Investment Funds, Companies and Miscellaneous Provisions Act 2006

Amendment of section 33 of Companies Act 1963.

7.— The following section is substituted for section 33 of the Companies Act 1963 :

“Meaning of ‘private company’.

33.— (1) For the purposes of this Act, ‘ private company ’ means a company which has a share capital and which, by its articles—

(a) restricts the right to transfer its shares, and

(b) limits the number of its members to 99 or fewer persons, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were, while in that employment, and have continued after the determination of that employment to be, members of the company, and

(c) prohibits any invitation or offer to the public to subscribe for any shares, debentures or other securities of the company.

(2) A provision of a company’s articles that prohibits any invitation to the public to subscribe for any shares or debentures of the company shall be construed as a prohibition on any invitation or offer being made to the public to subscribe for any shares, debentures or other securities of the company.

(3) Where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.

(4) Subsections (5) and (6) shall apply for the purposes of —

(a) subsection (1)(c), and

(b) unless a contrary intention appears in the company’s articles, any provision of a company’s articles which—

(i) corresponds in its terms to those of subsection (1)(c),

(ii) incorporates by reference the terms of subsection (1)(c), or

(iii) has the same legal effect as subsection (1)(c) even though its terms are not identical to those of subsection (1)(c) (and the cases to which this subparagraph applies include the case where subsection (2) applies to the interpretation of the provision).

(5) Each of the following offers of debentures by a company (wheresoever made) shall not be regarded as falling within subsection (1)(c) or the provision of a company’s articles referred to in subsection (4)(b), namely—

(a) an offer of debentures addressed solely to qualified investors,

(b) an offer of debentures addressed to fewer than 100 persons, other than qualified investors,

(c) an offer of debentures addressed to investors where the minimum consideration payable pursuant to the offer is at least €50,000 per investor, for each separate offer,

(d) an offer of debentures whose denomination per unit amounts to at least €50,000,

(e) an offer of debentures where the offer expressly limits the amount of the total consideration for the offer to less than €100,000,

(f) an offer of those classes of instruments which are normally dealt in on the money market (such as treasury bills, certificates of deposit and commercial papers) having a maturity of less than 12 months.

(6) The following offer of shares by a company (of any amount or wheresoever made) shall not be regarded as falling within subsection (1)(c) or the provision of a company’s articles referred to in subsection (4)(b), namely an offer of shares addressed to—

(a) qualified investors, or

(b) 99 or fewer persons, or

(c) both qualified investors and 99 or fewer other persons.

(7) A word or expression that is used in this section and is also used in the Prospectus (Directive 2003/71/EC) Regulations 2005 ( S.I. No. 324 of 2005 ) shall have in this section the same meaning as it has in those Regulations.

(8) For the purposes of subsection (7), the Regulations referred to in that subsection shall have effect as if Regulation 8 were omitted therefrom.”.