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Corporate Healthcheck ODCE

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Company Law compliance for the not for profit sector, October 2011

Company Law compliance for the not for profit sector, October 2011

Published in: Education, Business

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Transcript

  • 1.  
  • 2.
    • Corporate Healthcheck for Company Directors
    • Presentation to South Tipperary Development Company
    • Kevin Prendergast
    • Corporate Compliance Manager, ODCE .
  • 3. Company Law and Directors’ Duties
    • Company is a separate legal entity
      • Can sue and be sued in its own name
      • Holds assets and incurs liabilities separate from its members/shareholders
      • Confers limited liability on members/shareholders
  • 4. Company Law and Directors’ Duties
    • Company is managed on behalf of members by the Board of Directors
    • Duty under law to the company
    • Board has collective responsibility for all actions (and omissions) by the company
  • 5. Company Law and Directors’ Duties
    • Specific rules contained in Memo and Articles of Association
      • Composition of Board
      • Appointment/retirement
      • Board members must be approved by members at AGM.
  • 6. Company Law and Directors’ Duties
    • As a member of the Board you are an officer of the company
    • All company law duties apply to you personally
    • You are potentially exposed to penalties under Company Law
  • 7. Board of Directors and Management Boards
    • Company Law does not recognise boards, committees, etc.
    • Only directors have the powers under Companies Acts
    • Members/Shareholders/Subcribers have ultimate power in general meeting to hire and fire Board
  • 8. Roles and responsibilities of boards
    • Primary responsibilities set out in company law
    • Additional duties set out in Articles of Association
      • These can be amended by members by special resolution
    • Also general duties of loyalty and fidelity (which apply to all staff)
  • 9. DIRECTORS DUTIES COMMON LAW FIDUCIARY DUTIES
      • Act in good faith and in company’s interest
        • Must honestly believe in their decisions
        • Interest must be the company’s and members’ interest, not the interest of particular member(s)
        • No abuse of powers
  • 10. DIRECTORS DUTIES COMMON LAW FIDUCIARY DUTIES
      • Be open and transparent
        • May not make an undisclosed profit from acting as a director. Must account for any secret profit derived
        • Minimise potential conflicts. Executive directors in particular should not be involved with a competitor
  • 11. DIRECTORS DUTIES COMMON LAW FIDUCIARY DUTIES
      • Act with due care, skill and diligence
        • Related to individual director’s knowledge and experience
        • Director is liable for loss resulting from negligence
  • 12. Breach of duties
    • Not a criminal matter
    • No ODCE involvement
    • Actionable by the company in the High Court
    • Expensive, time consuming
    • Defence has right to seek discovery, can damage all sides
  • 13. Shadow Directors
    • Section 27 Companies Act 1990
      • “ a person in accordance with whose directions or instructions the directors of a company are accustomed to act”
      • “ shall be treated…as a director of the company”
      • Other than advice given in a professional capacity
  • 14. De Facto directors
    • Person carrying out the role of a director even if not validly appointed
  • 15. Shadow Directors/De facto directors
    • Companies Acts apply
    • Company Law offences and sanctions apply
    • However
      • Practical difficulty in using powers
      • Difficult to defend actions
  • 16. Corporate Healthcheck
    • The basics
    • Applies to all companies
    • 11 groups of questions
    • Litmus test of Corporate Governance
    • Mixture of legislative provisions, common law and common sense
    • Breaches of Company Law coming to the attention of the ODCE
  • 17. I - Registered Office
    • Where is the registered office of the company?
      • Failure to notify CRO of change of Registered Office within 14 days is an offence
      • “ Brass plate” at the address
      • Must be printed on Business Letters (and emails and website)
      • Not served with any company notices, Company dissolved?
  • 18. II – E-communication
    • Are your website and emails compliant?
      • Website must contain company information on home page or page immediately accessible from home page (“prominent and easily accessible”)
      • Emails (letters in any form) must also disclose information
      • Could also include SMS’s and any other forms of communication
        • Company Name, number and legal form
        • Place of registration (Ireland)
        • Address of registered office
  • 19. III – Directors
    • Are you a properly appointed director?
      • May not have a capacity to act
      • Must notify CRO within 14 days of appointment of the director & subsequent amendments
      • Must disclose home address
      • Resident Director (at least one in EU)
      • Number of Directorships (25 with exclusions)
  • 20. IV- Books & Records
    • What books and records do you have?
    • Where are they kept?
      • Registers etc must be kept in the registered office
      • Register of Directors and Secretary
      • Register of Directors’ and Secretary’s interests (in the company and related companies)
      • Register of Members
      • Register of Debenture holders & copies of the debentures
      • Directors’ service contracts
      • Minutes of general meetings, the board & board sub-committees.
  • 21. V – Books of Account
    • Who maintains your accounts, and where?
      • Accountancy knowledge required if placing reliance on another
      • Required to be kept at the registered office or such other place as the directors think fit
      • Detailed books of account which
        • correctly record and explain the company’s transactions;
        • at any time, enable the financial position of the company to be determined with accuracy;
        • enable the directors to ensure that the financial statements comply with Companies Acts requirements;
        • allow the financial statements to be readily and properly audited.
  • 22. V – Books of Account
        • Details of all day to day receipts & expenditure
        • Details of assets and liabilities
        • Detailed records of goods purchased/sold & invoices therefor
        • Statements of stock – stocktaking
        • Detailed records of services provided and invoices therefor
  • 23. VI - Audits
    • Have your books ever been audited?
