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33 1990

COMPANIES ACT, 1990

PART XII

General

Amendment of section 2 of the Principal Act.

235. —(1) Unless the context otherwise requires, “the court”, used in any provision of the Companies Acts 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.

(2) The definition of “the court” in subsection (1) is in substitution for the definition in section 2 (1) of the Principal Act.

Qualifications of secretary of public limited company.

236. —It shall be the duty of the directors of a public limited company to take all reasonable steps to secure that the secretary (or each joint secretary) of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of secretary of the company and who—

(a) on the commencement of this section held the office of secretary of the company; or

(b) for at least three years of the five years immediately preceding his appointment as secretary held the office of secretary of a company; or

(c) is a member of a body for the time being recognised for the purposes of this section by the Minister; or

(d) is a person who, by virtue of his holding or having held any other position or his being a member of any other body,appears to the directors to be capable of discharging those functions.

Qualifications of liquidators and receivers.

237. —(1) The Minister may, if he considers it necessary or expedient to do so in the interests of the orderly and proper regulation of the winding-up of companies generally, by regulations add to the list of persons in section 300A of the Principal Act (inserted by section 146 ) who shall not be qualified for appointment as liquidator of a company.

(2) The Minister may, if he considers it necessary or expedient to do so in the interests of the orderly and proper regulation of receiverships generally, by regulations add to the list of persons in section 315 of the Principal Act (inserted by section 170 ) who shall not be qualified for appointment as receiver of the property of a company.

(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Amendment of section 61 of the Principal Act.

238. —Section 61 of the Principal Act is hereby amended by the insertion after subsection (2) of the following subsection:

“(3) As respects debentures which, under the terms of issue, must be repaid within five years of the date of issue, an offer for subscription or sale to a person whose ordinary business is to buy or sell shares or debentures (whether as principal or agent) shall not be deemed an offer to the public for the purposes of this Part.”.

Power to make regulations for transfer of securities.

239. —(1) The Minister may make provision by regulations for enabling title to securities to be evidenced and transferred without a written instrument.

(2) In this section—

(a) “securities” means shares, stock, debentures, debenture stock, loan stock, bonds, units in undertakings for collective investments in transferable securities within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations, 1989 (S.I. No. 78 of 1989), and other securities of any description;

(b) references to title to securities include any legal or equitable interest in securities; and

(c) references to a transfer of title include a transfer by way of security.

(3) The regulations may make provision—

(a) for procedures for recording and transferring title to securities, and

(b) for the regulation of those procedures and the persons responsible for or involved in their operation, and

(c) for dispensing with the obligations of a company under section 86 of the Principal Act to issue certificates and providing for alternative procedures.

(4) The regulations shall contain such safeguards as appear to the Minister appropriate for the protection of investors and for ensuring that competition is not restricted, distorted or prevented.

(5) (a) The regulations may for the purpose of enabling or facilitating the operation of the new procedures make provision with respect to the rights and obligations of persons in relation to securities dealt with under the procedures.

(b) The regulations shall be framed so as to secure that the rights and obligations in relation to securities dealt with under the new procedures correspond, so far as practicable, with those which would arise apart from any regulations under this section.

(6) (a) The regulations may include such supplementary, incidental and transitional provisions as appear to the Minister to be necessary or expedient.

(b) In particular, provision may be made for the purpose of giving effect to—

(i) the transmission of title of securities by operation of law;

(ii) any restriction on the transfer of title to securities arising by virtue of the provisions of any enactment or instrument, court order or agreement;

(iii) any power conferred by any such provision on a person to deal with securities on behalf of the person entitled.

(7) The regulations may for the purposes mentioned in this section make provision with respect, to the persons who are to be responsible for the operation of the new procedures and for those purposes may empower the Minister to delegate to any person willing and able to discharge them any functions of his under the regulations.

(8) The regulations may make different provision for different cases.

(9) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Offences.

240. —(1) A person guilty under any provision of the Companies Acts of an offence for which no punishment is specifically provided shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, atthe discretion of the court, to imprisonment for a term not exceeding 12 months or to both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or, at the discretion of the court, to imprisonment for a term not exceeding 3 years or to both.

(2) A person guilty under any provision of the Companies Acts of an offence made punishable by a fine of an unspecified amount shall be liable—

(a) on summary conviction to a fine not exceeding £1,000, or

(b) on conviction on indictment, to a fine not exceeding £10,000.

(3) Every offence under the Companies Acts made punishable by a fine not exceeding £1,000 or by imprisonment for a term not exceeding 12 months, or by both, may be prosecuted summarily.

(4) Summary proceedings in relation to an offence under the Companies Acts may be brought and prosecuted by the Director of Public Prosecutions or the Minister.

(5) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under the Companies Acts may be instituted within 3 years from the date of the offence.

