GUIDE TO INCORPORATING COMPANIES IRELAND CURRENCY Euro ( ). EXCHANGE CONTROL There is no exchange control in Ireland. There are, however, certain other restrictions which should be noted. Pursuant to the Criminal Justice Act 1994 (as amended), the company must furnish the following to a bank to open a bank account: (i) original or certified copy of the certificate of incorporation or the certificate to trade; (ii) Memorandum and Articles of Association; (iii) list of directors' names, occupations, residential and business addresses and dates of birth; and (iv) properly authorised mandate of the directors to open an account and conferring authority on those who will operate it. The bank may also require (i) the names, addresses and date of birth of at least two directors and all persons authorised to operate the account from time to time; and (ii) a list of names and addresses of shareholders holding ten per cent. or more of the issued share capital of the company and, in the case of individual shareholders, their occupations and dates of birth. Under the money laundering provisions of the Criminal Justice Act 1994 (as amended), a company which is a "designated body" (these are generally companies involved directly or indirectly in the financial system) cannot accept cash payments in excess of 12,700 without complying with the identification requirements of the Act. Other companies would ordinarily only need to make enquiries where they suspect that property represents the proceeds of criminal conduct. A company may accept payment into its bank account without confirming the identity of the party making the payment as the latter is the responsibility of the bank. The Financial Transfers Act, 1992 enables the Minister for Finance, by order, to restrict financial transfers between Ireland and other countries provided such restriction is made in conformity with the Treaties governing the European Communities. Financial transfers are currently prohibited to residents of Iraq (or organisations constituted or incorporated under the law of Iraq) although in certain circumstances the Central Bank may grant permission to make a transfer. There are also restrictions currently in place in relation to Angola, Burma, the Taliban of Afghanistan, Serbia and Zimbabwe. PRINCIPAL CORPORATE LEGISLATION Companies Acts, 1963 2001. COMPANY INFORMATION The following are the most common forms of business in Ireland: private company, public company, single member company, sole trader, partnership, limited partnership, investment limited partnership, undertakings for collective investment in transferable securities ("UCITS"), co-operative societies and building societies. There are also a few European Economic Interest Groupings ("EEIGs") and statutory corporations. The majority of companies registered in Ireland are private companies, and of these, most are small with only a few members.
A corporation incorporated outside Ireland may establish a branch in Ireland. To do so, it must deliver certain particulars to the Registrar of Companies (the "Registrar") within one month of such establishment, and must file accounts with the Registrar every year in accordance with the European Communities (Branch Disclosures) Regulations 1993. This memorandum only concerns the incorporation of companies under the Companies Acts. The Companies Registration Office (the "CRO") is the central repository of public statutory information on Irish companies. Further details may be obtained on the CRO website, www.cro.ie. PROCEDURE TO INCORPORATE In order to obtain a certificate of incorporation from the CRO, it is necessary to pay the relevant fee (see below under "Cost") and to file the following: (a) Memorandum of Association. This document must set out the name and objects (i.e. purpose) of the company and, if the liability is limited, a statement to that effect. In the case of a company limited by shares, the nominal capital, the number of shares into which that capital is to be divided and the amount of each share must be stated. There must also be included an association clause, whereby the subscribers agree to come together to form the company. (b) (c) Articles of Association. These set out the rules for the management of the company's affairs. It may not be necessary to file these but if this is not done, the rules set out in the Companies Acts will apply by default and these may not be appropriate to the company. Form A1. This form contains the details of the company name, its registered office, the principal activity, the directors and secretary (and their consent to acting as such), and details of the subscribers and their shares. POWERS OF COMPANY A company has the capacity and powers of a natural person, subject to the Companies Acts. A company's objects and powers are usually expressed in the Memorandum of Association. Although the objects must be stated in the Memorandum, there is no such requirement in relation to the powers and the courts will often deem a company to have the powers necessary to further its objects. The powers of the company are usually delegated to the board of directors, but certain powers may only be exercised by the members in general meeting, e.g. the power to change the Articles of Association. LANGUAGE OF LEGISLATION AND CORPORATE DOCUMENTS All legislation is available in English and Irish. Corporate documents may be filed in English or Irish. It is not necessary to file a translation with documents submitted in Irish. SHELF COMPANIES AVAILABLE Shelf companies are no longer available in Ireland. A company cannot be formed and registered in Ireland if, when registered, it will not carry on an activity in Ireland. 2
