Wednesday, Feb 28 2024

Company Formation – notes for accounting and law students from Holland Condon solicitors

Feb 3, 2015

REGISTRATION OF COMPANY

  • To trade company must register and incorporate in the Companies Registration Office ( = CRO à head of which is called “Registrar of Companies”
  • Companies Acts 1963 → onwards ….. Consolidated Act in 2014
  • to incorporate must real and genuine connection with Ireland and business activity here
  • Forms needed
  1. Memorandum of Association = company charter ( to aid remembering what it is MemO = Objectives);
  2. Articles of Association (rules and regulations of internal affairs);
  3. Form A1 = written statement containing

Name & Regd office of Company;

Particulars of Directors;

Particulars of Company Secretary;

Statement of issued capital;

Statutory Declaration that all Company legislation has been complied with;

  1. Bank draft for application fees.
  • Upon registration → Certificate of Incorporation (like a birth cert) = company now living! Private comp. can now trade

Details in Certificate of Incorporation = ????

  • Public Company can’t trade until it gets “Trading Certificate” from Registrar. Must have min. of €38,100 allotted share capital with 25% paid up on it. Must also submit to Registrar with application for Trading Certificate a Statutory Declaration detailing nominal value of share capital; amount actually paid on shares; promotion expenses and anything due to company promoters.

 

CONSTITUTION OF COMPANY =

Memorandum of Association & Articles of Association (slang Memo & Arts)

 

  • Memorandum of Association = company’s charter + it contains: –
  1. Name Clause ~ name of company & stating whether its public = plc or private = ltd;

Registrar can refuse names – offensive; already existing company name; misleading; suggests its government sponsored or a bank.

  1. Objectives Clause ~ what the company intends to do.

If company goes outside this = ultra vires and directors can be personally liable.

  1. Liability Clause ~ that members liability is limited or unlimited or limited by guarantee
  2. Capital Clause ~ total amount the company is authorised to issue; how its classified and nominal value of each share.
  3. Subscription OR Association Clause ~ subscribers (= 1st Shareholders) acknowledge they are bound by memorandum’s terms. Each subscriber must have min. 1 share.

 

>>>>>> Memo → regulates external activities.

 

  • Articles of Association = company’s rules + regs

~ Rules and regulation’s governing how the company is managed and administered.

~ Complex document (contract) binding members and the company.

~ When applying for registration, a company can take all or some of the standard Articles of Association set out in the Comp. Act 1963 = “Table A Articles”

~ Clauses in it relating to

  • Directors Powers & Duties = qualifications; appointment; removal; retire; powers;
  • Shares; dividends & profits = transfer of shares (restricted if private); rules on dividends etc.;
  • Meetings of Shareholders = notices; time of meeting; location; chairman; voting;
  • Directors meetings = ditto;
  • Administrative Rules = company books; inspection; address changes; sealing of docs.;

 

>>>>>>> Arts. regulate internal activities

 

Alteration of Articles

  • Can be done provided done in accordance with Companies Act & in accordance with Arts. of Association + must be in best interest of company to do it;
  • General meeting of shareholders but needs 75% vote in favour (special resolution);
  • If passed, then, Lodge new Articles in the CRO.

 

Other legal documents = private companies may have a secret agreement between shareholders (Shareholders Agreement)

 

Don’t confuse companies with Business Names Registration

  • Sole trader can register business name as can partnership and this ≠ company
  • Registrar of Business Names deals with this. Happened to be carried out by CRO
  • Must be used where an entity operates not using its exact legal name only …. Eg

 

 

from Kilkenny based solicitors firm Holland Condon

 

 

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