COMPANIES ACT March 2015

Transcription

1 INTRODUCTION The Companies Act 2014 (the 2014 Act ) was signed into law by the President of Ireland on 23 December Over 12 years in the making, the 2014 Act consolidates and reforms Irish company law as we know it and will replace the 16 separate Acts that comprise the Companies Acts 1963 to The 2014 Act is expected to be commenced on 1 June 2015 and will have both legal and practical consequences for each and every company registered in Ireland. Ronan Daly Jermyn would be happy to advise and assist our clients in relation to the 2014 Act and the consequences of the 2014 Act for their business and corporate structures. PART 1 NEW FORMS OF PRIVATE COMPANIES LIMITED BY SHARES New Model of Private Company Limited by Shares Under the 2014 Act, the current form of private limited company will cease to exist and will be replaced by two different types of private limited company, being the private company limited by shares ( LTD ) and the Designated Activity Company ( DAC ). Please note that for the purposes of this Part 1 we use the term DAC to describe the DAC limited by shares. The DAC limited by guarantee is a separate type of company which is dealt with in further detail in Part 2 below. The LTD is the default or model type of private company limited by shares under the 2014 Act and is designed to simplify some of the burdensome features of the existing private company under the current legislation. The DAC, on the other hand, can be said to be quite similar in form to the existing private company and will retain most of these features. The key differences between the LTD and the DAC are set out in the table below. LTD DAC Company name Limited / ltd / LTD or its Irish translation (subject to certain dispensations). Designated Activity Company / dac / d.a.c. / DAC or its Irish translation (subject to certain dispensations). Company type Private company limited by shares. Private company either (a) limited by shares or (b) limited by guarantee, having a share capital. Share capital Must have an issued share capital but not an authorised share capital. Must have both an authorised and an issued share capital.

2 LTD DAC Constitution Single-document constitution with no objects clause. Memorandum and articles of association with an objects clause. Corporate Capacity No objects clause. Same capacity as a natural person ultra vires rule does not apply. Must have an objects clause. Ultra vires rule applies but with a protection for third parties acting in good faith. Officers At least one director and a company secretary (who cannot be the same person). At least two director and a company secretary (who can be one of the directors). AGM May dispense with the requirement to hold an AGM. May only dispense with the requirement to hold an AGM if it is a single-member company. Listing of securities May not list/admit to trading any securities (either debt or equity). May not list/admit to trading equity securities although it may list debt securities, subject to certain restrictions. Company Stationery, nameplates, etc. Changes to stationery, nameplates, etc. will not be required because the company will not change its name. It will be required to change its company seal, website, stationery, nameplates, etc. to reflect its change of name. Furthermore, it may need to amend its details in registers such as company statutory registers (registers of members, etc.), property registers, intellectual property registers or registers in foreign countries, as applicable. Converting to an LTD or a DAC The 2014 Act provides for a transition period of 18 months (the Transition Period ), during which period all existing private companies limited by shares will need to decide whether to re-register as an LTD or as a DAC. The methods of converting to an LTD and a DAC are set out in the tables overleaf.

3 Converting to an LTD Method 1 (Recommended) Pass a special resolution of the members within the Transition Period resolving to re-register as an LTD and to adopt a new constitution. File copies of the special resolution and the new constitution with the Companies Registration Office (the CRO ) together with the prescribed Form N1. The CRO will then issue a certificate of incorporation on re-registration to the company. Method 2 Where Method 1 is not followed the directors are obliged to prepare a new constitution within the Transition Period. The constitution must contain the provisions of the company s existing memorandum and articles of association ( M&A ) minus the objects clause and any clauses prohibiting the alteration of its M&A. The directors must deliver a copy of the new constitution to every member of the company and must file a copy of the new constitution with the CRO together with the prescribed Form N1. The CRO will then issue a certificate of incorporation on re-registration to the company. Method 3 (Not Recommended) Do nothing in which case, following the expiration of the Transition Period, the CRO will prescribe a new constitution containing the provisions of the company s existing M&A minus the objects clause and any clauses prohibiting the alteration of its M&A. The CRO will then issue a certificate of incorporation on re-registration to the company. Converting to a DAC Method 1 (Recommended) Method 2 Pass an ordinary resolution of the members opting to become a DAC and to adopt a new M&A within the first 15 months of the Transition Period. File copies of the ordinary resolution and the new M&A with the CRO, together with the prescribed Form N2 containing a compliance statement. The CRO will then issue a certificate of incorporation on re-registration to the company. Pass a directors resolution if, within the first 15 months of the Transition Period, a member holding more than 25 per cent of the voting rights in the company serves notice requiring the company to re-register as a DAC. File copies of the directors resolution and the new M&A with the CRO together with the prescribed Form N2 containing a compliance statement. The CRO will then issue a certificate of incorporation on re-registration to the company.

