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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 VII
- DISQUALIFICATIONS AND RESTRICTIONS: DIRECTORS AND OTHER OFFICERS
CHAPTER 1
Restriction on Directors of Insolvent Companies
COMPANIES ACT 1990 - SECT 149
Application of Chapter I.
149.—(1) This Chapter applies to any company if—
( a ) at the date of the commencement of its winding-up it is
proved to the court, or
( b ) at any time during the course of its winding-up the
liquidator of the company certifies, or it is otherwise proved, to
the court,
that it is unable to pay its debts (within the meaning of section
214 of the Principal Act).
(2) This Chapter applies to any person who was a director of a
company to which this section applies at the date of, or within 12
months prior to, the commencement of its winding-up.
(3) This Chapter shall not apply to a company which commences to
be wound up before the commencement of this section.
(4) In this Chapter "company" includes a company to which section
351 of the Principal Act applies.
(5) This Chapter applies to shadow directors as it applies to
directors.
COMPANIES ACT 1990 - SECT 150
Restriction.
150.—(1) The court shall, unless it is satisfied as to any of the
matters specified in subsection (2), declare that a person to whom
this Chapter applies shall not, for a period of five years, be
appointed or act in any way, whether directly or indirectly, as a
director or secretary or be concerned or take part in the promotion
or formation of any company unless it meets the requirements set
out in subsection (3); and, in subsequent provisions of this Part,
the expression "a person to whom section 150 applies" shall be
construed as a reference to a person in respect of whom such a
declaration has been made.
(2) The matters referred to in subsection (1) are—
( a ) that the person concerned has acted honestly and responsibly
in relation to the conduct of the affairs of the company and that
there is no other reason why it would be just and equitable that
he should be subject to the restrictions imposed by this section,
or
( b ) subject to paragraph (a), that the person concerned was a
director of the company solely by reason of his nomination as such
by a financial institution in connection with the giving of credit
facilities to the company by such institution, provided that the
institution in question has not obtained from any director of the
company a personal or individual guarantee of repayment to it of
the loans or other forms of credit advanced to the company, or
( c ) subject to paragraph (a), that the person concerned was a
director of the company solely by reason of his nomination as such
by a venture capital company in connection with the purchase of, or
subscription for, shares by it in the first-mentioned company.
(3) The requirements specified in subsection (1) are that—
( a ) the nominal value of the allotted share capital of the
company shall—
(i) in the case of a public limited company, be at least £100,000,
(ii) in the case of any other company, be at least £20,000,
( b ) each allotted share to an aggregate amount not less than
the amount referred to in subparagraph (i) or (ii) of paragraph
(a), as the case may be, shall be fully paid up, including the
whole of any premium thereon, and
( c ) each such allotted share and the whole of any premium
thereon shall be paid for in cash.
(4) Where a court makes a declaration under subsection (1), a
prescribed officer of the court shall cause the registrar of
companies to be furnished with prescribed particulars of the
declaration in such form and manner as may be prescribed.
(5) In this section—
"financial institution" means—
( a ) a licensed bank, within the meaning of section 25, or
( b ) a company the ordinary business of which includes the making
of loans or the giving of guarantees in connection with loans, and
"venture capital company" means a company prescribed by the Minister
the principal ordinary business of which is the making of share
investments.
COMPANIES ACT 1990 - SECT 151
Duty of liquidator under this Chapter.
151.—(1) Where it appears to the liquidator of a company to which
under this Chapter applies that the interests of any other company
or its creditors may be placed in jeopardy by the relevant matters
referred to in subsection (2) the liquidator shall inform the court
of his opinion forthwith and the court may, on receipt of such
report, make whatever order it sees fit.
(2) The relevant matters are that a person to whom section 150
applies is appointed or is acting in any way, whether directly or
indirectly, as a director or is concerned or is taking part in the
promotion or formation of such other company as is referred to in
subsection (1).
(3) Any liquidator who contravenes subsection (1) shall be guilty of
an offence and shall be liable—
( a ) on summary conviction, to a fine not exceeding £1,000 and,
for continued contravention, to a daily default fine not exceeding
£50, or
( b ) on conviction on indictment, to a fine not exceeding £10,000
and, for continued contravention, to a daily default fine not
exceeding £250.
