INSURANCE (AMENDMENT) ACT, 1938

AN ACT TO CONFIRM AND GIVE STATUTORY EFFECT TO AN AGREEMENT MADE BETWEEN CERTAIN ASSURANCE COMPANIES FOR THE TRANSFER OF THEIR LIFE ASSURANCE BUSINESS AND THEIR INDUSTRIAL ASSURANCE BUSINESS TO A SINGLE COMPANY, TO MAKE PROVISION FOR DIVERS MATTERS ARISING OUT OF OR CONSEQUENTIAL ON THE SAID AGREEMENT, INCLUDING THE MAKING OF SIMILAR AGREEMENTS BY OTHER ASSURANCE COMPANIES, AND TO AMEND THE LAW RELATING TO ASSURANCE BUSINESS. [14th December, 1938.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1 Definitions.

1.—(1) In this Act—

the expression “the Act of 1936” means the Insurance Act, 1936 (No. 45 of 1936);

the expression “the Scheduled Agreement” means the Agreement bearing date the 13th day of September, 1938, and made between the Participating Companies of which a copy is set forth in the Schedule to this Act;

the expression “the Participating Companies” means the City of Dublin Assurance Company, Limited, the Irish Life and General Assurance Company, Limited, the Irish National Assurance Company, Limited, and Comhlucht Urrudhais Mumhan agus Laighean, Teoranta;

the expression “the Terminating Company” means the company which is required by the Scheduled Agreement to be promotedby the Participating Companies and to be incorporated and registered with the name of the Industrial and Life Assurance Amalgamation Company, Limited, and is referred to in the Scheduled Agreement as the Terminating Company;

the expression “the Permanent Company” means the company which is required by the Scheduled Agreement to be promoted by the Terminating Company and to be incorporated and registered with the name of the Irish Assurance Company, Limited, and is referred to in the Scheduled Agreement as the Permanent Company.

• (2) Every word and expression to which a particular meaning is given by the Act of 1936 for the purposes of that Act has in this Act the meaning so given to it.

2 The transfer date.

2.—(1) As soon as conveniently may be after the passing of this Act, the Minister for Industry and Commerce shall by order appoint, in pursuance of Article 12 of the Scheduled Agreement, a day to be the transfer date for the purposes of the Scheduled Agreement and this Act.

• (2) In this Act the expression “the transfer date” means the day appointed by the Minister for Industry and Commerce under this section to be the transfer date for the purposes aforesaid.

3 Confirmation of the Scheduled Agreement.

3.—The Scheduled Agreement is hereby confirmed, and for that purpose it is hereby declared and enacted as follows, that is to say:—

• (a) the Scheduled Agreement shall have statutory effect and shall be binding on every of the Participating Companies as fully as if it had been enacted in this Act;

• (b) the directors of each of the Participating Companies shall have and be deemed always to have had power, notwithstanding anything contained in the Memorandum of Association or the Articles of Association of their company or in the Companies Acts, 1908 to 1924, or in the Insurance Acts, 1909 and 1936, or in any other enactment, to enter into the Scheduled Agreement on behalf of their company and to bind their company thereby;

• (c) it shall be the duty of every of the Participating Companies, and they are hereby respectively empowered. to carry out the Scheduled Agreement so far as the provisions thereof are to be performed by them respectively;

• (d) it shall be the duty of the Terminating Company, and that Company is hereby empowered, when it has been duly incorporated pursuant to the Scheduled Agreement, to carry out the Scheduled Agreement so far as the provisions thereof are to be carried out by it;

• (e) it shall be the duty of the Permanent Company, and that Company is hereby empowered, when it has been duly incorporated pursuant to the Scheduled Agreement, to carry out the Scheduled Agreement so far as the provisions thereof are to be carried out by it.

4 Memorandum and Articles of Association of the Terminating Company.

4.—(1) The Memorandum of Association and the Articles of Association of the Terminating Company shall be so framed as to conform with the provisions relating thereto contained in the Scheduled Agreement, and neither the said Memorandum nor the said Articles shall be invalidated or rendered unlawful merely by reason of anything done in relation thereto or inserted therein or omitted therefrom in compliance with the Scheduled Agreement or this Act.

• (2) Notwithstanding anything contained in the Companies Acts, 1908 to 1924, the Articles of Association of the Terminating Company may provide that the first ordinary general meeting of that Company shall be held not later than the 30th day of June, 1940.

• (3) Notwithstanding anything contained in the Companies Acts, 1908 to 1924 no alteration, of the Memorandum of Association or the Articles of Association of the Terminating Company which is made while the Minister for Finance holds any of the shares of that Company shall be valid or effectual unless the consent of the Minister for Industry and Commerce to such alteration is given before the alteration is made

• (4) So long as the Minister for Finance holds any of the shares of the Terminating Company, the Minister for Industry and Commerce shall not consent to any alteration of the Memorandum of Association or of the Articles of Association of that Company without previous consultation with the Minister for Finance in regard to such alteration.

5 Payment by the Minister for Finance of deficiencies of Participating Companies.

5.—(1) It shall be lawful for the Minister for Finance to pay from time to time to the Terminating Company all such sums as he is required by the Scheduled Agreement so to pay in respect of the difference referred to in the Scheduled Agreement as “the deficiency”, that is to say, the amount by which the valuation of the assets to be transferred by a Participating Company to the Terminating Company falls short of the amount of the liability (as defined in the Scheduled Agreement) of such Participating Company.

• (2) All sums which the Minister for Finance is authorised by the foregoing sub-section of this section to pay to the Terminating Company shall be issued and paid out of the Central Fund or the growing produce thereof.

• (3) In order to make the payments authorised by this section, the Minister for Finance may borrow on the security of the Central Fund or the growing produce thereof such sums as shall be required for that purpose, and the said Minister may, for the purpose of such borrowing, create and issue securities bearing such rate of interest and subject to such conditions as to repayment, redemption, or otherwise as he thinks fit and shall pay all moneys so borrowed into the Exchequer.

6 Shares of the Terminating Company held by the Minister for Finance or his nominees.

6.—(1) Every share of the Terminating Company which is required by the Scheduled Agreement to be allotted or transferred to the Minister for Finance or his nominees shall be allotted or transferred either, as the said Minister shall direct, to the said Minister or to a person (in this section referred to as a nominee) nominated in that behalf by the said Minister, and different persons may be so nominated in respect of different such shares.

