S.I. No. 829/2004 - Companies (Forms) (No.2) Order 2004


I, Michael Ahern, Minister of State at the Department of Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 396 of the Companies Act 1963 (No. 33 of 1963) as adapted by the Enterprise and Employment (Alteration of Name of Department and Title of Minister) Order 1997 ( S.I. No. 305 of 1997 ), and the Enterprise, Trade and Employment (Delegation of Ministerial Functions) (No. 2) Order 2004 ( S.I. No. 808 of 2004 ), hereby order as follows:

1.         This Order may be cited as the Companies (Forms) (No. 2) Order 2004.

2.         This Order comes into operation on 15th February 2005.

3.         (1)      In this Order —

“Act of 1963” means the Companies Act 1963 (No. 33 of 1963);

“Act of 1982” means the Companies (Amendment) Act 1982 (No. 10 of 1982);

“Act of 1990” means the Companies Act 1990 (No. 33 of 1990);

“Act of 1999” means the Companies (Amendment) (No. 2) Act 1999 (No. 30 of 1999);

“Act of 2001” means the Company Law Enforcement Act 2001 (No. 28 of 2001).

(2)      In this Order a reference to a Schedule is a reference to a Schedule to this Order.

4.         The form (Form A1) set out in Schedule 1 is prescribed for use in connection with section 3 and section 3A (inserted by section 101 of the Act of 2001) of the Act of 1982, section 5 of the Companies (Amendment) Act 1983 , the European Communities (Single-member Private Limited Companies) Regulations 1994 and sections 42 and 43, section 44 (other than subsection (2)) and section 45 (other than subsections (3)(b) and (5)) of the Act of 1999.

5.         The form (Form B10) set out in Schedule 2 is prescribed for use in connection with section 195 (inserted by section 51 of the Act of 1990 and amended by section 47 of the Act of 1999 and by section 91 of the Act of 2001) of the Act of 1963, section 249A (inserted by section 107 of the Act of 2001) of the Act of 1990 and section 43, section 44 (other than subsection (2)) and section 45 (other than subsections (3)(b) and (5)) of the Act of 1999.

6.         The form (Form B2) set out in Schedule 3 is prescribed for use in connection with section 113(3) (inserted by section 4 of the Act of 1982) of the Act of 1963 and section 249A (inserted by section 107 of the Act of 2001) of the Act of 1990.

7.         The form (Form B3) set out in Schedule 4 is prescribed for use in connection with sections 91(3) and 116(7) of the Act of 1963 and sections 50(4), 60(6) and 249A (inserted by section 107 of the Act of 2001) of the Act of 1990.

8.         The form (Form B4) set out in Schedule 5 is prescribed for use in connection with section 70 of the Act of 1963 and section 249A (inserted by section 107 of the Act of 2001) of the Act of 1990.

9.         The Companies (Forms) Order 2000 ( S.I. No. 62 of 2000 ) is amended —

(a)      in Article 5, by substituting “44(2)” for “44”, and

(b)      in Article 6, by substituting “45(3)(b) and (5)” for “45”.

10.       The following are revoked —

(a)      that portion of the Schedule to the Companies (Forms) Order 1964 ( S.I. No. 45 of 1964 ) which comprises the forms No. 9 and No. 10,

(b)      the Companies (Forms) Order 1982 ( S.I. No. 256 of 1982 ),

(c)      Articles 2(1) and (2), 3, 4 and 5(a) of, and Parts I and II of the Schedule to, the Companies (Forms) Order 1987 ( S.I. No. 147 of 1987 ),

(d)      that portion of the Schedule to the Companies (Forms) Regulations 1991 ( S.I. No. 162 of 1991 ) which comprises the form B3,

(e)      Articles 5 and 6 of, and Parts II and III of the Schedule to, the Companies (Forms) Order 1991 ( S.I. No. 161 of 1991 ),

(f)      Article 4 of, and Part I of the Schedule to, the Companies (Forms) Order 2000 ( S.I. No. 62 of 2000 ).

SCHEDULE 1

Application to incorporate a company

Section 3 and 3A (inserted by section 101 Company Law Enforcement Act 2001) Companies (Amendment) Act 1982

Section 5 Companies (Amendment) Act 1983

European Communities (Single-Member Private Limited Companies) Regulations 1994

Sections 42 and 43, section 44 (other than subsection (2)) and section 45 (other than subsections (3)(b) and (5)) Companies (Amendment)(No. 2) Act 1999

Section 117 Stamp Duties Consolidation Act 1999

Companies Act 1990 (Form and Content of Documents Delivered to Registrar) Regulations 2002

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NOTES ON COMPLETION OF FORM A1

These notes should be read in conjunction with the relevant legislation.

