Part A1 Preliminary and InterpretationContents of Part A11. Short title and commencement 2. Dened terms and expressions 3. Periods of time 4. Repeal and savings 5. Construction of references in other Acts to companies registered under the Companies (Consolidation) Act 1908 and the Companies Act 1963 6. Denition of subsidiary Schedule - Enactments Repealed

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Part A1- Preliminary and Interpretation

Part A1 Preliminary and InterpretationHead 1(1) (2)

Short title and commencement

book and paper and book or paper include accounts, deeds, writings and documents; books and documents and books or documents include accounts, deeds, writings and records made in any other manner; called-up share capital, in relation to a company, means so much of its share capital as equals the aggregate amount of the calls made on its shares, whether or not those calls have been paid, together with any share capital paid up without being called and any share capital to be paid on a specied future date under the articles, the terms of allotment of the relevant shares or any other arrangements for payment of those shares, and uncalled share capital shall be construed accordingly; child includes a step-child and an adopted child and son, daughter and parent shall be construed accordingly; constitution means the constitution of a company as provided for in Part A2, Head 3; contravention includes failure to comply; contributory has the meaning assigned to it by Part A11, Head 1 [equivalent of Section 208 of the 1963 Act]; company means a company formed and registered under this Bill, or an existing company; the court, used in any provision of this Bill in relation to a company, means (a) the High Court: or (b) where another court is prescribed for the purposes of that provision, that court; debenture includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not; director includes any person occupying the position of director by whatever name called; the Director means the Director of Corporate Enforcement appointed under Part A14, Head 48 and includes an Acting Director while so acting and, in relation to a particular power of the Director, a delegate to whom the power is delegated under Part A14, Head 54;

This Act may be cited as the Companies Consolidation Act 2007. This Act shall come into operation on such day as the Minister may appoint by order.

Explanatory note This head is based on Section 1 of the Companies Act ,1963.

Head 2(1)

Dened terms and expressions

In this Bill, unless the context otherwise requires

accounts includes a companys group accounts whether prepared in the form of accounts or not; Acting Director means a person appointed under Part A14, Head 52 as the Acting Director of Corporate Enforcement; agent does not include a persons counsel acting as such; annual general meeting means the meeting provided for in Part A4, Head 46 ; annual return means the return required to be made under Part A6, Head 52 [equivalent of Section 125 of the Companies Act, 1963]; annual return date means the date in each year not later than that to which the annual return shall be made up, the calculation of which is provided for in Part A6, Head 53 [equivalent of Section 127 of the Companies Act, 1963]; the appointed day means [to be decided following clarication of transitional arrangements]; balance sheet date, in relation to a balance sheet, means the date as at which the balance sheet was prepared; the Bankruptcy Acts means the Bankruptcy Act, 1988;

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Part A1- Preliminary and Interpretationdocument includes summons, notice, order and other legal process, and register; enactment means a statute or an instrument made under a power conferred by a statute; examiner means an examiner appointed under Part A10, Head 2 [equivalent of Section 2 of the Companies (Amendment) Act, 1990]; existing company means a company formed and registered in a register kept in the State under the Joint Stock Companies Acts, the Companies Act 1862, the Companies (Consolidation) Act, 1908 or the Companies Act, 1963; extended notice has the meaning assigned to it by Part A6, head 95 [equivalent of section 142 of the 1963 Act]; extraordinary general meeting means a meeting of the type provided for in Part A4, Head 48; nancial year means, in relation to any body corporate, the period in respect of which any prot and loss account of the body corporate laid before it in general meeting is made up, whether that period is a year or not; functions includes powers and duties; the general transitional period means the period of 18 months commencing on [the appointed day for the 1983 Act]; hire-purchase agreement has the same meaning as in the Hire Purchase Act, 1946; insolvency proceedings means insolvency proceedings opened under Article 3 of the Insolvency Regulation in a member state of the European Communities other than the State and Denmark where the proceedings relate to a body corporate; Insolvency Regulation means Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings; Joint Stock Companies Acts means the Joint Stock Companies Act, 1856, the Joint Stock Companies Acts, 1856, 1857, the Joint Stock Banking Companies Act, 1857 and the Act to enable Joint Stock Banking Companies to be formed on the principle of limited liability, or any one or more of those Acts as the case may require, but does not include the Act 7 & 8 Victoria, Chapter 110; management company means a company that is wholly and exclusively formed and operated to manage the common areas of a residential, retail or industrial development and whose members are the owners from time to time of a freehold or leashold estate or interest in land being a part of such development; members voluntary winding up has the meaning assigned to it by Part A11 Head 20 [equivalent of Section 256(11) of the Companies Act, 1963]; the Minister means the Minister for Enterprise, Trade and Employment; non-cash asset means any property or interest in property other than cash (including foreign currency); ofcer in relation to a body corporate includes a director or secretary; ofcer of the Director means (a) an ofcer of the Minister assigned to the Director; (b) a member of An Garda Sochna seconded to the Director; or (c) a person employed by the Minister or the Director under a contract for service or otherwise, to assist the Director in carrying out functions of the Director under the Companies Acts or any other Act; ordinary resolution means a resolution of the type provided for in Part A4, Head 62(1); the operative date means the date on which this Act comes into operation; prescribed means, prescribed by order or regulations made by the Minister; printed includes reproduced in any legible and durable form approved by the Registrar; private company means a company formed and registered under Part A2, Head 2 or an existing private company that becomes a private company under Part A2, Head 37; prospectus means a document or documents in such form and containing such information as may be required by or under Irish prospectus law 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;

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Part A1- Preliminary and Interpretationpublic holiday means a day which is a public holiday under the Organisation of Working Time Act, 1997; public limited company means a PLC as dened by Part B2, Head 1; registered ofce, in relation to a company, means the ofce provided for in Head A2, Head 33; the Registrar means the Registrar of Companies appointed under Part A14, Head 7; resolution for reducing share capital has the meaning assigned to it by Part A3, Head 17 [equivalent of Section 72(3) of the 1963 Act]; a resolution for voluntary winding-up has the meaning assigned to it by Part A11, Head 20 [equivalent of Section 251(2) of the 1963 Act]; Review Group means the Company Law Review Group established by Part A14, Head 60; shadow director has the meaning assigned to it in Part A5, Head 3; share means share in the share capital of a company, and includes stock except where a distinction between stock and shares is express or implied; bearer share has the meaning assigned to it by Part A3, Head 29 [equivalent of Section 88(2) of the Companies Act, 1963]; special resolution means a resolution of the type provided for in Part A4, Head 62 (2); undischarged bankrupt means a person who is declared bankrupt by a court of competent jurisdiction, within the State or elsewhere, and who has not obtained a certicate of discharge or its equivalent in the relevant jurisdiction; validation procedure means the procedure provided for in Part A4, Head 71; written resolution means a resolution of the type provided for in Part A4, Heads 64 and 65; (2) References in this Bill to a body corporate or to a corporation shall be construed as not including a corporation sole, but as including a company incorporated outside the State. Any provision of this Bill overriding or interpreting a companys constitution shall, except as provided by this Bill, apply in relation to the constitution in force on the operative date as well as to articles coming into force thereafter. (5) (4) For the purposes of this Bill (a) any reference to a balance sheet or to a prot and loss account shall include a reference to any notes thereon or document annexed thereto giving information which is required by the Companies Acts or by international nancial reporting standards and is thereby allowed to be so given; (b) any reference to the transfer or acquisition of a non-cash asset includes a reference to the creation or extinction of an estate or interest in, or a right over, any property and also a reference to the discharge of any persons liability, other than a liability for a liquidated sum; and (c) the net assets of a company are the aggregate of its assets less the aggregate of its liabilities; and in paragraph (c) liabilities includes (i) any provision (within the meaning of the First Schedule to Part A6 [equivalent for these purposes to the Sixth Schedule to the Companies Act 1963]) that is made in Companies Act entity nancial statements except to the extent that that provision is taken into account in calculating the value of any asset to the company, (ii) any provision for liabilities within the meaning of paragraph 79 of Part V of the First Schedule to Part A6 [equivalent of paragraph 70 of the Schedule to the Companies (Amendment) Act, 1986] that is made in Companies Act entity nancial statementss, and (iii) any provision that is made in IFRS entity nancial statements. References in this Bill to any enactment shall, unless the context otherwise requires, be construed as references to that enactment as amended or extended by any subsequent enactment including this Bill. In this Bill, a reference to a Part, head or schedule is to a Part, head or schedule of this Bill, unless it is indicated that reference to some other enactment is intended.

