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13 1983

COMPANIES (AMENDMENT) ACT, 1983

FIRST SCHEDULE

Minor and Consequential Amendments to the Companies Act, 1963.

Section 3 .

1. Section 2 of the Principal Act is hereby amended in subsection (1), in the definition of “articles”, by substituting “a resolution of the company” for “special resolution”.

2. Section 6 of the Principal Act is hereby amended by substituting the following subsection for subsection (1)—

“(1) The memorandum of every company must state—

(a) in the case of a public limited company, the name of the company, with ‘public limited company’ or ‘cuideachta phoiblí theoranta’ as the last words of the name;

(b) in the case of a company (other than a public limited company) which is limited by shares or by guarantee, the name of the company, with ‘limited’ or ‘teoranta’ as the last word of the name;

(c) the objects of the company.”.

3. Section 10 of the Principal Act is hereby amended—

(a) in subsection (6) by deleting “so, however, that no part of the capital of the company shall be expended in any such purchase.”; and

(b) by inserting after subsection (6) the following new subsections—

“(6A) An order under this section may, if the court thinks fit, provide for the purchase by the company of the shares of any members of the company and for the reduction accordingly of the company's capital and may make such alterations in the memorandum and articles of the company as may be required in consequence of that provision.

(6B) Where an order under this section requires the company not to make any, or any specified, alteration in its memorandum or articles, then, notwithstanding anything in the Companies Acts, 1963 to 1983, thecompany shall not have power without the leave of the court to make any such alteration in breach of that requirement.

(6C) Any alteration in the memorandum or articles of a company made by virtue of an order under this section, other than one made by resolution of the company, shall be of the same effect as if duly made by resolution of the company, and the provisions of the Companies Acts, 1963 to 1983 shall apply to the memorandum or articles as so altered accordingly.”.

4. Section 22 of the Principal Act is hereby amended by substituting the following subsection for subsection (2)—

“(2) The use of the abbreviation ‘Ltd.’ for ‘Limited’ or ‘Teo.’ for ‘Teoranta’ or ‘p.l.c.’ for ‘public limited company’ or ‘c.p.t.’ for ‘cuideachta phoiblí theoranta’ shall not of itself render such registration necessary.”.

5. Section 28 of the Principal Act is hereby amended in subsection (4) by inserting after “(6),”, the following — “(6A), (6B), (6C),”.

6. The Principal Act is hereby amended by substituting the following section for section 35—

“35.—(1) Subject to subsection (2), if a company, being a private company, alters its articles in such a manner that they no longer include the provisions which, under section 33, are required to be included in the articles of a company in order to constitute it a private company, the company shall cease to be a private company.

(2) The alteration referred to in subsection (1) shall not take effect unless the company has been re-registered as a public limited company in accordance with section 9 of the Companies (Amendment) Act, 1983 or as an unlimited public company in accordance with section 52 of that Act.

(3) Where an application is made to re-register a private company as an unlimited public company, there shall be delivered with the application for re-registration a statement in lieu of prospectus in the form and containing the particulars set out in Part I of the Second Schedule, and, in the cases mentioned in Part II of that Schedule, setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule.

(4) A statement in lieu of prospectus need not be delivered under subsection (3) if a prospectus relating to the company which complies, or is deemed by virtue of a certificate of exemption under section 45 to comply, with the Third Schedule, is issued and is delivered to the registrar of companies as required by section 47.

(5) Every statement in lieu of prospectus delivered under subsection (3) shall, where the persons making any such report as referred to in that subsection have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of Part III of the Second Schedule, have endorsed thereon or attached thereto a written statement signed by those persons, setting out the adjustments and giving the reasons therefor.

(6) If default is made in complying with subsection (2), (3) or (5), the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500.

(7) Where a statement in lieu of prospectus, delivered to the registrar under subsection (3) includes any untrue statement, any person who authorised the delivery of the statement in lieu of prospectus for registration shall be guilty of an offence and shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine not exceeding £2,500, or both, or

(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding £500 or both;

unless he proves either that the untrue statement was immaterial or that he had reasonable ground to believe and did, up to the time of the delivery for registration of the statement in lieu of prospectus, believe that the untrue statement was true.

(8) For the purposes of this section—

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

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

7. Section 53 of the Principal Act is hereby amended in subsection (3) by substituting “Except in the case of a public limited company the amount payable” for “The amount payable”.

8. Section 54 of the Principal Act is hereby amended by substituting the following subsection for subsection (3)—

“(3) This section shall not apply to—

(a) a private company; or

(b) a public limited company within the meaning of the Companies (Amendment) Act, 1983.”.

