DACs II
Companies Act
CHAPTER 3
Share capital
Status of existing guarantee company, having a share capital
979. (1) This section—
(a) makes provision as to the status of an existing guarantee company, having a share capital; and
(b) continues in force the memorandum and articles of such a company.
(2) In this section—
“existing guarantee company, having a share capital” means a private company limited by guarantee, having a share capital, which—
(a) was incorporated under any former enactment relating to companies (within the meaning of section 5 ); and
(b) is in existence immediately before the commencement of this section;
“mandatory provision” means a provision of any of Parts 1 to 14 (as applied by this Part) or of this Part that is not an optional provision;
“optional provision” means a provision of any of Parts 1 to 14 (as applied by this Part) or of this Part 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.
(3) An existing guarantee company, having a share capital shall, on and from the commencement of this section, continue in existence and be deemed to be a DAC limited by guarantee to which this Part applies.
(4) Section 980 contains provisions—
(a) for enabling such a company to continue to use, for a limited period, “limited” or “teoranta” in its name despite the foregoing status that it has assumed; and
(b) deeming the name of such a company, after a specified period and in default of its having changed its name in that fashion, to be altered by the replacement of—
(i) “designated activity company” for “limited” at the end thereof; or
(ii) “cuideachta ghníomhaíochta ainmnithe” for “teoranta” at the end thereof;
as the case may be.
(5) Reference, express or implied, in this Act to the date of registration of a company mentioned in a preceding subsection shall be read as a reference to the date on which the company was registered under the Joint Stock Companies Act 1862, the Companies (Consolidation) Act 1908 or the prior Companies Acts, as the case may be.
(6) The memorandum and articles of an existing guarantee company, having a share capital shall—
(a) save to the extent that they are inconsistent with a mandatory provision, and
(b) in the case of the memorandum, subject to section 980 (6),
continue in force but may be altered or added to under and in accordance with the conditions under which memorandums or articles, whenever registered, are permitted by this Act to be altered or added to.
(7) References in the provisions of a memorandum or articles so continued in force to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
(8) To the extent that an existing guarantee company, having a share capital was, immediately before the commencement of this section, governed by—
(a) the regulations of Table D in the First Schedule to the Act of 1963, or
(b) the regulations of any Table referred to in section 3(9)(b), (c) or (d) of the Act of 1963,
it shall, after that commencement, continue to be governed by those regulations but—
(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 this Act to be altered or added to, and
(iii) references in the regulations to any provision of the prior Companies Acts shall be read as references to the corresponding provision of this Act.
Transitional provision — use of “limited” or “teoranta” by existing guarantee company, having a share capital
980. (1) In this section—
“existing guarantee company, having a share capital” has the same meaning as it has in section 979 ;
“new provisions” means the provisions of this Part (and the relevant provisions of Part 2 as applied by this Part) relating to the use of either of the required sets of words (or their abbreviations) set out in subsection (2);
“transition period” means the period of 18 months beginning after the commencement of this section.
(2) For the purposes of this section, each of the following is a required set of words—
(a) “designated activity company”;
(b) “cuideachta ghníomhaíochta ainmnithe”.
(3) The reference—
(a) in the preceding definition of “new provisions”, and
(b) in subsection (4),
to provisions relating to the use of any words includes a reference to provisions conferring an exemption from the use of those words.
(4) During—
(a) the transition period, or
(b) if before the expiry of that period the company has changed its name to include either of the required sets of words, the period preceding the making of that change,
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 guarantee company, having a share capital in place of the new provisions.
(5) On and from—
(a) the expiry of the transition period, or
(b) the company changing its name to include either of the required sets of words,
whichever happens first, the new provisions shall apply as respects the name of an existing guarantee company, having a share capital.
(6) Without prejudice to the generality of subsection (5), on the expiry of the transition period (and the company has not changed its name before then to include either of the required sets of words), the name of an existing guarantee company, having a share capital, as set out in its memorandum, shall be deemed to be altered by the replacement of—
(a) “designated activity company” for “limited” at the end thereof, or
(b) “cuideachta ghníomhaíochta ainmnithe” for “teoranta” at the end thereof, as the case may be.
(7) Where the name, as set out in its memorandum, of an existing guarantee company, having a share capital is altered by virtue of subsection (6), the Registrar shall issue to the company a fresh certificate of incorporation in respect of it, being a certificate of incorporation that is altered to meet the circumstances of the case.
