Companies Act 2014

• (6) When a meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting but, subject to that, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

• (7) F84[Subject to subsection (9), unless] a poll is demanded in accordance with section 189, at any general meeting—

• (a) a resolution put to the vote of the meeting shall be decided on a show of hands;

and

• (b) a declaration by the chairperson that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the company shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution.

• (8) Where there is an equality of votes, whether on a show of hands or on a poll, the chairperson of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.

• F85[(9) In the case of a meeting conducted wholly or partly by the use of electronic communications technology in accordance with section 176A, a resolution put to the vote of the meeting shall not be decided on a show of hands unless the chairperson of the meeting is of the opinion that he or she can—

• (a) identify the members participating in the meeting by the use of such technology who are entitled to vote, and

• (b) verify the content of voting instructions of those members relating to the resolution.]

188. Votes of members

188. (1) Each provision of this section applies save to the extent that the company's constitution provides otherwise.

• (2) Subject to any rights or restrictions for the time being attached to any class or classes of shares, where a matter is being decided—

• (a) on a show of hands, every member present in person and every proxy shall have one vote, but so that no individual member shall have more than one vote; and

• (b) on a poll, every member shall, whether present in person or by proxy, have one vote for each share of which he or she is the holder or for each €15 of stock held by him or her, as the case may be.

• (3) Where there are joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose, seniority shall be determined by the order in which the names of the joint holders stand in the register of members.

• (4) Each of the following:

• (a) a member of unsound mind;

• (b) a member who has made an enduring power of attorney;

• (c) a member in respect of whom an order has been made by any court having jurisdiction in cases of unsound mind;

may vote, whether on a show of hands or on a poll, by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by the foregoing court.

• (5) Any such committee, donee of an enduring power of attorney, receiver, guardian, or other person may speak and vote by proxy, whether on a show of hands or on a poll.

• (6) No member shall be entitled to vote at any general meeting of a company unless all calls or other sums immediately payable by him or her in respect of shares in the company have been paid.

• (7) No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered, and every vote not disallowed at such meeting shall be valid for all purposes.

• (8) Any such objection made in due time shall be referred to the chairperson of the meeting, whose decision shall be final and conclusive.

189. Right to demand a poll

189. (1) At a meeting, a poll may be demanded in relation to a matter (whether before or on the declaration of the result of the show of hands in relation to it).

• (2) A demand for such a poll may be made by—

• (a) the chairperson of the meeting;

• (b) at least 3 members present in person or by proxy;

• (c) any member or members present in person or by proxy and representing not less than 10 per cent of the total voting rights of all the members of the company concerned having the right to vote at the meeting; or

• (d) a member or members holding shares in the company concerned conferring the right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than 10 per cent of the total sum paid up on all the shares conferring that right.

• (3) A demand for such a poll may be withdrawn by the person or persons who have made the demand.

• (4) Subject to subsection (5), if a poll is duly demanded it shall be taken in such manner as the chairperson of the meeting directs, and the result of the poll shall be deemed to be the resolution, in relation to the matter concerned, of the meeting at which the poll was demanded.

• (5) A poll demanded with regard to the election of a chairperson or on a question of adjournment shall be taken forthwith.

• (6) A poll demanded on any other question shall be taken at such time as the chairperson of the meeting directs, and any business other than that on which a poll is demanded may be proceeded with pending the taking of the poll.

• (7) The instrument appointing a proxy to vote at a meeting of a company shall be deemed also to confer authority to demand or join in demanding a poll, and for the purposes of subsections (2) and (3), a demand by a person as proxy for a member shall be the same as a demand by the member.

190. Voting on a poll

190. On a poll taken at a meeting of a company or a meeting of any class of members of a company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he or she votes—

• (a) use all his or her votes; or

• (b) cast all the votes he or she uses in the same way.

191. Resolutions — ordinary resolutions, special resolutions, etc., — meaning

191. (1) In this Act “ordinary resolution” means a resolution passed by a simple majority of the votes cast by members of a company as, being entitled to do so, vote in person or by proxy at a general meeting of the company.

• (2) In this Act “special resolution” means a resolution—

• (a) that is referred to as such in this Act, or is required (whether by this Act or by a company's constitution or otherwise) to be passed as a special resolution; and

• (b) that satisfies the condition specified in F86[subsection (3)] and

• (c) without prejudice to subsections (4) and (5), as respects which notice of the meeting at which the resolution is proposed to be passed has been given in accordance with section 181(1)(a) and (5).

• (3) The condition referred to in subsection (2)(b) is that the resolution is passed by not less than 75 per cent of the votes cast by such members of the company concerned as, being entitled to do so, vote in person or by proxy at a general meeting of it.

• F87[(3A) F88[…]]

• (4) Notwithstanding section 181(1)(a), for the purposes of subsection (2)(c) a resolution may be proposed and passed as a special resolution at a meeting of which less than 21 days’ notice has been given if it is so agreed by a majority in number of the members having the right to attend and vote at any such meeting, being a majority either—

• (a) together holding not less than 90 per cent in nominal value of the shares giving that right; or

• (b) together representing not less than 90 per cent of the total voting rights at that meeting of all the members.