    • When were the books last audited?
      • Companies are obliged to appoint auditors to audit their books
      • Audit exemption available for private companies
      • Not for companies limited by guarantee
      • Auditors are obliged to report indictable offences
          • Section 194(5) Companies Act, 1990
          • 191 reports to the ODCE in 2010
  • 24. VII – Board Meetings
    • When was your last meeting of directors?
      • No prescribed timing of board meetings
      • Suggested 2-6 times p.a.
      • Failure of the board to maintain control over the affairs of the company is a primary cause of company insolvency & failure
      • Must maintain minutes of meetings
      • Normally prior to AGM/EGM, provide members with required notice of meetings and, prior to AGM, furnish members with a copy of the financial statements.
  • 25. VIII – General Meetings
    • When was your last AGM/EGM?
        • mandatory
        • each calendar year
        • not more than 15 months since the last AGM
        • generally within the State
  • 26. VIII – General Meetings
      • Ensure that sufficient notice is given
      • Required to
        • Review accounts
        • Review directors report
        • Appoint officers
        • Appoint auditors
        • Pass resolutions/special resolutions
      • 37 reports to ODCE in 2010
  • 27. IX – Annual Returns
    • What is your annual return date (ARD)?
    • When did you last submit your annual return (AR)?
      • Every company has an ARD and must submit an Annual Return to be filed within 28 days of the ARD
      • Failure to file an annual return is an offence, dealt with by CRO
      • Furnishing False Information
      • Penalties to file annual return
      • Dissolution of the Company
        • Application to CRO/High Court
        • Personal liability of officers if continue to trade
        • Improper use of the word “Limited” is an offence
  • 28. X - Prohibited Transactions with Directors
    • Are you taking advantage of your power as a director?
      • Substantial Property Transactions
        • Where a director of a company (or a person connected with that director):
          • purchases an asset from, or sells an asset to, the company, and;
          • the value of that asset exceeds lesser of €63,500 or 10% of the company’s ‘relevant assets’ (normally its net assets),
        • the transaction must be approved in advance by the shareholders in a general meeting of the company.
  • 29. X - Prohibited Transactions with Directors
      • Prohibition on Loans etc.
        • In general, a company is prohibited from making a loan or quasi-loan to a director (or person connected to that director), or from entering into a credit transaction as creditor for a director, entering into a guarantee on behalf of a director (or person connected to the director) or from providing security in respect of a loan or quasi-loan etc. to a director.
        • Except if in total within 10% of relevant assets (excluding guarantee/security)
      • 146 auditors reports to the ODCE in 2010
      • Ordinarily seek repayment/regularisation
  • 30. X - Prohibited Transactions with Directors
      • Exceptions:
        • Loans between group companies
        • Directors’ expenses
        • Business transactions are also excluded e.g. where the company’s ordinary business involves granting loans.
      • Details must also be disclosed in accounts
  • 31. X - Prohibited Transactions with Directors
    • Criminal offence
    • Breach of the provisions relating to directors’ loans etc. is a criminal offence (indictable and therefore reportable).
    • Civil consequences
    • Breaching either the substantial property transactions provisions or the directors’ loans provisions include having to:
      • account to the company for any gain made, and;
      • indemnify the company for any loss or damage suffered.
  • 32. XI - Insolvency
    • Are you in financial trouble?
      • Criminal Offences
        • Pre liquidation offences reportable by the liquidator
        • Post Liquidation Offences
        • Fraudulent Trading
        • Failure to keep proper books & records leading to the insolvency of the company
      • Civil actions
        • Restriction
        • Personal liability
          • Reckless trading
          • Fraudulent Preference
  • 33. Restriction
    • Director of an insolvent company
      • Not able to prove that acted honestly and responsibly
      • Reverse Burden of proof
      • Company need not be in liquidation
      • Applies to Shadow Directors (Those in accordance with whose wishes directors ordinarily act)
    • Must have minimum capitalisation of Company
      • Private company €63,487, plc €317,435
      • Companies limited by guarantee cannot be capitalised, must resign
    • Directors can also be disqualified
  • 34. More Common Breaches
    • On the basis of information coming to ODCE attention, the following are some of the more common breaches:
      • transactions with directors - breaches of directors’ loans provisions
        • 146 reports to ODCE
      • auditing deficiencies
        • 59 reports
      • failure to hold AGM/EGM
        • 37 reports
      • failure to keep proper books of account
        • 36 reports
      • unpaid debt issues
        • 32 reports
  • 35. What to do?
    • Advice to Directors
      • Ask questions
      • Don’t assume anything
      • Books & Records - where are they
      • Discuss issues don’t avoid them
      • Seek professional advice
      • Consult your company secretary/auditors/legal advisors
      • Possibility of insurance
  • 36. Sources of Information
    • ODCE publications
      • Information Books and Quick Guides;
      • Specific guidance on new law.
    • ODCE website – www.odce.ie
      • All publications;
      • Corporate governance best practice and access to main reports
      • public notice information e.g. civil enforcement action, prosecutions, insolvency information;
      • access to full complement of company law statutes etc.;
      • information on ODCE services.
    • LO - CALL 1890 315 015, email [email_address] , Facebook, Twitter
  • 37.
    • Question & Answers
    • Thank You
    • Follow ODCE on
  • 38.
    • Where is the registered office of the company?
    • Are your website and emails compliant?
    • Are you a properly appointed director?
    • What books and records do you have?
    • Who maintains your accounts, and where?
    • Have your books ever been audited?
    • When was your last meeting of directors?
    • When was your last AGM/EGM?
    • What is your annual return date (ARD)?
    • Are you taking advantage of your power as a director?
    • Are you in financial trouble?