4 If an existing private company that wishes to convert to a DAC does not do so within the first 15 months of the Transition Period then it will be converted to an LTD by default following the expiration of the Transition Period. In such an event the now LTD company may re-register as a DAC by way of a special resolution of the members under Part 20 of the 2014 Act. There are safeguards under the 2014 Act for certain members and debenture holders of an existing private company where those members or debenture holders wish for the company to be re-registered as a DAC whereby they may apply to the High Court for an order requiring the company to so re-register, in which case the directors must re-register the company as a DAC. Timelines and Deadlines The following timelines and deadlines ought to be kept in mind by the members and directors of every Irish company in connection with the 2014 Act: Commencement Date: June 2015 Beginning of 18-Month Transition Period: June 2015 Timeframe for re-registration as an LTD: June December 2016 (18 months) Timeframe for re-registration as a DAC: June September 2016 (15 months) End of Transition Period: December 2016 (although the Transition Period may be extended by Ministerial Order) It is important to note that until such time as an existing private company is re-registered as an LTD, it will be treated as a DAC in accordance with its existing M&A, save to the extent that its existing M&A are in conflict with the provisions of Part 16 of the 2014 Act relating to DACs, in which case Part 16 will prevail. This will undoubtedly lead to uncertainty and confusion regarding the correct regulations that apply to an existing private company. Therefore, it would be advisable for existing private companies to commence the process of transitioning to an LTD or a DAC as soon as practicable following the commencement of the 2014 Act. PART 2 CERTAIN OTHER FORMS OF PRIVATE COMPANY Unlimited Companies Unlike the LTD or the DAC, existing unlimited companies will be automatically deemed to be unlimited companies regulated under the provisions of the 2014 Act upon its commencement. Although the existing M&A of the unlimited company will continue in force, such existing M&A will be subject to any conflicting mandatory provision of Part 19 of the 2014 Act, the latter of which will prevail. Accordingly, to avoid any confusion that will undoubtedly arise as a result of references in the existing M&A to old legislation and regulations that might be overridden by the 2014 Act, we would encourage our clients to register a new set of M&A following the commencement of the 2014 Act. The names of all private and public unlimited companies registered or deemed to be registered under the 2014 Act will be required to end in unlimited company or its Irish equivalent cuideachta neamhtheoranta which may be abbreviated to u.c., uc, c.n. or cn or their capitalised forms. This name change will be compulsory unless exempted by the Minister for Jobs, Enterprise and Innovation in special circumstances. An existing unlimited company will be afforded the Transition Period within which to change its name by filing the prescribed Form N3 with the CRO, or, following the expiration of the Transition Period its company name will be deemed by the CRO to have automatically changed. From a practical perspective this name change will necessitate the ordering of a new company seal, letterheads and other stationery, etc. and, if applicable, amending the company s name in company statutory registers,

5 property registers, intellectual property registers or registers in foreign countries, as applicable. The following are some additional features of the unlimited company under the 2014 Act: The private unlimited company will be permitted to be a single member company in place of the existing requirement for a minimum of two members. The unlimited company will still be required to have two directors, to have a memorandum of association with an objects clause in addition to its articles of association and to hold an annual general meeting (although a single member private unlimited company will be exempt from the latter). An unlimited company will be permitted under the 2014 Act to convert back to a limited company, a feature which is restricted under the Companies Acts and which may prove useful for groups wishing to unwind non-filing or other structures in existence. Certain of the capital maintenance rules under the 2014 Act will be disapplied in respect of unlimited companies so that an unlimited company will be permitted to make distributions otherwise than out of profits available for such purpose. Guarantee Companies Guarantee companies not having a share capital registered under the current legislation will be automatically deemed to be CLGs regulated under the provisions of the 2014 Act upon its commencement and guarantee companies having a share capital registered under the current legislation will be automatically deemed to be DACs limited by guarantee regulated under the provisions of the 2014 Act upon its commencement. Similar to the provisions relating to unlimited companies referred to above, although the existing M&A of the CLG or the DAC limited by guarantee (as the case may be) will continue in force following the commencement of the 2014 Act, such existing M&A will be subject to any conflicting mandatory provision of Part 18 of the 2014 Act (in the case of a CLG) and Part 16 of the 2014 Act (in the case of a DAC limited by guarantee) and accordingly Part 18 or Part 16 (as the case may be) will prevail. In order to avoid any confusion that may arise as a result of references in the existing M&A to old legislation and regulations that might be overridden by the 2014 Act, we would encourage our clients to register a new set of M&A following the commencement of the 2014 Act. All CLGs and DACs limited by guarantee registered or deemed to be registered under the 2014 Act will be required to change their names in the manner set out in the table below. An existing guarantee company will be afforded the Transition Period within which to change its name by filing the prescribed Form N3 with the CRO, or, following the expiration of the Transition Period its company name will be deemed by the CRO to have automatically changed to end in company limited by guarantee or designated activity company (as applicable). Similar to the case of the DAC (limited by shares) and the unlimited company, from a practical perspective this name change will necessitate the ordering of a new company seal, letterheads and other stationery, etc. and amending the company s name in registers such as company statutory registers, property registers, intellectual property registers or registers in foreign countries, as applicable. Some of the key features of and differences between the CLG and the DAC limited by guarantee are set out in the table overleaf.