Limitation on offers by DACs of securities to the public
981. Section 68 shall apply to a DAC as if the following subsection were substituted for subsection (2):
“(2) A company shall—
(a) neither apply to have securities (or interests in them) admitted to trading or to be listed on, nor
(b) have securities (or interests in them) admitted to trading or listed on,
any market, whether a regulated market or not, in the State or elsewhere; however nothing in this subsection prohibits the admission to trading or listing (or an application being made therefor) on any market of debentures (or interests in them) for the purposes of any of paragraphs (a) to (e) of subsection (3).”.
Variation of rights attached to special classes of shares
982. (1) This section shall have effect with respect to the variation of the rights attached to any class of shares in a DAC whose share capital is divided into shares of different classes, whether or not the DAC is being wound up.
(2) Where the rights are attached to a class of shares in the DAC otherwise than by the memorandum, and the articles of the DAC do not contain provision with respect to the variation of the rights, those rights may be varied if, but only if—
(a) the holders of 75 per cent, in nominal value, of the issued shares of that class, consent in writing to the variation, or
(b) a special resolution, passed at a separate general meeting of the holders of that class, sanctions the variation,
and any requirement (however it is imposed) in relation to the variation of those rights is complied with, to the extent that it is not comprised in the requirements in paragraphs (a) and (b).
(3) Where—
(a) the rights are attached to a class of shares in the DAC by the memorandum or otherwise,
(b) the memorandum or articles contain provision for the variation of those rights, and
(c) the variation of those rights is connected with the giving, variation, revocation or renewal of an authority for the purposes of section 69 (1) or with a reduction of the company’s company capital by either of the means referred to in section 84 ,
those rights shall not be varied unless—
(i) the requirement in subsection (2)(a) or (b) is satisfied, and
(ii) any requirement of the memorandum or articles in relation to the variation of rights of that class is complied with to the extent that it is not comprised in the requirement in subsection (2)(a) or (b).
(4) Where the rights are attached to a class of shares in the DAC by the memorandum or otherwise and—
(a) where they are so attached by the memorandum, the articles contain provision with respect to their variation which had been included in the articles at the time of the DAC’s original incorporation, or
(b) where they are so attached otherwise, the articles contain such provision (whenever first so included),
and in either case the variation is not connected as mentioned in subsection (3)(c), those rights may only be varied in accordance with that provision of the articles.
(5) Where the rights are attached to a class of shares in the DAC by the memorandum and the memorandum and articles do not contain provisions with respect to the variation of the rights, those rights may be varied if all the members of the DAC agree to the variation.
(6) The provisions of sections 180 and 181 and the provisions of the DAC’s articles relating to general meetings shall, so far as applicable, apply in relation to any meeting of shareholders required by this section or otherwise to take place in connection with the variation of the rights attached to a class of shares and shall so apply with the necessary modifications and subject to the following provisions, namely:
(a) the necessary quorum at any such meeting, other than an adjourned meeting, shall be 2 persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and at an adjourned meeting one person holding shares of the class in question or his or her proxy;
(b) any holder of shares of the class in question present in person or by proxy may demand a poll.
(7) Any amendment of a provision contained in the articles of a DAC for the variation of the rights attached to a class of shares or the insertion of any such provision into the DAC’s articles shall itself be treated as a variation of those rights.
(8) Section 89 shall apply in relation to a variation, pursuant to this section, of rights attached to any class of shares as it applies in relation to a variation, pursuant to section 88 , of such rights.
(9) References to the variation of the rights attached to a class of shares in—
(a) this section, and
(b) except where the context otherwise requires, in any provision for the variation of the rights attached to a class of shares contained in the DAC’s memorandum or articles,
shall include references to their abrogation.
(10) Nothing in subsections (2) to (5) shall be read as derogating from the powers of the court under section 1287 or any of the following sections, that is to say, sections 212 , 453 , 455 , 974 and 975 .
Application of section 114 in relation to DACs
983. In its application to this Part, section 114 shall apply as if each reference in it to the acquisition and holding of shares in a company included, in a case where the holding company is a DAC limited by guarantee, a reference to becoming, and being, a member of the company otherwise than by means of acquiring and holding shares.
Uncertificated transfer of securities
984. Sections 1085 to 1087 shall apply to securities of a DAC as they apply to securities of a PLC.
CHAPTER 4
Corporate governance
Directors
985. (1) A DAC shall have at least 2 directors.