General

 

This form must be completed correctly, in full and in accordance with the following notes. Every section of the form must be completed. Where “not applicable”, “nil” or “none” is appropriate, please state. Where €/_ appears, please insert/delete as appropriate. Where /_ applies, give the relevant currency, if not euro. Where the space provided on Form A1 is considered inadequate, the information should be presented on a continuation sheet in the same format as the relevant section in the form. The use of a continuation sheet must be so indicated in the relevant section.

note one

The proposed company name must be given in full and must correspond exactly with the company name given on the accompanying memorandum and articles of association.

note two

A full postal address in the State at which post is capable of being readily delivered by the postal service must be given. A.P.O. Box will not suffice.

note three

Insert full name (initials will not suffice) and the usual residential address. Where the secretary is a firm, the name of the firm and registered address ought to be stated. Where a person is signing on behalf of a company which is the secretary, he/she should state that he/she is signing for and on behalf of the company which is acting as secretary. His/her name should be printed in bold capitals or typescript below the signature.

note four

Any former forename and surname must also be stated. However, it does not include the following: (a) In the case of a person usually known by a title different from his/her surname, the name by which he/she is known previous to the adoption of a succession to the title; (b) in the case of any person, a former forename or surname where the forename or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years; (c) in the case of a married woman, the name or surname by which she was known previous to her marriage.

note five

This section must be completed by the person who is presenting the application form to the Registrar. This may be either the applicant or a person on his/her behalf. The certificate of incorporation will be issued by hand or by registered post to the presenter.

note six

All company types must have a minimum of two directors.

Where a person who has consented to be a director of this company is currently disqualified under the law of another state from being appointed or acting as a director or secretary of a body corporate or undertaking, he/she must complete Form B74 which must be submitted to CRO with Form A1. Otherwise he/she will be deemed to be disqualified from acting as a director of an Irish-registered company for the balance remaining of his/her foreign disqualification.

‘Shadow director’ means a person in accordance with whose directions or instructions the directors of a company are accustomed to act.

note seven

Every company must have at least one Irish-resident full director or a bond pursuant to s43(3) Companies (Amendment)(No. 2) Act 1999. Note that an Irish-resident alternate director is not sufficient for the purposes of s43 of that Act. Place a tick in the “Irish resident” box if the director is resident in the State in accordance with s43 of the 1999 Act as defined by s44(8) and (9) of that Act. If no full director is so resident, a valid bond must be furnished with the application. (Note that “Irish resident” means resident in the Republic of Ireland.)

note eight

Tick the box if the director appointed is an alternate/substitute director. Where the box is ticked, the name of the full director appointing the alternate/substitute director must also be inserted in the space provided.

If the company’s articles so permit and subject to compliance with those articles, a director may appoint a person to be an alternate/substitute director on his/her behalf. The appointment of any person to act as director is notifiable by a company to the CRO, regardless of how that appointment is described. The company is statutorily obliged to notify the CRO of the addition to and removal of each person from its register of directors. In the event that a full director who has appointed an alternate director ceases to act as a director, the company is required to notify the CRO of the termination of appointment of the full director and his/her alternate. Note: CRO accepts no responsibility for maintaining the link between a full director and his/her alternate.

note nine

State the company name and number of other bodies corporate, whether incorporated in the State or elsewhere, of which the person is or has been director. Exceptions to this rule are made for bodies (a) of which the person has not been a director at any time during the past 10 years; (b) which the company is (or was at the relevant time) a wholly owned subsidiary; (c) which are (or were at the relevant time) wholly owned subsidiaries of the company.

Pursuant to s45(1) Companies (Amendment) (No. 2) Act 1999 , a person shall not at a particular time be a director of more than 25 companies. However, under s45(3) of the Act, certain directorships are not reckoned for the purposes of s45(1).

note ten

Place of incorporation if outside the State.

note eleven

The subscribers in this section must correspond with the subscribers to the accompanying memorandum and articles of association except where an agent signs this section on behalf of the subscriber(s). Where the space is inadequate the signatures must be presented on a continuation sheet in the same format as this section.

note fourteen

The statutory declaration is a declaration of compliance with all the legal requirements relating to the incorporation of a company. It must be signed by either a solicitor who is forming the company or the director or secretary in the presence of either a commissioner of oaths, notary public, solicitor or peace commissioner. As the declaration confirms that all other registration requirements have been completed, it must be signed after the form has been completed in full, and so the date of declaration must not predate the dates of other signatures which appear on the form and accompanying memorandum and articles of association.

note fifteen

Tick the relevant box.

note sixteen

The NACE code is the common basis for statistical classifications of economic activities within the E.U.

