Governance
Companies Act
Corporate governance
Number of directors of a PLC
1088. (1) A PLC 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 PLC.
PLC, with 2 or more members, may not dispense with holding of a.g.m.
1089. Section 175 (3) and (4) (which relate to dispensing with the holding of an annual general meeting) shall not apply to a PLC if it has more than one member.
Rotation of directors
1090. (1) Each provision of this section applies save to the extent that the PLC’s constitution provides otherwise.
(2) At the first annual general meeting of the PLC all the directors shall retire from office.
(3) At the annual general meeting in every subsequent year, one-third of the directors for the time being, or, if their number is not 3 or a multiple of 3, then the number nearest one-third shall retire from office.
(4) The directors to retire in every year shall be those who have been longest in office since their last election but as between persons who became directors on the same day, those to retire shall (unless they otherwise agree among themselves) be determined by lot.
(5) A retiring director shall be eligible for re-election.
(6) The PLC, at the meeting at which a director retires in any of the foregoing instances, may fill the vacated office by electing a person to it.
(7) In default of the PLC doing so, the retiring director shall, if offering himself or herself for re-election, be deemed to have been re-elected, unless—
(a) at such meeting it is expressly resolved not to fill such vacated office, or
(b) a resolution for the re-election of such director has been put to the meeting and lost.
Modification of section 149 (8)’s operation where public or local offer co-incides with change among directors
1091. Where—
(a) a change among a PLC’s directors occurs, and
(b) prior to the end of the period referred to in section 149 (8) (as that provision operates apart from this section) for the sending to the Registrar of the notification required by that provision of the change, the PLC issues a prospectus or, in the case of a local offer (within the meaning of Chapter 1 of Part 23 ), a document for the purposes of making such an offer,
then, notwithstanding that the foregoing period has not expired, the PLC shall send that notification to the Registrar no later than the time of issue of such prospectus or document, and section 149 (8) shall be read and operate accordingly.
Remuneration of directors
1092. (1) Each provision of this section applies save to the extent that the PLC’s constitution provides otherwise.
(2) The remuneration of the directors of a PLC shall be such as is determined, from time to time, by the PLC in general meeting and such remuneration shall be deemed to accrue from day to day.
(3) The directors of a PLC may also be paid all travelling, hotel and other expenses properly incurred by them—
(a) in attending and returning from—
(i) meetings of the directors or any committee referred to in section 160 (9), or
(ii) general meetings of the PLC,
or
(b) otherwise in connection with the business of the PLC.
Application of section 193 in relation to PLC
1093. Section 193 shall apply to a PLC as if, in subsection (1), after “Notwithstanding any provision to the contrary in this Act”, there were inserted “and unless the constitution provides otherwise”.
Provisions consequent on participation by PLC in system for uncertificated transfer of securities
1094. (1) Sections 1095 and 1096 have effect where a PLC is a participating issuer.
(2) Sections 1095 and 1096 are without prejudice to sections 1099 to 1110 .
(3) In this section and sections 1095 and 1096 “participating issuer” has the meaning given to it by—
(a) the Companies Act 1990 (Uncertificated Securities) Regulations 1996 ( S.I. No. 68 of 1996 ) which regulations are continued in force by Schedule 6 ; or
(b) if regulations under section 1086 are made and those regulations—
(i) replace the regulations referred to in paragraph (a) — those replacement regulations; or
(ii) amend the regulations referred to in paragraph (a) — the latter regulations as they stand so amended.
Attendance and voting at meetings
1095. (1) For the purposes of determining which persons are entitled to attend or vote at a meeting, and how many votes such persons may cast, a PLC that is a participating issuer may specify in the notice of the meeting a time, not more than 48 hours before the time fixed for the meeting, by which a person must be entered on the relevant register of securities in order to have the right to attend or vote at the meeting.
(2) Changes to entries on the relevant register of securities after the time specified by virtue of subsection (1) shall be disregarded in determining the rights of any person to attend or vote at the meeting, notwithstanding any provisions in any enactment, articles of association or other instrument to the contrary.
(3) In this section, “register of securities” has the meaning given to it by—
(a) the Companies Act 1990 (Uncertificated Securities) Regulations 1996 ( S.I. No. 68 of 1996 ) which regulations are continued in force by Schedule 6 ; or
(b) if regulations under section 1086 are made and those regulations—
(i) replace the regulations referred to in paragraph (a) — those replacement regulations; or
(ii) amend the regulations referred to in paragraph (a) — the latter regulations as they stand so amended.