COMPANIES ACT 1990 - SECT 152
Relief.
152.—(1) A person to whom section 150 applies may, within not more
than one year after a declaration has been made in respect of him
under that section, apply to the court for relief, either in whole
or in part, from the restrictions referred to in that section or
from any order made in relation to him under section 151 and the
court may, if it deems it just and equitable to do so, grant such
relief on whatever terms and conditions it sees fit.
(2) Where it is intended to make an application for relief under
subsection (1) the applicant shall give not less than 14 days'
notice of his intention to the liquidator (if any) of the company
the insolvency of which caused him to be subject to this Chapter.
(3) On receipt of a notice under subsection (2), the liquidator
shall forthwith notify such creditors and contributories of the
company as have been notified to him or become known to him, that
he has received such notice.
(4) On the hearing of an application under this section the
liquidator or any creditor or contributory of the company, the
insolvency of which caused the applicant to be subject to this
Chapter may appear and give evidence.
(5) Any liquidator who contravenes subsection (3) shall be guilty of
an offence and liable to a fine.
COMPANIES ACT 1990 - SECT 153
Register of restricted persons.
153.—(1) The registrar shall, subject to the provisions of this
section, keep a register of the particulars which have been notified
to him under section 150, and the following provisions of this
section shall apply to the keeping of such a register.
(2) Where the court grants partial relief to a person under section
152 a prescribed officer of the court shall cause the registrar to
be furnished with prescribed particulars of the relief, and the
registrar shall, as soon as may be, enter the particulars on the
register referred to in subsection (1).
(3) Where the court grants full relief to a person under section
152 a prescribed officer of the court shall cause the registrar to
be so notified, and the registrar shall, as soon as may be, remove
the particulars of any such person from the register referred to in
subsection (1).
(4) The registrar shall also remove from the register any
particulars in relation to a person on the expiry of five years
from the date of the declaration to which the original notification
under section 150 relates.
(5) Nothing in this section shall prevent the registrar from keeping
the register required by this section as part of any other system
of classification, whether pursuant to section 247 or otherwise.
COMPANIES ACT 1990 - SECT 154
Application of this Chapter to receivers.
154.—Where a receiver of the property of a company is appointed,
the provisions of this Chapter shall, with the necessary
modifications, apply as if the references therein to the liquidator
and to winding up were construed as references to the receiver and
to receivership.
COMPANIES ACT 1990 - SECT 155
Restrictions on company to which section 150 (3) applies.
155.—(1) This section applies to any company in relation to which a
person who is the subject of a declaration under section 150 is
appointed or acts in any way, whether directly or indirectly, as a
director or secretary or is concerned in or takes part in the
promotion or formation of that company.
(2) Subsections (2) to (11) of section 60 of the Principal Act
shall not apply to any company to which this section applies.
(3) Sections 32 to 36 of the Companies (Amendment) Act, 1983,
shall, with the necessary modifications, apply to any company to
which this section applies as if the company were a public limited
company so, however, that for the purposes of this subsection those
sections shall apply as if—
( a ) in subsection (1) of section 32 the words "during the
initial period" were deleted;
( b ) any other reference in any of those sections to "initial
period" were deleted; and
( c ) in subsection (2) of section 32 the words "relevant person"
were defined to mean "any subscriber to the memorandum, any director
or any person involved in the promotion or formation of the
company".
(4) Without prejudice to section 39, sections 32 and 37 shall not
apply to any company to which subsection (1) applies.
(5) From the date of a declaration under section 150 a person in
respect of whom the declaration was made shall not accept
appointment to a position or act in any manner mentioned in
subsection (1) of this section in relation to a company unless he
has, within the 14 days immediately preceeding such appointment or
so acting, sent to the registered office of the company a
notification that he is a person to whom section 150 applies.
COMPANIES ACT 1990 - SECT 156
Requirements as to share allotted by a company to which section 155
applies.
