who offers securities to the public;

“promoter” means, subject to subsection (5), a promoter who was a party to the preparation of a prospectus, or of the portion thereof containing an untrue statement;

“prospectus” means a document or documents in such form and containing such information as may be required by or under this Chapter or EU prospectus law, howsoever the document or documents are constituted, but does not include any advertisements in newspapers or journals derived from the foregoing;

F975["Prospectus Regulation" means Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017⁶ on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC, as amended by—

• (a) Regulation (EU) 2019/2115 of the European Parliament and of the Council of 27 November 2019⁷

amending Directive 2014/65/EU and Regulations (EU) No 596/2014 and (EU) 2017/1129 as regards the promotion of the use of SME growth markets,

• (b) Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020⁸ on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937, and

• (c) Regulation (EU) 2021/337 of the European Parliament and of the Council of 16 February 2021⁹ amending Regulation (EU) 2017/1129 as regards the EU Recovery prospectus and targeted adjustments for financial intermediaries and Directive 2004/109/EC as regards the use of the single electronic reporting format for annual financial reports, to support the recovery from the COVID-19 crisis;]

“securities” has the same meaning as it has in F974[the Prospectus Regulation], and includes shares and debentures of a company.

• F976[(2) A word or expression that is used in this Chapter and is also used in the Prospectus Regulation shall have in this Chapter the same meaning as it has in that Regulation, unless the contrary intention appears.]

• (3) For the purposes of this Chapter—

• (a) a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included, and

• (b) a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein.

• (4) Without limiting the meaning of that expression in any other context in which it is used in this Chapter, “statement” in section 1353(2) (other than paragraph (b) thereof) and any other section of this Chapter that makes provision in respect of an expert, includes a report and a valuation.

• (5) Nothing in this Chapter shall limit or diminish any liability which any person may incur under the general law.

• (6) For the purposes of sections 1349 and 1351, the following persons shall be deemed not to be a promoter or a person who has authorised the issue of the prospectus—

• (a) a professional adviser to any person referred to in section 1349 acting as such,

• (b) an underwriter or professional adviser to an underwriter acting as such.

• (7) The person referred to as the “purchaser” in the following case shall be deemed to be an underwriter for the purposes of subsection (6)(b).

• (8) That case is one in which—

• (a) a person (the “offeror”) intends to make an offer of securities to the public; and

• (b) another person (the “purchaser”)—

• (i) agrees to purchase those securities with the intention of their immediate resale, to give effect to that intention of the offeror, at a profit or subject to payment by the offeror to the purchaser of a commission; and

• (ii) binds himself or herself to purchase, or procure the purchase of, any of the securities not so resold.

1349. Civil liability for misstatements in prospectus

1349. (1) Subject to sections 1350 and 1351, the following persons shall be liable to pay compensation to all persons who acquire any securities on the faith of a prospectus for the loss or damage they may have sustained by reason of—

• (a) any untrue statement included therein; or

• (b) any omission of information required by EU prospectus law to be contained in the prospectus;

namely—

• (i) the issuer who has issued the prospectus or on whose behalf the prospectus has been issued;

• (ii) the offeror of securities to which the prospectus relates;

• (iii) every person who has sought the admission of the securities to which the prospectus relates to trading on a regulated market;

• (iv) the guarantor of the issue of securities to which the prospectus relates;

• (v) every person who is a director of the issuer at the time of the issue of the prospectus;

• (vi) every person who has authorised himself or herself to be named and is named in the prospectus as a director of the issuer or as having agreed to become such a director either immediately or after an interval of F977[time.]

• (vii) F978[…]

• (viii) F978[…]

• (2) In addition to the persons specified in subsection (1) as being liable in the circumstances there set out, an expert who has given the consent required by section 1353 to the inclusion in a prospectus of a statement purporting to be made by him or her shall, subject to sections 1350 and 1351, be liable to pay compensation to all persons who acquire any securities on the faith of the prospectus for the loss or damage they may have sustained by reason of an untrue statement in the prospectus purporting to be made by him or her as an expert.