6 CLG DAC Limited by Guarantee Company name company limited by guarantee or its Irish equivalent cuideachta faoi theorainn ráthaíochta which may be abbreviated to c.l.g., clg, c.t.r. or ctr, or their capitalised forms (subject to certain dispensations). designated activity company or its Irish equivalent cuideachta ghnaíomhaíochta ainmnithe which may be abbreviated to d.a.c., dac, c.g.a. or cga, or their capitalised forms (subject to certain dispensations). Company type Private company limited by guarantee, not having a share capital. Designated Activity Company limited by guarantee, having a share capital. Share capital It will not be permitted to have a share capital. It will be permitted to have a share capital. Constitution Officers Members AGM Listing of securities Company Stationery, nameplates, etc. Memorandum and articles of association with an objects clause. At least two director and a company secretary (who can be one of the directors). Will be permitted to be a single member company in place of the existing requirement for a minimum of seven members. May only dispense with the requirement to hold an AGM if it is a single-member company. May not list/admit to trading equity securities although it may list debt securities, subject to certain restrictions. It will be required to change its company seal, website, stationery, nameplates, etc. to reflect its change of name and to amend its name in any applicable registers. External Companies It will no longer be possible for an external company to register a place of business under the 2014 Act. An external limited company that has established a branch in Ireland will be required to register its Irish branch with the CRO. There is no requirement for an external unlimited company that has established a branch in Ireland to register such branch with the CRO. The Slavenburg file will be abolished under the 2014 Act which means that, where an external company has established but not registered a branch in Ireland and such external company creates a charge over Irish property, it will not be permitted to deliver particulars of that charge to the CRO. Accordingly, in order for an external company to be in a position to register a charge over Irish property with the CRO it will first be required to register an Irish branch with the CRO which will entail ongoing filing and annual compliance requirements.

7 PART 3 OTHER KEY CHANGES A summary of some other key changes under the 2014 Act is set out below. Directors Duties Directors fiduciary duties have been codified for the first time in Irish law and largely replicate the common law duties currently applicable to directors. Under the 2014 Act a director (including a shadow director) will be required to: 1. act in good faith in what the director considers to be in the interests of the company; 2. act honestly and responsibly in relation to the conduct of the affairs of the company; 3. act in accordance with the constitution of the company and exercise his/her powers only for the purposes allowed by law; 4. not use the company s property, information or opportunities for his/her own or anyone else s benefit unless this is expressly permitted by the constitution or approved by the members; 5. not agree to restrict his/her power to exercise an independent judgment unless this is expressly permitted by the company s constitution or the director believes (in good faith) that it is in the interests of the company to fetter his/her discretion; 6. avoid any conflict between the director s duties to the company and his/her other interests (including personal interests) unless the director is released form this duty in accordance with the constitution or by the members; 7. exercise the care, skill and diligence which would be exercised in the same circumstances by a reasonable person having the knowledge and experience that may reasonably be expected of a person in the same position as the director; and 8. have regard to the interests of the company s employees and members as a whole. Annual Compliance Statements If a company (or a group) has a balance sheet exceeding 12.5 million and has a turnover exceeding 25 million, a directors compliance statement will be required to be prepared and filed with the company s annual financial statements. Such compliance statement will contain an acknowledgement by the directors that the directors are responsible for securing the company s compliance with company and tax law and confirming that certain actions, including the drawing up of a compliance policy statement, have been undertaken, or if they have not been undertaken, providing an explanation as to why they have not been undertaken. Audit Committee If a company (or a group) has a balance sheet exceeding 12.5 million and has a turnover exceeding 25 million, it will be required to establish an audit committee which has at least one independent non-executive director who has competence in accounting or auditing. There is an opt-out for companies that are in a position to explain why such an audit committee is not necessary in the circumstances. Loans to Directors The prohibition on the provision of loans by companies to their directors has been relaxed under the 2014 Act, subject to certain requirements. There will be a statutory presumption that, unless made in writing, a loan made by a company to a director will be repayable on demand and interest bearing. Conversely, advances made by directors to their companies will, unless made in writing, first be presumed not to be a loan and therefore not repayable, or, if it is proven to be a loan, it will be presumed to be non-interest bearing, unsecured and subordinated to the company s other creditors. Disclosure of Interests by Directors Under the 2014 Act a director will only be obliged to disclose his/her interests (or the interests of a connected person) in a company where such interests represent in aggregate more than one per cent in nominal value of the