(6) Where, in relation to a contravention of any provision of the Companies Acts, it is provided that for continued contravention a person shall be liable to a daily default fine, he shall be guilty of contravening the provision on every day on which the contravention continues after conviction of the original contravention and for each such offence he shall be liable to a fine not exceeding the amount specified in the provision, instead of the penalty specified for the original contravention.

Offences by certain bodies.

241. —(1) Where an offence under section 19 , 21 , 79 or 242 which is committed by a body to which any such section applies is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person being a director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity, that person shall also be guilty of an offence under that section.

(2) Where the affairs of a body are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director or manager of the body.

Furnishing false information.

242. —(1) A person who, in purported compliance with any provision of the Companies Acts, answers a question, provides an explanation, makes a statement or produces, lodges or delivers any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false, or recklessly answers a question, provides an explanation, makes a statement or produces, lodges or delivers any such document false in a material particular shall be guilty of an offence.

(2) Where a person is guilty of an offence under subsection (1) and the court is of opinion that any act, omission or conduct which constituted that offence has—

(a) substantially contributed to a company being unable to pay its debts;

(b) prevented or seriously impeded the orderly winding-up of the company; or

(c) substantially facilitated the defrauding of the creditors of the company or creditors of any other person,

that person shall be liable on conviction on indictment to imprisonment for a term not exceeding 7 years or to a fine not exceeding £10,000 or to both.

Penalisation of destruction, mutilation or falsification of documents.

243. —(1) A person, being an officer of any such body as is mentioned in paragraphs (a) to (e) of section 19 (1) who destroys, mutilates or falsifies, or is privy to the destruction, mutilation or falsification of any book or document affecting or relating to the property or affairs of the body, or makes or is privy to the making of a false entry therein, shall, unless he proves that he had no intention to defeat the law, be guilty of an offence.

(2) Any such person who fraudulently either parts with, alters or makes an omission in any such book or document, or who is privy to fraudulent parting with, fraudulent altering or fraudulent making of an omission in, any such book or document, shall be guilty of an offence.

Increase of penalties.

244. —Sections 125 (2), 126 (4), 127 (2) and 128 (3) of the Principal Act shall have effect as if for the sums mentioned therein there were substituted “£1,000” in each case.

Amendment of section 12 of Companies (Amendment) Act, 1982 .

245. Section 12 (1) of the Companies (Amendment) Act, 1982 (which relates to failure to make annual returns) is hereby amended by the substitution for “three consecutive years” of “two consecutive years”.

Restoration to register of company struck off.

246. —The Principal Act is hereby amended by the insertion after section 311 of the following section—

“311A.—(1) Without prejudice to the provisions of section 311 (8) of this Act and section 12 (6) of the Companies (Amendment) Act, 1982 , if a company feels aggrieved by having been struck off the register, the registrar of companies, on an application made in the prescribed form by the company before the expiration of twelve months after the publication in Iris Oifigiúil of the notice striking the company name from the register, and provided he has received all annual returns outstanding, if any, from the company, may restore the name of the company to the register.

(2) Upon the registration of an application under subsection (1) and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off.

(3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration.”.

System of classification of information.

247. —(1) Where, under the Companies Acts, any information relating to any person is required to be delivered to the registrar of companies and is so received by him, the registrar may apply such system of classification as he considers appropriate to such information and may assign symbols of identification to persons or classes of persons to whom any such information relates.

(2) The Minister may make regulations requiring that the symbol assigned under subsection (1) to any person or persons of any class shall be entered on all documents which, under any provision of the Companies Acts, are required to contain the name of that person.

(3) Regulations under subsection (2) may, in particular, specify particular persons whose duty it shall be to comply or ensure compliance with the regulations.

(4) A person who makes default in complying with regulations under subsection (2) shall be guilty of an offence and liable to a fine.

Delivery to the registrar of documents in legible form.

248. —(1) This section applies to the delivery to the registrar under any provision of the Companies Acts of documents in legible form.

(2) The document must—

(a) state in a prominent position the registered number of the company to which it relates,

(b) satisfy any requirements prescribed for the purposes of this section as to the form and content of the document, and

(c) conform to such requirements as may be prescribed for the purpose of enabling the registrar to copy the document.

(3) If a document is delivered to the registrar which does not comply with the requirements of this section, he may serve on the person by whom the document was delivered (or, if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

(4) Where the registrar serves such notice, then, unless a replacement document—

(a) is delivered to him within 14 days after the service of the notice, and

(b) complies with the requirement of this section or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

(5) For the purposes of any provision imposing a penalty for failure to deliver a document, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after the service of the registrar's notice under subsection (3).

(6) Regulations made for the purposes of this section may make different provision as to the form and content of the document with respect to different descriptions of document.