Notice of meetings
1096. (1) For the purposes of serving notices of meetings, whether under section 218 , any other enactment, a provision in the articles or any other instrument, a participating issuer may determine that persons entitled to receive such notices are those persons entered on the relevant register of securities at the close of business on a day determined by the participating issuer.
(2) The day determined by a participating issuer under subsection (1) may not be more than 7 days before the day that the notices of the meeting are sent.
(3) In this section “register of securities” has the same meaning as subsection (3) of section 1095 provides it is to have in that section.
Application of section 167 to PLC that is not a public-interest entity under S.I. No. 220 of 2010
1097. Section 167 shall apply to a PLC that does not fall within Regulation 91 (which relates to an obligation of a public-interest entity to establish an audit committee) of the European Communities (Statutory Audits) (Directive 2006/43/EC) Regulations 2010 and, for the avoidance of doubt, that section shall apply irrespective of the balance sheet amount or the amount of turnover of the PLC for any financial year.
Length of notice of general meetings to be given
1098. Subject to section 1102 , in its application to a PLC, section 181 (1) shall apply as if the following paragraph were substituted for paragraph (b):
“(b) in the case of any other extraordinary general meeting, by not less than 14 days’ notice.”.
Additional rights of shareholders in certain PLCs (provisions implementing Shareholders’ Rights Directive 2007/36/EC)
1099. (1) Sections 1100 to 1110 have effect in relation to—
(a) a notice of a general meeting given by a PLC, and
(b) otherwise in relation to a general meeting of a PLC,
being a PLC whose shares are admitted to trading on a regulated market in any Member State (in sections 1100 to 1110 referred to as a “traded PLC”).
(2) Sections 1100 to 1110 have effect notwithstanding anything in the PLC’s constitution.
Equality of treatment of shareholders
1100. In addition to any provisions of Part 4 imposing requirements on the company in that behalf, a traded PLC shall ensure equal treatment for all members who are in the same position with regard to the exercise of voting rights and participation in a general meeting of the company.
Requisitioning of general meeting by members — modification of section 178 (3)
1101. In its application to a traded PLC, section 178 shall apply as if the following subsection were substituted for subsection (3):
“(3) The directors of a company shall, on the requisition of one or more members holding, or together holding, at the date of the deposit of the requisition, not less than 5 per cent of the paid up share capital of the company, as at the date of the deposit carries the right of voting at general meetings of the company, forthwith proceed duly to convene an extraordinary general meeting of the company.”.
Length of notice of general meetings to be given by traded PLC
1102. (1) In its application to a PLC which is a traded PLC, section 181 shall apply as if—
(a) the following subsection were substituted for subsection (1):
“(1) Subject to section 1102 (2), a general meeting of a company (whether an annual general meeting or an extraordinary general meeting), other than an adjourned meeting, shall be called by not less than 21 days’ notice.”;
and
(b) subsection (2) were omitted.
(2) Notwithstanding section 181 (1) as it applies by virtue of subsection (1) of this section, a general meeting of a PLC which is a traded PLC (other than an annual general meeting or an extraordinary general meeting for the passing of a special resolution) may be called by not less than 14 days’ notice if—
(a) the PLC offers the facility for members to vote by electronic means accessible to all members who hold shares that carry rights to vote at general meetings; and
(b) a special resolution reducing the period of notice to 14 days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that meeting.
Additional provisions concerning notice under section 181 by a traded PLC
1103. (1) In addition to the requirements of section 181 , a notice, under that section, by a traded PLC of a general meeting, whether—
(a) an annual general meeting; or
(b) an extraordinary general meeting;
shall be issued, free of charge, in a manner ensuring fast access to the notice on a non-discriminatory basis, using such media as may reasonably be relied upon for the effective dissemination of information to the public throughout the Member States.