9. Section 55 of the Principal Act is hereby amended by substituting the following subsection for subsection (1)—

“(1) An allotment made by a company to an applicant in contravention of section 53 or 54 shall be voidable at the instance of the applicant within one month after the date of the allotment, and not later, and shall be so voidable notwithstanding that the company is in the course of being wound up.”.

10. Section 60 of the Principal Act is hereby amended by inserting after subsection (15) the following new subsections—

“(15A) Subsections (2) to (11) shall not apply to a public limited company originally incorporated as such or to a company registered or re-registered as a public limited company under the Companies (Amendment) Act, 1983 unless a special resolution as provided under subsection (2) was passed before the company's application for registration or re-registration.

(15B) A public limited company may, in accordance with subsection (13), give financial assistance to any person only if the company's net assets are not thereby reduced or, to the extent that those assets are thereby reduced, if the financial assistance is provided out of profits which are available for dividend.

(15C) In this section “net assets” means the aggregate of the company's assets less the aggregate of its liabilities; and “liabilities” includes any provision (within the meaning of the Sixth Schedule) except to the extent that that provision is taken into account in calculating the value of any asset to the company.”.

11. Section 62(2) of the Principal Act is hereby amended by substituting “to be allotted” for “to be issued”.

12. Section 64 of the Principal Act is hereby amended—

(a) in subsection (1) by substituting the following paragraph for paragraph (c)—

“(c) the premium, if any, payable on redemption must have been provided for out of the profits of the company which would otherwise be available for dividend or out of the company's share premium account before the shares are redeemed;”;

and

(b) in subsection (6) by substituting “to be allotted” for “to be issued ”.

13. Section 114 of the Principal Act is hereby amended by substituting the following subsection for subsection (5)—

“(5) The use of the abbreviation ‘Ltd.’ for ‘Limited’ or ‘Teo.’ for ‘Teoranta’ or ‘p.l.c.’ for ‘public limited company’ or ‘c.p.t.’ for ‘cuideachta phoiblí theoranta’ shall not be a breach of the provisions of this section.”.

14. Section 115 of the Principal Act is hereby amended in subsection (7) by inserting after paragraph (c) the following—

“, or

(d) a public limited company registered as such on its original incorporation under the Companies (Amendment) Act, 1983.”.

15. Section 143 of the Principal Act is hereby amended in subsection (4) (as amended by the Companies (Amendment) Act, 1982 ) by inserting after paragraph (i) the following new paragraph—

“(j) resolutions of the directors of a company passed by virtue of sections 12 (3) (a) and 43(3) of the Companies (Amendment) Act, 1983.”.

16. Section 200 of the Principal Act is hereby amended in paragraph (b) by inserting after “section 391” the following—

“or section 42 of the Companies (Amendment) Act, 1983”.

17. Section 213 of the Principal Act is hereby amended by inserting after paragraph (g) the following paragraphs—

“(h) after the end of the general transitional period, within the meaning of the Companies (Amendment) Act, 1983, the company is an old public limited company within the meaning of that Act;

(i) after the end of the transitional period for share capital, within the meaning of the Companies (Amendment) Act, 1983, the company has not complied with the conditions specified in section 12 (9) of that Act.”.

18. Section 215 of the Principal Act is hereby amended by adding after paragraph (e) the following—

“and

(f) a petition for winding up on the grounds mentioned in section 213(h) or (i), may be presented by the registrar of companies.”.

19. Section 330(c) of the Principal Act is hereby amended by substituting the following subparagraph for subparagraph (iii)—

“(iii) the name of the company with the addition of the word ‘limited’ or ‘teoranta’ as the last word thereof or, in the case of a public limited company, with the addition of the words ‘public limited company’ or ‘cuideachta phoiblí theoranta’ as the last words thereof; and”

20. Section 335 of the Principal Act is hereby amended by substituting the following subsection for subsection (1)—

“(1) Subject to subsection (2), when a company registers in pursuance of this Part with limited liability, the word ‘limited’ or ‘teoranta’ or in the case of a public limited company the words ‘public limited company’ or ‘cuideachta phoiblí theoranta’ shall form and be part of its name.”.

21. Section 336 of the Principal Act is hereby amended—

(a) by being renumbered as subsection (1) thereof; and

(b) by inserting the following new subsection—

“(2) A certificate given under this section in respect of a company shall be conclusive evidence that the requirements of this Part in respect of registration and of matters precedent and incidental thereto have been complied with.”.