• (5) Nothing in either subsection (2)(c) (as it relates to section 181(1)(a)) or (4) prevents a special resolution from being regarded as having been passed (in a case where less than 21 days’ notice of the meeting has been given) in the following circumstances:

• (a) the agreement referred to in section 181(2) exists as regards the meeting; and

• (b) the condition specified in subsection (3) is satisfied in relation to the resolution.

• (6) The terms of any resolution (whether special or otherwise) before a general meeting may be amended by ordinary resolution moved at the meeting provided that the terms of the resolution as amended will still be such that adequate notice of the intention to pass the same can be deemed to have been given.

• (7) Any reference to an extraordinary resolution contained in any statute which was passed or document which existed before 1 April 1964 shall, in relation to a resolution passed on or after that date, be deemed to be a reference to a special resolution.

• (8) In this Act “written resolution” means either an ordinary resolution or a special resolution passed in accordance with section 193 or 194.

192. Resolutions passed at adjourned meetings

192. Where a resolution is passed at an adjourned general meeting, the resolution shall for all purposes be treated as having been passed on the date on which it was in fact passed and shall not be deemed to have been passed on any earlier date.

193. Unanimous written resolutions

193. (1) Notwithstanding any provision to the contrary in this Act—

• (a) a resolution in writing signed by all the members of a company for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held; and

• (b) if described as a special resolution shall be deemed to be a special resolution within the meaning of this Act.

• (2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.

• (3) A resolution passed in accordance with subsection (1) may consist of several documents in like form each signed by one or more members.

• (4) A resolution passed in accordance with subsection (1) shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof by any member, the statement shall be prima facie evidence that it was signed by him or her on that date.

• (5) If a resolution passed in accordance with subsection (1) is not contemporaneously signed, the company shall notify the members, within 21 days after the date of delivery to it of the documents referred to in subsection (6), of the fact that the resolution has been passed.

• (6) The signatories of a resolution passed in accordance with subsection (1) shall, within 14 days after the date of its passing, procure delivery to the company of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.

• (7) The company shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the company; without prejudice to the requirement (by virtue of section 199(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.

• (8) It is immaterial, as regards the resolution's validity, whether subsection (5), (6) or (7) is complied with.

• (9) If a company fails to comply with subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (10) If a signatory fails to take all reasonable steps to procure the delivery to the company, in accordance with subsection (6), of the documents referred to in that subsection, the signatory shall be guilty of a category 4 offence.

• (11) This section does not apply to—

• (a) a resolution to remove a director;

• (b) a resolution to effect the removal of a statutory auditor from office, or so as not to continue him or her in office, as mentioned in section 382(2), 383(2)(b) or 394.

• (12) Nothing in this section affects any rule of law as to—

• (a) things done otherwise than by passing a resolution;

• (b) circumstances in which a resolution is or is not treated as having been passed; or

• (c) cases in which a person is precluded from alleging that a resolution has not been duly passed.

194. Majority written resolutions

194. (1) Notwithstanding any provision to the contrary in this Act, a resolution in writing—

• (a) that is—

• (i) described as being an ordinary resolution, and

• (ii) signed by the requisite majority of members of the company concerned,

and

• (b) in respect of which the condition specified in subsection (7) is satisfied,

shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held.

• (2) For the avoidance of doubt, the reference in subsection (1) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.

• (3) In subsection (1) “requisite majority of members” means a member or members who alone or together, at the time of the signing of the resolution concerned, represent more than 50 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the company (or being bodies corporate by their duly appointed representatives).

• (4) Notwithstanding any provision to the contrary in this Act, a resolution in writing—

• (a) that is—

• (i) described as being a special resolution, and

• (ii) signed by the requisite majority of members,

and

• (b) in respect of which the condition specified in subsection (7) is satisfied,

shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the company duly convened and held.

• (5) For the avoidance of doubt, the reference in subsection (4) to a provision to the contrary includes a reference to a provision that stipulates that the company in general meeting, or the members of the company in general meeting, must have passed the resolution concerned.

• (6) In subsection (4) “requisite majority of members” means a member or members who alone or together, at the time of the signing of the resolution concerned, represent at least 75 per cent of the total voting rights of all the members who, at that time, would have the right to attend and vote at a general meeting of the company (or being bodies corporate by their duly appointed representatives).

• (7) The condition referred to in subsections (1)(b) and (4)(b) is that all members of the company concerned entitled to attend and vote on the resolution referred to in subsection (1) or (4), as the case may be, have been circulated, by the directors or the other person proposing it, with the proposed text of the resolution and an explanation of its main purpose.

• (8) A resolution passed in accordance with subsection (1) or (4) may consist of several documents in like form each signed by one or more members.

• (9) Without prejudice to section 195(5), a resolution passed—

• (a) in accordance with subsection (1), shall be deemed to have been passed, subject to subsection (10), at a meeting held 7 days after the date on which it was signed by the last member to sign, or

• (b) in accordance with subsection (4), shall be deemed to have been passed, subject to subsection (10), at a meeting held 21 days after the date on which it was signed by the last member to sign,

and where the resolution states a date as being the date of his or her signature thereof by any member the statement shall be prima facie evidence that it was signed by him or her on that date.

