Companies Act 2014 An Overview by Sean Kavanagh, of Company Formations International Limited

Transcription

1 Companies Act 2014 An Overview by Sean Kavanagh, of Company Formations International Limited Overview The genesis of this new Act, which is the largest in the history of the State, can be traced back to the establishment of the Company Law Review Group in The CLRG was mandated to make recommendations on the updating, consolidation and simplification of company law in Ireland to bring it up to world class standards. This was achieved by shifting the emphasis of company law away from Public Limited Companies and on to the workhorse of Irish commercial life, the Private Company Limited By Shares. It was further achieved by a reordering of existing law into a more logical and user friendly format, along with the introduction of a number of common sense innovations. The most frequent comment made is that this Act is old wine in a new bottle. Accordingly, all of your existing company law knowledge is not entirely lost, but rather re-packaged and made easier to access. However, to adopt this approach to the new Act would be to do so at your peril! Whilst consolidating the provisions of existing legislation, it also introduces new and innovative measures to reflect, in many instances, the practicalities of the times we live in. Now, more than ever, the need for professional support is of paramount importance. Company Types under CA 2014 The company types under CA 2014 are as follows; LTD New model private company PLC Public Limited Company PUC Public Unlimited Company ULC Private Unlimited Company External Companies Investment Companies DAC Designated Activity Company CLG Company Limited By Guarantee PULC Public Unlimited Company w/out share cap. SE Societas Europaea Unregistered Companies Joint Stock Companies Architecture of CA 2014 As such the 1,448 Sections of CA 2014 have been constructed so that the legislation relating to each company type can be found in one location in the Act, as follows: Parts 1-15 Private Company Limited By Shares (LTD s) Part 16 Designated Activity Companies (DAC s) Part 17 PLC s and Societas Europaea (PLC + SE) Part 18 Companies Limited By Guarantee (CLG s) Part 19 Unlimited Companies (ULC s) Part 20 Re-registrations Part 21 External Companies Part 22 Unregistered and Joint Stock Companies Part 23 Prospectus, Market Abuse Part 24 Investment Companies Part 25 Misc. Provisions There are also 17 schedules which follow the 25 Parts.

2 Key Features of new the model Private Company Limited by Shares (LTD) This simplified company type is expected to ultimately be the corporate form which the vast majority of Irish companies will take, either on incorporation or by way of conversion. The key features are as follows: - 1 to 149 Shareholders (up from a maximum of 99) - May have just one Director - Must have a separate Company Secretary (may not be the sole director) - Shareholder(s) only liable for unpaid portion of share capital - Single document constitution - Name must end in Limited or Teoranta - No main objects clause (rule of Ultra Vires is gone) - May register any person who can bind the company, in the CRO - Must have company seal - Cannot list any securities (inc. debt securities) - May become Audit Exempt/Dormant - Can dispense with the a holding of a physical AGM - Majority written resolutions permitted (but with 7/21 day cooling off period) - May dispense with having a specified Authorised Share Capital Key Features of Designated Activity Company (DAC) Despite being a new company type, the DAC will closely resemble a Private Company Limited by Shares as registered under the Companies Acts 1963 to members/shareholders - Can be limited by shares or by guarantee - May become Audit Exempt/Dormant - Can dispense with holding of physical AGM ONLY where there is a sole member/shareholder - May list debt securities It is felt that existing companies which are specifically envisaged as being DACs would include trustee companies, those involved in Joint Ventures, charities, management companies, companies limited by guarantee having a share capital and companies which are incorporated for a specific purpose for which the shareholders want the capacity of the company to be clearly stated. Also, companies which have heavily negotiated Articles of Association are likely to wish to become a DAC in order to avoid undergoing further protracted negotiations on a new constitution. Key Features of Companies Limited By Guarantee (without share capital) These will continue to be the corporate form for many charities, management companies, sports clubs and not for profit organisations generally. - May have a single member (New) - No maximum on number of members - May become Audit Exempt (New but not if a member objects) - Can dispense with holding of physical AGM ONLY where there is a sole member - May list debt securities in limited circumstances One notable innovation in the CA 2014 is that CLG s can now convert into LTD s. However, now that CLG s can also become exempt from Audit it is debatable as to how many will take this option.