• (2) The following provisions shall apply and have effect in respect of all shares of the Terminating Company which are for the time being standing in the name of the Minister for Finance, that is to say:—

• (a) it shall be lawful for the Minister for Finance to do all or or any of the following things in respect of A shares of the Terminating Company which are for the time being standing in his name, that is to say:—

• (i) to hold all or any of such shares for so long as he shall think fit,

• (ii) to transfer all or any of such shares to a person (in this section also referred to as a nominee) selected by the said Minister to hold as his nominee the shares so transferred,

• (iii) to sell all or any of such shares;

• (b) it shall be lawful for the said Minister to hold all B shares of the Terminating Company for the time being standing in his name, but it shall not be lawful for the said Minister to sell or otherwise dispose of any such shares save that he may, whenever he so thinks fit, transfer all or any of such shares to a person (in this section also referred to as a nominee) selected by the said Minister to hold for him the shares so transferred;

• (c) save as is otherwise provided by this section, it shall be lawful for the said Minister to exercise, in respect of all or any shares of the Terminating Company for the time being standing in his name, all or any of the rights and powers from time to time exercisable by the holder of such shares, and, where such rights or powers are exercisable by attorney, to exercise such rights or powers, whenever he so thinks fit, by his attorney;

• (d) all dividends and other moneys received by the said Minister in respect of shares of the Terminating Company standing in his name and also the net proceeds of all such shares sold by him shall be paid into the Exchequer.

• (3) The following provisions shall apply and have effect in respect of all shares of the Terminating Company which are for the time being standing in the name of a nominee for the Minister for Finance that is to say:—

• (a) every such nominee shall hold upon trust for the said Minister all shares of the Terminating Company for the time being vested in him as such nominee and shall dispose of such shares in such manner as the said Minister shall from time to time direct in writing;

• (b) every such direction by the said Minister shall be a good and lawful authority and discharge to the nominee to whom it is given for everything done by him in accordance therewith, and such nominee shall not be entitled or concerned to inquire whether such direction was or was not lawfully given;

• (c) it shall be lawful for the said Minister to direct a nominee to sell all or any of the A shares of the Terminating Company for the time being vested in him as such nominee;

• (d) the said Minister shall not direct a nominee to sell any B shares of the Terminating Company;

• (e) it shall be lawful for the said Minister to direct a nominee to transfer all or any of the shares of the Terminating Company for the time being vested in him as swell nominee either (as shall be specified in such direction) to the said Minister or to a person (in this section also referred to as a nominee) selected by the said Minister to hold such shares as his nominee;

• (f) every nominee shall, in the exercise of the rights and powers exercisable in respect of the shares of the Terminating Company for the time being vested in him as such nominee, act in all respects in accordance with the directions of the said Minister;

• (g) every nominee shall pay into the Exchequer in such manner as the said Minister shall direct, all dividends and other moneys received by him in respect of shares of the Terminating Company for the time being vested in him as such nominee and also the net proceeds of the sale by him of any such shares.

• (4) This section shall apply to the personal representative of a deceased nominee in like manner as it applies to a living nominee, and accordingly the word “nominee” shall in this section be construed (wherever the context so admits) as including the personal representative of a deceased nominee.

7 Transfer of life and industrial assurance businesses of Participating Companies to the Terminating Company.

7.—(1) On the transfer date, the life assurance business and the industrial assurance business of every Participating Company shall, by virtue of this section, be transferred to and vest in the Terminating Company.

• (2) For the purpose of giving full effect to the foregoing sub-section of this section, the following provisions shall have effect, that is to say:—

• (a) the transfer effected by the said sub-section of the life assurance business and the industrial assurance business of a Participating Company shall, notwithstanding anything contained in the Memorandum of Association of that Company, be effectual to bind all shareholders in and all creditors and debtors of the said Participating Company and all persons interested in or in respect of policies issued by that Company;

• (b) subject to the provisions of this sub-section in relation to profit-sharing rights, every policy of life assurance and every policy of industrial assurance issued by a Participating Company, which, immediately before the transfer date is subsisting and has not matured (in this section referred to as an existing policy), shall, on the transfer date, become and be a policy of life assurance or a policy of industrial assurance (as the case may require) of the Terminating Company, and every right and every liability of such Participating Company in respect of such existing policy shall, on the transfer date, cease to be enforceable by or against such Participating Company and shall, on the transfer date, become and be the right or the liability (as the case may be) of the Terminating Company and be enforceable by or against that Company in the same manner in all respects as such right or liability would have been enforceable by or against such Participating Company if the said transfer had not taken place;

• (c) subject to the provisions of this sub-section in relation to profit-sharing rights, every person who was, immediately before the transfer date, the holder of an existing policy shall, on the transfer date, become and be a policy holder of the Terminating Company, and every right or liability of such person in respect of such existing policy shall, on the transfer date, cease to be enforceable by or against such person against or by the Participating Company which issued such policy and shall, on the transfer date, become and be enforceable by or against such person against or by the Terminating Company in the same manner as such right or liability would have been enforceable against or by the said Participating Company if the said transfer had not taken place;

• (d) notwithstanding anything contained in either of the two next preceding paragraphs of this sub-section, all profit-sharing rights conferred by an existing policy shall cease on the transfer date, and the provisions of the Scheduled Agreement in relation to the allotment to policy-holders of bonuses out of the distributable surplus of the Terminating Company shall be deemed to be substituted for such profit-sharing rights;

• (e) every right and claim existing and unsatisfied immediately before the transfer date by or against a Participating Company in respect of a policy of life assurance or of industrial assurance (not being an existing policy) issued by a Participating Company shall, on the transfer date, cease to be enforceable by or against such Participating Company and shall, on the transfer date, become and be enforceable by or against the Terminating Company as fully as if such policy had been issued by the Terminating Company;

• (f) every debt due to a Participating Company immediately before the transfer date in relation to business of such Company transferred by this section to the Terminating Company shall, on the transfer date, cease to be payable to or recoverable by such Participating Company and shall, on the transfer date, become and be owing and payable to and recoverable by the Terminating Company and, if received by such Participating Company after the transfer date, shall be accounted for by that Company to the Terminating Company;

• (g) every right of action by a Participating Company which is subsisting immediately before the transfer date and arises in relation to business of that Company transferred by this Act to the Terminating Company and is not within the provisions of any of the foregoing paragraphs of this sub-section shall, on the transfer date, cease to be enforceable by such Participating Company and shall, on the transfer date, become and be transferred to, vested in, and enforceable by the Terminating Company;

• (h) it shall be lawful for the Terminating Company, with the approval of the Minister for Industry and Commerce, to issue at any time after the transfer date to any person who is for the time being the holder of an existing· policy, in lieu of such existing policy, a new policy the terms and conditions of which, in the opinion of the Minister for Industry and Commerce, are not less favourable to the assured than the terms and conditions of such existing policy.