• (10) Without prejudice to section 195(5), if—

• (a) a date earlier than that referred to in subsection (9)(a) or (b) (not being earlier than the date on which the resolution was signed by the last member to sign) is specified in the resolution referred to in subsection (1) or (4) as the date on which it shall have been deemed to have been passed,

• (b) all members of the company concerned entitled to attend and vote on that resolution state, in a written waiver signed by each of them, that the application of subsection (9) is waived, and

• (c) there accompanies the delivery to the company under subsection (3) of section 195 of the documents referred to in that subsection that written waiver (which may be so delivered to the company by any of the means referred to in that subsection),

then the resolution shall be deemed to have been passed on the date specified in it.

• (11) A written waiver under subsection (10) may consist of several documents in like form each signed by one or more members.

195. Supplemental provisions in relation to section 194

195. (1) Section 194 does not apply to—

• (a) a resolution to remove a director;

• (b) a resolution to effect the removal of a statutory auditor from office, or so as not to continue him or her in office, as mentioned in section 382(2), 383(2)(b) or 394.

• (2) Within 3 days after the date of the delivery to it of the documents referred to in subsection (3), the company shall notify every member of—

• (a) the fact of the resolution concerned having been signed by the requisite majority of members (within the meaning of section 194(3) or (6), as the case may be); and

• (b) the date that the resolution will, by virtue of section 194, be deemed to have been passed.

• (3) The signatories of a resolution passed in accordance with section 194(1) or (4) shall procure delivery to the company of the documents constituting the written resolution; without prejudice to the use of the other means of delivery generally permitted by this Act, such delivery may be effected by electronic mail or the use of a facsimile machine.

• (4) The company shall retain those documents as if they constituted the minutes of the proceedings of a general meeting of the company; without prejudice to the requirement (by virtue of section 199(1)) that the terms of the resolution concerned be entered in books kept for the purpose, the requirement under this subsection that the foregoing documents be retained shall be read as requiring those documents to be kept with the foregoing books.

• (5) Unless and until subsection (3) is complied with, a resolution passed in accordance with section 194(1) or (4) shall not have effect; however it is immaterial, as regards the resolution's validity, whether subsection (2) or (4) is complied with.

• (6) Where subsection (10) of section 194 applies, the reference in subsection (5) to subsection (3) shall be read as including a reference to paragraph (c) of that subsection (10).

• (7) If a company fails to comply with subsection (2), the company and any officer of it who is in default shall be guilty of a category 4 offence.

195A. F89[Voting on resolutions at general meeting during interim period

195A. F90[…]]

196. Single-member companies — absence of need to hold general meetings, etc.

196. (1) In this Act “single-member company” means a company which, for whatever reason, has, for the time being, a sole member (and this applies notwithstanding a stipulation in the constitution that there be 2 members, or a greater number).

• (2) Subject to subsection (3), all the powers exercisable by a company in general meeting under this Act or otherwise shall be exercisable, in the case of a single-member company, by the sole member without the need to hold a general meeting for that purpose; for the avoidance of doubt this subsection extends to the exercise of the power under section 146 to remove a director and, accordingly, any of the procedures under that section concerning notice to the director or the making of representations by the director shall not apply in the case of a single-member company but this is without prejudice to the application of the requirements of procedural fairness to the exercise of that power of removal by the sole member and section 147.

• (3) Subsection (2) shall not empower the sole member of a single-member company to exercise the powers under section 382(2), 383(2)(b) or 394 to remove a statutory auditor from, or not continue a statutory auditor in, office without holding the requisite meeting provided for in the section concerned.

• (4) Subject to subsection (3), any provision of this Act which—

• (a) enables or requires any matter to be done or to be decided by a company in general meeting, or

• (b) requires any matter to be decided by a resolution of the company,

shall be deemed to be satisfied, in the case of a single-member company, by a decision of the member which is drawn up in writing and notified to the company in accordance with this section.

• (5) Where the sole member of a single-member company takes any decision which has effect, pursuant to subsections (2) and (4), as if agreed by the company in general meeting, the member shall provide the company with a written record of that decision, unless the decision is taken by way of written resolution which the member has already forwarded to the company.

• (6) Where the sole member notifies to the company of which he or she is such member a decision taken by way of written resolution, or, pursuant to subsection (5), a written record of a decision taken by him or her, the notification shall be recorded and retained by the company in a book or by some other suitable means maintained for the purpose, and the one or more records so retained shall—

• (a) be deemed to be the books kept by the company pursuant to section 199, or

• (b) where (at any subsequent or prior time when the company is, or was, not a single-member company) that section has or had application to proceedings of its members, be kept with the books kept by the company pursuant to section 199,

and, either case, subsection (5) of that section applies to those records as it applies to books generally of a company under that section.

• (7) Where—

• (a) the sole member of a single-member company exercises or discharges, by virtue of this section, any power, right or obligation, and

• (b) such exercise or discharge involves or consists of the passing of a resolution, or the sole member’s agreeing to a thing, to which section 198 applies,

such exercise or discharge shall, within 15 days after the date of the exercise or discharge, be notified by the company in writing to the Registrar and be recorded by the Registrar.

• (8) If—

• (a) the sole member fails to comply with subsection (5), or

• (b) a company fails to comply with subsection (6) or (7),

then (irrespective of whether the case falls within paragraph (a) or (b)) the sole member, the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (9) Failure by the sole member to comply with subsection (5) shall not affect the validity of any decision referred to in that subsection.