1350. Exceptions and exemptions

1350. F979[(1) A person shall not be liable under section 1349 solely on the basis of a summary of a prospectus or the specific summary of an EU Growth Prospectus (including a translation of either such summary), unless—

• (a) it is misleading, inaccurate or inconsistent when read together with other parts of the prospectus, or

• (b) it does not provide, when read together with other parts of the prospectus, key information in order to aid investors when determining whether to invest in the securities concerned.]

• F980[(1A) F981[…]]

• (2) Subject to subsection (4), a person shall not be liable under section 1349 if he or she proves—

• (a) that, having consented to become a director of the issuer, he or she withdrew, in writing, his or her consent before the issue of the prospectus, and that it was issued without his or her authority or consent; or

• (b) that the prospectus was issued without his or her knowledge or consent and that, on becoming aware of its issue, he or she forthwith gave reasonable public notice that it was issued without his or her knowledge or consent; or

• (c) that after the issue of the prospectus and before the acquisition of securities thereunder by the person referred to in section 1349, he or she, on becoming aware of any untrue statement therein or omission of material information required by EU prospectus law to be contained therein, withdrew, in writing, his or her consent thereto and gave reasonable public notice of the withdrawal and of the reason therefor; or

• (d) that—

• (i) as regards—

• (I) every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement;

• (II) the omission from the prospectus of any information required by EU prospectus law to be contained therein;

he or she had reasonable grounds to believe, and did up to the time of the issue of the securities believe, that the statement was true or that the matter whose omission caused loss was properly omitted; and

• (ii) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation, and he or she had reasonable grounds to believe and did up to the time of the issue of the prospectus believe that the person making the statement was competent to make it and, where required by section 1353, that that person had given his or her consent to the inclusion of the statement in the prospectus and had not withdrawn, in writing, that consent before the publication of the prospectus or, to the defendant’s knowledge, before issue of securities thereunder; and

• (iii) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document.

• (3) In subsections (4) and (5) “by reason of the relevant consent”, in relation to an expert, means by reason of his or her having given the consent required of him or her by section 1353 to the inclusion in the prospectus of the statement concerned.

• (4) Subsection (2) shall not apply in the case of an expert, by reason of the relevant consent, in respect of an untrue statement purporting to be made by him or her as an expert.

• (5) An expert who, apart from this subsection, would be liable under section 1349, by reason of the relevant consent, in respect of an untrue statement purporting to be made by him or her as an expert shall not be so liable if he or she proves—

• (a) that having given his or her consent to the inclusion in the prospectus of the statement, he or she withdrew it in writing before publication of the prospectus; or

• (b) that, after publication of the prospectus and before the acquisition of securities thereunder by the person referred to in section 1349, on becoming aware of the untrue statement, withdrew his or her consent in writing and gave reasonable public notice of the withdrawal and of the reason therefor; or

• (c) that he or she was competent to make the statement and that he or she had reasonable grounds to believe and did up to the time of such acquisition of the securities believe that the statement was true.

1351. Restriction of liability where non-equity securities solely involved

1351. Where a prospectus is issued solely in respect of non-equity securities—

• (a) only—

• (i) the offeror or the person who has sought the admission of the securities to which the prospectus relates to trading on a regulated market; and

• (ii) subject to, and to the extent provided in, paragraph (c), the guarantor (if any);

and no other person referred to in section 1349 shall be liable under that section in the circumstances in which that section applies unless—

• (I) the prospectus expressly provides otherwise; or

• (II) that other such person is convicted on indictment of an offence created by F982[the Domestic Regulations] or an offence under section 1357 in respect of the issue of that prospectus;

• (b) neither section 223(1) nor 226(1) shall apply to the directors or secretary of the issuer to the extent that such application would thereby impose a liability under section 1349 on such directors or secretary; and

• (c) no liability shall attach under section 1349 to a guarantor of such securities save in respect of statements included in, or information omitted from, the prospectus that relate to the guarantor or the guarantee given by the guarantor.