22. Section 340 of the Principal Act is hereby amended in subsection (2) by inserting after “the amount of the guarantee” the following—“and including any statement under section 330(c)”.

23. Section 395 of the Principal Act is hereby amended by substituting the following subsection for subsection (2)—

“(2) The Minister may by order—

(a) alter Table A, Tábla A and the Third, Seventh and Eighth Schedules;

(b) alter or add to Tables B, C, D and E in the First Schedule and the form in Part II of the Fifth Schedule; and

(c) alter the forms set out in the Second Schedule to the Companies (Amendment) Act, 1983;

but no alteration made by the Minister in Table A or in Tábla A shall affect any company registered before the alteration, or repeal in relation to that company any portion of Table A or Tábla A.”.

24. The First Schedule to the Principal Act is hereby amended in Part I of Table A—

(a) by substituting the following regulation for regulation 3—

“3. If at any time the share capital is divided into different classes of shares, the rights attached to any class may, whether or not the company is being wound up, be varied or abrogated with the consent in writing of the holders of three-fourths of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the holders of the shares of the class.”;

(b) by substituting the following regulation for regulation 5—

“5. Subject to the provisions of these regulations relating to new shares, the shares shall be at the disposal of the directors, and they may (subject to the provisions of the Companies Acts, 1963 to 1983) allot, grant options over or otherwise dispose of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the company and its shareholders, but so that no share shall be issued at a discount and so that, in the case of shares offered to the public for subscription by a public limited company, the amount payable on application on each share shall not be less than one-quarter of the nominal amount of the share and the whole of any premium thereon.”;

(c) in regulation 79 by inserting after “or any part thereof, and” the following “, subject to section 20 of the Companies (Amendment) Act, 1983”;

(d) in regulation 80 by substituting “the Companies Acts, 1963 to 1983” for “the Act”;

(e) by substituting the following regulation for regulation 118—

“118. No dividend or interim dividend shall be paid otherwise than in accordance with the provisions of Part IV of the Companies (Amendment) Act, 1983 which apply to the company.”;

(f) by inserting after regulation 130 the following new regulation—

“130A. The company in general meeting may on the recommendation of the directors resolve that it is desirable to capitalise any part of the amount for the time being standing to the credit of any of the company's reserve accounts or to the credit of the profit and loss account which is not available for distribution by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares to those members of the company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions), and the directors shall give effect to such resolution.”;

(g) in regulation 131 by substituting “Whenever a resolution is passed in pursuance of regulation 130 or 130A” for “Whenever such a resolution as aforesaid shall have been passed”.

25. The First Schedule to the Principal Act is hereby amended in Part I of Tábla A—

(a) by substituting the following regulation for regulation 3—

“3. Más rud é tráth ar bith go roinnfear an scairchaipiteal ina scaireanna de chineálacha éagsúla, féadfar na cearta a ghabhfaidh le haon chineál, cibé acu a bheidh an chuideachta á foirceannadh nó nach mbeidh, a athrú nó a aisghairm le toiliú i scríbhinn ó shealbhóirí trí cheathrú de na scaireanna eisithe den chineál sin, nó le ceadú faoi rún speisialta a ritheadh ag cruinniú ginearálta ar leith de shealbhóirí na scaireanna den chineál sin.”;

(b) by substituting the following regulation for regulation 5—

“5. Faoi réir na bhforálacha de na rialacháin seo a bhaineann le scaireanna nua, beidh na scaireanna ar a n-urláimh ag na stiúrthóirí, agus féadfaidh siad (faoi réir fhorálacha Achtanna na gCuideachtaí, 1963 go 1983) iad a leithroinnt ar cibé daoine, nó roghanna orthu a dheonú dóibh, nó iad a dhiúscairt chucu i slí eile, ar cibé téarmaí agus coinníollacha, agus cibé tráthanna, is dóigh leo is fearr a bheadh le leas na cuideachta agus a scairshealbhóirí, ach sa dóigh nach n-eiseofar aon scair faoi lascaine agus sa dóigh, i gcás scaireanna a thairgfidh cuideachta phoiblí theoranta don phobal lena suibscríobh, nach mbeidh an tsuim is iníoctha tráth an iarratais ar gach scair faoi bhun an ceathrú cuid de mhéid ainmniúil na scaire agus iomlán aon phréimhe uirthi.”;

(c) in regulation 79 by inserting after “a mhorgáistiú nó a mhuirearú, agus,” the following: “faoi réir alt 19 d'Acht na gCuideachtaí (Leasú), 1983”;