TIME TO INCORPORATE A private limited company, an unlimited company and a company limited by guarantee and not having a share capital may be incorporated within ten working days from the date of lodgement of documentation in the CRO under the "Fé Phráinn" system, provided the Memorandum and Articles of Association are in a form approved by the CRO and the documentation furnished is correct and complete. It takes between three and four weeks to incorporate any other type of company. NAME RESTRICTIONS The name must end with the word "Limited" (or "Teoranta", its Irish language equivalent), if it is a private limited company or 'public limited company' if it is a public company. A name will not be registered if, in the opinion of the Minister for Enterprise, Trade and Employment (the "Minister"), it is undesirable. In general the following types of names are regarded as undesirable: (a) (b) (c) (d) names that are identical or confusingly similar to names already appearing on the register; names that are deceptive or misleading, or which suggest State sponsorship; names which are offensive, in the opinion of the Minister; and names which include a year date. No advance name approval is possible, but it is possible to run checks to detect potential problems with similar existing names. The registration of a name will not necessarily protect the company from liability for the tort of "passing off", i.e. representing a business which is being carried on by another as being carried on by oneself. LANGUAGE OF NAME The company name may be in English or Irish. REGISTERED OFFICE REQUIRED The registered office of a company must be in Ireland and a full address must be given - no P.O. Box numbers are permitted. The place in the State where the activity is to take place must be in Ireland and a full address must be given. The company being set up must be set up for a specific activity which must be taking place in Ireland. The place of the central administration of the Company must be given with a full address which does not have to be in Ireland. NAMES REQUIRING CONSENT OR LICENCE Certain words are not permitted without prior permission. The use of the word "bank" requires the written approval of the Central Bank in advance of incorporation. The word "insurance" or cognate words cannot be used unless permission has been received from the Minister. The word "university" cannot be used without the permission of the Department of Education. The words "co-op" or "co-operative" cannot be used unless it is a body incorporated as a co-operative society under the relevant legislation. The word "society" may only be used if permission has been obtained from the Registrar of Societies. If a company is non-profit making or formed for charitable purposes, a licence to omit the word "limited" may be obtained from the Minister. 3
SUFFIXES TO DENOTE LIMITED LIABILITY For a private company with limited liability the word "Limited" or its abbreviation "Ltd" must be used, or in Irish "teoranta" or "teo". For a public company with limited liability the words "public limited company" or their abbreviation "plc" must be used, or in Irish "cuideachta phoiblí teoranta" or "cpt". The abbreviations above may not be used on the company's Memorandum or Articles of Association. DISCLOSURE OF BENEFICIAL OWNERSHIP TO AUTHORITIES Directors, secretaries and their families, as well as shadow and 'de facto' directors are required to notify the company of any interests they may have or cease to have in the shares or debentures (including options) of the company, its subsidiary, its holding company, or any subsidiary of its holding company. The company must keep a register for these purposes, which register must be kept at the same location as the register of shareholders. The register must be made available for inspection by any person, but a nominal charge may be applied to persons who are not shareholders. COMPLIANCE All changes to officers and their particulars (e.g. moving address) must be notified by way of a Form B10 signed by an officer and filed in the CRO within 14 days. An increase in the share capital must be notified by way of a Form B4 to the Registrar within 15 days of the increase. The Revenue Commissioners must also be notified and capital duty may be payable on the increase. Other alterations in the share capital must be notified within one month after the alteration. The share capital cannot be reduced in any way except in accordance with the Companies Acts. Transfers of shares must be recorded in the register of shareholders and tax may be payable on such transfers. Every company must hold an Annual General Meeting ("AGM") within 18 months of incorporation and at no more than 15 month intervals thereafter provided that an AGM is held in each calendar year no more than nine months after the accounting year end. Single-member companies may dispense with the requirement to hold an AGM under certain circumstances but are still required to file an annual return with their audited accounts. Any change to the registered office address of the company must be notified on a Form B2 within 14 days of the change. AUTHORISED AND ISSUED SHARE CAPITAL Share capital will be designated in unless otherwise requested and must be divided into shares of a particular amount, e.g. 100,000 divided into 100,000 Ordinary Shares of 1 each. Foreign currency share capital is permissible. Once issued, however, shares denominated in a foreign currency cannot be converted into another currency except by law. Capital duty is payable on issued shares at one per cent. of the total consideration (unlimited companies are exempt). Authorised capital may be any figure but not less than 1 (single-member private company), 2 (multiple member private company or unlimited company) or 7 (non-trading public companies) or the foreign currency equivalent thereof. All subscriber shares must be paid up in full. Public companies must have a minimum issued share capital of 39,000 (or the foreign currency equivalent thereof) to obtain a trading certificate and they may not trade without such certificate. This certificate costs 300. A trading certificate is not required for a private company which converts into a public limited company. 4