(6)

(3)

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Part A1- Preliminary and Interpretation(7) In this Bill, a reference to a subsection, paragraph, subparagraph or other division is to the subsection, paragraph, subparagraph or other division of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. extended notice: existing denition in Companies Act, 1963; extraordinary general meeting: source; nancial year: source; functions:source; the general transitional period: source; hire-purchase agreement : existing 1983 Act denition; group accounts, holding company: existing 1963 Act denitions, Section 2 of the 1963 Act; insolvency proceedings, Insolvency Regulation, property: inserted by Art. 3 of the European Communities (Corporate Insolvency) Regulations 2002 (S.I. No. 333 of 2002), which came into effect on July 1, 2002; Irish prospectus law and EU prospectus law : denitions provided by Section 38 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005; Joint Stock Companies Acts : existing denition; management company: this denition is drawn from para 3.6.6. of CLRG First Report with minor amendments; members voluntary winding up: existing denition; the Minister: existing denition; non-cash asset : existing 1983 Act denition; old public limited company : existing 1983 Act denition; ofcer: existing denition in Section 2 of the Companies Act, 1963; offer of the Director: existing denition in Company Law Enforcement Act, 2001; the operative date: new denition; ordinary resolution: new denition; printed: this may need to be updated to take account of e-commerce requirements; private company :Section 33(1) of the 1963 Act; property:

Explanatory note accounts: existing denition in Section 2 of the 1963 Act; Acting Director: existing denition in Section 11 of the Company Law Enforcement Act, 2001; agent: existing denition from Section 2 of the Companies Act, 1963; annual general meeting, extraordinary general meeting: new denition; articles : existing denition deleted (to be replaced by constitution); balance sheet date: existing 1983 Act denition; the Bankruptcy Acts: check if all Statutes in existing denition have been replaced by the Bankruptcy Act, 1988; book and/or paper [taken from 1963 Act] this may need to be updated to take account of new data recording technologies: book and/or document is from the 1990 Act; called-up share capital: existing 1983 Act denition; child: existing 1990 Act denition; constitution: new denition; contravention: existing 1990 Act denition; company: denition will have to be amended when nal decision is made on transitional arrangements re existing companies; the court: existing or new; creditors voluntary winding up: existing denition; is this to be updated to a new term or should it be localised in the Winding-Up Chapters only? enactment : new denition; examiner this is an existing 1990 Amendment Act denition; existing company: this is the current denition updated to include the 1963 Act;

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Part A1- Preliminary and Interpretation(a) in relation to proceedings opened in the State under Article 3(l) of the Insolvency Regulation, includes property situated outside the State; and (b) in relation to proceedings so opened under Article 3(2) of the Regulation, does not include property so situated; public company:1983 Act denition; public limited company: dened in view of intermittent reference in Pillar A Parts; public holiday: new denition to replace bank holiday; prospectus: denition provided by Section 38 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005; recognised stock exchange: existing denition; stock exchange nominee :this denition provided by Section (1) of the Companies (Amendment) Act, 1977; registered ofce: new denition; the Registrar: this is an updated denition; the re-registration period : existing 1983 Act denition; resolution for reducing share capital: existing denition; resolution for voluntary winding-up : existing denition; shadow director: this is a new denition taken from Section 27 of the 1990 Act and Section 2(2) of the 1963 Act; share: this denition may have to be amended if it is decided to extirpate references to stock; special resolution, ordinary resolution, written resolution: new denitions; Table A and Tbla A : these existing denitions are not repeated on the basis that the contents are now being exported into primary legislation; validation procedure: new denition; Subheads (2) and (3) are a restatement of Section 2 of the Companies Act, 1963; Subehad (4) is a restatement of Section 2 (4) of the Companies (Amendment) Ac,t 1983; (4) (2) (2) Subheads (5)- (7) are based on Sections 2(5) - (7) of the Companies Act, 1963;

Head 3(1)

Periods of time

Where the time limited by any provision of this Bill for the doing of anything expires on a Saturday, Sunday or public holiday, the time so limited shall extend to and the thing may be done on the rst following day that is not a Saturday, Sunday or public holiday. Where in this Bill anything is required or allowed to be done within a number of days not exceeding six, a day that is a Saturday, Sunday or public holiday shall not be reckoned in computing that number.

Explanatory note This head is based on Section 4 of the Companies Act,1990.

Head 4(1)

Repeal and savings

The enactments mentioned in the Schedule to this Part are hereby repealed to the extent specied in the third column of that Schedule. Nothing in this Bill shall affect any Order in Council, order, rule, regulation, appointment, conveyance, mortgage, deed or agreement made, resolution passed, direction given, proceeding taken, instrument issued or thing done under any former enactment relating to companies, but any such Order in Council, order, rule, regulation, appointment, conveyance, mortgage, deed, agreement, resolution, direction, proceeding, instrument or thing shall, if in force immediately before the operative date, continue in force, and so far as it could have been made, passed, given, taken, issued or done under this Bill shall have effect as if made, passed, given, taken, issued or done under this Bill. Any document referring to any former enactment relating to companies shall be construed as referring to the corresponding enactment of this Bil. Any person, appointed to any ofce under or by virtue of any former enactment relating to companies, who is in ofce immediately before the operative date shall be deemed to have been appointed to that ofce under or by virtue of this Bill.

(3)

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Part A1- Preliminary and Interpretation(5) Any register, kept under any former enactment relating to companies, shall be deemed part of the register to be kept under the corresponding provisions of this Bill. All funds and accounts constituted under this Bill shall be deemed to be in continuation of the corresponding funds and accounts constituted under the former enactments relating to companies. The repeal by this Bill of any enactment shall not affect the incorporation of any company registered under any enactment hereby repealed. Where any offence, being an offence for the continuance of which a penalty was provided, has been committed under any former enactment relating to companies, proceedings may be taken under this Bill in respect of the continuance of the offence after the operative date, in the same manner as if the offence had been committed under the corresponding provisions of this Bill. In this head former enactment relating to companies means any enactment repealed by this Bill and any enactment repealed by the Companies Act, 1963 or the Companies (Consolidation) Act, 1908. Subhead (9) is an amended reenactment of Section 3 (11) a reference to enactments repealed by the Companies Act, 1963 has been added. Sections 3(3) and 3(4) have been deliberately omitted.

(6)

Head 5

(7)

(8)

Construction of references in other Acts to companies registered under the Companies (Consolidation) Act, 1908 and the Companies Act, 1963

(9)

Explanatory note This head is based on Section 3 of the Companies Act, 1963. Subhead (1) is an amended reenactment of Section 3(1). Subhead (2) is an identical reenactment of Section 3(2). Subhead(3) is an amended reenactment of Section 3 (5). Subhead (4) is an identical reenactment of Section 3(6). Subhead (5) is an identical reenactment of Section 3(7). Subhead (6) is an identical reenactment of Section 3(8). Subhead (7) is an amended reenactment of Section 3 (9) references to the Joint Stock Companies Act, 1856; the Companies Act, 1862; and the Companies (Consolidation) Act, 1908 have been omitted. Subhead (8) is an itdentical reenactment of Section 3(10).

Notwithstanding paragraph 26 (2) (f) of the Interpretation Act, 2005, (which provides that where an Act repeals and re-enacts, with or without modication, any provisions of a former Act, references in any other Act to the provisions so repealed shall, unless the contrary intention appears, be read as references to the provisions of the new Act relating to the same subject-matter as that of the former Act) references in any Act other than this Bill to a company formed and registered, or registered, under the Companies (Consolidation) Act, 1908 or the Companies Act, 1963, shall, unless the contrary intention appears, be construed as references to a company formed and registered, or registered, under that Act or this Bill. Explanatory note This head is based on Section 4 of the Companies Act, 1963. The text has been amended to account for the Interpretation Act, 2005, which replaced the Interpretation Act, 1937. A reference to companies registered under the Companies Act, 1963 has been added.