(2) Nothing in Parts 1 to 14 that makes provision in the case of a company having a sole director shall apply to a DAC.
Limitation on number of directorships
986. For the purposes of this Part section 142 shall apply as if the following subsection were substituted for subsection (1):
“(1) A person shall not, at a particular time, be a director of more than—
(a) 25 designated activity companies, or
(b) 25 companies, one, or more than one, of which is a designated activity company and one, or more than one, of which is any other type of company capable of being wound up under this Act.”.
Membership of DAC limited by guarantee confined to shareholders
987. For the avoidance of doubt, no person, other than a subscriber to its memorandum or a person who is subsequently allotted a share in it and entered on its register of members, may be a member of a DAC limited by guarantee.
DAC, with 2 or more members, may not dispense with holding of a.g.m.
988. Section 175 (3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a DAC if it has more than one member.
Application of section 193 in relation to a DAC
989. Section 193 shall apply to a DAC as if, in subsection (1), after “Notwithstanding any provision to the contrary in this Act”, there were inserted “and unless the constitution provides otherwise”.
Application of section 194 in relation to a DAC
990. Section 194 shall apply to a DAC as if after “Notwithstanding any provision to the contrary in this Act,”, in each place where it occurs in subsections (1) and (4) there were inserted “and unless the constitution provides otherwise,”.
CHAPTER 5
Financial statements, annual return and audit
Non-application of Part 6 to DACs that are credit institutions or insurance undertakings
991. Part 6 shall not apply to a DAC that is a credit institution or an insurance undertaking—
(a) to the extent provided by regulations made under section 3 of the European Communities Act 1972 to give effect to Community acts on accounts of credit institutions and insurance undertakings, respectively; or
(b) to the extent provided by any other enactment.
Requirement for corporate governance statement and modification of certain provisions of Parts 5 and 6 as they apply to DACs
992. Chapter 3 of Part 23 has effect in relation to, amongst other companies, a DAC that has debentures admitted to trading on a regulated market in an EEA state.
Modification of definition of “IAS Regulation” in the case of DACs
993. Section 1116 (modification of definition of “IAS Regulation”) shall apply in the case of a DAC as it applies in the case of PLC.
Application of sections 297, 350 and 362 to a DAC
994. (1) Section 297 shall apply to a DAC as if the following paragraph were substituted for paragraph (a) of subsection (8):
“(a) any debentures or other debt securities of the company or any shares, debentures or other debt securities of a subsidiary undertaking have been admitted to trading on a regulated market in an EEA state; or”.
(2) Section 350 (11)(b) shall apply to a DAC as if the words “(in so far as applicable to a private company limited by shares)” were omitted.
(3) Section 362 shall apply to a DAC as if the words “(in so far as applicable to a private company limited by shares)”, in each place where they occur, were omitted and the cases specified in that section in which the audit exemption, as referred to in section 358 or 359 , as the case may be, is not available to a company, or a holding company and its subsidiary undertakings, included a case in which the company or holding company, as appropriate, is a credit institution or an insurance undertaking.
Disclosures by DAC that is a credit institution
995. In addition to its having effect in relation to a public limited company, section 1120 shall have effect in relation to a DAC.
Exemption from filing with Registrar financial statements, etc.
996. (1) Sections 347 and 348 shall not apply to a DAC if it satisfies the following conditions:
(a) it has been formed for charitable purposes, and
(b) it stands exempted from those sections by an order made by the relevant authority (which order the relevant authority is, by virtue of this section, empowered to make),
and the exemption provided by that order may, as the relevant authority considers appropriate, be either for an indefinite or a limited period.
(2) The following provisions have effect in relation to a DAC referred to in subsection (1):
(a) unless the DAC is entitled to and has availed itself of the audit exemption conferred by Chapter 15 or 16 of Part 6 , the statutory auditors of the DAC shall prepare a separate report to the directors which—
(i) confirms that they audited the relevant statutory financial statements for the relevant financial year; and
(ii) includes within it the report made to the members of the DAC pursuant to section 391 ;
and
(b) a copy of the report prepared under paragraph (a) shall be annexed to the annual return delivered by the DAC to the Registrar.