197. Application of this Part to class meetings

197. (1) The provisions of this Part, and the provisions of the constitution of a company relating to general meetings, shall, as far as applicable, apply in relation to any meeting of any class of member of the company.

• (2) Subsection (1) operates so that all of section 198, in so far as it relates to subsection (4)(c) of that section, applies in relation to any meeting of any class of member of the company but does not operate to apply (if those provisions would otherwise be so applicable) the provisions of that section apart from the foregoing to any such meeting.

198. Registration of, and obligation of company to supply copies of, certain resolutions and agreements

198. (1) A copy of every resolution or agreement to which this section applies shall, within 15 days after the date of passing or making of it, be forwarded by the company concerned to the Registrar and recorded by the Registrar.

• (2) A copy of every such resolution or agreement for the time being in force shall be embodied in, or annexed to, every copy of the constitution of the company concerned issued by it after the passing of the resolution or the making of the agreement.

• (3) A copy of every such resolution or agreement shall be forwarded by the company concerned to any member of it, at his or her request, on payment of €10.00 or such lesser sum as the company may direct.

• (4) This section applies to—

• (a) resolutions that are required by this Act or a company's constitution to be special resolutions;

• (b) resolutions which have been agreed to by all the members of a company, but which, if not so agreed to, would not have been effective for their purpose unless they had been passed as special resolutions;

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

• (d) resolutions increasing or decreasing the authorised share capital (if any) of a company;

• (e) resolutions conferring authority for the allotment of shares;

• (f) resolutions that a company be wound up voluntarily passed under section 580 F91[or 586(2)];

• (g) resolutions attaching rights or restrictions to any share;

• (h) resolutions varying any such right or restriction;

• (i) resolutions classifying any unclassified share;

• (j) resolutions converting shares of one class into shares of another class;

• (k) resolutions converting share capital into stock and resolutions converting stock into share capital.

• (5) If a company fails to comply with subsection (1), (2) or (3), the company and any officer of it who is in default shall be guilty of a category 4 offence.

• (6) For the purposes of subsection (5), a liquidator of a company shall be deemed to be an officer of the company.

199. Minutes of proceedings of meetings of a company

199. (1) A company shall, as soon as may be after their holding or passing, cause—

• (a) minutes of all proceedings of general meetings of it, and

• (b) the terms of all resolutions of it,

to be entered in books kept for that purpose; all such books kept by a company in pursuance of this subsection shall be kept at the same place.

• (2) Sections 215 to 217 (rights of inspection, requests for copies, etc.) apply to those books.

• (3) Any such minute, if purporting to be signed by the chairperson of the meeting at which the proceedings were had, or by the chairperson of the next succeeding meeting, shall be evidence of the proceedings.

• (4) Where minutes have been made in accordance with this section of the proceedings at any general meeting of a company then, until the contrary is proved—

• (a) the meeting shall be deemed to have been duly held and convened;

• (b) all proceedings had at the meeting shall be deemed to have been duly had; and

• (c) all appointments of directors or liquidators shall be deemed to be valid.

• (5) A company shall, if required by the F93[Authority, produce to the Authority for inspection the book or books kept in accordance with subsection (1) by it and shall give the Authority such facilities for inspecting and taking copies of the contents of the book or books as the Authority] may require.

• (6) If a company fails to comply with subsection (1) or with a requirement made of it under subsection (5), the company and any officer of it who is in default shall be guilty of a category 4 offence.

CHAPTER 7 Summary Approval Procedure

200. Interpretation (Chapter 7)

200. (1) In this Chapter—

“common draft terms of merger” means the common draft terms of merger referred to in section 466(1);

“declaration” means a declaration referred to in section 202(1)(b);

“merger” means a merger under Chapter 3 of Part 9;

“merging companies” has the same meaning as it has in Chapter 3 of Part 9;

“restricted activity” means an activity that is specified in—

• (a) section 82 (financial assistance for acquisition of shares);

• (b) section 84 (reduction in company capital);

• (c) section 91 (variation of company capital on reorganisations);

• (d) section 118 (prohibition on pre-acquisition profits or losses being treated in holding company's financial statements as profits available for distribution);

• (e) section 239 (prohibition of loans, etc., to directors and connected persons);

• (f) section 464 (merger may not be put into effect save in accordance with the relevant provisions of this Act); or

• (g) section 579 (procedure for and commencement of members' voluntary winding up);

the carrying on of which is expressed by a provision of this Act to be either—

• (i) prohibited unless carried on in accordance with the Summary Approval Procedure; or

• (ii) authorised subject to a specified requirement that the Summary Approval Procedure be employed or, in the case of section 84, 91 or 464, that the Summary Approval Procedure be employed if the alternative procedure specified in section 84(2)(b), 91(4)(b) or, as the case may be, 464(1)(b) is not employed;

“Summary Approval Procedure” shall be read in accordance with section 202;

“written means for passing the resolution” means—

• (a) other than in the case of a merger, the means under section 193 or 194(4) for passing a special resolution;

• (b) in the case of a merger, the means under section 193 for passing a unanimous resolution.