Head 6(1)

Denition of subsidiary

For the purposes of this Bill, a company shall, subject to Subhead (3), be deemed to be a subsidiary of another if, but only if (a) that other (i) is a shareholder or member of it and controls the composition of its board of directors, or

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Part A1- Preliminary and Interpretation(ii) holds more than half in nominal value of its equity share capital, or (iii) holds more than half in nominal value of its shares carrying voting rights (other than voting rights which arise only in specied circumstances), or (iv) holds a majority of the shareholders or members voting rights in that other company, or (v) is a shareholder or member of it and controls alone, pursuant to an agreement with other shareholders or members, a majority of the shareholders or members voting rights; or (b) the rst-mentioned company is a subsidiary of any company which is that others subsidiary; or (c) that other has the power to exercise, or actually exercises, dominant inuence or control over it (i) by virtue of provisions contained in its constitution, or (ii) by virtue of a control contract; or (d) that other and the subsidiary undertaking are managed on a unied basis. (2) For the purposes of Subhead (1) (a) (i), the composition of a companys board of directors shall be deemed to be controlled by another company if, but only if, that other company by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove the holders of all or a majority of the directorships; but for the purposes of this provision that other company shall be deemed to have power to appoint to a directorship in relation to which any of the following conditions is satised (a) that a person cannot be appointed thereto without the exercise in his favour by that other company of such a power as aforesaid; or (b) that a persons appointment thereto follows necessarily from his appointment as director of that other company. (3) In determining whether one company is a subsidiary of another (a) any shares held or power exercisable by that other in a duciary capacity shall be treated as not held or exercisable by it; (b) subject to paragraphs (c) and (d), any shares held or power exercisable(i) by any person as a nominee for that other (except where that other is concerned only in a duciary capacity), or (ii) by, or by a nominee for, a subsidiary of that other, not being a subsidiary which is concerned only in a duciary capacity; shall be treated as held or exercisable by that other; (c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the rst-mentioned company or of a trust deed for securing any issue of such debentures or otherwise held by way of security shall be disregarded; (d) any shares held or power exercisable by, or by a nominee for, that other or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other if the ordinary business of that other or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business. (4) For the purposes of Subhead (1) (a) (iv) and (v), the total of the voting rights of the shareholders or members in the subsidiary shall be reduced by the following (a) the voting rights attached to shares held by the subsidiary in itself; and (b) the voting rights attached to shares held in the subsidiary by any of its subsidiaries, and (c) the voting rights attached to shares held by a person acting in his own name but on behalf of the subsidiary or one of the subsidiarys own subsidiaries;

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Part A1- Preliminary and Interpretation(5) For the purposes of Subhead (1) (b), a company shall not be regarded as having the right to exercise a dominant inuence over another company unless it has a right to give directions with respect to the operating and nancial policies of that other company which its directors are obliged to comply with. A control contract as referred to in Subhead (1)(b) means a contract in writing conferring such a right which (a) is of a kind authorised by the constitution of the company in relation to which the right is exercisable; and (b) is permitted by the law under which that company is established. (7) Subhead (5) shall not be read as affecting the construction of the expression actually exercises a dominant inuence in Subhead 1(c). For the purposes of this Bill, a company shall be deemed to be anothers holding company if, but only if, that other is its subsidiary. In this head company includes any body corporate and equity share capital means, in relation to a company, its issued share capital excluding any part thereof which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specied amount in a distribution.

(6)

(8)

(9)

(10) A wholly owned subsidiary means, in relation to a company, a subsidiary of the company which has no members except that company or that companys wholly-owned subsidiaries and its or their nominees. (11) A group of companies means a parent company and its and their subsidiaries provided that in all cases there is at least one parent company and at least one subsidiary company. Explanatory note This is a new head and aims to merge the two current concepts of subsidiary as dened by the Companies Act, 1963 and subsidiary undertaking as dened by Regulation 4 of the European Communities (Companies: Group Accounts) Regulation, 1992. This will align the denition within accounting practice also.

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Part A1- Preliminary and Interpretation SCHEDULE - ENACTMENTS REPEALEDSession and Chapter or Number and Year No. 33 of 1963 S.I. No. 163 of 1973 No. 31 of 1977 No. 10 of 1982 No. 13 of 1983 S.I. No. 282 of 1984 No. 31 of 1985 No. 25 of 1986 S.I. No. 137 of 1987 No. 27 of 1990 No. 33 of 1990 S.I. No. 201 of 1992 S.I. No. 294 of 1992 S.I. No. 395 of 1993 S.I. No. 396 of 1993 S.I. No. 275 of 1994 S.I. No. 311 of 1995 S.I. No. 23 of 1996 S.I. No. 68 of 1996 S.I. No. 67 of 1997 No. 8 of 1999 No. 30 of 1999 S.I. No. 437 of 2001 Short title Companies Act, 1963 European Communities (Companies) Regulations, 1973 Companies (Amendment Act), 1977. Companies (Amendment) Act, 1982. Companies (Amendment) Act, 1983. European Communities (Stock Exchange) Regulations, 1984. Designated Investment Funds Act, 1985. Companies (Amendment) Act, 1986. European Communities (Mergers and Divisions of Companies) Regulations, 1987. Companies (Amendment) Act, 1990. Companies Act, 1990. European Communities (Companies: Group Accounts) Regulations, 1992. European Communities (Credit Institutions: Accounts) Regulations 1992. European Communities (Branch Disclosures) Regulations, 1993. European Communities (Accounts) Regulations, 1993. European Communities (Single Member Private Limited Companies) Regulations, 1994. European Communities (Stock Exchange) (Amendment) Regulations, 1995. European Communities (Insurance Undertakings: Accounts) Regulations, 1996. Companies Act, 1990 (Uncerticated Securities) Regulations, 1996. European Communities (Public Limited Companies Subsidiaries) Regulations, 1997. Companies (Amendment) Act, 1999. Companies (Amendment) (No. 2) Act 1999. European Communities (Single-Member Private Limited Companies Regulations, 1994 (Amendment) Regulations, 2001. Extent of Repeal The whole Act. The whole Statutory Instrument. The whole Act. The whole Act. The whole Act. [omitted in CCB] Section 6. [omitted in CCB] The whole Act. The whole Statutory Instrument. The whole Act. The whole Act. The whole Statutory Instrument. [omitted in CCB] The whole Statutory Instrument. The whole Statutory Instrument.[omitted in CCB] The whole Statutory Instrument. [omitted in CCB] [omitted in CCB] The whole Statutory Instrument The whole Statutory Instrument. The whole Act. The whole Act. The whole Statutory Instrument.[omitted in CCB]

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Part A1- Preliminary and InterpretationS.I. No. 333 of 2002 No. 44 of 2003 S.I. No. 720 of 2004 S.I. No. 765 of 2004 S.I. No. 839 of 2004 European Communities (Corporate Insolvency) Regulations, 2002. Companies (Auditing and Accounting) Act, 2003. European Communities (Credit Institutions) (Fair Value Accounting) Regulations, 2004. European Communities (Fair Value Accounting) Regulations, 2004. European Communities (Companies) Regulations, 2004. European Communities (International Financial Reporting Standards and. Miscellaneous Amendments) Regulations, 2005. European Communities (Adjustment of Non-Comparable Amounts in Accounts and Distributions by Certain Investment Companies) Regulations, 2005. Investment Funds, Companies and Miscellaneous Provisions Act, 2005. The whole Statutory Instrument. The whole Act. [omitted in CCB] The whole Statutory Instrument.[omitted in CCB] The whole Statutory Instrument.[omitted in CCB] The whole Statutory Instrument.[omitted in CCB]

S.I. No. 116 of 2005

S. I. No. 840 of 2005

The whole Statutory Instrument.[omitted in CCB]

No. 12 of 2005

Parts 3,4 and 5

Explanatory note The following Companies Acts have previously been repealed: European Communities (Stock Exchange) (Amendment) Regulations, 1991 (S.I. No. 18 of 1991) repealed by Prospectus (Directive 2003/71/EC) Regulations, 2005, Reg.110 (1); Companies Act, 1990 (Auditors) Regulations, 1992 (S.I. No. 259 of 1992) repealed by Companies (Auditing and Accounting) Act, 2003, Section 59; European Communities (Transferable Securities and Stock Exchange) Regulations, 1992 (S.I. No. 202 of 1992) repealed by Prospectus (Directive 2003/71/EC) Regulations, 2005, Reg.110 (1); European Communities (Stock Exchange) (Amendment) Regulations, 1994 (S.I. No. 234 of 1994) repealed by Prospectus (Directive 2003/71/EC) Regulations, 2005, Reg.110 (1).

The Investment Intermediaries Act, 1995 (No. 11 of 1995), Section 80 is not included, since it merely amends the Companies Act, 1990.

