Conversion
Companies Act
Interpretation (Chapter 6)
54. (1) In this Chapter—
“mandatory provision” means a provision of any of Part 1 , this Part or Parts 3 to 14 that is not an optional provision;
“optional provision” means a provision of any of Part 1 , this Part or Parts 3 to 14 that—
(a) contains a statement to the effect, or is governed by provision elsewhere to the effect, that the provision applies save to the extent that the constitution provides otherwise or unless the constitution states otherwise; or
(b) is otherwise of such import;
“Table A” means Table A in the First Schedule to the Act of 1963.
(2) A reference in this Chapter to a designated activity company is a reference to a designated activity company limited by shares.
(3) A reference in this Chapter to Table A includes, where appropriate, a reference to any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963.
Status of existing private companies at end of transition period: general principle
55. As provided for in section 61 , on the expiry of the transition period, unless it has re-registered as a designated activity company or one of the other circumstances specified in that section prevent the following happening—
(a) an existing private company shall be deemed to have a constitution that comprises the provisions of its existing memorandum (other than the provisions excepted by subsection (1)(a) of that section) and of its existing articles and subject to subsection (3) of that section;
(b) the company’s constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,
and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
Conversion of existing private companies to designated activity companies: duties and powers
56. (1) An existing private company may re-register as a designated activity company by passing an ordinary resolution, not later than 3 months before the expiry of the transition period, resolving that the company be so registered; if it so re-registers, pursuant to such a resolution, before the expiry of the transition period, Part 16 shall, as provided in section 63 (9), apply to it.
(2) An existing private company shall re-register as a designated activity company before the expiry of the transition period if, not later than 3 months before the expiry of that period, a notice in writing requiring it to do so is served on it by a member or members holding shares in the company that confer, in aggregate, more than 25 per cent of the total voting rights in the company; on its so re-registering, in compliance with that notice, Part 16 shall, as provided in section 63 (9), apply to it.
(3) Without prejudice to subsections (1) and (2) but subject to subsection (4), where anything is done by an existing private company, being a thing which (if the company were a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply) would not be in compliance with section 68 , then the company shall re-register as a designated activity company before the expiry of the transition period and upon its so doing Part 16 shall, as provided in section 63 (9), apply to it.
(4) Instead of re-registering as a designated activity company as mentioned in subsection (3), an existing private company referred to in that subsection may, by passing a special resolution and otherwise complying with the requirements of Part 20 , re-register as a type of company that is not a designated activity company before the expiry of the transition period.
(5) The reference in subsection (2) to a voting right in a company shall be read as a reference to a right exercisable for the time being to cast a vote at general meetings of members of the company, not being such a right that is exercisable only in special circumstances.
Relief where company does not re-register as a designated activity company
57. (1) Where an existing private company does not, before the expiry of the transition period, re-register as a designated activity company under section 56 (whether it is obliged under that section to do so or not), the person or persons referred to in subsection (2) may apply to the court for an order directing that it shall re-register as such a company and the court shall, unless cause is shown to the contrary, make the order sought or make such other order as seems just.
(2) The persons mentioned in subsection (1) are—
(a) one or more members of the company who hold, or together hold, not less than 15 per cent in nominal value of the company’s issued share capital or any class thereof; or
(b) one or more creditors of the company who hold, or together hold, not less than 15 per cent of the company’s debentures entitling the holders to object to alterations of its objects.
Applicable laws during transition period
58. (1) During the period beginning on the commencement of this Part and ending on the expiry of the transition period, Part 16 shall, subject to subsection (3) and without prejudice to subsection (7), apply to an existing private company as if it were a designated activity company, unless and until there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19 .
(2) If there is so delivered to the Registrar such a constitution in respect of that company then, on and from such delivery, this Part and Parts 1 and 3 to 15 shall apply to that company.
(3) The provisions of the prior Companies Acts relating to the use of limited or teoranta (or their abbreviations) shall apply as respects the name of an existing private company referred to in subsection (1) during the period referred to in that subsection and not the provisions of section 969 and the other relevant provisions of Part 16 .
(4) The reference in subsection (3) to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.