(2) Notice of a general meeting shall set out—
(a) when and where the meeting is to take place and the proposed agenda for the meeting;
(b) a clear and precise statement of any procedures a member shall comply with in order to participate and vote in the meeting, including—
(i) the right of a member to put items on the agenda of a general meeting and to table draft resolutions pursuant to section 1104 and to ask questions relating to items on the agenda pursuant to section 1107 , and the time limits applicable to the exercise of any of those rights;
(ii) the right of a member entitled to attend, speak, ask questions and vote, to appoint, pursuant to section 183 as it applies by virtue of section 1108 , by electronic means or otherwise—
(I) a proxy; or
(II) in any of the cases set out in those sections, more than one proxy;
to attend, speak, ask questions and vote instead of the member and that any such proxy need not be a member;
(iii) the procedure for voting by proxy pursuant to section 183 as so applied, including the forms to be used and the means by which the company is prepared to accept electronic notification of the appointment of a proxy; and
(iv) the procedure (where applicable) to be followed pursuant to sections 1106 and 1109 for voting electronically or by correspondence respectively;
(c) the record date for eligibility for voting as defined in section 1105 and state that only members registered on the record date shall have the right to participate and vote in the general meeting;
(d) where and how the full, unabridged text of the documents and draft resolutions referred to in subsection (3)(c) and (d) may be obtained; and
(e) the website at which the information contained in subsection (3) shall be made available.
(3) A traded PLC shall make available to its members on its website, for a continuous period beginning not later than 21 days before a general meeting (inclusive of the day of the meeting), the following:
(a) the notice under section 181 ;
(b) the total number of shares and voting rights at the date of the giving of the notice (including separate totals for each class of shares where the company’s capital is divided into 2 or more classes of shares);
(c) the documents to be submitted to the meeting;
(d) a copy of any draft resolution or, where no such resolution is proposed to be adopted, a comment from the board of directors on each item of the proposed agenda of the meeting;
(e) a copy of forms to be used to vote by proxy and to vote by correspondence unless these forms are sent directly to each member.
(4) The traded PLC shall make available, on its website as soon as possible following their receipt, draft resolutions tabled by members.
(5) Where the forms referred to in subsection (3)(e) cannot be made available on the traded PLC’s website for technical reasons, the PLC shall indicate on its website how the forms may be obtained in hard copy form and the PLC shall send the forms by post, free of charge, to every member who requests them.
(6) Where notice of a general meeting is issued later than on the twenty first day before the meeting pursuant to section 1102 (2) or Article 9(4) or 11(4) of Directive 2004/25/ EC, the period specified in subsection (3) shall be reduced accordingly.
Right to put items on the agenda of the general meeting and to table draft resolutions
1104. (1) One or more members of a traded PLC shall have the right, by electronic or postal means, at an address specified by the PLC, to—
(a) put an item on the agenda of an annual general meeting, provided that each such item is accompanied by—
(i) stated grounds justifying its inclusion; or
(ii) a draft resolution to be adopted at the general meeting;
and
(b) table a draft resolution for an item on the agenda of a general meeting (whether an annual general meeting or not);
subject to the member or members concerned holding 3 per cent of the issued share capital of the PLC, representing at least 3 per cent of the total voting rights of all the members who have a right to vote at the meeting to which the request for inclusion of the item relates.
(2) A request by a member to put an item on the agenda or to table a draft resolution under subsection (1)(a) shall be received by the traded PLC in written or electronic form at least 42 days before the date of the meeting to which it relates.
(3) Where the exercise of the right conferred by subsection (1)(a) involves a modification of the agenda for the annual general meeting, in situations where the agenda has already been communicated to the members, and only in such situations, the traded PLC shall make available a revised agenda in the same manner as the previous agenda—
(a) in advance of the applicable record date (as defined in section 1105 ) of share-ownership for purposes of entitlement to vote, or
(b) if no such record date applies, sufficiently in advance of the date of the annual general meeting so as to enable other members to appoint a proxy or, where applicable, to vote by correspondence.
(4) In order to facilitate a member to avail of subsection (1)(a), the traded PLC shall ensure that the date of the next annual general meeting is placed on its website by—
(a) the end of the previous financial year, or
(b) not later than 70 days prior to the date of the annual general meeting,
whichever is the earlier.
Requirements for participation and voting in general meeting
1105. (1) In this section—
“record date” means a date not more than 48 hours before the general meeting to which it relates;
“register of securities” has the same meaning as subsection (3) of section 1095 provides it is to have in that section.
(2) A person shall be entered on the relevant register of securities by the record date in order to exercise the right of a member to participate and vote at a general meeting and any change to an entry on the relevant register of securities after the record date shall be disregarded in determining the right of any person to attend and vote at the meeting.
(3) The right of a member to participate in a general meeting and to vote in respect of his or her shares shall not be subject to any requirement that the shares be deposited with, or transferred to, or registered in the name of another person before the general meeting.