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Part A1- Preliminary and Interpretation

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Part A2 Incorporation and RegistrationContent of Part A2Chapter 1 Preliminary and Interpretation1 Dened terms and expressions

Chapter 2 Incorporation and Consequential Matters2 Way of forming company limited by shares 3 The form of the constitution 4 Restriction on alteration of constitution 5 Registration of constitution 6 Statement to be delivered with the constitution 7 Declaration to be made to Registrar 8 Effect of registration 9 Provisions as to names of companies 10 Trading under a misleading name 11 Reservation of a company name 12 Extension of the period of reservation 13 Change of name 14 Effect of constitution 15 Alteration of constitution by special resolution 16 Language of documents led with Registrar 17 Authorisation of an electronic ling agent 18 Revocation of the authorisation of an electronic ling agent 19 Copies of constitution to be given to members

Chapter 3 Corporate Capacity and Authority

20 Capacity of a private company limited by shares. 21 Registered person 22 Persons or bodies of persons authorised to bind a company 23 Powers of attorney

Chapter 4 Contracts and Other Transactions24 Form of contracts 25 The common seal 26 Power for company to have ofcial seal for use abroad 27 Ofcial seal for sealing securities 28 Pre-incorporation contracts 29 Bills of exchange and promissory notes 30 Liability for use of incorrect company name 31 Authentication of documents

Chapter 5 - Company name, registered ofce and legal proceedings32 Publication of name by company 33 Registered ofce of company 34 Service of proceedings 35 Security for costs 36 Enforcement of orders and judgments against companies and their ofcers

37 Conversion of existing companies or re-registration as Designated Activity Companies 38 Relief where there is a failure to re-register as a Designated Activity Company 39 Applicable laws during transition 40 Adoption of new constitution by members 41 Certication of new constitution by directors 42 Deemed constitution

Chapter 6 Conversion of an existing company to a company limited by shares

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Part A2- Incorporation and Registration

First Schedule Model Form of Constitution for Companies Limited by Shares. Part A2 - Incorporation and Registration Chapter 1InterpretationHead 1(1) Explanatory note This head is a new head which contains provisions for the interpretation of certain terms used in this Part of the Bill. The head takes account of the recommendations of the First Report of the Company Law Review Group which provided that greater use should be made of dened terms in order to make the legislation more succinct. The denitions of both activity and relevant classication system are taken from Section 42(7) of the Companies (Amendment)(No 2) Act, 1999. The head denes two new dates, the status date and the end of the transition period. Between those two dates an existing private company limited by shares (governed by memorandum and articles of association) can convert to the status of new model private company limited by shares (governed by a single document constitution). At the end of the transition period if an existing private company has not so converted, or has not converted to a DAC (designated activity company) it is deemed to have the default constitution set out in the schedule (to be appended). The head also denes what is considered to be an existing private company for these purposes. The purpose of Subhead 2 is to give the Minister a limited degree of exibility to extend the period in question by the limits proposed. It is considered to be in the interests of all concerned that the change over to the new regime being provided for the existing private companies limited by shares in Pillar A should be undertaken and completed as quickly as possible. Accordingly, it is proposed that in the 12 month period between the status date (which is six months after the commencement of the relevant provisions) and the end of the transition period, all existing private limited companies will have decided to register as a private company (with a tailored constitution), or register as a DAC. At the end of the period, if they have done neither of the foregoing, they will automatically become a private company with the default constitution.

Dened terms

In this Part, unless the context otherwise requires

activity means any activity that a company may be lawfully formed to carry on and includes the holding, acquisition or disposal of property of whatsoever kind; existing private company means a private company limited by shares that was incorporated under the Companies Acts, 1963 to 2003 or previous enactments and which is in existence at the commencement of this section and which has not reregistered as another company type; registered person means a person notied pursuant to Part A2, Head 21; relevant classication system means NACE Rev. 1, that is to say, the common basis for statistical classications of economic activities within the European Community set out in the Annex to Council Regulation (EEC); status date means the date six months after the commencement of this head; transition period means the period expiring twelve months after the status date. (2) If, in any respect, any difculties arise in the operation of the provisions of the Bill which necessitate the giving of more time for affected or interested parties to undertake any necessary actions or procedures in the periods provided for in the denitions of status date or the ending of the transition period in Subhead (1), the Minister may, by regulation, extend the period specied in each or either instance by periods not exceeding six months or eighteen months respectively.

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Part A2- Incorporation and RegistrationHowever, this will be a signicant change for all concerned and no matter how well in advance people are advised of the coming changes (eg through CLRG report, publication of the Bill, CRO, IAASA and ODCE publicity etc.), there is no certainty that company personnel or their advisers (legal, accounting or secretarial) will be able to deal with the issues arising for all of the companies affected. Further denitions may be identied and set out in this head.

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Part A2- Incorporation and Registration

Chapter 2Head 2

Incorporation and Consequential MattersWay of forming a company limited by shares

The head reects the recommendation of the First Report of the Company Law Review Group that any one or more persons may, by subscribing their names to an application for incorporation in a form prescribed for that purpose, form a private company limited by shares. The references to the memorandum and articles of association are replaced by the term constitution. This is in accordance with the recommendation of the First Report of the Review Group, which provided that the current two-document constitution of the private company limited by shares should be replaced by a single-document constitution. Subhead (4) limits the number of members of a private company limited by shares to 99. This increases the limit on membership from 50 as currently prescribed in Head 33(1) of the Companies Act, 1963. In its First Report the Review Group recommended that the maximum number of members be increased to 150. This gure had to be subsequently revised in the light of requirement in Directive 2003/71/EC of the European Parliament and of the Council (i.e. the Prospectus Directive) which requires a company to issue a prospectus where shares are offered to 100 or more persons. Subhead (5) is an amended re-enactment of section 42(1) of the Companies (Amendment) (No 2) Act, 1999.

(1)

A company may be formed for any lawful purpose by any person or persons subscribing to a constitution and complying with the registration requirements in this Bill. The liability of a member at any time shall be limited to the amount, if any, unpaid on the shares registered in the members name at that time. Subhead (2) is without prejudice to any other liability to which a member may be subject as provided by this Bill. The number of members of a company is limited to (a) 99 persons; and (b) current and/or former employees of the company; or (c) in the case of a company that is a management company, persons who are the owners of a freehold or leasehold estate or interest in the land that is managed by that company.

(2)

(3)

(4)

Head 3(1)

The form of the constitution

The constitution of the company shall state (a) its name; (b) that it is a private company limited by shares, registered under this Part; (c) If the company adopts supplemental regulations, those regulations; (d) its authorised share capital, being the amount of share capital with which the company proposes to be registered, and the division thereof into shares of a xed amount.

(5)

A company shall not be formed or registered unless it appears to the Registrar that the company, when registered, will carry on an activity in the State.

Explanatory note This head sets out the manner in which a private company limited by shares may be formed and further delimits the liability of any member of such a company. The text of the head is drawn from Head 5 of the Companies Act, 1963; it is amended to allow a private company limited by shares to be formed by one person as is currently permitted under Regulation 4 of the EC (Single Member Private Limited Companies) Regulation 1994.

(2)

The constitution shall (a) be in a form in accordance with the form set out in [the First Schedule to this Part] or as near thereto as circumstances permit;

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Part A2- Incorporation and Registration(b) be divided into paragraphs numbered consecutively; (c) be signed by each subscriber in the presence of at least one witness who must attest the signature. Explanatory note This head is a new head. It gives effect to the idea that the constitution is the single document of incorporation of the private company limited by shares. As such, Sections 8-16 of the Companies Act, 1963 are no longer of any relevance to the private company limited by shares - they will be of relevance to other corporate entities dealt with in Pillar B of the Bill. The new form of the constitution corresponds with the structure envisaged by the First Report of the Company Law Review Group, which provides a simplied form of application for incorporation of private companies. Subhead (1) retains a requirement similar to that at Section 6 of the Companies Act, 1963, that the constitution of private companies must state the name of the company. The constitution is also required to state that the company is a private company limited by shares, i.e. a private company. Subhead (1)(c) requires the constitution of private companies to state the supplemental regulations, if any, which have been adopted. Subhead (1)(d) implements Section 6(4) of the Companies Act, 1963 for CLSs. Subhead (2)(a) sets out the form that the constitution must take and this essentially replicates what is said in Section 16 of the Companies Act, 1963 (in relation to the memorandum and articles of association) to the effect that it must correspond to the form as set out in (Schedule 000) or as near thereto as circumstances permit. Subheads (2)(b) and (2)(c) further add to the form that the constitution must take. The requirements of numbered paragraphs and an attested signature of each member reect the existing Section 14 of the Companies Act, 1963 in relation to the articles of association. Explanatory note This head is based on Section 9 of the Companies Act, 1963.

Head 5(1)

Registration of constitution

The constitution of a company shall be delivered for registration to the Registrar together with the statement, and where appropriate the documents, described in Part A2, Head 6 and the declaration described in Part A2, Head 7. Where any constitution is delivered for registration under this head [equivalent of Section 17 of the Companies Act, 1963], the Registrar shall not register the constitution unless he is satised that all the requirements of the Companies Acts in respect of registration and of matters precedent and incidental thereto have been complied with.