• (3) Section 13 of the Assurance Companies Act, 1909, shall not apply to the transfer effected by this section of the life assurance business and the industrial assurance business of the several Participating Companies to the Terminating Company.

8 Transfer of assets of Participating Companies to the Terminating Company.

8.—(1) For the purpose of transferring to the Terminating Company so much of the assets of a Participating Company as are required by the Scheduled Agreement to be so transferred, the following provisions shall have effect, that is to say:—

• (a) the Terminating Company shall, so soon as conveniently may be, furnish to the Minister for Industry and Commerce a schedule containing a list (as complete as reasonably may be) of the assets of the said Participating Company to be so transferred;

• (b) whenever and so often as it is found, after such schedule has been so furnished, that any assets to be so transferred have been omitted (whether intentionally or unintentionally) from such schedule, it shall be lawful for the Terminating Company to furnish to the said Minister a schedule containing a list of the assets so found to have been omitted;

• (c) every schedule furnished to the said Minister under either of the foregoing paragraphs of this sub-section shall be accompanied by a certificate by or on behalf of the Terminating Company and the said Participating Company certifying that the assets stated in such schedule are assets of the said Participating Company which are required by the Scheduled Agreement to be transferred to the Terminating Company;

• (d) whenever the said Minister receives from the Terminating Company any such schedule as aforesaid duly accompanied by such certificate as aforesaid, the said Minister shall forthwith make an order (in this section referred to as a vesting order) transferring the assets mentioned in such schedule from the said Participating Company to the Terminating Company and vesting them in the Terminating Company in such manner and for such estate and interest as shall be appropriate to the nature of the assets;

• (e) every vesting order which is made before the transfer date shall be expressed to have, and shall have, effect as on the transfer date, and every vesting order which is made on or after the transfer date shall be expressed to have, and shall have, effect as on the date on which such order is made;

• (f) every vesting order shall operate to transfer to and vest in the Terminating Company, on the date as on which such order has effect and without any other conveyance, deed or transfer, or other assurance (save transfer, where appropriate, in the books of a bank, company, corporation, or authority), all the assets purported to be so transferred by such order;

• (g) (i) no stamp duty shall be payable on a vesting order;

• (ii) the amount of all stamp duties paid by the Terminating Company on or in respect of any transfer or conveyance which is executed in order to supplement a vesting order shall be refunded to the said Company out of moneys provided by the Oireachtas;

• (h) whenever the said Minister is satisfied that a vesting order previously made by him contains any error or mistake, the said Minister may by order amend such vesting order in such manner and as from such date as is, in his opinion, necessary or expedient for the correction of such error or mistake;

• (i) in addition and without prejudice to the obligation imposed on the said Participating Company by Article 13 (a) of the Scheduled Agreement to execute and complete deeds, acts, and things, it shall be the duty of the said Participating Company to execute such documents and do such things as the said Minister shall direct for the purpose of effectuating the transfer to the Terminating Company of assets which, owing to their nature or to their being situate outside the jurisdiction of the Government or to any other cause, cannot be effectively transferred by a vesting order.

• (2) Every chose-in-action (including claims to unliquidated damages arising out of torts) transferred under this section to the Terminating Company may be sued upon, recovered, or enforced by that Company in its own name, and it shall not be necessary for the Terminating Company to give notice of such transfer to the person bound by such chose-in-action.

9 Provisions in relation to persons employed by Participating Companies.

9.—The following provisions shall have effect in relation to all persons (in this section referred to as the said persons) who are in the employment (whether as directors, executives, members of the staff, or otherwise, and whether whole-time or part-time) of a Participating Company immediately before the transfer date, that is to say:—

• (a) the provisions contained in the Scheduled Agreement in relation to the transfer to the employment of the Terminating Company or the Permanent Company or both those Companies of the said persons and in relation to the compensation or prohibition of compensation of such of the said persons as are not so transferred shall be binding on all the said persons;

• (b) every of the said persons shall be entitled to take and receive for his own use all benefits to which he may be entitled under the said provisions of the Scheduled Agreement, notwithstanding that he was concerned (whether in or not in a fiduciary capacity) in the negotiations for or the making of the Scheduled Agreement;

• (c) the said provisions of the Scheduled Agreement shall be deemed for all purposes to be substituted for every agreement, express or implied, between any of the said persons and the Participating Company by whom he is employed in relation to his employment, and accordingly no right or claim (other than a claim under the said provisions of the Scheduled Agreement) for remuneration, compensation, or damages arising out of or in relation to his employment shall be enforceable by any of the said persons against a Participating Company or the Terminating Company, or the Permanent Company;

• (d) until the expiration of twelve months from the transfer date, it shall not be lawful for any of the said persons to whom compensation is paid in pursuance of the Scheduled Agreement to enter into or be engaged in the employment or service of any assurance company (other than the Terminating Company and the Permanent Company) in relation to life assurance business and industrial assurance business or either of those businesses and, if any of the said persons contravenes the foregoing provisions of this paragraph, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof, to a fine not exceeding one hundred pounds together with, in the case of a continuing offence, a further fine not exceeding fifty pounds for every day upon which the offence is continued.