(4) Unless that right is otherwise subject to such a restriction, a member shall have the right to sell or otherwise transfer shares in the traded PLC at any time between the record date and the general meeting to which it applies.
(5) In relation to the subjecting by a traded PLC of a person to proof of the person’s qualification as a member, that person may be made subject only to such requirements—
(a) as are necessary to ensure the identification of the person as a member, and
(b) then only to the extent that such requirements are proportionate to the achievement of that objective.
Participation in general meeting by electronic means
1106. (1) A traded PLC may provide for participation in a general meeting by electronic means including—
(a) a mechanism for casting votes, whether before or during the meeting, and the mechanism adopted shall not require the member to be physically present at the meeting or require the member to appoint a proxy who is physically present at the meeting;
(b) real time transmission of the meeting;
(c) real time two way communication enabling members to address the meeting from a remote location.
(2) The use of electronic means pursuant to subsection (1) may be made subject only to such requirements and restrictions as are necessary to ensure the identification of those taking part and the security of the electronic communication, to the extent that such requirements and restrictions are proportionate to the achievement of those objectives.
(3) Members shall be informed of any requirements or restrictions which a traded PLC puts in place pursuant to subsection (2).
(4) A traded PLC that provides electronic means for participation at a general meeting by a member shall ensure, as far as practicable, that—
(a) such means—
(i) guarantee the security of any electronic communication by the member;
(ii) minimise the risk of data corruption and unauthorised access;
(iii) provide certainty as to the source of the electronic communication;
and
(b) in the case of any failure or disruption of such means, that failure or disruption is remedied as soon as practicable.
Right to ask questions
1107. (1) A member of a traded PLC has the right to ask questions related to items on the agenda of a general meeting and to have such questions answered by the PLC subject to any reasonable measures the PLC may take to ensure the identification of the member.
(2) An answer to a question asked pursuant to subsection (1) is not required where—
(a) to give an answer would interfere unduly with the preparation for the meeting or the confidentiality and business interests of the PLC;
(b) the answer has already been given on the PLC’s website by means of what is commonly known as “a question and answer forum”; or
(c) it appears to the chairperson of the meeting that it is undesirable in the interests of good order of the meeting that the question be answered.
Provisions concerning appointment of proxies
1108. (1) In the case of a traded PLC, section 183 shall have effect subject to the following subsections.
(2) Section 183 shall apply as if the following subsection were substituted for subsection (3):
“(3) Unless the company’s constitution otherwise provides, a member of a company shall not be entitled to appoint more than one proxy to attend on the same occasion, but this is subject to section 1108 (3).”.
(3) Notwithstanding anything in section 183 (3), as applied by subsection (2), or in the traded PLC’s constitution—
(a) no limitation may be placed on the right of a member to appoint more than one proxy to attend on the same occasion in respect of shares held in different securities accounts, and
(b) a member (being an individual or a body corporate) acting as an intermediary on behalf of one or more clients shall not be prohibited from granting a proxy to each of his or her clients or to any third party designated by such a client,
and an intermediary referred to in paragraph (b) shall be permitted to cast votes attaching to some of the shares differently from others.
(4) Without prejudice to the member’s general entitlements in that regard under section 183 (7), a member shall be entitled to—
(a) appoint a proxy by electronic means, to an address specified by the traded PLC;
(b) have the electronic notification of such appointment accepted by the traded PLC; and
(c) have at least one effective method of notification of a proxy by electronic means offered to it by the traded PLC.
(5) The appointment and notification of appointment of a proxy to a traded PLC and the issuing of voting instructions to a proxy may be subject only to such formal requirements as are necessary to ensure identification of a member or the proxy, or the possibility of verifying the content of voting instructions, if any, and only to the extent that those requirements are proportionate to achieving those objectives.
(6) Subsections (4) and (6) apply with the necessary modifications to the revocation of the appointment of a proxy.
(7) Any provision contained in the constitution of a traded PLC (other than a requirement that a person appointed as a proxy shall possess legal capacity) shall be void in so far as it would have the effect of restricting the eligibility of a person to be appointed as a proxy.
Traded PLC may permit vote to be cast in advance by correspondence
1109. (1) A traded PLC may permit, by appropriate arrangements, a vote to be exercised for the purpose of a poll (that is to be taken at a general meeting) by means of the vote being cast in advance by correspondence.