(5) An existing private company that has adopted, or is deemed to have adopted, in whole or in part, the regulations of Table A as its articles, shall, despite the repeal of the Act of 1963, continue to be governed by those regulations (or the parts of them concerned) after the repeal of that Act and, without prejudice to subsection (8), before the expiry of the transition period unless and until—
(a) there is delivered to the Registrar, in accordance with this Chapter, a constitution in respect of it in the form provided under section 19 ; or
(b) it re-registers as another type of company,
but, as regards the company continuing to be governed by the foregoing regulations—
(i) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(ii) those regulations may be altered or added to under and in accordance with the conditions under which articles, whenever registered, are permitted by Part 16 to be altered or added to; and
(iii) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(6) Subject to paragraphs (ii) and (iii) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
(7) To take account of any interregnum between—
(a) the delivery (in accordance with this Chapter and in the form provided under section 19 ) of a constitution in respect of an existing private company to the Registrar for registration; and
(b) its registration by the Registrar,
it is declared that subsections (1) and (2) operate, and are to be read as operating, so as also to provide that Part 16 applies, subject to subsection (3), to that company as if it were a designated activity company during any such interregnum (and accordingly that the application of this Part, and Parts 1 and 3 to 15 , to it is postponed until that registration is effected).
(8) Likewise, to take account of any similar interregnum in the case of subsection (5), it is declared that that subsection operates, and is to be read as operating, so as also to provide that the whole or part (as the case may be) of the regulations of Table A continue to govern the company concerned during any such interregnum.
(9) For the avoidance of doubt, the application of Part 16 , in the circumstances under this section where that Part is stated to apply and notwithstanding that the course of action of delivering a constitution of the kind referred to in subsection (1) will not be adopted by such a company, extends to an existing private company falling within subsection (10) but—
(a) the application of Part 16 to such a company does not affect the application of the provisions of the statute referred to in subsection (10) (or any other relevant statute) to the company; and
(b) if, by virtue of the foregoing statute, the company was not required to include the word “limited” or “teoranta” in its name, that exemption is not affected by anything in this section or Part 16 .
(10) The existing private company referred to in subsection (9) is one that has been incorporated under a former enactment relating to companies (within the meaning of section 5 ) pursuant to, or in compliance with a requirement of, any statute.
Adoption of new constitution by members
59. (1) An existing private company—
(a) by special resolution passed in accordance with its existing memorandum and articles; and
(b) subject to compliance with the provisions of Part 16 as to the variation of rights and obligations of members,
may, after the commencement of this Part, adopt a new constitution in the form provided under section 19 ; where it does so and delivers, in the prescribed form, before the expiry of the transition period, the constitution to the Registrar for registration, it shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
(2) The constitution need not contain any supplemental regulations, to the extent that the provisions of this Part and Parts 1 and 3 to 15 regulate the matters which would be governed by those regulations; for the avoidance of doubt, the requirements of sections 19 and 26 (1) relating to a company’s name shall apply despite any exemption of the kind referred to in section 61 (3) that had been enjoyed by the company under the prior Companies Acts.
(3) On registration of its constitution under this section, the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
Preparation, registration, etc. of new constitution by directors
60. (1) The directors of an existing private company shall do each of the things specified in subsection (2) before the expiry of the transition period, unless the company—
(a) has already adopted a constitution in accordance with section 59 (1); or
(b) is required, under section 56 (2) or (3), to re-register as a designated activity company; or
(c) is proceeding, in accordance with a resolution passed pursuant to section 56 (1), to re-register as such a company or is proceeding, in accordance with section 56 (4) and Part 20 , to re-register as another type of company; or
(d) is required by an order made under section 57 to re-register as a designated activity company or proceedings under that section are pending in relation to it.
(2) The things referred to in subsection (1) are—
(a) prepare a constitution for the company in the form provided under section 19 ;
(b) deliver a copy of such constitution to each member; and
(c) deliver, in the prescribed form, the constitution to the Registrar for registration,
and, where the things in the foregoing paragraphs are done (including the delivery of the constitution to the Registrar for registration), the company shall, on the constitution’s registration, become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply, and the Registrar shall issue to it a certificate of incorporation in respect of it stating that it is a private company limited by shares registered under this Part.