• (2) A reference in the definition of “restricted activity” in subsection (1) to an activity—

• (a) subject to paragraph (b), includes a reference to a procedure, transaction or arrangement;

• (b) in the case of the activity falling within paragraph (g) of that definition, is a reference to the commencement of a members’ voluntary winding up.

201. Chapter 7 — what it does

201. (1) This Chapter sets out the way in which a company can, by—

• (a) its members passing a special resolution, and

• (b) its directors making a certain declaration,

either—

• (i) permit the carrying on of a restricted activity (not being a merger) that is otherwise prohibited, or

• (ii) fulfil the requirement specified in the provision concerned for the restricted activity (not being a merger) to be authorised,

as the case may be.

• (2) In a case where the restricted activity is a merger, this Chapter sets out the way in which each of the merging companies can, by—

• (a) every member of it entitled to vote at a general meeting of the company voting in favour of a resolution at such a meeting, and

• (b) its directors making a certain declaration,

authorise, as provided in section 464(1), the merger to be put in effect without certain procedures under Chapter 3 of Part 9 having to be employed.

• (3) The provisions of this Chapter shall be read and shall operate so that a restricted activity may be carried on at a time falling before compliance with the requirement (arising under section 203, 204, 205, 206 or 207 as the case may be) that a copy of the appropriate declaration be delivered to the Registrar; however — should a failure to comply with that requirement occur — that failure then invalidates the carrying on of the activity, but this is without prejudice to the power of validation conferred subsequently by this Chapter on the court.

202. Summary Approval Procedure

202. (1) In this Act “Summary Approval Procedure” means the procedure whereby the following conditions are satisfied:

• (a) authority for the carrying on of the restricted activity has been conferred by—

• (i) other than in the case of a merger, a special resolution of the company; or

• (ii) in the case of a merger, a resolution of each of the merging companies which every member of the company entitled to vote at a general meeting of it has voted in favour of (a “unanimous resolution”);

being a special resolution or unanimous resolution passed not more than, subject to subsections (2) and (3), 12 months prior to the commencement of the carrying on by the company, or as the case may be, by each of the merging companies of the activity; and

• (b) either—

• (i) the company or, as the case may be, each of the merging companies has forwarded with each notice of the meeting at which the special resolution or other foregoing resolution is to be considered, or

• (ii) if the written means for passing the resolution is used, the company or, as the case may be, each of the merging companies has appended to the proposed text of the resolution,

a copy of a declaration which complies with subsection (6) and the other relevant provisions of this Chapter as regards its contents or the documents to be attached to it.

• (2) In computing the period of 12 months referred to in subsection (1)(a) there shall be disregarded, where an application is made in accordance with section 211 to cancel the special resolution, the period beginning on the date of the making of that application and ending on—

• (a) the date of confirmation of the special resolution by the court on that application; or

• (b) if such an application so made is withdrawn, the date of that withdrawal.

• (3) If the restricted activity is that referred to in paragraph (d) of the definition of that expression in section 200(1), the reference in subsection (1)(a) to 12 months shall be read as a reference to—

• (a) subject to paragraph (b), 60 days; or

• (b) if—

• (i) one or more members who hold, or together hold, more than 90 per cent in nominal value of each class of issued shares of the company and entitled to vote at general meetings of the company have voted in favour of the special resolution referred to in subsection (1)(a), or

• (ii) that resolution has been passed by the means provided under section 193,

30 days,

but subsection (2) applies as regards computing that period of 60 or 30 days as it applies as regards computing the period of 12 months referred to in subsection (2).

• (4) Subsection (1) is, in the case of a merger, without prejudice to the procedures set out in Chapter 3 of Part 9 that must be followed before the resolution referred to in paragraph (a)(ii) of that subsection may be passed.

• (5) In the case of a merger, on the delivery, in accordance with section 206, to the Registrar of each declaration referred to in that section, the Registrar shall register the dissolution of the transferor company or companies concerned.

• (6) The declaration referred to in subsection (1)(b) is a declaration in writing that is made at a meeting of the directors held—

• (a) not earlier than 30 days before the date of the meeting referred to in subsection (1)(b), or

• (b) if the written means for passing the resolution is used, not earlier than 30 days before the date of the signing of the resolution by the last member to sign,

and that is made by the directors or, in the case of a company having more than 2 directors, by a majority of the directors.

• (7) The terms of the resolution referred to in subsection (1)(a)(ii) (which deals with a case of a merger) shall be that the common draft terms of merger are approved.

203. Declaration to be made in the case of financial assistance for acquisition of shares or transaction with directors

203. (1) Where the restricted activity is a transaction or arrangement that would otherwise be prohibited by section 82(2) or 239, the declaration shall state—

• (a) the circumstances in which the transaction or arrangement is to be entered into;

• (b) the nature of the transaction or arrangement;

• (c) the person or persons to or for whom the transaction or arrangement is to be made;

• (d) the purpose for which the company is entering into the transaction or arrangement;

• (e) the nature of the benefit which will accrue to the company directly or indirectly from entering into the transaction or arrangement; and

• (f) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, having entered into the transaction or arrangement (the “relevant act”), will be able to pay or discharge its debts and other liabilities in full as they fall due during the period of 12 months after the date of the relevant act.