(2) Any such arrangements may be made subject only to such requirements and restrictions as are—
(a) necessary to ensure the identification of the person voting, and
(b) proportionate to the achievement of that objective.
(3) A traded PLC shall not be required to count votes cast in advance by correspondence pursuant to subsection (1) unless such votes are received before the date and time specified by the PLC; however, for that purpose, the PLC may not specify a date and time that is more than 24 hours before the time at which the vote is to be concluded.
Voting results
1110. (1) Where a member requests a full account of a vote before or on the declaration of the result of a vote at a general meeting, then with respect to each resolution proposed at a general meeting the traded PLC shall establish—
(a) the number of shares for which votes have been validly cast;
(b) the proportion of the company’s issued share capital at close of business on the day before the meeting represented by those votes;
(c) the total number of votes validly cast; and
(d) the number of votes cast in favour of and against each resolution and, if counted, the number of abstentions.
(2) Where no member requests a full account of the voting before or on the declaration of the result of a vote at a general meeting, it shall be sufficient for the traded PLC to establish the voting results only to the extent necessary to ensure that the required majority is reached for each resolution.
(3) A traded PLC shall ensure that a voting result established in accordance with this section is published on its website not later than the expiry of 15 days after the date of the meeting at which the voting result was obtained.
CHAPTER 9
Duties of directors and other officers
Obligation to convene extraordinary general meeting in event of serious loss of capital
1111. (1) Where the net assets of a PLC are half or less of the amount of the PLC’s called-up share capital, the directors of the PLC shall, not later than 28 days after the earliest day on which that fact is known to a director of the PLC (the “relevant day”), duly convene an extraordinary general meeting of the PLC.
(2) That extraordinary general meeting shall be convened—
(a) for the purpose of considering whether any, and if so what, measures should be taken to deal with the situation; and
(b) for a date not later than 56 days after the relevant day.
(3) If there is a failure to convene an extraordinary general meeting of a PLC as required by subsections (1) and (2), each of the directors of the PLC who—
(a) knowingly and intentionally authorises or permits that failure, or
(b) after the expiry of the period during which that meeting should have been convened, knowingly and intentionally authorises or permits that failure to continue,
shall be guilty of a category 3 offence.
(4) Nothing in this section shall be taken as authorising the consideration, at an extraordinary general meeting convened in pursuance of this section, of any matter which could not have been considered at that meeting apart from this section.
Qualifications of secretary of a PLC
1112. (1) The directors of a PLC shall have a duty to ensure that the person appointed as secretary has the skills or resources necessary to discharge his or her statutory and other duties and that the person complies with one, or more than one, of the following 3 conditions.
(2) Those conditions are—
(a) the person, for at least 3 years of the 5 years immediately preceding his or her appointment as secretary, held the office of secretary of a company;
(b) the person is a member of a body for the time being recognised for the purposes of this section by the Minister;
(c) the person is a person who, by virtue of his or her—
(i) holding or having held any other position; or
(ii) his or her being a member of any other body;
appears to the directors of the PLC to be capable of discharging the duties referred to in subsection (1).
(3) Section 226 shall apply, in relation to a PLC, as if, in subsection (2), “Without prejudice to the generality of section 1112 (1) and (2)” were substituted for “Without prejudice to the generality of section 129 (4)”.
Voting by director in respect of certain matters: prohibition and exceptions thereto
1113. Save to the extent that the PLC’s constitution provides otherwise, a director of a PLC shall not vote in respect of any contract or arrangement in which the director is interested, and if the director does so vote, the director’s vote shall not be counted, nor shall he or she be counted in the quorum present at the meeting, but neither of those prohibitions shall apply to:
(a) any arrangement for giving any director any security or indemnity in respect of money lent by the director to or obligations undertaken by the director for the benefit of the PLC; or
(b) any arrangement for the giving by the PLC of any security to a third party in respect of a debt or obligation of the PLC for which the director himself or herself has assumed responsibility in whole or in part under a guarantee or indemnity or by the deposit of security; or
(c) any contract by the director to subscribe for or underwrite shares or debentures of the PLC; or
(d) any contract or arrangement with any other company in which the director is interested only as an officer of such other company or as a holder of shares or other securities in such other company,
and the operation of those prohibitions may at any time be suspended or limited to any extent and either generally or in respect of any particular contract, arrangement or transaction by the PLC in general meeting.
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.