10 Provisions in aid of ascertainment of indebtedness of Participating Companies.

10.—For the purpose of so much of paragraph (ii) of Article 19 of the Scheduled Agreement as requires that the indebtedness therein referred to shall be ascertained in the like manner as in a winding-up pursuant to the Companies (Consolidation) Act, 1908, the following provisions shall have effect, that is to say:—

• (a) all powers and duties which are by law vested in or imposed on a liquidator in a voluntary winding-up shall, in relation to each Participating Company and for the purpose of the ascertainment of the said indebtedness of that Company, be exercised and performed by the auditor of the Terminating Company;

• (b) every claim by a creditor of a Participating Company (other than claims by policy-holders, directors, executives, or staff and claims under a policy) against such Participating Company which is not submitted to the auditor of the Terminating Company within three months after the publication by such auditor pursuant to sub-section (1) of section 188 of the Companies (Consolidation) Act, 1908, of the advertisement of notice of the meeting mentioned in that sub-section of the creditors of the said Participating Company shall be wholly void and irrecoverable.

11 Protection of directors of the Terminating Company and the Permanent Company.

11.—(1) Each of the directors of the Terminating Company appointed in accordance with the Articles of Association of that Company shall be entitled to carry into effect the provisions of the Scheduled Agreement notwithstanding that he is interested in the subject matter of the said Agreement or derives any profit or benefit therefrom or stands in a fiduciary position to the Terminating Company.

• (2) The validity of the Scheduled Agreement shall not be prejudiced or called in question in any legal proceedings or otherwise by reason merely of the fact that any director of the Terminating Company or of the Permanent Company is interested in the subject matter of the said Agreement, or derives any profit or benefit therefrom, or stands in a fiduciary position to the Terminating Company or to the Permanent Company.

• (3) None of the directors of the Terminating Company or the Permanent Company shall be liable to account to either of those Companies or to any other person for any profit or benefit derived by him under or by virtue of the Scheduled Agreement.

12 Provisions in relation to the first balance sheet and accounts of the Terminating Company.

12.—Notwithstanding anything contained in the Articles of Association of the Terminating Company or in the Companies Acts, 1908 to 1924, or in the Insurance Acts, 1909 and 1936, the first accounts and balance sheet which the Terminating Company is required to prepare in accordance with the said Articles and Acts, and (as the case may be) to deposit with the Minister for Industry and Commerce or to furnish to the Minister for Finance, or to forward to the Registrar of Companies, shall be so prepared in respect of the period from the date of incorporation of the said Company to the 31st day of December, 1939.

13 Appointment of auditors by the Terminating Company.

13.—Notwithstanding anything contained in section 112 of the Companies (Consolidation) Act, 1908, a person shall not be appointed to be an auditor of the Terminating Company unless the approval of the Minister for Industry and Commerce has previously been obtained to the appointment of such person to that office.

14 The Permanent Company.

14.—(1) It shall be the duty of the Terminating Company and it is hereby empowered, as soon as may be after it is incorporated, to promote the Permanent Company in accordance with the provisions in that behalf of the Scheduled Agreement.

• (2) The Memorandum of Association and the Articles of Association of the Permanent Company shall be so framed as to conform with the provisions relating thereto contained in the Scheduled Agreement, and neither the said Memorandum nor the said Articles shall be invalidated or rendered unlawful merely by reason of anything done in relation thereto or inserted therein or omitted therefrom in compliance with the Scheduled Agreement or this Act.

• (3) Section 13 of the Assurance Companies Act, 1909, shall not apply to any transfer of assurance business from the Terminating Company to the Permanent Company.

15 Shares of the Permanent Company held by the Minister for Finance or his nominees.

15.—(1) Every, share of the Permanent Company which is required by the Scheduled Agreement to be allotted or transferred to the Minister for Finance or his nominees shall be allotted or transferred either, as the said Minister shall direct, to the said Minister or to a person (in this section referred to as a nominee) nominated in that behalf by the said Minister, and different persons may be so nominated in respect of different such shares.

• (2) The following provisions shall apply and have effect in respect of all shares of the Permanent Company which are for the time being standing in the name of the Minister for Finance, that is to say:—

• (a) it shall be lawful for the Minister for Finance to do all or any of the following things in respect of such shares, that is to say:—

• (i) to hold all or any of such shares for so long as he shall think fit,

• (ii) to transfer all or any of such shares to a person (in this section also referred to as a nominee) selected by the said Minister to hold as his nominee the shares so transferred,

• (iii) to sell all or any of such shares;

• (b) save as is otherwise provided by this section, it shall be lawful for the said Minister to exercise, in respect of such shares, all or any of the rights and powers from time to time exercisable by the holder of such shares, and, where such rights or powers are exercisable by attorney, to exercise such rights or powers, whenever he so thinks fit, by his attorney;

• (c) all dividends and other moneys received by the said Minister in respect of such shares and also the net proceeds of all such shares sold by him shall be paid into the Exchequer.

• (3) The following provisions shall apply and have effect in respect of all shares of the Permanent Company which are for the time being standing in the name of a nominee for the Minister for Finance, that is to say:—

• (a) every such nominee shall hold upon trust for the said Minister all shares of the Permanent Company for the time being vested in him as such nominee and shall dispose of such shares in such manner as the said Minister shall from time to time direct in writing;

• (b) every such direction by the said Minister shall be a good and lawful authority and discharge to the nominee to whom it is given for everything done by him in accordance therewith, and such nominee shall not be entitled or concerned to inquire whether such direction was or was not lawfully given;

• (c) it shall be lawful for the said Minister to direct a nominee to sell all or any of the shares of the Permanent Company for the time being vested in him as such nominee;

• (d) it shall be lawful for the said Minister to direct a nominee to transfer all or any of the shares of the Permanent Company for the time being vested in him as such nominee either (as shall be specified in such direction) to the said Minister or to a person (in this section also referred to as a nominee) selected by the said Minister to hold such shares as his nominee;

• (e) every nominee shall, in the exercise of the rights and powers exercisable in respect of the shares of the Permanent Company for the time being vested in him as such nominee, act in all respects in accordance with the directions of the said Minister;

• (f) every nominee shall pay into the Exchequer in such manner as the said Minister shall direct, all dividends and other moneys received by him in respect of shares of the Permanent Company for the time being vested in him as such nominee, and also the net proceeds of the sale by him of any such shares.