• (2) For the purposes of a declaration under this section, in determining whether or not a company will be able to pay or discharge its debts and other liabilities in full, the declarants shall not be required to assume (in circumstances where the following are relevant) either that the company will be called upon to pay moneys on foot of a guarantee given or, as the case may be, that security given will be realised.

• (3) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced.

• (4) On application to it by any interested party, the court may, in any case where there has been a failure to comply with subsection (3), declare that the carrying on of the restricted activity concerned shall be valid for all purposes if the court is satisfied that it would be just and equitable to do so.

204. Declaration to be made in the case of a reduction in company capital or variation of company capital on reorganisation

204. (1) Where the restricted activity is a reduction in company capital referred to in section 84(1) or a transfer or disposal referred to in section 91(1), the declaration shall state—

• (a) the circumstances in which the transaction or arrangement is to be entered into;

• (b) the nature of the transaction or arrangement;

• (c) the person or persons to or for whom the transaction or arrangement is to be made;

• (d) the total amount of the company's assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making;

• (e) the anticipated total amount of the company's assets and liabilities immediately after the restricted activity having taken place;

• (f) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, after the restricted activity has taken place, will be able to pay or discharge its debts and other liabilities (being the debts and liabilities identified for the purposes of paragraph (d) and so far as not already paid or discharged) in full as they fall due during the period of 12 months after the date of that event; and

• (g) that the declarants do not have actual or constructive notice that the company will incur any material, extraordinary, future liability within the period of 12 months after the date of the making of the declaration.

• (2) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.

205. Declaration to be made in the case of treatment of pre-acquisition profits or losses in a manner otherwise prohibited by section 118(1)

205. (1) Where the restricted activity is to provide in a company's financial statements a treatment that is otherwise prohibited by section 118(1) of the profits or losses attributable to shares of a subsidiary of the company for the period referred to in section 118(2) as the “pre-acquisition period”, the declaration shall state—

• (a) the amount of the profits or losses that will be subject to the alternative treatment and the amount so stated is referred to in this section as the “proposed distribution”;

• (b) the total amount of the company's assets and liabilities as stated in its last statutory financial statements or interim financial statements properly prepared as of a date specified in the declaration, and the date so specified shall be the date which is the latest practicable date before the date of making of the declaration and in any event shall not be a date more than 3 months before the date of such making;

• (c) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that, if the company were to make the proposed distribution within 2 months after the date of the making of the declaration, the company would be able to pay or discharge its debts and other liabilities included in the financial statements referred to in paragraph (b) as they fall due during the period of 12 months after the date of that distribution.

• (2) In determining whether or not a company will be able to pay or discharge its debts and other liabilities as they fall due, the declarants shall be required to consider the likelihood (in circumstances where the following are relevant) either that the company will be called upon to pay moneys on foot of a guarantee given or, as the case may be, that security given will be realised.

• (3) The reference in subsection (1)(b) to a company's last statutory financial statements or interim financial statements or to their being properly prepared shall be read in accordance with section 121.

• (4) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.

206. Declaration to be made in the case of merger of company

206. (1) Where the restricted activity is to effect a merger, each declaration (that is to say, each declaration by the directors (or a majority of them) of each merging company) shall state—

• (a) the total amount of the assets and liabilities of the merging company in question as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and

• (b) that the declarants have made a full inquiry into the affairs of the company and the other merging companies and that, having done so, they have formed the opinion that the successor company (within the meaning of Chapter 3 of Part 9) will be able to pay or discharge the debts and other liabilities of it and the transferor company or companies in full as they fall due during the period of 12 months after the date on which the merger takes effect.

• (2) A copy of each declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.

207. Declaration to be made in the case of members’ winding up of solvent company

207. (1) Where the restricted activity is to wind up a company in a members’ voluntary winding up under section 579, the declaration shall state—

• (a) the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and

• (b) that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company will be able to pay or discharge its debts and other liabilities in full within such period not exceeding 12 months after the commencement of the winding up as may be specified in the declaration.

• (2) A copy of the declaration under this section shall be delivered to the Registrar not later than 21 days after the date on which the carrying on of the restricted activity concerned is commenced; if a failure to comply with this subsection occurs, a like power to that under section 203(4) is available to the court to declare valid for all purposes the carrying on of the activity.

208. Condition to be satisfied common to declarations referred to in section 204, 205 or 207

208. A declaration referred to in section 204, 205 or 207 shall have no effect for the purposes of this Act unless it is accompanied by a report—

• (a) drawn up in the prescribed form, by a person who is qualified at the time of the report to be appointed, or to continue to be, the statutory auditor of the company; and

• (b) which shall state whether, in the opinion of that person, the declaration is not unreasonable.

209. Condition to be satisfied in relation to declaration referred to in section 206

209. (1) A declaration referred to in section 206 shall have no effect for the purposes of this Act unless it is accompanied by a document prepared by the declarants either—

• (a) confirming that the common draft terms of merger provide for such particulars of each relevant matter as will enable each of the prescribed effects provisions to operate without difficulty in relation to the merger; or

• (b) specifying such particulars of each relevant matter as will enable each of those effects provisions to operate without difficulty in relation to the merger.

• (2) In subsection (1) “prescribed effects provisions” means subsection (3)(a) to (i) of section 480 as that subsection has effect by virtue of section 472(2).