156.—(1) Where a company to which section 155 applies allots a
shares company to which share which is not fully paid up as
required by section 150 (3) (b) the share shall be treated as if
its nominal value together with the whole of any premium had been
received, but the allottee shall be liable to pay the company in
cash the full amount which should have been received in respect of
the share under that subsection less the value of any consideration
actually applied in payment up (to any extent) of the share and
any premium on it, and interest at the appropriate rate on the
amount payable under this subsection.
(2) Where a company to which section 155 applies allots a share
which is not fully paid for in cash as required by section 150
(3) (c) the allottee of the share shall be liable to pay the
company in cash an amount equal to its nominal value, together with
the whole of any premium, and shall be liable to pay interest at
the appropriate rate on the amount payable under this subsection.
(3) Subsection (1) shall not apply in relation to the allotment of
a bonus share which is not fully paid up as required by section
150 (3) ( b ) unless the allottee knew or ought to have known
that the share was so allotted.
(4) Subsection (1) does not apply to shares allotted in pursuance
of an employees' share scheme within the meaning of section 2 of
the Companies (Amendment) Act, 1983.
(5) In this section, "appropriate rate" has the meaning assigned to
it by section 2 of the Companies (Amendment) Act, 1983.
(6) Section 26 (4) of the Companies (Amendment) Act, 1983, shall
apply for the purposes of this section as it applies for the
purposes of that section.
COMPANIES ACT 1990 - SECT 157
Relief for a company in respect of prohibited transactions.
157.—(1) The court may, if it deems it just and equitable to do
so, grant relief to a company to which section 155 applies in
respect of any act or omission which, by virtue of that section,
contravened a provision of the Companies Acts or to any person
adversely affected thereby, on whatever terms and conditions the
court sees fit, including exemption from any such provision.
(2) Relief shall not be granted to the company where the person
referred to in section 155 (1) complied with subsection (5) of that
section.
COMPANIES ACT 1990 - SECT 158
Power to vary amounts mentioned in section (3).
158.—The Minister may, by order, vary the amounts mentioned in
section 150 (3) (a) and the order may- mentioned in.
( a ) require any company to which that section applies having an
allotted share capital of which the nominal value is less than the
amount specified in the order to increase the value to not less
than that amount;
( b ) make, in connection with any such requirement provision for
any of the matters for which provision is made in the Companies
Acts in relation to a company's registration, reregistration, change
of name, winding-up or dissolution, payment for any share comprised
in a company's capital and offers of shares in or debentures of a
company to the public, including provision as to the consequences
(whether in criminal law or otherwise) of a failure to comply with
any requirement of the order, and
( c ) contain such supplemental and transitional provisions as the
Minister thinks appropriate, specify different amounts in relation to
companies of different classes or descriptions and, in particular,
provide for any provision of the order to come into operation on
different days for different purposes.
CHAPTER 2
Disqualification Generally
COMPANIES ACT 1990 - SECT 159
Interpretation of Chapter 2 and 3.
159.—In this Chapter and Chapter 3, except where the context
otherwise requires—
"company" includes every company and every body, whether corporate or
unincorporated, which may be wound up under Part X of The Principal
Act and, without prejudice to the generality of the foregoing,
includes a friendly society within the meaning of the Friendly
Societies Acts, 1896 to 1977;
"the court" means the High Court except in relation to a
disqualification order made by a court of its own motion under
section 160(2), paragraph (a), (b), (c), (d) or (f), in which case
it includes any court;
"default order" means an order made against any person under section
371 of the Principal Act by virtue of any contravention of or
failure to comply with any relevant requirement (whether on his own
part or on the part of any company);
"disqualification order" means—
( a ) an order under this Part that the person against whom the
order is made shall not be appointed or act as an auditor,
director or other officer, receiver, liquidator or examiner or be in
any way, whether directly or indirectly, concerned or take part in
the promotion, formation or management of any company, or any
society registered under the Indus trial and Provident Societies
Acts, 1893 to 1978, or
( b ) an order under section 184 of the Principal Act;
"officer" in relation to any company, includes any director, shadow
director or secretary of the company;
"relevant requirement" means any provision of the Companies Acts
(including a provision repealed by this Act) which requires or
required any return, account or other document to be filed with,
delivered or sent to, or notice of any matter to be given to, the
registrar of companies.