CLASSES OF SHARES PERMITTED The Articles of Association may provide for a variety of classes of shares and the rights attaching thereto. It is permissible for a company to divide its shares into voting and non-voting shares. BEARER SHARES PERMITTED Bearer shares may be issued by public limited companies but are not permitted in private companies. Stamp duty at a rate of three per cent. of the nominal value of the shares is payable on the issue of such shares. LICENCE FEES No fees are payable in respect of the incorporation of a company other than those mentioned in this memorandum. FINANCIAL STATEMENT REQUIREMENTS Within six months of incorporation and yearly thereafter companies must file an annual return together with a copy of accounts audited by a registered auditor. The first return filed after six months may be filed without accounts but the second and subsequent returns must include a profit and loss account, balance sheet, auditors' report and directors' report. Each company will be allocated an Annual Return Date ("ARD") and within 28 days of its ARD, the annual return and accounts must be filed. There are limited exemptions to the requirement to have accounts audited on an annual basis and in most cases, companies do not qualify for such exemptions irrespective of their size. It is of paramount importance that these procedures are followed every year as failure to file annual returns and accounts could lead to the officers and the company being fined and/or result in the company being struck off at which time it must immediately cease trading. Late filing attracts automatic penalties which increase for each day the return is late. The Registrar operates a very aggressive compliance programme and has wide ranging powers to impose penalties. DIRECTORS The minimum number of directors is two. A corporate body may not act as a director. Certain details are required by the CRO in relation to each director, including: full name, address (home), occupation, date of birth, nationality, whether or not resident in Ireland for tax purposes and a full list of worldwide directorships held over the past ten years covering company name, company number (Federal I.D. number for US companies), place of registration and date of resignation (if applicable). It is helpful, but not compulsory, to provide dates of appointment. Any subsequent changes to directors or their particulars (e.g. change of address) have to be filed. Every company incorporated in Ireland must have a director who is resident in Ireland for tax purposes (but does not have to be an Irish national) or as an alternative, a company may provide a bond to the value of 25,395 which can be called on if the company fails to pay any sums due under the tax code or company law code. Failure to maintain a bond or an Irish resident director may result in the company being struck off the register of companies. It is not possible to incorporate a company without either an Irish tax resident director or a bond. The number of directorships which a person may hold is limited to 25 Irish incorporated companies. This is subject to certain exemptions, e.g. public companies are not included; a holding company and its subsidiaries are counted as one; companies holding banking licences or financial services licences are excluded. 5
COMPANY SECRETARY The company secretary may be either an individual or a corporate body. SHAREHOLDERS A minimum of one shareholder is required for single member private limited companies, or two for multiple member private limited or private unlimited companies these may be individuals or corporate bodies. The minimum for a public company is seven shareholders. The maximum number of shareholders in a private company is 50 (excluding shareholders who are employees or former employees of the company). One shareholder in a multiple member company may hold a share in trust for the majority shareholder so that in effect one shareholder holds 100 per cent. of the issued share capital. A Declaration of Trust is needed if this procedure is to be followed. It is more practical to use a single member company instead. Nominee shareholders are allowed in private limited or public companies if required but the beneficial owner of the shares in such case will have to be identified. COST The CRO charges a fee of 60 to register a new company. There must also be paid to the Revenue Commissioners the appropriate amount of capital duty. The rate of this duty is generally one per cent. of the actual value of assets of any kind contributed in connection with the subscription for the shares less any liabilities which have been assumed or discharged by the company in consideration of the contribution. The minimum duty payable is 1. Unlimited companies do not have to pay capital duty. Author: John Matson of Arthur Cox. If you require any further information, please contact John Matson (John Matson of Arthur Cox, Earlsfort Centre, Earlsfort Terrace, Dublin 2, Ireland, Tel. + 353 1 6180000; Fax + 353 1 6180618; matson@arthurcox.com) 6