210. Civil sanctions where opinion as to solvency stated in declaration without reasonable grounds

210. (1) Where a director of a company makes a declaration without having reasonable grounds for the opinion referred to in section 203(1)(f), 204(1)(f), 205(1)(c), 206(1)(b) or 207(1)(b), as the case may be, the court, on the application of—

• (a) a liquidator, creditor, member or contributory of the company or, in the case of the opinion referred to in section 206(1)(b), of the successor company (within the meaning of Chapter 3 of Part 9), or

• (b) the F99[Authority],

may declare that the director shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company or successor company, as the case may be.

• (2) If a company or, as the case may be, a successor company (within the foregoing meaning) is wound up within 12 months after the date of the making of a declaration and its debts are not paid or provided for in full within 12 months after the commencement of the winding up, it shall be presumed, until the contrary is shown, that each director of, as appropriate—

• (a) the company, or

• (b) the merging companies,

who made the declaration did not have reasonable grounds for the opinion referred to in section 203(1)(f), 204(1)(f), 205(1)(c), 206(1)(b) or 207(1)(b), as the case may be.

• (3) If the court makes a declaration under subsection (1), it may give such further directions as it thinks proper for the purpose of giving effect to the declaration.

211. Moratorium on certain restricted activities being carried on and applications to court to cancel special resolution

211. (1) This section shall apply unless the restricted activity—

• (a) is to effect a merger; or

• (b) has the authority of a special resolution referred to in section 202(1)(a)(i) passed by the means provided under section 193.

• (2) Unless one or more members who hold, or together hold, more than 90 per cent in nominal value of each class of issued shares of the company and entitled to vote at general meetings of the company have voted in favour of the special resolution referred to in section 202(1)(a), the company shall not proceed to carry on the restricted activity—

• (a) subject to paragraph (b), until the expiry of 30 days after the date on which the special resolution has been passed; or

• (b) if an application under subsection (3) is made, until the application has been disposed of by the court (and then only (unless the application is withdrawn) to the extent, if any, that authority for its being proceeded with is provided by a confirmation of the special resolution by the court on that application).

• (3) An application may be made to the court in accordance with this section for the cancellation of the special resolution.

• (4) Subject to subsection (5), an application under subsection (3) may be made by one or more members who held, or together held, not less than 10 per cent in nominal value of the company's issued share capital, or any class thereof, at the date of the passing of the special resolution and hold, or together hold, not less than that percentage in nominal value of the foregoing on the date of the making of the application.

• (5) An application shall not be made under subsection (3) by a person who has consented to, or voted in favour of, the special resolution.

• (6) An application under subsection (3) shall be made within 30 days after the date on which the special 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.

• (7) On the hearing of an application under subsection (3), the court may, as it thinks fit—

• (a) confirm the special resolution;

• (b) confirm the special resolution as respects only specified parts or aspects of the restricted activity to which it relates; or

• (c) cancel the special resolution.

CHAPTER 8 Protection for minorities

212. Remedy in case of oppression

212. (1) Any member of a company who complains that the affairs of the company are being conducted or that the powers of the directors of the company are being exercised—

• (a) in a manner oppressive to him or her or any of the members (including himself or herself), or

• (b) in disregard of his or her or their interests as members,

may apply to the court for an order under this section.

• (2) If, on an application under subsection (1), the court is of opinion that the company’s affairs are being conducted or the directors’ powers are being exercised in a manner that is mentioned in subsection (1)(a) or (b), the court may, with a view to bringing to an end the matters complained of, make such order or orders as it thinks fit.

• (3) The orders which a court may so make include an order—

• (a) directing or prohibiting any act or cancelling or varying any transaction;

• (b) for regulating the conduct of the company’s affairs in future;

• (c) for the purchase of the shares of any members of the company by other members of the company or by the company and, in the case of a purchase by the company, for the reduction accordingly of the company's capital; and

• (d) for the payment of compensation.

• (4) Where an order under this section makes any amendment of any company’s constitution, then, notwithstanding anything in any other provision of this Act, but subject to the provisions of the order, the company concerned shall not have power, without the leave of the court, to make any further amendment of the constitution, inconsistent with the provisions of the order.

• (5) However, subject to the foregoing subsection, the amendment made by the order 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 amended accordingly.

• (6) A certified copy of any order under this section amending or giving leave to amend a company’s constitution shall, within 21 days after the date of the making of the order, be delivered by the company to the Registrar.

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

• (8) Each of the following—

• (a) the personal representative of a person who, at the date of his or her death, was a member of a company, or

• (b) any trustee of, or person beneficially interested in, the shares of a company by virtue of the will or intestacy of any such person,

may apply to the court under subsection (1) for an order under this section and, accordingly, any reference in that subsection to a member of a company shall be read as including a reference to any such personal representative, trustee or person beneficially interested as mentioned in paragraph (a) or (b) or to all of them.

• (9) If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part of them shall be in camera.

CHAPTER 9 Form of registers, indices and minute books

213. Form of registers, minutes, etc.

213. (1) Any register, index or minute book required by this Act to be kept by a company or by the Registrar may be kept either by making entries in bound books or by recording the matters in question in any other manner.