8 company s issued voting share capital (or that of the company s holding company or subsidiary). This is a welcome change to the position under the current legislation and will now doubt reduce, or in certain cases eliminate the requirement to disclose such interests, particularly in the case of directors of companies in multinational groups that have group-wide share/equity option schemes in place. Company Secretary The 2014 Act places a new obligation on directors of private companies to appoint a suitably qualified person as the company secretary. Such person must have the skills necessary so as to enable him/her/it to maintain the statutory records of the company. A welcome change under the 2014 Act is that the company secretary will no longer be required to ensure the compliance with company law, which is a requirement of the current legislation and which will transfer to the directors under the 2014 Act. Members Meetings and Resolutions As noted in the Schedule to this publication, annual general meetings may be dispensed with by multi-member private limited companies (which under the current legislation is only available to single-member private limited companies). Furthermore, majority written resolutions will be permitted where companies do not wish to hold a members general meeting, albeit subject to certain notice requirements. Summary Approval Procedure The 2014 Act allows for a facilitative summary approval procedure ( SAP ) for certain types of transactions which under the current legislation are subject to more stringent requirements. The SAP involves the swearing of a statutory declaration of solvency by the directors and the passing of a special resolution by the members (and in certain cases the drawing up of an independent person s report). The SAP may be used to approve the following: financial assistance for the acquisition of a company s own shares; certain transactions involving directors; share capital reductions; variation of capital in a reorganisation; members voluntary winding-up; the treatment of pre-acquisition profits of a subsidiary in a holding company s accounts as profits available for distribution; and mergers of companies. Mergers and Divisions Two Irish private companies will be able to merge, so that the assets and liabilities of one company are transferred to another, and the transferring company is dissolved without going into liquidation. Under the current legislation only Irish PLCs can merge together, or an Irish company can merge with an EEA registered private company under the cross-border mergers legislation. Divisions of Irish companies will also be allowed for the first time under the 2014 Act. CONCLUSION The commencement of the 2014 Act in June of this year will have a dramatic impact on Irish company law and will require the members and officers of every company registered in Ireland to assess their corporate structure and make some significant decisions. We at Ronan Daly Jermyn would be happy to provide advice and support to our clients in assessing the most appropriate form of company under the 2014 Act to suit their business needs. Please do not hesitate to contact any member of our Corporate and Commercial team with any queries that you may have and please be assured that no query is too big or too small.

9 CONTACT US For further information, to receive a copy of our legal updates or to discuss any aspect of the Companies Act, 2014 please contact any of the solicitors in our Corporate & Commercial Department below. Diarmaid Gavin JP Gilmartin Sinéad Corcoran Bryan McCarthy Partner Partner Partner Partner diarmaid.gavin@rdj.ie jp.gilmartin@rdj.ie sinead.corcoran@rdj.ie bryan.mccarthy@rdj.ie +353 (0) (0) (0) (0) Aoife Murphy Marie Gavin Mary Griffin Seán O Reilly Associate Associate Associate Associate aoife.murphy@rdj.ie marie.gavin@rdj.ie mary.griffin@rdj.ie sean.oreilly@rdj.ie (0) (0) (0) (0) Follow us on LinkedIn for further updates Park Place, City Gate Park, Mahon Point, Cork. Tel: +353 (0) IFSC, 3 Harbourmaster Place, Dublin 1. Tel: +353 (0) Aengus House, Dock Street, Galway. Tel: +353 (0) St Mary Axe, EC3A 8BF, London, United Kingdom. Tel: +44 (0)