3 Key Features of Public Limited Companies (PLC s) Public Limited Companies represent a very small percentage of the number of companies registered in the Rep. of Ireland. The commencement of CA 2014 is not expected to increase the numbers of PLC s to any significant degree. - May have a single shareholder (New) - No maximum on number of shareholders - Minimum issued Share Capital of 25K before commencing to trade (down from 38,092) - Can dispense with physical holding of AGM ONLY where there is a sole member/shareholder - May list debt securities - Directors must prepare a Compliance Statement (see below) Key Features of Unlimited Companies (ULC s ) The most common form of Unlimited Company will be the Private Unlimited Company having a share capital. There will also exist Public Unlimited Companies with a share capital and Public Unlimited Companies NOT having a share capital, but these will be extremely rare. A standard ULC: - May have a single shareholder (New) - Will be able to reduce share capital and make distributions - Can dispense with holding of physical AGM ONLY where there is a sole member/shareholder - Only PUC and PULC May list debt securities - Directors do NOT need to prepare a Compliance Statement if company meets the requirements Another notable innovation in CA 2014 is that Unlimited Companies will be able to convert to Limited and then back again provided accounts are filed in CRO. Previously companies could only convert to Limited/Unlimited on a one time only basis. Conversion of existing private companies to either LTD or DAC during Transition Period Once the Act has been commenced on 1 st June 2015, there will be an 18 Month Transition Period during which existing private companies limited by shares will have to decide on which form they wish to take i.e. either LTD or DAC. As mentioned previously, it is anticipated that the vast majority of companies will opt to be an LTD type company. The procedure for achieving this will involve: - Reviewing the current Articles of Association to see which Regulations of Table A actually apply to the company, which regulations do not apply and which were drafted specifically for the Company. - Compare against mandatory and optional provisions of CA Decide on content of new constitution - Arrange for shareholders to adopt new constitution by way of Special Resolution - File in CRO with Form N1 - CRO will issue a new Certificate of Incorporation note name has not changed

4 Where Shareholders do NOT engage with this process and pass a Special Resolution there is then an obligation on the Directors to take action. They must prepare a minimal new form constitution, circulate it to the shareholders for consideration and then file in CRO with the relevant Form N1. As before CRO will issue a new Certificate of Incorporation. Failure to do this will leave the Directors in default of their general obligations to keep their company compliant with company law. The procedure for converting to a DAC is as follows: - Amend existing M&A by inserting Clause to state that the company is a DAC, registered under Part 16 of the Companies Act, Change Limited to Designated Activity Company in company s name - Change Articles to Regulations and re-number, sequentially. - Adopt by way of Special Resolution - Record decision to re-register as a DAC by passing Ordinary Resolution not later than 3 months before end of transition period - File in CRO with Form N2 - CRO issue new Certificate of Incorporation Where the Directors receive notice from 25%+ of the shareholders of their desire to convert to DAC, or receive a Court Order, a resolution of Directors will suffice. VERY IMPORTANT NOTE: Where Directors/Shareholders are not pro-active in completing the conversion process to either LTD or DAC their company will automatically convert to the new form LTD at the end of the transition period and the CRO will issue a new Certificate of Incorporation. However, it is strongly recommended that companies do not allow this to happen for the following reasons: - Because of the deeming provisions of CA 2014, their governing instrument as filed at the CRO (their previous Memorandum & Articles of Association), will become practically unintelligible as a standalone document. - Apart from being poor corporate governance this may impact the subject company s dealings with its own shareholders, with banks, potential investors, Enterprise Boards and any other third parties. - Directors may be exposed where shareholders have been prejudiced by inaction. - Companies wishing to become single Director must convert to being a LTD Accordingly, companies would be well advised to address this issue as quickly as possible.

5 Other notable features of CA 2014 Summary Approval Procedure A standardised Summary Approval Procedure has been introduced which will simplify how companies will deal with, what were previously restricted or prohibited transactions, specifically: - Financial Assistance in purchasing own shares (Previously required a S60 Declaration) - Reduction in Share Capital (Previously required application to High Court) - Variation of Capital in re-organisations - Treatment of pre-acquisition losses/profits in holding company - Loans to Directors/connected parties - Mergers of Private Companies (now permitted, as well as divisions) - Members Voluntary Winding Up (Previously required statutory declaration on Form 12) Directors Duties For the first time the duties of Directors have been codified and are set out in one location in legislation. These duties are categorized as follows: - To act in good faith in the Company s best interests - To act honestly and responsibly in the conduct of the company s affairs - To act in accordance with the Company s constitution - Not to misuse company s property, information or opportunities - Not to fetter discretion - To avoid conflicts of interest unless agreed - To exercise Care, Skill and Diligence - To have regard to the interests of the members as well as employees It should be noted that these duties apply to ALL Directors, including De facto Directors and Shadow Directors. And lest potential Directors be in any doubt, they must sign the following statement when filing notification of their appointment in the Companies Registration Office: I acknowledge that, as a director, I have legal duties and obligations imposed by the Companies Act, other enactments and at common law. This statement would be signed by a Director on either a Form A1 as part of the incorporation process or on a Form B10 where they take up appointment at some point after incorporation.