COMPANIES ACT 1990 - SECT 160
Disqualification of certain persons from acting as directors or
auditors of or managing companies.
160.—(1) Where a person is convicted on indictment of any indictable
offence in relation to a company, or involving fraud or dishonesty,
then during the period of five years from the date of conviction
or such other period as the court, on the application of the
prosecutor and having regard to all the circumstances of the case,
may order—
( a ) he shall not be appointed or act as an auditor, director
or other officer, receiver, liquidator or examiner or be in any
way, whether directly or indirectly, concerned or take part in the
promotion, formation or management of any company or any society
registered under the Industrial and Provident Societies Acts, 1893 to
1978;
( b ) he shall be deemed, for the purposes of this Act, to be
subject to a disqualification order for that period.
(2) Where the court is satisfied in any proceedings or as a result
of an application under this section that—
( a ) a person has been guilty, while a promoter, officer,
auditor, receiver, liquidator or examiner of a company, of any fraud
in relation to the company, its members or creditors; or
( b ) a person has been guilty, while a promoter, officer,
auditor, receiver, liquidator or examiner of a company, of any
breach of his duty as such promoter, officer, auditor, receiver,
liquidator or examiner; or
( c ) a declaration has been granted under section 297A of the
Principal Act (inserted by section 138 of this Act) in respect of
a person; or
( d ) the conduct of any person as promoter, officer, auditor,
receiver, liquidator or examiner of a company, makes him unfit to
be concerned in the management of a company; or
( e ) in consequence of a report of inspectors appointed by the
court or the Minister under the Companies Acts, the conduct of any
person makes him unfit to be concerned in the management of a
company; or
( f ) a person has been persistently in default in relation to
the relevant requirements;
the court may, of its own motion, or as a result of the
application, make a disqualification order against such a person for
such period as it sees fit.
( 3 ) ( a ) For the purposes of subsection (2) (f) the fact
that a person has been persistently in default in relation to the
relevant requirements may (without prejudice to its proof in any
other manner) be conclusively proved by showing that in the five
years ending with the date of the application he has been adjudged
guilty (whether or not on the same occasion) of three or more
defaults in relation to those requirements.
( b ) A person shall be treated as being adjudged guilty of a
default in relation to a relevant requirement for the purposes of
this subsection if he is convicted of any offence consisting of a
contravention of a relevant requirement or a default order is made
against him.
(4) An application under paragraph (a), (b), (c) or (d) of
subsection (2) may be made by—
( a ) the Director of Public Prosecutions; or
( b ) any member, contributory, officer, employee, receiver,
liquidator, examiner or creditor of any company in relation to which
the person who is the subject of the application—
(i) has been or is acting or is proposing to or being proposed to
act as officer, auditor, receiver, liquidator or examiner, or
(ii) has been or is concerned or taking part, or is proposing to
be concerned or take part, in the promotion, formation or management
of any company,
and where the application is made by a member, contributory,
employee or creditor of the company, the court may require security
for all or some of the costs of the application.
(5) An application under paragraph (e) of subsection (2) may be
made by the Director of Public Prosecutions.
(6) An application under paragraph (f) of subsection (2) may be
made by—
( a ) the Director of Public Prosecutions; or
( b ) the registrar of companies.
(7) Where it is intended to make an application under subsection
(2)in respect of any person, the applicant shall give not less than
ten days' notice of his intention to that person.
(8) Any person who is subject or deemed subject to a
disqualification order by virtue of this Part may apply to the
court for relief, either in whole or in part, from that
disqualification and the court may, if it deems it just and
equitable to do so, grant such relief on whatever terms and
conditions it sees fit.
(9) A disqualification order may be made on grounds which are or
include matters other than criminal convictions notwithstanding that
the person in respect of whom the order is to be made may be
criminally liable in respect of those matters.
(10) A reference in any other enactment to section 184 of the
Principal Act shall be construed as including a reference to this
section.
CHAPTER 3
Enforcement
COMPANIES ACT 1990 - SECT 161
Penalty for acting contrary to the provisions of Chapter 1 or 2.