• (4) This section shall apply to the personal representative of a deceased nominee in like manner as it applies to a living nominee, and accordingly the word “nominee” shall in this section be construed (wherever the context so admits) as including the personal representative of a deceased nominee.

16 Appointment of auditors by the Permanent Company.

16.—Notwithstanding anything contained in section 112 of the Companies (Consolidation) Act, 1908, a person shall not, so long as the Minister for Finance holds any of the B shares of the Terminating Company, be appointed to be an auditor of the, Permanent Company unless the approval of the Minister for Industry and Commerce has previously been obtained to the appointment of such person to that office.

17 Grant of assurance licences to the Terminating Company and the Permanent Company.

17.—(1) It shall be lawful for the Terminating Company to apply under section 11 of the Act of 1936 to the Minister for Industry and Commerce for an assurance licence authorising it to carry on life assurance business and industrial assurance business, and it shall be lawful for the said Minister to grant such application under sub-section (6) of section 12 of the said Act notwithstanding that the Terminating Company does not comply with all the conditions set out in that sub-section.

• (2) It shall be lawful for the Permanent Company to apply under section 11 of the Act of 1936 to the Minister for Industry and Commerce for an assurance licence authorising it to carryon life assurance business and industrial assurance business, and it shall be lawful for the said Minister to grant such application under sub-section (6) of section 12 of the said Act notwithstanding that the Permanent Company does not comply with all the conditions set out in that sub-section.

18 Partial relief from certain provisions of the Act of 1936.

18.—(1) Notwithstanding anything contained in the Act of 1936, neither the Terminating Company nor the Permanent Company nor any servant or agent of either of those Companies shall be liable to any proceeding, civil or criminal, or to any fine or other penalty or be otherwise prejudiced by reason of any failure, during the period commencing on the passing of this Act and ending on the 31st day of December, 1939, to collect premiums in respect of policies of industrial assurance or by reason of any failure, during the said period to comply with section 65 or section 75 of the Act of 1936.

• (2) The Minister for Industry and Commerce, if he so thinks fit, may by order made before the 1st day of January, 1940, substitute the 31st day of December, 1940, for the 31st day of December, 1939, in the foregoing sub-section of this section, and, if such order is so made, the said foregoing sub-section shall be construed and have effect as if the 31st day of December, 1940, were substituted therein for the 31st day of December, 1939.

19 Adoption of Scheduled Agreement by other assurance companies.

19.—(1) If an assurance company (in this section referred to as an Adopting Company) which is not a participating Company, the Terminating Company, or the Permanent Company, but which carries on in Ireland the business of life assurance or the business of industrial assurance or both those businesses, enters before the transfer date into an agreement (in this section referred to as a supplemental agreement) with the Terminating Company for the transfer to the Terminating Company of the life assurance business or the industrial assurance business or both those businesses of such Adopting Company so far as such business or businesses is or are carried on in Ireland, the following provisions shall have effect, that is to say:—

• (a) such supplemental agreement shall not be of any force or effect unless or until a consenting order is made in respect thereof under the next following paragraph of this sub-section;

• (b) if the Minister for Industry and Commerce is satisfied that the terms on which the said business or businesses of such Adopting Company is or are transferred to the Terminating Company by such supplemental agreement are similar (save for such (if any) modifications as are approved of by the said Minister) to the terms on which the life assurance and the industrial assurance businesses of the Participating Companies are transferred to the Terminating Company by the Scheduled Agreement, the said Minister may by order (in this section referred to as a consenting order), if he so thinks proper, consent to such supplemental agreement;

• (c) if and when such consenting order is made, such supplemental agreement shall have and be deemed to have had as from its date statutory effect and to be binding on the said Adopting Company and the Terminating Company as fully as if it had been enacted in this Act.

• (2) If and when a consenting order has been made in respect of a supplemental agreement, the following provisions shall have effect, that is to say:—

• (a) it shall be the duty of the Adopting Company which is a party to such supplemental agreement, and such Company is hereby empowered, to carry out such supplemental agreement so far as the provisions thereof are to be performed by it;

• (b) if such Adopting Company is registered in Ireland under the Companies Acts, 1908 to 1924, the directors thereof shall have and be deemed always to have had power, notwithstanding anything contained in the Memorandum of Association or the Articles of Association of such Adopting Company or in the Companies Acts, 1908 to 1924, or in the Insurance Acts, 1909 and 1936, or in any other enactment, to enter into such supplemental agreement on behalf of such Adopting Company and to bind that Company thereby;

• (c) it shall be the duty of the Terminating Company, and that Company is hereby empowered, to carry out such supplemental agreement so far as the provisions thereof are to be performed by it;

• (d) the provisions of this Act so far as they are relevant and applicable shall apply and have effect (with all necessary modifications) in relation to such Adopting Company and such supplemental agreement in like manner as they apply and have effect in relation to the Participating Companies and the Scheduled Agreement;

• (e) it shall be lawful for the Terminating Company, with the approval of the Minister for Industry and Commerce, to grant, in respect of any policy of such Adopting Company which is transferred by such sup plemental agreement and this Act to the Terminating Company, such additional benefits on such terms as, in the opinion of the said Minister, are expedient and desirable and are not prejudicial to the interests of the policy-holders of the respective Participating Companies or the interests of the shareholders of those Companies respectively.

20 Partial repeal of the Act of 1936.

20.—Part III of the Act of 1936 and the First Schedule to that Act are hereby repealed.

21 Commencement and retrospective operation.

21.—This Act shall be deemed to have come into operation on and shall have effect as on and from the 14th day of September, 1938, and accordingly everything done on or after that date and before the passing of this Act which could have been lawfully done under this Act, if this Act had been in force when such thing was done, shall be deemed to have been done under or in pursuance of this Act and shall have validity and effect accordingly.

22 Short title and citation.

22.—(1) This Act may be cited as the Insurance (Amendment) Act, 1938.

• (2) The Insurance Acts, 1909 and 1936, and this Act may be cited together as the Insurance Acts, 1909 to 1938.

SCEIDEAL. SCHEDULE. An Có-aontú. The Agreement.