-                                  The four digit NACE code and general nature of the activity must correspond with the proposed company’s principal objective in the accompanying memorandum of association. Where there are two or more activities, give details of the principal activity in the State.

note seventeen

As all activities can be classified under the NACE code, it should rarely be necessary to complete (b).

note eighteen

Full postal address must be given. A.P.O. Box will not suffice.

SCHEDULE 2

Notice of change in directors or secretaries or in their particulars

S195 Companies Act 1963 (inserted by s51 Companies Act 1990, and amended by s47 Companies (Amendment)(No. 2) Act 1999 and by s91 Company Law Enforcement Act 2001)

S249A Companies Act 1990 (inserted by s107 Company Law Enforcement Act 2001)

S43, s44 (other than subsection (2)) and s45 (other than subsections (3)(b) and (5)) Companies (Amendment)(No. 2) Act 1999

Companies Act 1990 (Form and Content of Documents Delivered to Registrar) Regulations 2002

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NOTES ON COMPLETION OF FORM B 10

These notes should be read in conjunction with the relevant legislation.

General

 

This form must be completed correctly, in full and in accordance with the following notes.

Every section of the form must be completed. Where “not applicable”, “nil” or “none” is appropriate, please state. Where the space provided on Form B10 is considered inadequate, the information should be presented on a continuation sheet in the same format as the relevant section in the form. The use of a continuation sheet must be so indicated in the relevant section. Where another Form B10 is used as a continuation sheet, it ought not to be completed in full and certified as to do so will result in it being treated as a separate form and incurring a separate filling fee. It should be headed “Continuation Sheet”.

note one

Give details of change(s) eg appointment/resignation of a company officer, and specify date when same took effect. Only changes which occur on the same date may be registered by this notification. Otherwise, separate notifications should be made. Where the space provided here is considered inadequate a contination sheet(s) should be attached. If a new director/secretary has been appointed, also complete the New secretary/director section.

note two

Where a director being appointed is disqualified under the law of another state (whether pursuant to an order of a judge, or a tribunal or otherwise) from being appointed or acting as a director or secretary of a body corporate or an undertaking, Form B10 must be accompanied by Form B74 (Statement of Director’s Disqualifications). Failure to file Form B74 where one is required results in the automatic disqualification of the person concerned from acting as a company officer in Ireland for the balance remaining of his/her foreign disqualification.

note three

Insert the full name (initials will not suffice) and usual residential address. Where the secretary is a firm, the corporate name and registered address of the firm must be stated.

note four

Any former forename and surname must also be stated. However, it does not include the following: (a) In the case of a person usually known by a title different from his/her surname, the name by which he/she is known previous to the adoption of a succession to the title; (b) in the case of any person, a former forename or surname where the forename or surname was changed or disused before the person bearing the name attained the age of 18 years or has been changed or disused for a period of not less than 20 years; (c) in the case of a married woman, the name or surname by which she was known previous to her marriage.

note five

Applicable to directors only.

note six

Applicable to directors only. Every company must have at least one Irish resident full director or a bond or certificate in place pursuant to s43(3) and s44 Companies (Amendment) (No.2) Act 1999 . Note that an Irish resident alternate director is not sufficent for the purposes of s43 of that Act. Place a tick in the “Irish resident” box if the director is resident in the State in accordance with s43 of the 1999 Act as defined by s44(8) and (9). If no full director is so resident and no certificate has been granted, a valid bond must be furnished with Form B10, unless same has already been delivered to the CRO on behalf of the company. (Please note that “Irish resident” means resident in the Republic of Ireland.)

note seven

Applicable to directors only. If the company’s articles so permit, and subject to compliance with those articles, a full director may appoint a person to be an alternate or substitute director on his/her behalf. The appointment of any person to act as director is notifiable by a company to the CRO, regardless of how the appointment is described. The company is statutorily obliged to notify the CRO of the addition to and removal of each person from its register. In the event that a full director who has appointed an alternate director ceases to act as director, the company is required to notify the CRO of the termination of appointment of the full director and of his/her alternate. Note: CRO accepts no responsibility for maintaining the link between a full director and his/her alternate.

note eight

Applicable to directors only. State the company name and number of other bodies corporate, whether incorporated in the State or elsewhere, of which the person is or has been director. Exceptions to this rule are made for bodies (a) of which the person has not been a director at any time during the past 10 years; (b) which the company is (or was at the relevant time) a wholly owned subsidiary; (c) which are (or were at the relevant time) wholly owned subsidiaries of the company. Pursuant to s45(1) Companies (Amendment) (No.2) Act 1999 , a person shall not at a particular time be a director of more than 25 Irish-registered companies. However, under s45(3) of the Act, certain directorships are not reckoned for the purposes of s45(1).

note nine

Place of incorporation if outside the State.

note ten

Tick the relevant box(es).

note eleven

Tick the relevant box(es). This form must be certified by a current officer of the company. Where another For B10 is used as a continuation sheet, it ought not to be completed in full and certified as to do so will result in it being treated as a separate form and incurring a separate filling fee. It should be headed “Continuation Sheet”.