6 Offences now categorised One of the most far-reaching reforms provided for in the new legislation speaks to the streamlining of criminal offences arising from non-compliance on a scale of 1 to 4 as follows: - Category 1 Conviction on indictment/term of imprisonment of up to 10 years/ or a fine of up to 500k or both - Category 2 Conviction on indictment/5 Years/ up to 50k or both - Category 3 Summary Offence/Six Months/Class A fine or both - Category 4 Summary Offence Class A fine only - Class A fine = not exceeding 5K For example, not displaying a company s name in a conspicuous position is a Category 4 offence (S.49 CA 2014), whereas the failure to notify the Registrar of Companies of any increase/decrease in share capital is a Category 3 offence (S92/93 CA 2014) At the higher end of the scale, mutilation or falsification of a book or document relating to a company s affairs is a Category 2 offence (S. 877 CA 2014) along with a restricted/disqualified person acting in relation to a company (S855 CA 2014) and entering into any arrangement which breaches the rules on loans to Directors/Connected persons (S239 CA 2014) Intent to defraud creditors is a Category 1 offence (S722 CA 2014) Directors Compliance Statements This obligation was first introduced in 2003 but never commenced as it was considered to be too onerous. It has now been revised and re-introduced. - Applies to all PLC s (Except investment companies) - Applies to LTD s/dac s/clg s which have a turnover 25m+ and a Balance Sheet total of 12.5m+ - Does NOT apply to ULC/PUC/PULC - Directors must declare compliance with relevant obligations (i.e. where failure to comply would be a Category 1/Category 2 or Tax law offence) The Directors annual report must contain a statement which acknowledges that they are responsible for securing the company s compliance with its relevant obligations. They must also include in their annual report a statement which confirms that the following things have been done: A compliance policy statement exits and it sets out the company s policies in relation to compliance. In the directors opinion, these policies must be appropriate to the subject company. Arrangements have been put in place which are in the directors opinion designed to secure substantial compliance with the company s relevant obligations A review has been conducted of the arrangements noted above. This review must have taken place during the financial year to which the report relates. Failure to comply is a Category 3 Offence i.e. maximum fine of 5,000 and/or maximum prison sentence of 6 months (summary conviction only).

7 Other changes of note - Audit Committee now required for large private companies i.e. Bal. Sheet 25M+ and T/O 50m+ - Loans TO Directors/connected persons must be in writing with terms set out, otherwise they will be presumed to be repayable on demand AND attract interest. Loans FROM Directors must also be in writing with terms set out otherwise may be considered as a gift and may not rank with creditors. - Audit Exemption for small Groups i.e. combined t/o less than 8.8m, b/s 4.4m, 50 employees - Audit Exemption for dormant companies in a Group - Audit Exemption for CLG s - Increase in penalties where not keeping proper books leads to insolvency - Voluntary Strike Off now on a statutory basis However ALL Directors must sign application - No Annual Returns/Accounts required where Voluntary Strike Off/Member Vol Liquidation commenced - Company Secretary must have relevant qualifications/expertise - CRO Penalty Fees Waiver arrangement to cease Application must be made to District Court. Audit Exemption will be restored IF application is successful - Liquidators must be formally qualified What to do next As CA 2014 approaches, now would be the ideal time to review companies under your care and see how the coming changes will affect them. Should you require any assistance implementing the changes introduced by CA 2014, then please do not hesitate to contact any of the team at CFI on Sean Kavanagh Managing Director (sean@formations.ie) Karen Corcoran Corporate Services Manager (karen@formations.ie) Sue Jesper Company Secretarial Supervisor (sue@formations.ie) Joanne Browne Company Formations Executive (joanne@formations.ie) Company Formations International Limited 22 Northumberland Road, Ballsbridge, Dublin 4 Tel Fax cfi@formations.ie