THIS AGREEMENT made the 13th day of September, 1938, BETWEEN The City of Dublin Assurance Company Limited, having its Registered Office at 4 Upper O'Connell Street in the City of Dublin (hereinafter called “The City of Dublin Company”) of the first part; Irish Life and General Assurance Company, Limited, having its Registered Office at 69 Mountjoy Square in the City of Dublin (hereinafter called “The Irish Life Company”) of the second part; Irish National Assurance Company, Limited, having its Registered Office at 30 College Green in the City of Dublin (hereinafter called “The Irish National Company”) of the third part; and Comhlucht Urrudhais Mumhan agus Laigheann, Teoranta (Munster and Leinster Assurance Company Limited), having its registered Office at Hammam Buildings, Upper O'Connell Street in the City of Dublin (hereinafter called “The Munster and Leinster Company”) of the fourth part:

WHEREAS—

• (a) (i) The City of Dublin Company was incorporated under the Companies Acts, 1908 to 1917, on the 28th day of May, 1925, with a nominal capital of £50,000, divided into 50,000 shares of £1 each, and has issued 17,165 shares of £1 each (fully paid up);

• (ii) The City of Dublin Company carries on Industrial Assurance business and Life Assurance business;

• (iii) The City of Dublin Company holds or controls all the paid-up share capital of the Northern Counties Life and General Assurance Company, Limited, which has a nominal capital of £30,000, divided into 60,000 shares of 10s. each, the whole of which has been issued fully paid up and which is registered in and carries on Industrial Assurance and Life Assurance business in Northern Ireland;

• (iv) the Directors of the City of Dublin Company are: Messrs. Patrick Thomas Montford (Chairman); Bernard John Maguire, T.D.; Michael Joseph Kennedy, T.D.; Henry Montfort Hughes, Percy Morrow, Charles Stewart Barry, Charles Walter Guest (Managing Director);

• (b) (i) The Irish Life Company was incorporated under the Companies Acts, 1908 to 1917, on the 25th day of August, 1923, with a nominal capital of £25,000, divided into 2,000 6 per cent. Preference Shares of £5 each and 150 Ordinary Shares of £100 each, of which capital it has issued 1,000 of the Preference Shares of £5 each (fully paid up) and the 150 Ordinary Shares of £100 each (£50 paid up);

• (ii) The Irish Life Company transacts Industrial Assurance business and Life Assurance business, and formerly transacted Plate Glass, Burglary, and Guarantee and Public Liability Insurance business; and also Personal Accident Insurance business, and Mechanically-propelled Vehicle Insurance business, and there are liabilities still outstanding in respect of such classes of business as aforesaid which were formerly transacted;

• (iii) the Directors of The Irish Life Company are: Messrs. John Dillon Nugent (Chairman); Henry John Moloney, James Joseph Bergin, James Anthony Nugent (Managing Director), James Mathew Dillon, and Peter Nugent;

• (c) (i) The Irish National Company was incorporated under the Companies Acts, 1908 to 1917, on the 12th day of May, 1919, with a nominal capital of £100,000, divided into 100,000 shares of £1 each, of which 45,692 £1 shares have been fully paid up, less £11 5s. 0d. calls unpaid;

• (ii) The Irish National Company transacts Industrial Ansurance business, Life Assurance business, Fire Insurance business, Mechanically-propelled Vehicle Insurance business, Public Liability Insurance business, Engineering Insurance business, Glass Insurance business, Guarantee Insurance business, Burglary Insurance business and General Accident business;

• (iii) the Directors of The Irish National Company are: Messrs. Padraic O'Maille (Chairman); James Aloysius Burke (Vice-Chairman); Patrick O'Dwyer, James Charles O'Carroll, Dominick Bridgman and Mrs. Sheila Ryan;

• (d) (i) The Munster and Leinster Company was incorporated under the Companies Acts, 1908 to 1924, on the 16th day of November, 1929, with a nominal capital of £50,000, divided into 3,000 6 per cent. Preference Shares of £5 each and 35,000 Ordinary Shares of £1 each (fully paid up) and 4,274 Ordinary Shares of £1 each (10/-paid up);

• (ii) The Munster and Leinster Company carries on Industrial Assurance business and Life Assurance business;

• (iii) the Directors of The Munster and Leinster Company are: Messrs. Laurence O'Neill (Chairman); Dr. Vincent Joseph White, James Fitzgerald (Secretary), Joseph Branagan, Joseph Francis Kenny, Patrick Fitzgerald (Divisional Manager), Frank Flynn (Agency Manager), and Tomas Macgerailt (Managing Director);

• (e) consequent upon the passing of the Insurance Act, 1936, (No. 45 of 1936) (hereinafter called the Act), discussions and negotiations have taken place between the Companies parties hereto and the Minister for Finance and the Minister for Industry and Commerce with a view to evolving a scheme of amalgamation of the Life Assurance business and Industrial Assurance business of the Companies parties hereto (hereinafter referred to as the Participating Companies);

• (f) as a result of such discussions and negotiations it has been agreed that the Industrial Assurance business and Life Assurance business of the Participating Companies shall be amalgamated upon the terms and in the manner hereinafter more particularly mentioned, subject to the enactment by the Oireachtas on or before the 31st day of December, 1938, of an Act (hereinafter called “the Amending Act”) authorising and confirming or otherwise validating these presents and providing (inter alia) for the several matters hereinafter specified;

• (g) it has been agreed that the nominal value of the shares in the Terminating Company hereinafter referred to should be fixed at 2/- each so as to obviate the appearance of intangible assets in the balance sheet of the Terminating Company, it being understood and agreed that such nominal value is not intended to express the true value of the goodwills of the Participating Companies, but is merely a token unit;

• (h) a draft of these presents has been submitted prior to the execution thereof to the Minister for Finance and to the Minister for Industry and Commerce respectively, and has been approved by the said Ministers, subject to the amending Act, as complying with the desire of the State to protect the interests of Irish policy-holders;

• (i) in this agreement the expressions “Industrial Assurance business,” “Life Assurance business,” “Sinking Fund or Capital Redemption business,” “Policy,” “Foreign Company,” “the Act of 1908,” “the Act of 1909,” “Assurance Company,” respectively, shall have the same meanings as in the Act; the expression “Irish Company” shall mean an Assurance Company registered in Ireland under the Companies Acts, 1908 to 1924.