(3) The reference in subsection (2) to a copy of the report prepared under paragraph (a) of it is a reference to a copy that satisfies the following conditions:
(a) it is a true copy of the original save for the difference that the signature or signatures on the original, and any date or dates thereon, shall appear in typeset form on the copy; and
(b) it is accompanied by a certificate of a director and the secretary of the company, that bears the signature of the director and the secretary in electronic or written form, stating that the copy is a true copy of the original (and the foregoing statement need not be qualified on account of the difference permitted by paragraph (a) as to the form of a signature or of a date).
(4) In subsection (5)—
“electronic means” means those provided for under the Electronic Commerce Act 2000 and effected in compliance with any requirements of the Registrar of the kind referred to in sections 12(2)(b) and 13(2)(a) of that Act;
“required documents” means the copy of the report referred to in paragraph (a) of subsection (3), accompanied by the certificate referred to in paragraph (b) of that subsection;
“required period” means the period referred to in section 343 (2) or (3), as the case may be, or, where that period stands extended in accordance with section 343 (5) and (6), that period as it stands so extended.
(5) Where a DAC makes its annual return by electronic means to the Registrar within the required period then, notwithstanding that the required documents have not been annexed to the annual return, the annual return shall be deemed to have been delivered to the Registrar within the required period with the foregoing documents annexed to it if those documents are delivered to the Registrar within 28 days after the date on which the annual return has been delivered to the Registrar by electronic means.
(6) In this section “relevant authority” means—
(a) before the establishment day (within the meaning of the Charities Act 2009 ), the Commissioners of Charitable Donations and Bequests for Ireland, and
(b) on or after the foregoing day, the Charities Regulatory Authority.
CHAPTER 6
Liability of contributories in winding up
Liability as contributories of past and present members and provision concerning winding up after certain re-registration
997. (1) Subject to subsection (2), in the event of a DAC being wound up, every present and past member shall be liable to contribute to the assets of the DAC to an amount sufficient for payment of its debts and liabilities, and the costs, charges and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves.
(2) The following qualifications apply in relation to subsection (1):
(a) in the case of a DAC limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he or she is liable as a present or past member;
(b) in the case of a DAC limited by guarantee, no contribution shall, subject to subsection (3), be required from any member exceeding the amount undertaken to be contributed by him or her to the assets of the DAC in the event of its being wound up;
(c) a past member shall not be liable to contribute if he or she has ceased to be a member for one year or more before the commencement of the winding up;
(d) a past member shall not be liable to contribute in respect of any debt or liability of the DAC contracted after he or she ceased to be a member;
(e) a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act;
(f) nothing in this Act shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the DAC are alone made liable in respect of the policy or contract;
(g) a sum due to any member of the DAC, in his or her character of a member, by way of dividends, profits or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself or herself and any other creditor not a member of the DAC, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
(3) In a winding up of a DAC limited by guarantee, every member of the DAC shall be liable, in addition to the amount undertaken to be contributed by him or her to the assets of the DAC in the event of its being wound up, to contribute to the extent of any sums unpaid on any shares held by him or her.
(4) Without prejudice to the application of that section to a DAC, and its adaptation generally, by section 964 of section 665 (winding up of company that had been an unlimited company before re-registration), paragraph (c) of section 665 shall apply as if the reference in it to section 655 (2)(a) were—
(a) in the case of a DAC limited by shares, a reference to subsection (2)(a) of this section,
(b) in the case of a DAC limited by guarantee, a reference to subsections (2)(b) and (3) of this section.
CHAPTER 7
Examinerships
Petitions for examinerships
998. Section 510 shall apply to a DAC as if the following subsections were substituted for subsections (2) and (3):
“(2) Where the company referred to in section 509 is an insurer or the holding company of an insurer, a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.
(3) Where the company referred to in section 509 is—
(a) a credit institution or the holding company of a credit institution;
(b) a company which one or more trustee savings banks have been reorganised into pursuant to an order under section 57 of the Trustee Savings Banks Act 1989 ; or
(c) a company which a building society has converted itself into under Part XI of the Building Societies Act 1989 ,
a petition may be presented only by the Central Bank, and subsection (1) shall not apply to the company.”.
CHAPTER 8
Public offers of securities, prevention of market abuse, etc.
Application of Chapters 1, 2 and 4 of Part 23 to DACs
999. Chapters 1 , 2 and 4 of Part 23 , so far as they are applicable to companies other than public limited companies, shall apply to a DAC.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.