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COMPANIES ACT 1990

COMPANIES ACT 1990 - LONG TITLE
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
[22nd December, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
COMPANIES ACT 1990 - PART XII
- GENERAL
COMPANIES ACT 1990 - SECT 235
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.
COMPANIES ACT 1990 - SECT 236
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.
COMPANIES ACT 1990 - SECT 237
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
fist 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.
COMPANIES ACT 1990 - SECT 238
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.".
COMPANIES ACT 1990 - SECT 239
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.
COMPANIES ACT 1990 - SECT 240
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,
at the 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.
COMPANIES ACT 1990 - SECT 241
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.
COMPANIES ACT 1990 - SECT 242
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.
COMPANIES ACT 1990 - SECT 243
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 falsities, 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.
COMPANIES ACT 1990 - SECT 244
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.
COMPANIES ACT 1990 - SECT 245
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".
COMPANIES ACT 1990 - SECT 246
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 Ofigi il 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.".
COMPANIES ACT 1990 - SECT 247
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.
COMPANIES ACT 1990 - SECT 248
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 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.
(8) In this section, "document" includes any periodic account,
abstract, statement or return required to be delivered to the
registrar.
COMPANIES ACT 1990 - SECT 249
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.
COMPANIES ACT 1990 - SECT 250
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.
COMPANIES ACT 1990 - SECT 251
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
SectionSubjectComment243Inspection of books by creditors and
contributories245Power of court to summon persons for
examinationInserted by section 126 of this Act245AOrder for payment
or delivery of property against person examined under section
245Inserted by section 127 of this Act247Power to arrest absconding
contributory295Frauds by officers of companies which have gone into
liquidation297Criminal liability for fraudulent tradingInserted by
section 137 of this Act297ACivil liability for fraudulent
tradingInserted by section 138 of this Act298Power of court to
assess damages against directorsAmended by section 142 of this Act