(2)

Explanatory note This is a new head, which relates to the registration of the constitution of private companies. This new head is composed of a re-enactment of Section 17 of the Companies Act, 1963, Subsection (1) of Section 5 of the Companies (Amendment) Act, 1983 and some subsections added in accordance with the recommendations of the Company Law Review Group. References to memorandum and articles of association have been replaced by constitution. Furthermore, the words if any have been deleted. Under Section 17 of the Companies Act, 1963 there is no requirement that the articles must be registered in the case of a private company limited by shares and in such companies the model articles in the First Schedule apply. This amendment was necessitated by the fact that the new regime for a private company involves a single-document constitution. A default constitution is provided for further on in this Part. Section 17 was itself amended by Section 83 of the Company Law Enforcement Act, 2001 which dealt specically with the Registrar accepting for registration a document containing text from the objects clause of the memorandum or from the articles of association and the numbering thereof. Such amendments have not been included in Subhead(1) for the reason that we are now dealing with a single document constitution. Subhead (2) is a slightly amended re-enactment of Section 5(1) of the Companies (Amendment) Act. 1983. The references to the memorandum and articles of association have been replaced by a reference to the constitution of private companies.

Head 4

Restriction on alteration of constitution

A company may not alter the provisions contained in its constitution except in the cases, in the mode and to the extent for which express provision is made in this Bill.

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Part A2- Incorporation and Registration(4)

Head 6

Statement to be delivered with the constitution(5)

This head is without prejudice to Subhead (6) [equivalent of Section 3(3) of the Companies (Amendment) Act, 1982] or the requirements of any other enactment with regard to the registration of companies Where no person in paragraph (a) of Subhead (1) is resident in Ireland there shall be delivered for registration a bond as provided by Part A4, Head 11 [the equivalent of Section 43 of the Companies (Amendment) (No.2) Act, 1999]. In respect of the activity, or one of the activities, to be carried out by the company in the State, a statement delivered pursuant to Part A2, Head 5 shall contain the following particulars (a) if it appears to the person making the statement that the activity belongs to a division, group and class appearing in the relevant classication system (i) the general nature of the activity, and (ii) the division, group and class in that system to which the activity belongs; (b) if it appears to the said person that the activity does not belong to any such division, group and class, a precise description of the activity, (c) the place or places in the State where it is proposed to carry on the activity;

(1)

The statement required to be delivered pursuant to Part A2, Head 5(1) shall be in the prescribed form and shall contain the name and the particulars of the following (a) the person who is, or the persons who are, to be the rst director or directors of the company; (b) the person who is, or the persons who are, to be the rst secretary or joint secretaries of the company; and (c) the address of the companys registered ofce; (d) the place, whether in the State or not, where the central administration of the company will normally be carried on.

(6)

(2)

Where the constitution is delivered to the Registrar pursuant to Part A2, Head 5 [equivalent of Section 17 of the Companies Act, 1963] by a person as agent for the subscribers to the memorandum the statement required to be delivered to the Registrar pursuant to this head shall so specify and shall specify the name and address of the person by whom the constitution is delivered. If any of the persons named in the statement to be delivered pursuant to Part A2, Head 5 as directors of the company concerned is a person who is disqualied under the law of another state (whether pursuant to an order of a judge or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, that person shall ensure that that statement is accompanied by (but as a separate document from that statement) a statement in the prescribed form signed by him specifying (a) the jurisdiction in which he is so disqualied; (b) the date on which he became so disqualied; and (c) the period for which he is so disqualied.

(7)

(3)

For the purposes of Subhead (6), if the purpose or one of the purposes for which the company is being formed is the carrying on of two or more activities in the State, the particulars in respect of the matters referred to in paragraphs (a) to (c) of that subhead to be given in the statement, shall be the particulars that relate to whichever of those activities the person making the declaration considers to be the principal activity for which the company is being formed to carry on in the State. The statement shall be signed by or on behalf of the subscribers and shall be accompanied by a consent signed by each of the persons named in it as a director, secretary or joint secretary to act in that capacity.

(8)

Explanatory note This is a new head, however, it substantially re-enacts, in amended form, Section 3 of the Companies (Amendment) Act, 1982.

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Part A2- Incorporation and RegistrationSubhead (1) is slightly amended re-enactment of Section 3(1) of the Companies (Amendment) Act, 1982. The main amendment is the addition of paragraph (d), which is a new requirement. Subhead (2) is a re-enactment of Section 3(4) of the Companies (Amendment) Act, 1982. Subhead (3) is a slightly modied re-enactment of which was inserted by section 101 of the Company Law Enforcement Act, 2001. Subhead (5) was previously introduced by Section 43 of the Companies (Amendment) (No2) Act, 1999. Subhead (6) is an amended re-enactment of Section 42(2) of the Companies (Amendment) (No 2) Act, 1999. Subhead (7) is a re-enactment of Section 42(3) of the Companies (Amendment) (No 2) Act, 1999. Subhead(8) is a re-enactment of Section 3(3) of the Companies (Amendment) Act, 1982. Section 3(2) of the Companies (Amendment) Act, 1982 has been deleted on the basis that the particulars are set out in a prescribed form and therefore do not need to be specied in the legislation. (3) The declaration referred to in Subhead (1) shall be made either by (a) one of the persons named in the statement delivered pursuant to Part A2, Head 5 as directors of the company; (b) the person or, as the case may be, one of the persons named in the said statement as secretary or joint secretaries of the company; or (c) the solicitor, if any, engaged in the formation of the company. Explanatory note This is a new head. It substantially re-enacts in amended form Section 5 of the Companies (Amendment) Act, 1983. Subhead (1) re-enacts part of Section 5(5) of the Companies (Amendment) Act, 1983, specically that the Registrar may accept a declaration made under this head as sufcient evidence of the requirements under Head 6. The provisions relating to who may make the declaration are now set out separately in Subhead (3). Paragraph (2)(a) requires a declaration of compliance with the registration related requirements of the Bill. This is essentially a re-enactment of the requirements found in Section 5 of the Companies (Amendment) Act, 1982 when Subheads (1) and (5) are read together. Paragraph (2)(b) gives effect to requirements currently found in Section 42(2) of the Companies (Amendment) (No 2) Act, 1999 Paragraph (2)(c) is new. Subhead (3) is a slightly amended re-enactment of Section 5(5) of the Companies (Amendment) Act, 1983. The reference to statutory declaration in the current provision is replaced by an unsworn declaration, reecting the recommendation of the First Report of the Review Group, to move away from the requirement of a statutory declaration, where such currently exists.

Head 7(1)

Declaration to be made to Registrar

The Registrar may accept as sufcient evidence (a) that the requirements mentioned in Part A2, Head 6 [the equivalent of Section 3 of the Companies Act, 1982] have been complied with; and (b) that a company, when registered, will carry on an activity in the State, a declaration pursuant to this head.

(2)

The declaration shall state (a) that all the requirements in respect of registration and of matters precedent and incidental thereto have been complied with; (b) that the purpose for which the company is being formed is the carrying out by it of an activity in the State; (c) that the particulars contained in the statement delivered pursuant to Part A2, Head 5 are correct.

Head 8(1)

Effect of registration

On the registration of the constitution of a company, the Registrar shall certify in writing that the company is incorporated and that the company is limited and shall issue a certicate of incorporation for and to the company.

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Part A2- Incorporation and Registration(2) From the date of incorporation mentioned in the certicate of incorporation, the subscriber or subscribers of the constitution, together with such other persons as may from time to time become members of the company, shall be a body corporate with the name contained in the constitution, having perpetual succession and a common seal. The certicate of incorporation issued under Subhead (1) shall state that the company is a company limited by shares (CLS). A certicate of incorporation given under Subhead (1) shall be conclusive evidence that the requirements mentioned in Part A2, Head 5 [equivalent of Section 3 of the Companies Act, 1982] have been complied with, and that the company is duly registered under this Bill. The persons who are specied in the statement required to be delivered to the Registrar pursuant to Part A2, Head 5 [equivalent of Section 3 of the Companies Act, 1982] as the director or directors, secretary or joint secretaries of the company to which the statement refers shall, on the incorporation of the company, be deemed to have been appointed as the rst director or directors, or secretary, as the case may be, of the company, and any indication in the constitution specifying a person as a director or secretary of a company shall be void unless such person is specied as a director or as secretary in the said statement. (3)

Head 9(1) (2)

Provisions as to names of companies

The last word of the name of a company shall be Limited or Teoranta. The words Limited or Teoranta may be abbreviated to Ltd or Teo in any usage after its registration by any person including the company. Every company carrying on business under a name other than its corporate name shall register in the manner directed by law for the registration of business names but the use of the abbreviation Ltd. for Limited or Teo. for Teoranta shall not of itself render such registration necessary. No company shall be registered on incorporation, re-registration, merger or division, by a name which, in the opinion of the Registrar, is undesirable but an appeal shall lie to the court against a refusal to register.