(7) Every regulation made under this section shall be laid beforeeach House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(8) In this section, “document” includes any periodic account, abstract, statement or return required to be delivered to the registrar.

Delivery to the registrar of documents otherwise than in legible form.

249. —(1) This section applies to the delivery to the registrar under any provision of the Companies Acts of documents otherwise than in legible form (whether by electronic means or otherwise).

(2) Any requirement to deliver a document to the registrar, or to deliver a document in the prescribed form, shall be satisfied by the communication to the registrar of the requisite information in any non-legible form prescribed for the purposes of this section.

(3) Where any document is required to be signed or sealed, it shall instead be authenticated in such manner as may be prescribed for the purposes of this section.

(4) The document must—

(a) contain in a prominent position the registered number of the company to which it relates,

(b) satisfy any requirements prescribed for the purposes of this section, and

(c) be furnished in such manner and conform to such requirements as may be prescribed for the purposes of enabling the registrar to read and copy the document.

(5) If a document is delivered to the registrar which does not comply with the requirements of this section, he may serve on the person by whom the document was delivered (or if there are two or more such persons, on any of them) a notice indicating the respect in which the document does not comply.

(6) Where the registrar serves such notice, then, unless a replacement document—

(a) is delivered to him within 14 days after the service of the notice, and

(b) complies with the requirement of this section or is not rejected by him for failure to comply with those requirements,

the original document shall be deemed not to have been delivered to him.

(7) For the purposes of any provision imposing a penalty for failure to deliver a document, so far as it imposes a penalty for continued contravention, no account shall be taken of the period between the delivery of the original document and the end of the period of 14 days after the service of the registrar's notice under subsection (5).

(8) The Minister may by regulations make further provision with respect to the application of this section in relation to instantaneous forms of communication.

(9) Regulations made for the purpose of this section may make different provision with respect to different descriptions of documents and different forms of communication.

(10) Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(11) In this section, “document” includes any periodic account, abstract, statement or return required to be delivered to the registrar.

Amendment of section 377 of, and Ninth Schedule to, the Principal Act.

250. —(1) The Principal Act is hereby amended—

(a) by the substitution for section 377 (1) of the following subsection—

“(1) The provisions specified in the Ninth Schedule shall apply to all bodies corporate incorporated in and having a principal place of business in the State, other than those mentioned in subsection (2), as if they were companies registered under this Act and subject to such adaptations and modifications (if any) as may be prescribed.”, and

(b) by the substitution for the Ninth Schedule of the provisions set out in the Schedule to this Act.

(2) The Minister may, if he considers it necessary to do so in the interests of the orderly and proper regulation of the business of unregistered companies, make regulations adding to, or subtracting from, the list of the provisions of the Companies Acts specified in the Ninth Schedule to the Principal Act.

(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Application of certain provisions to companies not in liquidation.

251. —(1) This section applies in relation to a company that is not being wound up where—

(a) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

(b) it is proved to the satisfaction of the court that the company is unable to pay its debts, taking into account the contingent and prospective liabilities of the company, and

it appears to the court that the reason or the principal reason for its not being wound up is the insufficiency of its assets.

(2) The following sections, with the necessary modifications, shall apply to a company to which this section applies, notwithstanding that it is not being wound up—

(a) sections 139 , 140 , 203 , and 204 of this Act, and

(b) the provisions of the Principal Act mentioned in the Table to this section.

(3) References in the sections mentioned in subsection (2) to the commencement of the winding-up of a company, the appointment of a provisional liquidator or the making of a winding up order and to the “relevant date” shall, for the purposes of this section, be construed as references to the date—

(a) of the judgment, decree or order mentioned in subsection (1) (a); or

(b) on which the court determines that the company is unable to pay its debts.

(4) Where, by virtue of this section, proceedings are instituted under section 139 , 140 or 204 of this Act or section 245A, 297A or 298 of the Principal Act, section 297A (7) (b) of the Principal Act shall apply in relation to any order made as a result of those proceedings.

(5) Where section 295 of the Principal Act is applied by virtue of this section, it shall apply as if the words “which is subsequently ordered to be wound up or subsequently passes a resolution for voluntary winding-up” were deleted therefrom

TABLE

Sections of Principal Act to which this section applies

Section

Subject

Comment

243

Inspection of books by creditors and contributories

245

Power of court to summon persons for examination

Inserted by section 126 of this Act

245A

Order for payment or delivery of property against person examined under section 245

Inserted by section 127 of this Act

247

Power to arrest absconding contributory

295

Frauds by officers of companies which have gone into liquidation

297

Criminal liability for fraudulent trading

Inserted by section 137 of this Act

297A

Civil liability for fraudulent trading

Inserted by section 138 of this Act

298

Power of court to assess damages against directors

Amended by section 142 of this Act