1352. Indemnification of certain persons

1352. (1) This section applies where—

• (a) a prospectus contains the name of a person as a director of the issuer, or as having agreed to become a director thereof, and the person has not consented to become a director, or has withdrawn, in writing, his or her consent before the issue of the prospectus, and has not authorised or consented to the issue thereof; or

• (b) the consent of an expert is required by section 1353 to the inclusion in a prospectus of a statement purporting to be made by the expert and he or she either has not given that consent or has withdrawn, in writing, that consent before the issue of the prospectus.

• (2) The directors of the issuer, except any without whose knowledge or consent the prospectus was issued, and any other person who authorised the issue thereof shall be liable to indemnify the person named as mentioned in subsection (1) or, as the case may be, whose consent was required as so mentioned against each of the following:

• (a) all damages, costs and expenses to which the person may be made liable by reason of the person’s name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by the person as an expert, as the case may be;

• (b) all costs and expenses in defending himself or herself against any action or legal proceeding brought against him or her in respect thereof.

1353. Expert’s consent to issue of prospectus containing statement by him or her

1353. (1) The prohibition in subsection (2) only applies in relation to a prospectus if EU prospectus law requires the inclusion in the prospectus of a statement of the kind referred to in paragraph (b) of that subsection.

• (2) A prospectus including a statement that is attributed to an expert shall not be issued unless—

• (a) the expert has given and has not, before publication of the prospectus, withdrawn, in writing, his or her consent to the inclusion in the prospectus of the statement in the form and context in which it is included, and

• (b) a statement that the expert has given and has not withdrawn, in writing, that consent appears in the prospectus.

• (3) If any prospectus is issued in contravention of this section, the issuer and every person who is knowingly a party to the issue thereof shall be guilty of a category 3 offence.

1354. Regulations (Chapter 1)

1354. (1) The Minister may make regulations for the purposes of—

• F983[(a) giving further effect to the Prospectus Regulation; and]

• (b) supplementing and making consequential provision in respect of the F983[delegated acts].

• (2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of those regulations, including—

• (a) provisions creating offences (but the regulations may only provide penalties in respect of a summary conviction for any such offence); and

• (b) provisions revoking instruments made under other enactments.

• (3) This section is without prejudice to section 3 of the European Communities Act 1972.

1355. Saver for existing Prospectus Regulations

1355. (1) Regulations made under section 46 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 and in force immediately before the commencement of this section shall continue in force as if they were regulations made under section 1354 and may be amended or revoked accordingly.

• (2) Without prejudice to Schedule 6 or to the generality of section 26(2)(f) of the Interpretation Act 2005, the reference in Regulation 107(4) of the Prospectus (Directive 2003/71/EC) Regulations 2005 (S.I. No. 324 of 2005) to section 47 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 shall, after the commencement of this section, be read as a reference to section 1356.

• (3) The adaptation of reference effected by subsection (2) does not affect the operation of section 27 of the Interpretation Act 2005 as it concerns a prosecution initiated before or after the repeal by this Act of section 47 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 in respect of an offence referred to in that section 47 committed before that repeal.

1356. Penalties on conviction on indictment and defences in respect of certain offences

1356. (1) A person who is guilty of an offence created by Irish prospectus law (being an offence expressed by that law to be an offence to which this section applies) shall, without prejudice to any penalties provided by that law in respect of a summary conviction for the offence, be liable, on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 5 years or both.

• (2) In any proceedings against a person in respect of an offence created by Irish prospectus law, it shall be a defence to prove—

• (a) as regards any matter not disclosed in the prospectus concerned, that the person did not know it; or

• (b) the contravention arose from an honest mistake of fact on the person’s part; or

• (c) the contravention was in respect of matters which, having regard to the circumstances of the case, was immaterial or as respects which, having regard to those circumstances, the person ought otherwise reasonably to be excused.