161.—(1) Any person who, in relation to any company, acts in a
manner or capacity which, by virtue of being a person to whom
section 150 applies or being subject or deemed to be subject to a
disqualification order, he is prohibited from doing shall be guilty
of an offence.
(2) Where a person is convicted of an offence under subsection (1)
he shall be deemed to be subject to a disqualification order from
the date of such conviction if he was not, or was not deemed to
be, subject to such an order on that date.
(3) Where a person convicted of an offence under subsection (1) was
subject, or deemed to be subject, to a disqualification order
immediately prior to the date of such conviction, the period for
which he was disqualified shall be extended for a further period of
ten years from such date, or such other further period as the
court, on the application of the prosecutor and having regard to
all the circumstances of the case, may order.
(4) Section 160 (8) shall not apply to a person convicted of an
offence under subsection (1) of this section.
(5) Where—
( a ) a person who is a person to whom section 150 applies is
or becomes a director of a company which commences to be wound up
within the period of 5 years after the date of commencement of the
winding-up of the company whose insolvency caused that section to
apply to him; and
( b ) it appears to the liquidator of the first-mentioned company
that that company is, at the date of commencement of its winding-up
or at any time during the course of its winding up, unable to pay
its debts;
the liquidator shall report those matters to the court and the
court, on receiving the report and if it considers it proper to do
so, may make a disqualification order against that person for such
period as it thinks fit.
(6) If the liquidator fails to comply with subsection (5) he shall
be liable to a fine not exceeding £1,000.
COMPANIES ACT 1990 - SECT 162
Period of disqualification order to which person is deemed to be
subjected.
162.—Where a person is, as a consequence of his conviction of an
offence under this Chapter, deemed to be subject to a
disqualification order, he shall be deemed to be so subject for a
period of five years from the date of such conviction or such
other period as the court, on the application of the prosecutor and
having regard to all the circumstances of the case, may order.
COMPANIES ACT 1990 - SECT 163
Civil consequences of acting contrary to the provisions of Chapter 1
or 2.
163.—(1) Subsections (2) and (3) apply to any person who acts, in
relation to a company, in a manner or capacity which, by virtue of
being a person to whom section 150 applies or being subject or
deemed to be subject to a disqualification order, he is prohibited
from doing.
(2) Where any consideration is given by or on behalf of a company
for an act done or service performed by a person referred to in
subsection (1) while he was acting in a manner or capacity
described in that subsection, the company shall be entitled to
recover from him, as a simple contract debt in any court of
competent jurisdiction, the consideration or an amount representing
its value.
(3) Where—
( a ) a person referred to in subsection (1) acts, in relation to
a company, in a manner or capacity described in that subsection,
and
( b ) the company concerned commences to be wound up—
(i) while he is acting in such a manner or capacity, or
(ii) within 12 months of his so acting, and
( c ) the company is unable to pay its debts, within the meaning
of section 214 of the Principal Act,
the court may, on the application of the liquidator or any creditor
of the company, declare that such person shall be personally liable,
without any limitation of liability, for all or any part of the
debts or other liabilities of the company incurred in the period
during which he was acting in such a manner or capacity.
(4) Where a company which has received a notification under section
155 (5) and which carries on business following such notification
without the requirements of section 150 (3) being fulfilled within a
reasonable period—
( a ) is subsequently wound up, and
( b ) is at the time of the commencement of the winding-up unable
to pay its debts (taking into account the contingent and prospective
liabilities),
the court may, on the application of the liquidator or any creditor
or contributory of the company, declare that any person who was an
officer of the company while the company so carried on business and
who knew or ought to have known that the company had been so
notified shall be personally responsible, without any limitation of
liability, for all or any part of the debts or. other liabilities
of the company as the court may direct.
(5) In any proceedings brought against a person by virtue of this
section the court may if, having regard to the circumstances of the
case, it considers it just and equitable to do so, grant relief in
whole or in part from the liability to which he would otherwise be
subject thereunder and the court may attach to its order such
conditions as it sees fit.
COMPANIES ACT 1990 - SECT 164
Penalties for acting under directions of disqualified person.