(3)

(4)

(5)

(4)

Explanatory note This is a new head. The text of the head is drawn from Section 6 (1)(b) of the Companies Act, 1963, Section 21 of the Companies Act, 1963 as amended by Section 86 of the Company Law Enforcement Act, 2001 and Section 22 of the Companies Act, 1963. Subhead (4) has been amended insofar as the phrase ...on continuance, incorporation, re-registration, merger or division has been newly inserted in accordance with the view of the Company Law Review Group. Subhead (5) gives effect to a recommendation of the First Report of the Review Group that persons engaged in the formation of a company ought to be permitted to reserve a company name for a limited period of time.

Explanatory note This head is new. It re-enacts Section 18 of the Companies Act, 1963 and Section 3(5) of the Companies (Amendment) Act, 1982 has also been included. It is also stated to be imperative that the Registrar shall issue a certicate for and to the company, since this is so important to proof of existence. The conclusive evidence is related back specically to Section 5 of the Companies (Amendment) Act, 1983. Furthermore, under his hand has been dropped from Subhead (1) as it is seen as arcane and Association has also been dropped from Subhead (2) in view of the single-member incorporation. References to the memorandum and articles of association have been replaced by constitution. Subhead (3) re-enacts Section 5(3) of the Companies (Amendment) Act, 1983 for a CLS.

Head 10(1)

Trading under a misleading name

A person who is not a CLS and, if that person is a company, any ofcer of the company who is in default shall be guilty of a category three offence if he carries on any trade, profession or business under a name which includes, as its last part, the words company limited by shares or abbreviations of those words.

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Part A2- Incorporation and Registration(2) A CLS and any ofcer of the CLS who is in default shall be guilty of a category three offence if, in circumstances in which the fact that it is a CLS is likely to be material to any person, it uses a name which may reasonably be expected to give the impression that it is a company other than a CLS. Subhead (1) shall not apply to any company(a) to which Part B7 [equivalent of Part XI of the Companies Act, 1963] applies; and (b) which has provisions in its constitution that would entitle it to rank as a CLS if it had been registered in the State. Explanatory note An amended re-enactment of Sections 56(1), (2) and (4) of the Companies (Amendment) Act, 1983. (6) A name shall not be reserved that, in the opinion of the Registrar, is undesirable.

(3)

Explanatory note This is a re-enactment of Section 59 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005.

Head 12(1)

Extension of the period of reservation

A person in whose favour a name has been reserved under Part A2, Head 11 may, before the expiry of the specied period, apply to the Registrar for an extension of the specied period; such an application shall be accompanied by the prescribed fee. On the making of such an application, the Registrar may, if he or she considers it appropriate to do so, extend the specied period for such number of days (not exceeding 28 days) as the Registrar determines and species in a notication of the determination to the applicant. If an application for the incorporation of a company with a name that has been reserved under Part A2, Head 11 is received by the Registrar during the specied period from the person in whose favour the name has been so reserved, the fee payable to the Registrar in respect of that incorporation shall be reduced by an amount equal to the amount of the fee paid under Part A2, Head 11(3) in respect of the reservation of that name. In this head specied period has the same meaning it has in Part A2, Head 11.

(2)

Head 11(1)

Reservation of a company name(3)

In this head reserved means reserved under Subhead (4) for the purpose mentioned in Subhead (3); specied period means the period specied in the relevant notication made by the Registrar under Subhead (5).

(2)

During the specied period and any extension under Part A2, Head 12 of that period, a company shall not be incorporated with a particular reserved name save on application of the person in whose favour that name has been reserved. A person may apply to the Registrar to reserve a specied name for the following purpose, namely, the purpose of a company that is proposed to be formed by that person being incorporated with that name; such an application shall be accompanied by the prescribed fee. On the making of such an application, the Registrar may, subject to Subhead (6), determine that the name specied in the application shall be reserved for the purpose mentioned in Subhead (3). That determination shall be notied to the applicant by the Registrar and that notication shall specify the period (which shall not be greater than 28 days and which shall be expressed to begin on the making of the notication) for which the name is reserved.

(4)

(3)

Explanatory note Re-enactment of Section 60 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005.

Head 13(1)

Change of name

(4)

A company may, by special resolution and with the approval of the Registrar, signied in writing, change its name.

(5)

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Part A2- Incorporation and Registration(2) If, through inadvertence or otherwise, a company on its rst registration, or on its registration by a new name, is registered by a name which, in the opinion of the Registrar, is too like the name by which a company in existence is already registered, the rst-mentioned company may change its name with the approval of the Registrar and, if he so directs within 6 months of its being registered by that name, shall change it within a period of 6 weeks from the date of the direction or such longer period as the Registrar may think t to allow. Where a company changes its name under this head, the Registrar shall enter the new name in the register in place of the former name, and shall issue a certicate of incorporation altered to meet the circumstances of the case. A change of name by a company under this head shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings which might have been continued or commenced against it by its former name may be continued or commenced against it by its new name. A company which was registered by a name specied by statute, may, notwithstanding anything contained in that statute, change its name in accordance with Subhead (1), but if the Registrar is of the opinion that any Minister is concerned in the administration of the statute which specied the name of the company he shall not approve of the change of name save after consultation with that Minister. Where the winding up of a company commences within one year after the company has changed its name, the former name as well as the existing name of the company shall appear on all notices and advertisements in relation to the winding-up. If a company fails to comply with Subhead (2), the company and every ofcer in default shall be guilty of a category four offence.

Head 14(1)

Effect of constitution

(3)

Subject to the provisions of this Bill, the constitution shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member, and contained covenants by each member to observe all the provisions of the constitution and any provision of the Companies Acts as to the governance of the company. All money payable by any member to the company under the constitution shall be a debt due from him to the company. An action to recover a debt created by this head shall not be brought after the expiration of 12 years from the date on which the cause of action accrued. Where any provision of this Bill provides with respect to any matter, that (a) the constitution of a company may provide otherwise; and (b) the constitution does not, with respect to such matter, provide otherwise,

(2)

(4)

(3)

(4)

(5)

then those provisions of this Bill shall be deemed to pertain to the governance of the company. Explanatory note This head is a re-enactment, in a slightly amended form, of Section 25 of the Companies Bill, 1963. References to the memorandum and articles of association have been replaced with references to the constitution.

(6)

(7)

Head 15(1)

Alteration of constitution by special resolution

Explanatory note This head is a re-enactment of Section 23 of the Companies Act, 1963, as amended by Section 87 of the Company Law Enforcement Act, 2001. Subhead (2) has been amended by replacing sanction of the Minister with approval of the Registrar. Subhead (7) has been deleted.

Subject to the provisions of this Bill, a company may by special resolution amend its constitution. Any amendment so made in the constitution shall, subject to the provisions of this Bill, be as valid as if originally contained therein, and be subject in like manner to amendment by special resolution.

(2)

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Part A2- Incorporation and Registration(3) Where any amendment is made to a companys constitution notice of which the company is required to publish under Part A2, Head 16 [equivalent of Regulation 4 European Communities (Companies) Regulation 1973 (S.I. No.163 of 1973)], the company shall deliver to the Registrar, in addition to the alteration, a copy of the text of the constitution as so amended. Subject to Subhead (5), and notwithstanding anything in the constitution of a company, no member of the company shall be bound by an amendment made to the constitution after the date on which he became a member, if and so far as the amendment requires him to take or subscribe for more shares than the number held by him at the date on which the amendment is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company. Subhead (4) shall not apply in any case where the member agrees in writing, either before or after the amendment is made, to be bound thereby.

Head 16(1)

Language of documents led with Registrar

(4)

Without prejudice to any other provisions on the language of documents, any document led with the Registrar shall be in the Irish or English language. A translation of any such document may be led in any ofcial language of the European Community. Every translation to which Subhead (2) refers shall be certied, in a manner approved by the Registrar, to be a correct translation. In cases of discrepancy between the documents led pursuant to Subhead (1) and a translation led pursuant to Subhead (2) the latter may not be relied upon as against third parties. Third parties may nevertheless rely on said translation, unless the company proves that the third parties had knowledge of the version led pursuant to Subhead (2).

