ALTERATION OF CONSTITUTION
Here, we set out the procedure for altering the constitution of your company, together with other relevant information.
Constitution
The constitution of a company is its governing instrument. When registered, the constitution binds the company and its members to the same extent as if the constitution were signed and sealed by each member.
Method of Alteration
Provided any proposed alteration to it is consistent with the provisions of the Companies Act, 2014, the constitution may, at any time, be altered; including a constitution so altered.
A company may alter its constitution by special resolution.
Special Resolution
A special resolution is a resolution which is passed by at least 75 per cent of the votes cast by members entitled to vote at a general meeting of the company. There are three means by which a company may pass a special resolution.
Special Resolution by Written Resolution Procedure
A company may pass a special resolution using the written resolution procedure. Using this procedure, the directors or other person proposing it must circulate the proposed text of the special resolution to each member entitled to vote on it, together with an explanation of its main purpose. The special resolution may consist of several documents in like form addressed to each member. In order to pass, at least 75 per cent of those members must sign and date the special resolution.
Each member who has signed the special resolution must then cause the signed resolution to be delivered to the company in original. This may be by post, electronic mail or facsimile. On receipt, the company must retain the special resolution signed by each member and keep same on the books maintained by the company for that purpose.
If the requisite majority of 75 per cent of signatures is satisfied, the special resolution is deemed to have passed 21 calendar days after the date on which it was signed by the last member to sign. If the text of the special resolution states an earlier date on which it is to pass (which must not be earlier than those 21 calendar days), the members must each sign a waiver which is delivered to the company in original, together with the signed special resolution. The waiver may consist of several documents in like form addressed to each member.
When the last document constituting the special resolution is received by the company, it must, within three calendar days, inform each member of the fact that the special resolution has been signed by the requisite majority and of the date on which the special resolution is deemed to have been passed.
The company must then, within 15 calendar days after the date of the passing of the special resolution, notify the Registrar of Companies of that fact by forwarding a copy of the text of the special resolution as passed, together with a copy of the constitution altered in consequence.
Special Resolution at Extraordinary General Meeting
An extraordinary general meeting may be convened in one of two ways.
The directors may convene an extraordinary general meeting of the company. If there are insufficient directors capable of acting to form a quorum, any director or member may convene the extraordinary general meeting.
Alternatively, the members may convene an extraordinary general meeting. To do so, one or more members holding at least—
50 per cent of the paid up capital carrying the right to attend and vote at general meetings may convene the extraordinary general meeting; or
10 per cent of the paid up capital carrying the right to attend and vote at general meetings may, subject to certain conditions, requisition the directors to convene the extraordinary general meeting.
Whether convened by directors or on the requisition of members, at least seven days’ notice must be given to each person entitled to receive notice of general meetings. In calculating the seven days, the date on which the notice is sent and the date proposed for the convening of the extraordinary general meeting are excluded. Notwithstanding, notice of the special resolution must be given to each member with at least 21 calendar days’ notice. However, the special resolution may be voted upon on a date earlier than those 21 calendar days only if such earlier voting is agreed to by every member.
The terms of a special resolution presented to an extraordinary general meeting may be amended by ordinary resolution at it; provided adequate prior notice of the intention to pass that ordinary resolution is given.
The special resolution may be passed if it is voted on by at least 75 per cent of the members entitled to attend and vote at the extraordinary general meeting.
The company must then, within 15 calendar days after the date of the passing of the special resolution, notify the Registrar of Companies of that fact by forwarding a copy of the text of the special resolution as passed, together with a copy of the constitution altered in consequence.
Special Resolution at Annual General Meeting
A special resolution may be voted on by the members entitled to attend and vote on it during the business of the annual general meeting of the company.
The special resolution may be passed if it is voted on by at least 75 per cent of the members entitled to attend and vote at the extraordinary general meeting.
The company must then, within 15 calendar days after the date of the passing of the special resolution, notify the Registrar of Companies of that fact by forwarding a copy of the text of the special resolution as passed, together with a copy of the constitution altered in consequence.
Copies of Constitution to Be Given to Members
A member may request a copy of the constitution as altered gratis. If the member requests a subsequent copy, having already received a gratis copy, the member may obtain the subsequent copy on the payment of €5.00 to the company.
Instructing Jáuregui-Hogan
As part of our service, our Firm will take detailed instructions as to the extent of the alteration to your constitution, with formulation of the wording of such changes included as standard. We will also draft the text of the special resolution and prepare it for circulation to, or voting by, the members; including, where applicable, any explanatory memorandum and members’ written waiver. If the special resolution is passed using the written resolution procedure, we will also prepare the notice to members of the passing of same. Once passed, we will forward a copy of the special resolution with the Registrar of Companies, and provide you with the constitution as altered.
If Jáuregui-Hogan was responsible for drafting your constitution at any time within the previous five years, we will have a copy of the constitution available for alteration. If the proposed alterations are minor in character or otherwise consequential, our professional fees to alter your constitution and the preparation, circulation and forwarding of the special resolution are €89.94, including value-added tax.
In a case where the proposed alterations are extensive, or where our Firm does not have an alterable copy of the original, our professional fees to alter your constitution and the preparation, circulation and forwarding of the special resolution are €179.89, including value-added tax. Note, we will communicate to you whether we consider an alteration to be extensive in advance of effecting your instructions.