SCHEDULE 3

Notice of change in registered office address

Section 113(3) Companies Act 1963 (inserted by section 4 Companies (Amendment) Act 1982)

Section 249A Companies Act 1990 (inserted by section 107 Company Law Enforcement Act 2001)

Companies Act 1990 (Form and Content of Documents Delivered to Registrar) Regulations 2002

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NOTES ON COMPLETION OF FORM B2

These notes should be read in conjunction with the relevant legislation.

General

 

This form must be completed correctly, in full and in accordance with the following notes. Every section of the form must be completed.

Where “not applicable”, “nil” or “none” is appropriate, please state.

note one

A full postal address in the State at which post is capable of being readily delivered by the postal service must be given. A.P.O. Box will not suffice.

note two

Tick the relevant box(es). This form must be certified by a current officer of the company.

SCHEDULE 4

Notice of places where the register of members, register of debenture holders, register of directors’ and secretary’s interests in shares and debentures, and directors’ service contracts/memoranda are kept

Sections 91(3) and 116(7) Companies Act 1963

Sections 50(4) and 60(6) Companies Act 1990

Section 249A Companies Act 1990 (inserted by section 107 Company Law Enforcement Act 2001)

Companies Act 1990 (Form and Content of Documents Delivered to Registrar) Regulations 2002

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NOTES ON COMPLETION OF FORM B3

These notes should be read in conjunction with the relevant legislation.

General

 

This form must be completed correctly, in full and in accordance with the following notes.

Every section of the form must be completed. Where “not applicable”, “nil” or “none” is appropriate, please state.

note one

Tick the relevant box. Form B3 should only be completed if either the address where the register of members, register of debenture holders, register of directors’ and secretary’s interests in shares and debentures, or directors' service contracts/memoranda are kept is (a) different to that of the registered office, or (b) being changed to that of the registered office from a different office, or (c) being changed from one address to another address which is not that of the registered office.

note two

The register of members must be kept within the State at the registered office of the company, or any other office of the company at which the work of making it up is done, or if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, at the office of that other person at which the work is done. A full postal address in the State must be given. A.P.O. box will not suffice.

 

 

note four

The register of debenture holders must be kept at the registered office of the company, or any other office of the company at which the work of making it up is done, or if the company arranges with some other person for the making up of the register to be undertaken on behalf of the company by that other person, at the office of that other person at which the work is done. A full postal address must be given. A P.O. box will not suffice.

note five

The register of directors' and secretary's interests in shares and debentures is required to be kept at the same office as the register of members. A full postal address in the State must be given. A P.O. box will not suffice.

note six

Copies of directors' service contracts/memoranda must be kept at the registered office, or the place where the register of members is kept if other than the registered office, or at the company's principal place of business. A full postal address must be given. A P.O. Box will not suffice.

note seven

Tick the relevant box(es). This form must be certified by a current officer of the company.

SCHEDULE 5

Notice of increase in authorised capital

Section 70 Companies Act 1963

Section 249A Companies Act 1990 (inserted by section 107 Company Law Enforcement Act 2001)

Companies Act 1990 (Form and Content of Documents Delivered to Registrar) Regulations 2002

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NOTES ON COMPLETION OF FORM B4

These notes should be read in conjunction with the relevant legislation.

General

 

This form must be completed correctly, in full and in accordance with the following notes. Every section of the form must be completed. Where “not applicable”, “nil” or “none” is appropriate, please state.

Where €/_ appears, please delete as appropriate. Where /_ applies, give the relevant currency, if not euro.

Where the space provided on Form B4 is considered inadequate, the information should be presented on a continuation sheet in the same format as the relevant section in the form. The use of a continuation sheet must be so indicated in the relevant section.

A resolution and amended memorandum and articles of association must accompany this form.

note one

For example, voting rights, dividend rights, winding up rights, etc. If any of the new shares are preference shares, state whether they are redeemable or not.

note two

Tick the relevant box(es). This form must be certified by a current officer of the company.

 

GIVEN under my hand.

15th December 2004.

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Michael Ahern

Minister of State at the

Department of Enterprise, Trade and Employment

Explanatory Note

(This Note is not part of the Instrument and does not purport to be a legal interpretation)

The purpose of this Order is to prescribe forms to be used for the purposes of certain provisions of the Companies Acts 1963 to 2003.