Whilst the deadline for private companies to convert to a designated activity company (DAC) by ordinary resolution (31 August 2016) is now gone, it is still possible for companies to re-register as a DAC by special resolution under Part 20 of the Companies Act 2014 (the "Act").
The Act provides for a transition period from 1 June 2015 to 30 November 2016. During the transition period, all private limited companies must choose to convert to one of two new types of company the LTD or the DAC. Until the end of the transition period or until converted all private limited companies are treated as DAC's. From 1 December 2016 all private limited companies who have not converted will be deemed to be LTD's.
FAILURE TO REREGISTER
If a company does nothing, it will automatically convert to an LTD on 1 December 2016. If this happens, the company will be deemed to have a constitution comprised of its existing memorandum and articles of association (excluding the objects clause and any restriction on amending the memorandum and articles). These may not "work" well with the Act, giving rise to uncertainty and confusion around the company's regulations. In addition, there are certain activities (such as listing debts or lending money in certain circumstances) which cannot legally be carried on by an LTD if your company engages in any of these activities you should seek specific advice as to your obligations to re-register as a DAC.
KEY DEADLINE DATES
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3RD PARTY CONSENT
Prior to re-registering, you should ensure that you have all consents (such as bank consent or the consent of Enterprise Ireland or other investors) necessary to pass a special resolution or change your constitution.
Depending on whether or not there are additional changes to the company's articles of association (constitution), the process for reregistration is fairly simple and involves:
Special resolution of shareholders Revised memorandum and articles (DAC) or constitution (LTD) CRO filing
CHANGES TO STATIONERY, WEBSITE, REGISTRATIONS ETC.
The re-registration of a company as a DAC, or changes to the name of a company limited by guarantee or an unlimited company will also trigger a requirement to make changes to stationery, website, registrations etc. This should not be put on the long finger as a failure to notify authorities of a change in status or name could result in subsequent delays, for example in registering a transfer of property.
Finally, if the company has a shareholders agreement, it is likely that this will contain several references to the old Companies Acts and there may be conflicts with the new Act. Your shareholders agreement ought to be amended to eliminate such conflicts and avoid any confusion.