(3) The provisions of that constitution of the company, to be prepared by the directors as mentioned in subsection (2)(a), shall consist solely of—
(a) the provisions of its existing memorandum, other than provisions that—
(i) contain its objects; or
(ii) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;
and
(b) the provisions of its existing articles,
but, despite any exemption of the kind referred to in section 61 (3) that had been enjoyed by the company under the prior Companies Acts, nothing in this subsection shall be read as overriding the requirements of sections 19 and 26 (1) relating to a company’s name.
(4) If, by reason of the company not having registered articles, the regulations in Table A are deemed to be the articles of the company, the constitution prepared under subsection (2)(a) shall state that the articles of the company comprise those regulations.
(5) If the existing articles do not exclude or modify the regulations contained in the Table A, those regulations shall, so far as applicable, be the regulations of the existing private company in the same manner and to the same extent as if they were contained in the constitution prepared under subsection (2)(a).
(6) For the purposes of subsections (4) and (5) and without prejudice to their application otherwise by a provision of this Chapter, the regulations contained in Table A shall, despite the repeal of the Act of 1963, continue in force but, as regards the company continuing, by virtue of subsection (4) or (5), to be governed (in whole or in part) by the foregoing regulations—
(a) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and
(c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(7) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (6) shall be interpreted according to the form in which they existed on the date of repeal of the Act of 1963.
Deemed constitution
61. (1) Where there has not been delivered to the Registrar a constitution (in the form provided under section 19 ) in respect of an existing private company for registration within the transition period then, subject to subsection (4), from the expiry of that period—
(a) the existing private company shall be deemed to have, in place of its existing memorandum and articles, a constitution that comprises—
(i) the provisions of its existing memorandum, other than provisions that—
(I) contain its objects; or
(II) provide for, or prohibit, the alteration of all or any of the provisions of its memorandum or articles;
and
(ii) the provisions of its existing articles;
and
(b) its constitution, as so constituted of those provisions, shall be deemed to satisfy the requirements of section 19 as to the form of a company’s constitution,
and the company shall be deemed to have become a private company limited by shares to which this Part and Parts 1 and 3 to 15 apply.
(2) In those circumstances the Registrar shall issue to the company a certificate of incorporation in respect of it stating that the company is a private company limited by shares registered under this Part.
(3) Notwithstanding—
(a) section 24, as originally enacted, of the Act of 1963; or
(b) section 24, inserted in the Act of 1963 by section 88 (1) of the Company Law Enforcement Act 2001 , in place of the first-mentioned section,
and the continuing effect, for certain other types of company, provided elsewhere by this Act of an exemption conferred by or under either such section, any such exemption (whatever its basis) enjoyed, immediately before the expiry of the transition period, by an existing private company to which subsection (1) applies shall cease on that expiry; accordingly subsection (1)(a) shall be read as requiring such a company’s name to end with “limited” or “teoranta”, as appropriate, and subsection (2) shall have effect subject to this subsection.
(4) Subsection (1) shall not apply if—
(a) the existing company has re-registered before the expiry of the transition period as a designated activity company in accordance with section 56 (1) or as another type of company in accordance with section 56 (4) and Part 20 ;
(b) the existing company is required under section 56 (2) or (3) to re-register as such a company and has so re-registered; or
(c) its operation would be inconsistent with an order of the court made under section 57 or otherwise.
(5) If, by reason of section 58 , an existing private company was, immediately before the expiry of the transition period or, if later, the end of the interregnum referred to in section 58 (8), governed (in whole or in part) by the regulations contained in Table A, then for the purposes of this section and without prejudice to their application otherwise by a provision of this Chapter, those regulations shall, despite the repeal of the Act of 1963, continue in force and the existing articles of the company shall be deemed to comprise the whole of those regulations or, as the case may be, to include the parts concerned of those regulations, but—
(a) this is save to the extent that those regulations are inconsistent with a mandatory provision;
(b) those regulations may be altered or added to under and in accordance with the conditions under which the company’s constitution is permitted by section 32 to be altered or added to; and
(c) references in those regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(6) Subject to paragraphs (b) and (c) of that subsection, the regulations referred to in subsection (5) shall be interpreted according to the form in which they existed on the