1357. Untrue statements and omissions in prospectus: criminal liability

1357. (1) Where a prospectus is issued and—

• (a) includes any untrue statement; or

• (b) omits any information required by EU prospectus law to be contained in it;

any person who authorised the issue of the prospectus (not being the competent authority designated under F984[the Domestic Regulations]) shall be guilty of a category 2 offence unless he or she proves—

• (i) as regards an untrue statement, either that the statement was, having regard to the circumstances of the case, immaterial or that he or she honestly believed and did, up to the time of the issue of the prospectus, believe that the statement was true; or

• (ii) as regards any information omitted, either that the omission was, having regard to the circumstances of the case, immaterial or that he or she did not know it; or

• (iii) that the making of the statement or omission was otherwise such as, having regard to the circumstances of the case, ought reasonably to be excused.

• (2) Without prejudice to the generality of section 865(1), summary proceedings in relation to an offence under this section may be brought and prosecuted by the competent authority designated under F984[the Domestic Regulations].

• (3) If at a trial for an offence under this section or an offence created by Irish prospectus law, the judge or jury has to consider whether the defendant honestly believed a particular thing or was honestly mistaken in relation to a particular thing, the presence or absence of reasonable grounds for such a belief or for his or her having been so mistaken is a matter to which the judge or jury is to have regard, in conjunction with any other relevant matters, in considering whether the defendant so believed or was so mistaken.

1358. Requirements about minimum subscriptions, matters to be stated in offer documentation in that regard, etc.

1358. (1) No allotment shall be made of any share capital of a PLC offered for subscription unless—

• (a) that capital is subscribed for in full, or

• (b) the offer states that, even if the capital is not subscribed for in full, the amount of that capital subscribed for may be allotted in any event or in the event of the conditions specified in the offer being satisfied,

and, where conditions are so specified, no allotment of the capital shall be made by virtue of paragraph (b) unless those conditions are satisfied.

• (2) Without prejudice to the generality of subsection (1), where a prospectus states—

• (a) the minimum amount which, in the opinion of the directors, must be raised from an issue of shares; and

• (b) that no allotment shall be made of any of those shares unless that minimum amount has been subscribed and the sum payable on application for the amount so stated has been paid up;

then no such allotment shall be made unless that minimum amount has been subscribed and the foregoing sum so payable has been paid up.

• (3) The amount stated in the prospectus as mentioned in subsection (2) shall be reckoned exclusively of any amount payable otherwise than in cash.

• (4) Any condition requiring or binding any applicant for shares to waive compliance with any requirement of subsections (1) to (3) or section 1359 as it applies to those subsections shall be void.

• (5) Subsections (2) and (3) and, so far as it relates to those subsections, subsection (4) shall not apply to any allotment of shares subsequent to the first allotment of shares offered to the public for subscription.

1359. Supplemental provisions in relation to section 1358

1359. (1) Subsection (2) applies where either—

• (a) shares have been allotted in contravention of section 1358(1); or

• (b) the conditions referred to in section 1358(2) have not been satisfied on the expiration of 40 days after the date of first issue of the prospectus concerned.

• (2) Where this subsection applies—

• (a) all money received from applicants for shares shall be repaid forthwith after—

• (i) in a case falling within subsection (1)(a), the contravention referred to in that provision; or

• (ii) in a case falling within subsection (1)(b), the expiration of the period of 40 days referred to in that provision;

to the applicants without interest;

• (b) if any such money is not so repaid after that contravention or, in a case falling within subsection (1)(b), the expiration of 48 days after the date of first issue of the prospectus concerned, the directors of the PLC shall, subject to subsection (3), be jointly and severally liable to repay that money with interest at the appropriate rate from that contravention or, as the case may be, the expiration of the 48th day.

• (3) A director shall not be liable as mentioned in subsection (2)(b) if he or she proves that the default in the repayment of the money was not due to any misconduct or negligence on his or her part.

• (4) Section 1358(1) shall apply in the case of shares offered as wholly or partly payable otherwise than in cash as it applies in the case of shares offered for subscription and—

• (a) in section 1358(1) the word “subscribed” shall be read accordingly; and

• (b) section 1358(4) and subsections (1) to (3) of this section shall accordingly apply in the first-mentioned case as they apply in the second-mentioned case, but with the following modifications.