(2)

(3)

(4)

(5)

Explanatory note This head provides that the constitution of a private company is alterable by special resolution. This head is a new head which substantially reproduces Section 15 of the Companies Act, 1963 subject to necessary amendments. It is also drawn from Regulation 5 of S.I. 163/1973 and Section 27 of the Companies Act, 1963. Subheads (1) and (2) adopt the provisions in Section 15 of the Companies Act, 1963, relating to the alteration of the articles, as the mode for the alteration of the constitution. References to the memorandum and articles of association are replaced by references to the constitution of private companies. Furthermore, alteration or addition was replaced by amendment. Subhead (3) re-enacts, in a slightly amended form, Regulation 5 of European Communities (Companies) Regulation 1973 (S.I. No.163 of 1973). References to the articles and memorandum of association are replaced by references to the constitution of the company. Subheads (4) & (5) re-enact, in a slightly amended form, Section 27 of the Companies Act, 1963. References to the memorandum and articles of association are again replaced by references to the constitution of the company.

Explanatory note This is a new head.

Head 17(1)

Authorisation of an electronic ling agent

A company may authorise a person (who shall be known and is in this Bill referred to as an electronic ling agent) to do the following acts on its behalf. Those acts are (a) the electronic signing of documents that are required or authorised, by or under this Bill or any other enactment, to be delivered by the company to the Registrar; and (b) the delivery to the Registrar, by electronic means, of those documents so signed.

(2)

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Part A2- Incorporation and Registration(3) Subject to the following conditions being complied with, an act of the foregoing kind done by such an agent on behalf of a company pursuant to an authorisation by the company under this head that is in force, shall be as valid in law as if it had been done by the company (and the requirements of this Bill or the other enactment concerned with respect to the doing of the act have otherwise been complied with (such as with regard to the period within which the act is to be done)). The conditions mentioned in Subhead (3) are (a) that prior to the rst instance of the electronic ling agents doing of an act of the kind referred to in Subhead (2), pursuant to an authorisation by the company concerned under this head, the authorisation of the agent has been notied by the company to the Registrar in the prescribed form; and (b) the doing of the act complies with any requirements of the Registrar of the kind referred to in Sections 12(2)(b) and 13(2)(a) of the Electronic Commerce Act, 2000. (5) It shall be the joint responsibility of a company and the electronic ling agent authorised by it under this head to manage the control of the documents referred to in Subhead (2). An electronic ling agent shall not, by virtue of his or her authorisation under this head to act as such, be regarded as an ofcer or servant of the company concerned for the purposes of Head 104 (a) of Part A6 [equivalent of Section 187 (2) (a) of the Companies Act, 1990]. (2) Such a revocation by a company shall be notied by it, in the prescribed form, to the Registrar. Unless and until the revocation is so notied to the Registrar, the authorisation concerned shall be deemed to subsist and, accordingly, to be still in force for the purposes of Head 17 of this Part [equivalent of Section 57(3) of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005]. If a revocation, in accordance with this head, of an authorisation under Head 17 of this Part [equivalent of Section 57 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005] constitutes a breach of contract or otherwise gives rise to a liability being incurred (a) the fact that it constitutes such a breach or otherwise gives rise to a liability being incurred does not affect the validity of the revocation for the purposes of Head 17 of this Part [equivalent of Section 57 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005]; and (b) the fact of the revocation being so valid does not remove or otherwise affect any cause of action in respect of that breach or the incurring of that liability. Explanatory note This head re-enacts Section 58 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005.

(3)

(4)

(4)

(6)

Head 19(1)

Copies of constitution to be given to members

Explanatory note This head re-enacts Section 57 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005.

A company shall, on being so required by any member, send to him a copy of the constitution, and in the event of a second or subsequent request, on payment of 5. Where an alteration is made in the constitution of a company, every copy of the constitution issued after the date of the alteration shall be in accordance with the alteration. If a company makes default in complying with this head, the company and every ofcer of the company who is in default shall be guilty of a category four offence.

(2)

Head 18

Revocation of the authorisation of an electronic ling agent

(3)

(1)

A company may revoke an authorisation by it under Head 17 of this Part [equivalent of Section 57 of the Investment Funds, Companies and Miscellaneous Provisions Act, 2005] of an electronic ling agent.

Explanatory note This head is a re-enactment of Section 29 and Section 30 of the Companies Act, 1963.

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Part A2- Incorporation and RegistrationSubhead (1) is an amended re-enactment of Section 29(1) of the Companies Act, 1963. This subhead was amended insofar as it no longer requires the company to forward copies of Acts of the Oireachtas, which alter its constitution to its members. References to the memorandum and articles of association have been replaced with references to the constitution of the company. Subhead (2) is a re-enactment, in a slightly amended form, of Section 30(1) of the Companies Act, 1963. References to the memorandum and articles of association have been replaced with references to the constitution of the company. Subhead (3) is a re-enactment of Section 29(2) of the Companies Act, 1963. Subsection (4) has been deleted.

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Part A2- Incorporation and Registration

Chapter 3Head 20

Corporate Capacity and AuthorityCapacity of a private company limited by shares

Head 21

Registered person

Where a company appoints any person (a registered person) as a person entitled to bind the company it shall notify the Registrar in the prescribed form. Explanatory note This is a new head. The concept is drawn from Regulation 6(3) of the EC (Companies) Regulations, 1973 (although it is not a direct re-enactment).

(1)

Subject to Subhead (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State (a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and, (b) for the purposes of paragraph (a) of this subhead, full rights powers and privileges.

Head 22

Persons or bodies of persons authorised to bind a company

(1)

(2)

Nothing in Subhead (1) shall relieve a company from any duty or obligation under any enactment or the general law.

For the purposes of any question whether a transaction fails to bind a company because of lack of authority on the part of the person exercising (or purporting to exercise) the companys powers, the board of directors of a company and any registered person shall be deemed to have authority to (a) exercise any power of the company; and (b) authorise others to do so, and this applies regardless of any limitations in the companys constitution on the boards authority or a registered persons authority, but subject to Subheads (4) and (6).

Explanatory note This is a new head which gives effect to the recommendation in the First Report of the Company Law Review Group that private companies limited by shares should be granted the legal capacity of a natural person with the consequent effect that the doctrine of ultra vires is disapplied from private companies . The head is modelled on Section 16(1) of the New Zealand Companies Act, 1993 The Review Group recognised that nearly 90 per cent of registered companies are private companies limited by shares and the majority of these were closely-held companies. Accordingly, the Review Group believes that such companies should not be required to set out any objects or powers; such companies should be empowered with the capacity of a natural person. Thus, it recommended that, except where otherwise specically required by a companys promoters, private companies limited by shares should have the legal capacity of a natural person. Subhead (1) provides that private companies shall have the capacity to carry on and undertake any business activity, do any act or enter any transaction and for these purposes it is given full rights, powers and privileges. Subhead (2) is a safety provision stating that private companies are not relieved from they duties or obligations under any enactment or the general law as a result of Subhead (1). (2)

Subhead (1) shall not be taken to prevent the exercise of a companys powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists. Subhead (1) does not affect a directors duties (including his duty to observe any limitations in the companys constitution on the boards authority), or his or any other persons liability (including the liability of a registered person) in respect of any breach of those duties. Where a company is purportedly a party to a transaction (a) in connection with which the board of directors exceeded limitations in the companys constitution on their authority; and (b) to which a person falling within Subhead (5) is also a party,

(3)

(4)

26

Part A2- Incorporation and RegistrationSubhead (1) does not apply in favour of the party falling within Subhead (5). (5) A person falls within this subhead if he is (a) a director or shadow director of the company or of its holding company; or (b) a person connected with such a director; or (c) a registered person; or (d) a person connected with a registered person and in this subhead, references to a persons being connected with another person are to be read in accordance with Part A5, Head 2 [equivalent of Section 26 of the Companies Act, 1990, as amended by Section 76 of the Company Law Enforcement Act, 2001]. (6) Subhead (1) does not apply in relation to a power of the company which this Bill requires to be exercised otherwise than by the board. Without prejudice to Subhead (2), in determining any question whether a person had ostensible authority to exercise any of a companys powers in a given case, no reference may be made to the companys constitution. In this head, references to limitations in the companys constitution include references to limitations deriving from (a) a resolution of the company or of any class of members; or (b) any agreement between the members of the company or of any class of members; and transaction includes any act or omission. Explanatory note This is a new head. The head sets out those persons who are authorised to bind a company and draws on the provision in the UK White Paper Modernising Company Law, July 2002 at 6.2 p 50. Subhead (1) is a new provision aimed at enhancing clarity and certainty in relation to the issue of the authority of the Board of Directors to bind the company. It is similar to the current Model Article 80 of Part I of Table A of the First Schedule to the Companies Act 1963. Subheads (2), (3), (4), (5), (6), (7) and (8) are all new provisions which further elaborate on authority to bind the company. (2)

Head 23(1)

Powers of Attorney

A company may, by writing under its common seal, empower any person, either generally or in respect of any specied matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State. A deed signed by such attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.