NOW, IT IS HEREBY AGREED AND DECLARED as follows:—

• (a) that the Registered Office of the Terminating Company shall be situate in Ireland in the County Borough of Dublin;

• (b) that the principal objects of the Terminating Company shall include—

• (i) the acquisition of the Life Assurance business and/or Industrial Assurance business of the Participating Companies;

• (ii) the acquisition of the Life Assurance business and/or Industrial Assurance business in Ireland of any other Assurance Company;

• (iii) the acquisition of all or any of the assets of the said Companies and the taking over of all or any of the liabilities of the said Companies;

• (iv) the reorganisation in such lawful manner as the Terminating Company may deem expedient of any of such businesses acquired;

• (v) the carrying on of Life Assurance business and Industrial Assurance business, and Sinking Fund or Capital Redemption business, but not the carrying on of any other class of Assurance business;

• (vi) the promotion of the Permanent Company;

• (c) that the liability of the members of the Terminating Company shall be limited;

• (d) that the amount of the Share Capital of the Company shall be £200,010, divided into 2,000,100 Ordinary Shares of 2/- each.

• (i) the number of Directors of the Terminating Company (including the Chairman) shall be not less than two or more than nine, and the majority of the Directors shall be citizens of Ireland;

• (ii) the Directors shall be appointed from time to time as occasion requires in writing by the Minister for Industry and Commerce;

• (iii) from amongst the Directors the Minister for Industry and Commerce shall from time to time as occasion requires appoint one to be the Chairman;

• (iv) there shall be no share qualification for Directors;

• (v) the remuneration of the Directors shall be as determined from time to time in writing by the Minister for Industry and Commerce;

• (vi) the Managing Director of the Company shall be such one of the Directors as the Minister for Industry and Commerce may appoint, and shall hold the office of Managing Director subject to such conditions and with such powers as the Minister for Industry and Commerce may direct;

• (vii) the powers of the Terminating Company to raise money by means of debentures or debenture stock shall not be exercisable without the consent of the Minister for Industry and Commerce;

• (viii) the nominal Share Capital of the Terminating Company shall be £200,010 divided into 2,000,000 “A” Ordinary Shares of 2/- each and 100 “B” Ordinary Shares of 2/- each. The “B” shares shall carry the sole voting rights, and the holders of “A” shares shall not be entitled to receive notice of, or be present or vote at, any general meeting of the Terminating Company, but shall be entitled to receive copies of the yearly Revenue Accounts, Profit and Loss Accounts and Balance Sheets;

• (ix) the “A” shares and the “B” shares shall, save as provided in the next preceding Clause, rank pari passu in all respects;

• (x) the Directors of the Terminating Company shall at triennial or such shorter intervals as the Directors may decide make a valuation of the Terminating Company's Life Assurance business and Industrial Assurance business in accordance with the requirements of the Insurance Acts, 1909 and 1936, and of any Acts amending the same, and, after creating such reserves (if any) as they consider proper, declare the surplus available for distribution. Out of this surplus the Directors may pay to the Shareholders in each year a dividend at such rate, not exceeding twopence per share per annum, together with such cash payment (if any) per share by way of bonus as the Directors may decide. When the sums so paid to the shareholders by way of dividends and bonuses shall have amounted in the aggregate to the combined one year's premium incomes (to be ascertained as hereinafter provided) of the Participating Companies and of other Companies whose business shall have been acquired by the Terminating Company, the Directors may then allot by way of bonus to such policies as the Directors may determine and in such manner as the Directors may deem proper (with power to the Directors to grant different participations to different policies) such proportion, not exceeding seventy-five per cent. of the amount of the declared surplus available for distribution, which the Directors shall think fit to distribute at any one distribution. Provided that any shareholder or shareholders holding not less than five percent. of the shares, on giving notice within four weeks of the publication of the Terminating Company's valuation statement, may present at his own expense a report by an independent actuary to the Minister for Industry and Commerce where such shareholder is of the opinion that the basis of distribution is not justified by the conditions, and the Minister after considering the report may at his discretion instruct the Terminating Company to amend the basis of distribution of surplus, and the Company shall thereupon so amend the same;

• (xi) a person shall not be appointed Auditor of the Terminating Company unless the approval of the Minister for Industry and Commerce has first been obtained to the appointment of such person to such office;

• (xii) the share capital of the Terminating Company may be increased by the creation of new “A” shares with the consent of the Minister for Industry and Commerce after consultation with the Minister for Finance.

• (a) that the Registered Office of the Permanent Company shall be situate in Ireland in the County Borough of Dublin;

• (b) that the principal objects of the Permanent Company shall include:

• (i) the carrying on of Life Assurance business and/or Industrial Assurance business and/or Sinking Fund or Capital Redemption business (including any business ancillary thereto), but not the carrying on of any other class of Assurance business;

• (ii) the undertaking, under contracts with the Terminating Company and other Assurance Companies, of the servicing of the Life Assurance and Industrial Assurance and Sinking Fund or Capital Redemption contracts of such companies;

• (iii) the acquisition from the Terminating Company of the Life Assurance business and Industrial Assurance business and Sinking Fund or Capital Redemption business and goodwills of the Terminating Company and/or of the Participating Companies and of any other Assurance Company whose business shall have been acquired by the Terminating Company;

• (iv) the acquisition, after the winding up of the Terminating Company, of the Life Assurance business and the Industrial Assurance business and Sinking Fund or Capital Redemption business of any other Assurance Company.

• (c) that the liability of the members of the Permanent Company shall be limited;

• (d) that the amount of the Share Capital of the Permanent Company shall be £200,000, divided into 200,000 Ordinary Shares of £1 each, with power to increase such share capital.

• (i) until otherwise determined by the Permanent Company in general meeting, the number of Directors (including the Chairman) shall be not less than two or more than nine, and the majority of the Directors shall be citizens of Ireland;

• (ii) the first Directors shall be appointed in writing by the Minister for Industry and Commerce;

• (iii) the remuneration of the first Directors shall be determined in writing by the Minister for Industry and Commerce;

• (iv) the remuneration of Directors other than the first Directors shall be such as may be determined from time to time by the Permanent Company in general meeting;

• (v) a Director need hold no qualification share so long as the majority of the shares of the Permanent Company are held by the Terminating Company or the liquidator of the Terminating Company. Thereafter the qualification of a Director shall be the holding of shares in the capital of the Permanent Company of the nominal value of £500.