164.—(1) If any person while a director or other officer or a
member of a committee of management or trustee of any company acts
in accordance with the directions or instructions of another person
knowing that such other person is disqualified or that, in giving
the directions or instructions, he is acting in contravention of any
provision of this Part he shall be guilty of an offence.
(2) Where a person is convicted of an offence under subsection (1)
he shall be deemed to be subject to a disqualification order from
the date of such conviction if he was not, or was not deemed to
be, subject to such an order on that date.
COMPANIES ACT 1990 - SECT 165
Civil consequences of acting under directions of disqualified person.
165.—(1) A person who is convicted of an offence under section 164
for acting in accordance with the directions or instructions of a
disqualified person shall, subject to subsection (2), be personally
liable for the debts of the company concerned incurred in the
period during which he was so acting.
(2) In any proceedings brought against a person for the recovery of
any such debt the court may if, having regard to the circumstances
of the case, it considers it just and equitable to do so, grant
relief in whole or in part from the liability to which he would
otherwise be subject under subsection (1) and the court may attach
to its order such conditions as it sees fit.
COMPANIES ACT 1990 - SECT 166
Information to be given by directions to the court.
166.—(1) Where—
( a ) a director of a company is charged with an offence or
civil proceedings are instituted against such a director, and
( b ) the charge or proceedings relate to the company or involve
alleged fraud or dishonesty,
the director shall, by notice in writing to the court lodged before
the hearing of the case—
(i) give the names of all companies of which he is a director at
the date of the notice,
(ii) give the names of all companies of which he was a director
within a period commencing not earlier than 12 months prior to the
commencement of proceedings and ending at the date of the notice,
(iii) state whether he is at the date of the notice or ever was
subject or deemed to be subject to a disqualification order, and
(iv) give the dates and duration of each period in respect of
which he is or was disqualified.
(2) This section applies to shadow directors as it applies to
directors.
(3) Any person who contravenes subsection (1) shall be guilty of an
offence.
COMPANIES ACT 1990 - SECT 167
Information to be supplied to registrar of companies.
167.—Where a court—
( a ) makes a disqualification order;
( b ) grants or varies relief under section 160 (8); or
( c ) convicts a person of an offence
(i) which has the effect of his being deemed to be subject to a
disqualification order, or
(ii) under section 161 (1) or 164,
a prescribed officer of the court shall cause the registrar of
companies to be furnished with prescribed particulars of the order,
relief or conviction at such time and in such form and manner as
may be prescribed.
COMPANIES ACT 1990 - SECT 168
Registrar of persons subject to disqualification orders.
168.—(1) The registrar shall, subject to the provisions of this
section, keep a register of the particulars which have been notified
to him under section 167, and the following provisions of this
section orders shall apply to the keeping of such a register.
(2) Where the particulars referred to in section 167 (b) comprise
the grant of full relief under section 160 (8), the registrar shall
not enter such particulars on the register referred to in subsection
(1), but shall, as soon as may be, remove any existing particulars
in respect of the person concerned from the register.
(3) The registrar shall also remove from the register any
particulars in relation to a person on the expiry of five years
from the date of the original notification under section 167, or
such other period in respect of which the person concerned is
deemed to be subject to a disqualification order, unless the
registrar has received a further notification in respect of that
person under this section.
(4) Nothing in this section shall prevent the registrar from keeping
the register required by this section as part of any other system
of classification, whether pursuant to section 247 or otherwise.
COMPANIES ACT 1990 - SECT 169
Prohibition of undischarged bankrupts acting as directors or other
officers of companies.
169.—The Principal Act is hereby amended by the substitution for
section 183 of the following section—
"183. (1) Subject to subsection (2), if any person being an
undischarged bankrupt acts as officer, auditor, liquidator or examiner
of, or directly or indirectly takes part or is concerned in the
promotion, formation or management of, any company except with the
leave of the court, he shall be guilty of an offence.
(2) Where a person is convicted of an offence under subsection (1)
he shall be deemed to be subject to a disqualification order from
the date of such conviction if he was not, or was not deemed to
be, subject to such an order on that date.
(3) In this section 'company' includes a company incorporated outside
the State which has an established place of business within the
State.".