Explanatory note This head is an amended re-enactment of Section 40 of the Companies Act, 1963. Subhead (1) is an amended re-enactment of Section 40(1) of the Companies Act, 1963. It was amended in accordance with the recommendation of the First Report of the Company Law Review Group that Section 40 should be amended to expressly declare that the power to appoint an attorney (i) is regardless of any provision in the constitution, and (ii) extends to acts done within the State. A further amendment was also made whereby the words or to do any other matter were added which extends the powers of the attorney to act on behalf of the company. Subhead (2) is a re-enactment of sSction 40(2) of the Companies Act, 1963.

(7)

(8)

27

Part A2- Incorporation and Registration

Chapter 4Head 24(1)

(2)

Contracts and Other TransactionsForm of contractsContracts on behalf of a company may be made as follows (a) a contract which, if made between natural persons, would be by law required to be in writing and to be under seal, may be made on behalf of the company in writing under the common seal of the company; (b) a contract which, if made between natural persons, would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing, signed by any person acting under its authority, express or implied; (c) a contract which if made between natural persons would by law be valid although made by parol only, and not reduced into writing may be made by parol on behalf of the company by any person acting under its authority, express or implied. (2) A contract made according to this head shall bind the company and its successors and all other parties thereto. A contract made according to this head may be varied or discharged in the same manner in which it is authorised by this head to be made.

Save as otherwise provided by this Bill or by the constitution of a company, the seal shall be used only by the authority of the directors or of a committee of directors authorised by the directors in that behalf, and every instrument to which the seal shall be afxed shall be signed by a director and shall be countersigned by the secretary or by a second director or by some other person appointed by the directors for the purpose. Where a company has a registered person within the meaning of Part A2, Head 21 [equivalent of Reg.6(2) of EC (Companies) Regulations, 1973], the seal may be used by such person, and when so used every instrument to which the seal shall be afxed shall be signed by such person.

(3)

Explanatory note This head is new. The requirement to have a common seal is currently found in Subsection (2) of Section 18 of the Companies Act, 1963. The Company Law Review Group, in its First Report, advised that the requirement to have a common seal be retained. Subhead (1) is a re-enactment, in a slightly amended form, of Section 114(1)(b) of the Companies Act, 1963. A company may have more than one seal. Subhead (2) is drawn from Model Article 115 of Part I of Table A of the First Schedule to the Companies Act, 1963. It is amended insofar as the requirement that the seal shall be used only by the authority of the directors of the company or by the authority of a committee of directors is subject to where otherwise provided by this Bill or by the constitution of the company. Subhead (3) gives effect to the recommendation of the First Report of the Review Group that a person registered under Regulation 6(2) of the EC (Companies) Regulations, 1973 should be deemed to be a person appointed by the directors to afx the seal and sign the instrument under seal and in such a case no counter-signature is required.

(3)

Explanatory note This head is an amended re-enactment of Section 38 of the Companies Act, 1963. Subhead (1) is a slightly amended re-enactment of Section 38(1) of the Companies Act, 1963. The reference to private persons has been replaced by a reference to natural persons. Subheads (2) & (3) are re-enactments of Sections 38(2) & 38(3) of the Companies Act, 1963 respectively.

Head 26

Head 25(1)

The Common Seal(1)

Power for company to have ofcial seal for use abroad

Every company shall have a common seal or seals that shall state the companys name, engraved in legible characters.

A company may, if authorised by its constitution, have for use in any territory, district or place not situate in the State, an ofcial seal which shall resemble the common seal of the company with the addition on its face of the name of every territory, district or place where it is to be used.

28

Part A2- Incorporation and Registration(2) A deed or other document to which an ofcial seal is duly afxed shall bind the company as if it had been sealed with the common seal of the company. A company having an ofcial seal for use in any such territory, district or place, may, by writing under its common seal, authorise any person appointed for the purpose in that territory, district or place to afx the ofcial seal to any deed or other document to which the company is party in that territory, district or place. The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or, if no period is there mentioned, then until the notice of revocation or determination of the agents authority has been given to the person dealing with him. The person afxing any such ofcial seal shall, by writing under his hand, certify on the deed or other instrument to which the seal is afxed, the date on which and the place at which it is afxed.

Head 27(1)

Ofcial seal for sealing securities

(3)

A company may have for use, for sealing securities issued by the company and for sealing documents creating or evidencing securities so issued, an ofcial seal which is a facsimile of the common seal of the company with the addition on its face of the word Securities or the word Urris. A company which was incorporated before the commencement of this Bill and which has such an ofcial seal as is mentioned in Subhead (1) of this head may use the seal for sealing such securities and documents as are mentioned in that subhead notwithstanding anything in any instrument constituting or regulating the company or in any instrument made before such commencement which relates to any securities issued by the company, and any provision of such an instrument which requires any such securities or documents to be signed shall not apply to the securities or documents if they are sealed with that seal.

(4)

(2)

(5)

Explanatory note This head is a re-enactment, in a slightly amended form, of section 41 of the Companies Act, 1963. Subhead (1) is an amended re-enactment of Section 41(1) of the Companies Act, 1963. It has been amended by removing the phrase whose objects require or comprise the transaction of business outside the State. This amendment was necessitated by the fact that a private company no longer has an objects clause and is now deemed to have the capacity of a natural person in accordance with the recommendation of the First Report of the Company Law Review Group. References to the memorandum and articles of association have been replaced with references to the Constitution of the company. Subhead (2) is a re-enactment of Section 41(2) of the Companies Act, 1963. Subhead (3) is a re-enactment of Section 41(3) of the Companies Act, 1963. Subhead(4) is a re-enactment of Section 41(4) of the Companies Act, 1963. Subhead (5) is a re-enactment of Section 41(5) of the Companies Act, 1963.

Explanatory note This head is a re-enactment of Section 3 of the Companies (Amendment) Act, 1977.

Head 28(1)

Pre-incorporation contracts

Any contract or other transaction (including any application to any lawful authority) purporting to be entered into by a company prior to its formation or by any person on behalf of the company prior to its formation may be ratied by the company after its formation and thereupon the company shall become bound by it and entitled to the benet thereof as if it had been in existence at the date of such contract or other transaction and had been a party thereto. Prior to ratication by the company the person or persons who purported to act in the name or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benet thereof. Where a contract or other transaction is so ratied, any taxation exigable in respect of such transaction shall be payable by the company alone.

(2)

(3)

29

Part A2- Incorporation and RegistrationExplanatory note This head is a re-enactment of Sections 37 (1) & 37(2) of the Companies Act, 1963. Section 37(3) has been deleted as obsolete. (ii) be personally liable to the holder of the bill of exchange, promissory note, cheque or order for money or goods for the amount thereof unless it is duly paid by the company or it appears to the court that no injustice will be done by imposing liability therefore on the company. Explanatory note This head is a re-enactment, in a slightly amended form, of Section 114(4) of the Companies Act, 1963. Subhead (a) is an amended re-enactment of Section 114(4)(a) of the Companies Act, 1963. As aforesaid is deleted and replaced by in legible characters on its seal. This was necessitated due to the fact that Subsection (4) is now a head in itself and the cross reference to the earlier text is thus rendered useless. Subhead (b) is an amended re-enactment of Section 114(4)(b) of the Companies Act, 1963. In manner aforesaid is deleted and replaced by in manner described in Part A2, Head 32 (1). This was necessitated due to the fact that Subsection (4) is now a head in itself and the cross reference to the earlier text is thus rendered useless. Subhead (c) is a re-enactment of Section 114(4)(c) of the Companies Act, 1963.

Head 29

Bills of exchange and promissory notes

A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company, if made, accepted or endorsed in the name of or by or on behalf or on account of, the company by any person acting under its authority. Explanatory note This head is a re-enactment of Section 39 of the Companies Act, 1963.

Head 30

Liability for use of incorrect company name

Where an ofcer of a company or any person on its behalf (a) uses or authorises the use of any seal purporting to be a seal of the company whereon its name is not so engraved in legible characters on its seal; or (b) issues or authorises the