(d) in regulation 80 by substituting “le hAchtanna na gCuideachtaí, 1963 go 1983” for “leis an Acht” and “faoi réir fhorálacha Achtanna na gCuideachtaí, 1963 go 1983” for “faoi réir forálacha an Achta”;

(e) by substituting the following regulation for regulation 118—

“118. Ní íocfar díbhinn ná díbhinn eatramhach ar bith seachas de réir na bhforálacha de Chuid IV d'Acht na gCuideachtaí (Leasú), 1983 a bhfuil feidhm acu maidir leis an gcuideachta.”;

(f) by inserting after regulation 130 the following new regulation—

“130A. Féadfaidh an chuideachta, i gcruinniú ginearálta, ar mholadh na stiúrthóirí, a bheartú gur inmhianaithe aon chuid den méid a bheidh de thuras na huaire i gcreidiúint d'aon cheann de chúlchuntais na cuideachta nó i gcreidiúint don chuntas sochair agus dochair nach mbeidh ar fáil chun a dháilte a chaipitliú tríd an tsuim sin a chur chun feidhme do láníoc scaireanna neamheisithe a bheidh le leithroinnt mar scaireanna bónais láníoctha ar na comhaltaí sin den chuideachta a bheadh i dteideal na suime sin dá ndéanfaí í a dháileadh i modh díbhinne (agus sna cionúireachtaí céanna) agus tabharfaidh na stiurthóirí éifeacht don rún sin.”;

(g) in regulation 131 by substituting “Aon uair a rithfear rún de bhun rialachán 130 nó 130A” for “Aon uair a rithfear rún mar a dúradh”.

26. The Second Schedule to the Principal Act is hereby amended in the heading thereof by substituting “AN UNLIMITED PUBLIC COMPANY” for “A PUBLIC COMPANY”.

27. The Sixth Schedule to the Principal Act is hereby amended in paragraph 11 by inserting after subparagraph (2) the following new subparagraphs—

“(2A) Where shares in a public limited company, other than an old public limited company within the meaning of the Companies (Amendment) Act, 1983 are acquired by the company by forfeiture or surrender in lieu of forfeiture, or in pursuance of section 41 of that Act, or are acquired by another person in circumstances where paragraph (c) or (d) of section 43 (1) of that Act applies or are made subject to a lien or charge taken (whether expressly or otherwise) by the company and permitted by section 44 (2) (a), (c) or (d) of that Act—

(a) the number and nominal value of the shares so acquired by the company, acquired by another person in such circumstances and so charged respectively during the financial year;

(b) the maximum number and nominal value of shares which, having been so acquired by the company, acquired by another person in such circumstances or so charged (whether or not during the financial year) are held at any time by the company or that other person during that year;

(c) the number and nominal value of the shares so acquired by the company, acquired by another person in such circumstances or so charged (whether or not during that year) which are disposed of by the company or that other person or cancelled by the company during that year;

(d) where the number and nominal value of the shares of any particular description are stated in pursuance of any of the preceding paragraphs, the percentage of the called-up share capital which shares of that description represent;

(e) where any of the shares have been so charged, the amount of the charge in each case; and

(f) where any of the shares have been disposed of by the company or the person who acquired them in such circumstances for money or money's worth, the amount or value of the consideration in each case.

(2B) Any distribution by an investment company within the meaning of Part IV of the Companies (Amendment) Act, 1983, which reduces the amount of its net assets to less than the aggregate of its called-up share capital and undistributable reserves. In this subparagraph ‘net assets’ and ‘called up share capital’ have the same meanings as in section 2 of the Companies (Amendment) Act, 1983 and ‘undistributable reserves’ has the same meaning as in section 46 (2) of that Act.”.

28. The Seventh Schedule to the Principal Act is hereby amended by inserting after paragraph 4 the following new paragraph—

“5. Whether, in their opinion, there exists at the balance sheet date within the meaning of the Companies (Amendment) Act, 1983 a financial situation which under section 40 (1) of that Act would require the convening of an extraordinary general meeting of the company.”.

29. The Ninth Schedule to the Principal Act is hereby amended by inserting—

(a) in the first column after “Register of directors and secretaries” the following: “Particulars relating to directors to be shown on all business letters of the company”; and

(b) in the second column after “Section 195” the following: “Section 196”.

30. The Tenth Schedule to the Principal Act is hereby amended by deleting from the first and second columns thereof the following—

“130 Statutory meeting and statutory report.”.