• (2) Where any register, index or minute book to be kept by a company is not kept by making entries in a bound book but by some other means, adequate precautions shall be taken for guarding against falsification and facilitating discovery of such falsification, should it occur.

• (3) If default is made in complying with subsection (2), the company concerned and any officer of it who is in default shall be guilty of a category 3 offence.

214. Use of computers, etc., for certain company records

214. (1) Subject to subsections (2) and (6), the power conferred on a company by section 213(1) to keep a register or other record by recording the matters in question otherwise than by making entries in bound books includes power to keep the register or other record by recording the matters in question otherwise than in a legible form so long as the recording is capable of being reproduced in a legible form.

• (2) Subsection (1) does not apply to the books required to be kept by section 199 for the purpose mentioned in subsection (1) of that section.

• (3) Any provision of an instrument made by a company before 3 April 1978 which requires a register of holders of debentures of the company to be kept in a legible form shall be read as requiring the register to be kept in a legible or non-legible form (but so that, if it is kept in non-legible form, it shall be capable of being reproduced in legible form).

• (4) If the power under subsection (1) is availed of by a company, any duty imposed on the company by or under this Act to allow inspection of, or to furnish a copy of, the register or other record concerned kept by the company otherwise than in legible form, or any part of it, shall be treated as a duty to allow inspection of, or to furnish, a reproduction of the recording or of the relevant part of it in a legible form.

• (5) Subsection (6) does not apply—

• (a) if the services to the other computer there mentioned are provided by means of the technology commonly known as cloud computing or by any other distance hosting solution; or

• (b) to the extent that regulations under subsection (7) provide that it shall not apply.

• (6) Any computer (the “server computer”) that provides services to another computer, being services the provision of which to the latter is necessary so that the information of the kind referred in subsection (1) stored in the latter can be accessed at all times, shall be kept in a place in the State.

• (7) The Minister may, by regulations, make such provision, being provision in addition to subsection (4), as he or she considers appropriate in connection with such registers or other records as are mentioned in that subsection and are kept as there mentioned and may also, by regulations, provide for such exceptions to subsection (6) as he or she considers appropriate.

CHAPTER 10 Inspection of registers, provision of copies of information in them and service of notices

215. Definitions for purposes of section 216 concerning registers, etc. and construction of reference to company keeping registers, etc.

215. In—

• (a) section 216—

“copies of directors’ service contracts and memoranda” means the copies of directors’ service contracts and memoranda kept by the company pursuant to section 154;

“copies of instruments creating charges” means the copies of instruments creating charges kept by the company pursuant to section 418 (including copies of any relevant judgment mortgage documentation referred to in that section);

“directors’ and secretaries’ register” means the register of directors and secretaries kept by the company pursuant to section 149;

“disclosable interests register” means the register of interests kept by the company pursuant to section 267;

“members’ register” means the register of members kept by the company pursuant to section 169;

“minutes of meetings” means the books kept by the company pursuant to section 199 (including any records referred to in section 196(6)) and—

• (i) the documents, if any, required by section 193(7) (documents relating to unanimous written resolutions), and

• (ii) the documents, if any, required by section 195(4) (documents relating to majority written resolutions),

to be kept with those books;

• (b) this section a reference to any foregoing register or document being kept by the company includes a reference to the register or document being kept by another on the company's behalf pursuant to section 216(2);

• (c) this section and section 216 a reference to keeping includes a reference to maintaining; and

• (d) section 216(3) the requirement thereunder to keep a register or other document at a place shall be deemed to be complied with if, by means of any computer, the register or document is (at that place) capable of being reproduced in legible form and inspected in that form, and references elsewhere in section 216 and this Chapter to the keeping of a register or other document, and the inspection of it, shall be read accordingly.

216. Where registers and other documents to be kept, right to inspect them, etc.

216. (1) This section applies to—

• (a) the copies of directors’ service contracts and memoranda;

• (b) the copies of instruments creating charges;

• (c) the directors’ and secretaries’ register;

• (d) the disclosable interests register;

• (e) the members’ register; and

• (f) the minutes of meetings.

• (2) An obligation imposed on a company under this Act to keep a register or document to which this section applies may be discharged by another person keeping, on its behalf, the register or document.

• (3) Subject to subsections (4) and (5), a register or document to which this section applies shall be kept at—

• (a) the registered office of the company;

• (b) its principal place of business within the State; or

• (c) another place within the State.

• (4) Where the register or document is kept by another person on behalf of the company pursuant to subsection (2), the place at which that register or document is kept by that person shall be a place within the State.

• (5) In a case where a company keeps several of the registers or documents (or both) to which this section applies at a place other than that referred to in subsection (3)(a) or (b), those registers or documents (or both) shall be kept by it at a single place.

• (6) Where a register or document to which this section applies is kept at a place referred to in subsection (3)(b) or (c) or subsection (4), the company shall send a notice to the Registrar in the prescribed form of that place and of any change in that place.

• (7) A register or document to which this section applies shall, during business hours (except, in the case of the members’ register, when it is closed under section 174), be open to inspection in accordance with subsections (8) to (10).

• (8) Every such register or document shall be open to the inspection of any member of the company without charge.

• (9) The following shall be open to the inspection of any other person, on payment of the relevant fee: