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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 XIII
- INVESTMENT COMPANIES
COMPANIES ACT 1990 - SECT 252
Interpretation of his Part.
252.—(1) In this Part—
"the Bank" means the Central Bank of Ireland;
"investment company" means a company to which this Part applies and
"company" shall be construed accordingly;
"property" means real or personal property of whatever kind
(including securities);
"the UCITS Regulations" means the European Communities (Undertakings
for Collective Investment in Transferable Securities) Regulations, 1989
(S.I. No. 78 of 1989).
(2) For the purposes of the application by this Part of certain
provisions of the UCITS Regulations to investment companies, the said
provisions shall be construed as one with the Companies Acts.
COMPANIES ACT 1990 - SECT 253
Share capital of investment companies.
253.—(1) Notwithstanding anything in the Companies Acts, the
memorandum of a company to which this Part applies may in respect
of the share capital of the company state in lieu of the matters
specified in paragraph (a) of section 6 (4) of the Principal Act—
(a) that the share capital of the company shall be equal to
the value for the time being of the issued share capital of the
company, and
(b) the division of that share capital into a specified number
of shares without assigning any nominal value thereto,
and the form of memorandum set out in Table B of the First
Schedule to The Principal Act or Part I of the Second Schedule to
the Companies (Amendment) Act, 1983, as may be appropriate, shall
have effect with respect to such company with the necessary
modifications.
(2) This Part applies to a company limited by shares (not being a
company to which the UCITS Regulations apply)—
(a) the sole object of which is stated in its memorandum to be
the collective investment of its funds in property with the aim of
spreading investment risk and giving members of the company the
benefit of the results of the management of its funds; and
(b) the articles or memorandum of which provide—
(i) that the actual value of the paid up share capital of the
company shall be at all times equal to the value of the assets of
any kind of the company after the deduction of its liabilities, and
(ii) that the shares of the company shall, at the request of any
of the holders thereof, be purchased by the company directly or
indirectly out of the company's assets.
(3) For the purposes of subsection (2) (b) (ii), action taken by a
company to ensure that the stock exchange value of its shares does
not deviate from its net asset value by more than a percentage
specified in its articles (which deviation shall not be so specified
as greater than 5 per cent) shall be regarded as the equivalent of
purchase of its shares by the company.
(4) The memorandum or articles of a company shall be regarded as
providing for the matters referred to in paragraphs (a) and (b) of
subsection (2) notwithstanding the inclusion in the memorandum or
articles with respect thereto of incidental or supplementary
provisions.
(5) In the Companies Acts—
(a) a reference to a company limited by shares shall be
construed as including an investment company within the meaning of
this Part and a reference to a share in, or the share capital of,
a company limited by shares shall be construed accordingly, and
(b) a reference to the nominal value of an issued or allotted
share in, or of the issued or allotted share capital of, a company
limited by shares shall be construed, in the case of an investment
company, as a reference to the value of the consideration for which
the share or share capital (as the case may be) has been issued
or allotted.
COMPANIES ACT 1990 - SECT 254
Power of company to purchase own shares.
254.—(1) Subject to subsection (2), the purchase by an investment
company of its own shares shall be on such terms and in such
manner as may be provided by its articles.
(2) An investment company shall not purchase its own shares unless
they are fully paid.
(3) For the avoidance of doubt, nothing in the Companies Acts shall
require an investment company to create any reserve account.
COMPANIES ACT 1990 - SECT 255
Treatment of purchased shares.
255.—(1) Shares of an investment company which have been purchased
by the company shall be cancelled and the amount of the company's
issued share capital shall be reduced by the amount of the
consideration paid by the company for the purchase of the shares.
(2) (a) Where a company has purchased or is about to
purchase any of its own shares, it shall have the power to issue
an equal number of shares in place of those purchased and for the
purposes of section 68 of the Finance Act, 1973, the issue of
those replacement shares shall constitute a chargeable transaction if,
but only if, the actual value of the shares so issued exceeds the
actual value of the shares purchased at the date of their purchase
and, where the issue of shares does constitute a chargeable
transaction for those purposes, the amount on which stamp duty on
the relevant statement relating to that transaction is chargeable
under section 69 of the Finance Act, 1973, shall be the difference
between—
(i) the amount on which the duty would be so chargeable if the
shares had not been issued in place of shares purchased under this
section, and
(ii) the value of the shares purchased at the date of their
purchase.
(b) Where new shares are issued before the purchase of the old
shares, the new shares shall not, so far as relates to stamp duty,
be deemed to have been issued in pursuance of paragraph (a) unless
the old shares are purchased within one month after the issue of
the new shares.
COMPANIES ACT 1990 - SECT 256
Authorisation by Bank.
256.—(1) An investment company shall not carry on business in the
State unless it has been authorised to do so by the Bank on the
basis of criteria approved by the Minister.
(2) A person shall not carry on business on behalf of an
investment company, insofar as relates to the purchase or sale of
the shares of the investment company, unless the investment company
has been authorised in the manner referred to in subsection (1).
(3) The Bank shall not authorise an investment company to carry on
business in the State unless the company has paid up share capital
which, in the opinion of the Bank, will be sufficient to enable it
to conduct its business effectively and meet its liabilities.
(4) An application by an investment company for the authorisation
referred to in subsection (1) shall be made in writing to the Bank
and contain such information as the Bank may specify for the
purpose of determining the application (including such additional
information as the Bank may specify in the course of determining
the application).
(5) Where the Bank proposes to grant an authorisation to an
investment company under this section and the Bank is satisfied that
the company will raise capital by promoting the sale of its shares
to the public, the Bank shall, in granting the authorisation,
designate the company as an investment company which may raise.
capital in that manner, and "designated company" in this section and
section 257 shall be construed accordingly.
(6) In the event that a designated company does not promote the
sale of its shares to the public within a period, not greater than
six months, which shall be specified in the authorisation under this
section, the company shall, on the expiry of the period so
specified, be deemed to have ceased to be a designated company.
(7) An investment company which is not a designated company shall
not raise capital by promoting the sale of its shares to the
public.
(8) A company incorporated outside the State which, if it were
incorporated in the State, would be a company to which this Part
applies shall not advertise or market its shares in any way in the
State without the approval of the Bank, which approval may be
subject to such conditions as the Bank considers appropriate and
prudent for the purposes of the orderly and proper regulation of so
much of the business of companies of that type as is conducted in
the State.
(9) This section is without prejudice to sections 6 of the
Companies (Amendment) Act, 1983.
COMPANIES ACT 1990 - SECT 257
Powers of Bank.
257.—(1) Notwithstanding any other powers which may be available to
the Bank under any other enactment, order or regulation, the Bank
may impose such conditions for the granting of an authorisation to
a company under section 256 as it considers appropriate and prudent
for the purposes of the orderly and proper regulation of the
business of investment companies.
(2) Conditions imposed under subsection (1) may be imposed generally,
or by reference to particular classes of company or business
(including, but not limited to, whether or not an investment company
is a designated company), or by reference to any other matter the
Bank considers appropriate and prudent for the purposes of the
orderly and proper regulation of the business of investment
companies.
(3) The power to impose conditions referred to in subsection (1)
shall include a power to impose such further conditions from time
to time as the Bank considers appropriate and prudent for the
purposes of the orderly and proper regulation of the business of
investment companies.
(4) Without prejudice to the generality of subsections (1), (2) and
(3), conditions imposed by the Bank on an investment company may
make provision for any or all of the following matters—
(a) the prudential requirements of the investment policies of the
company,
(b) prospectuses and other information disseminated by the
company,
(c) the vesting of the assets or specified assets of the
company in a person nominated by the Bank with such of the powers
or duties of a trustee with regard to the company as are specified
by the Bank,
(d) such other supervisory and reporting requirements and
conditions relating to its business as the Bank considers appropriate
and prudent to impose on the company from time to time for the
purposes referred to in the aforesaid subsections.
(5) A company shall comply with any conditions relating to its
authorisation or business imposed by the Bank.
COMPANIES ACT 1990 - SECT 258
Adaptation of certain, provisions of the UCITS Regulations .
258.—Regulations 14, 30, 63, 83 (2) to (7), and 99 to 105 of the
UCITS Regulations shall apply to an investment company as they apply
to the bodies to which those Regulations relate subject to the
following modifications—
(a) a reference in those Regulations to a term or expression
specified in the second column of the Table to this section at any
reference number shall be construed, where the context admits, as a
reference to the term or expression specified in the third column
of the said Table at that reference number, and
(b) references to cognate terms or expressions in those
Regulations shall be construed accordingly.
TABLE
Ref. NoTerm or expression referred to in UCITS RegulationsConstruction
of term or expression for purposes of this
section(1)(2)(3)1."repurchase"""purchase"2."these Regulations"""Part XIII of
the Companies Act, 1990"3.UCITS"investment
company"4."unit"""share"5."unit-holder"""shareholder"
COMPANIES ACT 1990 - SECT 259
Default of investment company or failure in performance of its
investments.
259.—An authorisation by the Bank under section 256 of an investment
company shall not constitute a warranty by the Bank as to the
creditworthiness or financial standing of that company and the Bank
shall not be liable by virtue of that authorisation or by reason
of its exercise of the functions conferred on it by this Part (or
any regulations made under this Part) in relation to investment
companies for any default of the company unless the Bank acted in
bad faith in exercising such functions.
COMPANIES ACT 1990 - SECT 260
Restriction of certain provisions of Companies .
260.—(1) None of the following provisions of The Principal Act shall
apply to an investment company, namely sections 60, 69, 70, 72, 119
and 125.
(2) None of the following provisions of the Companies (Amendment)
Act, 1983, shall apply to an investment company, namely sections 5
(2), 23 to 25, 40, 41 and Part IV.
(3) Section 14 of the Companies (Amendment) Act, 1986, shall not
apply to an investment company.
(4) None of the following provisions of this Act shall apply to an
investment company, namely Chapters 2 to 4 of Part IV, and Part XI
COMPANIES ACT 1990 - SECT 261
Power to make supplementary necessary regulations.
261.—The Minister may make such regulations as he considers necessary
for the purposes of giving full effect to the provisions of this
Part.
COMPANIES ACT 1990 - SECT 262
Offences.
262.—Where a company contravenes—
(a) any of the provisions of this Part, or
(b) any regulations made in relation thereto (whether under this
Part or under any other enactment), or
(c) any condition in relation to its authorisation or business
imposed by the Bank under section 257,
the company and every officer thereof who is in default shall be
guilty of an offence.
Section 250.
SCHEDULE
PROVISIONS SUBSTITUTED FOR NINTH SCHEDULE TO PRINCIPAL ACT
Section 377.
"NINTH SCHEDULE
PROVISIONS APPLIED TO UNREGISTERED COMPANIES
PRINCIPAL ACT
Subject matterProvisions appliedActs done by company (ultra vires
rule).Section 8.Pre-incorporation contractsSection 37 (1) and
(2).Prospectuses and allotmentsSections 43 to 52, 56, 57, 61 and the
Third Schedule.Registered officeSection 113 (inserted by the Companies
(Amendment) Act, 1982).Annual ReturnSections 125 to 129 and the Fifth
Schedule.Accounts and AuditSections 148 to 153, 155 to 161, 191 and
the Sixth Schedule (except subparagraphs (a) to (d) of paragraph 2,
subparagraphs (c) to (e) of paragraph 3 and subparagraph (d) of
paragraph 8), as amended by the Companies (Amendment) Act,
1986.Validity of acts of directorsSection 178.Register of directors
and secretaries. Particulars relating to directors to be shown on
all business letters of the company.Sections 195 (inserted by the
Companies Act, 1990) and 196.Registration of documents, enforcement
and other supplemental matters.Sections 2, 193, 369 to 371, 378,
379, 383, 384, 386, 387, 395 (1) and the Eighth Schedule.Liability
of officers and others for negligence etc.Sections 200 and 391.
COMPANIES (AMENDMENT) ACT, 1977
Subject matterProvisions appliedShare certificatesSections 2 and
3.Company recordsSection 4.
COMPANIES (AMENDMENT) ACT, 1983
Subject matterProvisions appliedMaintenance of capital. Restrictions on
distribution of profits and assetsSections 40 to 42, 45, 45A
(inserted by the Companies (Amendment) Act, 1986) and 49 to 51.
Sections 43, 44, 46 and 47, with the modification that those
sections shall apply to all bodies corporate to which section 377
(1) The Principal Act applies other than those which, if they were
registered, would be private companies.
EUROPEAN COMMUNITIES (STOCK EXCHANGE) REGULATIONS, 1984
(S.I. No. 282 of 1984)
Provisions applied
All of the Regulations.
COMPANIES (AMENDMENT) ACT, 1986
Subject matterProvisions appliedPower to alter form of accountsSection
24.
EUROPEAN COMMUNITIES (MERGERS AND DIVISIONS OF COMPANIES) REGULATIONS,
1987
(S.I. No. 137 of 1987)
Provisions applied
All of the Regulations.COMPANIES (AMENDMENT) ACT, 1990
Provisions applied
The whole Act.COMPANIES ACT, 1990
Provisions applied
Parts I to 111.
Part 1V, with the modification that Chapter 2 of that Part shall
apply to all bodies corporate to which section 377 (1) of the
Principal Act applies other than those which, if they were
registered, would be private companies and Chapter 3 of that Part
shall apply to all such bodies corporate which, if they were
registered, would be private companies.
Part V.
Part VI, except sections 122, 128 to 131 and 133.
Parts V11, IX, X and XII.