• (vi) from amongst the Directors nominated by him to be the first Directors the Minister for Industry and Commerce shall nominate one to be the Chairman;

• (vii) the first Managing Director of the Permanent Company shall be such one of the Directors as the Minister for Industry and Commerce may appoint, and shall hold the office of Managing Director on such terms, and subject to such conditions and with such powers, as the Minister for Industry and Commerce may direct. Should a Managing Director cease to hold office within six years from the date of incorporation of the Permanent Company, the Minister shall have the like power during the said term of six years of appointing his successor or successors;

• (viii) subject to the provisions in sub-paragraph (vii) hereof, the Directors shall from time to time appoint one or more of their body to be a Managing Director or Joint Managing Directors of the Permanent Company either for a fixed term or without any limitation as to the period for which he or they is or are to hold such office, and may from time to time remove or dismiss him or them from office and appoint another or others in his or their place or places, and the salary or remuneration of any Managing Director or Joint Managing Director (other than a Managing Director appointed pursuant to sub-clause (vii) hereof) shall be such as the Directors may from time to time determine;

• (ix) so long as the Minister for Finance holds any “B” shares in the Terminating Company, a person shall not be appointed Auditor of the Company unless the approval of the Minister for Industry and Commerce has first been obtained to the appointment of such person to such office;

• (x) the voting rights attached to the shares in the Permanent Company shall be declared to be that each issued share shall entitle the holder thereof (being the beneficial owner thereof) and being either (a) the Terminating Company, or (b) a citizen of Ireland, or (c) a “qualified holding body corporate” within the meaning of that expression as defined by Section 9, sub-section 1, paragraph (f) of the Control of Manufactures Acts, 1934, to one vote, but otherwise to no voting right except on a Resolution—

• (a) to wind up;

• (b) to transfer its business or a part thereof to another Company, or

• (c) to modify or vary the rights attaching to some or all the shares;

• (xi) subject to sub-clause (x) hereof all the issued shares of the Permanent Company shall have equal rights and shall rank pari passu in all respects.

• (b) The assets of each Participating Company to be vested in or transferred to the Terminating Company shall, subject to the provisions of Clause 19 (i) (a) and Clause 20 hereof, be the entire assets thereof as at the transfer date, except (1) uncalled capital, (2) the goodwill of any branch or branches of business other than Life Assurance and Industrial Assurance, and (3) assets allocated to such other branch or branches pursuant to Clause 19 (i) (b) (2) hereof. The Terminating Company shall, upon the vesting as aforesaid having been effected, discharge the indebtedness as hereinafter defined of each Participating Company whose assets are so vested in the Terminating Company as aforesaid.

• (i) the acceptance by the Terminating Company of, and full indemnity by the Terminating Company against, all obligations present and future of each Participating Company respectively in respect of its business so transferred;

• (ii) its proportion of fully paid “A” shares in the Terminating Company assessed upon the basis hereinafter set forth;

• (iii) such provision for its Directors and Executive Officers and staff as is hereinafter provided.

£ £	“net assets” of the Participating Company^£ __________ “ liability ” of the Particiating Company	×	“goodwill” of the Participaring Company.

[that is to say, multiply £(pounds) net assets by £(pounds) goodwill and divide the result by £(pounds) liability]. For the purpose of ascertaining the said number of shares in the case of each Participating Company respectively, a provisional valuation shall be made as at the 31st December, 1937, in manner hereinafter provided, and such provisional valuation shall subsequently be revised and corrected and adjusted as at the transfer date in manner hereinafter provided.

• (i) the mortality for the insurance liability for Industrial Assurance business shall be taken according to the English Life No. 8 Males Table, and the mortality for the insurance liability for Life Assurance business shall be taken according to the O^M Table. The interest rate to be used shall be 3½ per cent. both for Industrial Assurance business and for Life Assurance business;

• (ii) in the Industrial Assurance Branch the premium to be used in ascertaining the insurance liability for Whole Life Assurance shall be the net premium for an age two years older than the age next birthday at entry. For Pure Endowments and Endowment Assurance Policies the age shall be increased and the term diminished by not more than one-tenth of the original term with a maximum of one year. Children's Endowment Policies shall be assumed to mature at the contract maturity age less the age next birthday at entry, which age shall be assumed to be attained at the end of the year of entry. For Recurring Cash Bonus policies the premium shall be split into the corresponding premiums for the Whole Life benefit and for the recurring Pure Endowment benefit. The net premium for the Whole Life benefit shall be the same as for Whole Life Assurance, and the net premium for the recurring Pure Endowment shall be the full net premium excluding the first year. For Whole Life Assurances the maximum premium to be valued shall be 7 of the gross premium for weekly business and 75 of the gross premium for monthly business. In the case of Endowment Assurances the maximum premium to be valued shall be 8 of the gross premium, and in the case of Pure Endowments and Children's Endowments the maximum premium to be valued shall be 85 of the gross premium. In the case of every Policy the insurance liability shall be not less than the amount required to provide a free paid-up Policy calculated in accordance with the rules contained in the Third Schedule of the Act;

• (iii) policies in the Life Assurance Branch shall be valued in the same way as Industrial Branch Policies, but with-profit policies shall be converted into non-profit policies as at the transfer date by assuming that the premium in excess of a scale of non-profit premiums, to be fixed by the Independent Actuary with the approval of the Minister for Industry and Commerce, shall be treated as the gross premium to purchase an additional sum assured at the valuation age according to such scale. The maximum premium to be valued in the Ordinary Branch shall be 9 of the non-profit gross premium. In both branches negative values shall be eliminated;

• (iv) where a Participating Company transacts branches of business not taken over, the assets apportioned to such non-transferred branches shall be retained by the Participating Company;

• (v) outstanding premiums in the Industrial Assurance Branch shall be taken at 2½ times the weekly debits or the monthly equivalent less 25 (twenty-five) per cent. for expenses, and in the Life Assurance Branch the true out standing premiums to be taken less 20 (twenty) per cent. on with-profit policies and 10 (ten) per cent. on non-profit policies.