Companies Act , 1990

Type Act

Publication 1990-12-22

State In force

Source Irish Statute Book

articles 262

(3) Any such member or other person may require a copy of any such register or report, or any part of it, on payment of 15 pence or such less sum as the company may prescribe, for every 100 words or fractional part of 100 words required to be copied; and the company shall cause any copy so required by a person to be sent to him before the expiration of the period of 10 days beginning with the day next following that on which the requirement is received by the company.

(4) If an inspection required under this section is refused or a copy so required is not sent within the proper period, the company and every officer of it who is in default shall be guilty of an offence and liable to a fine.

(5) In the case of a refusal of an inspection required under this section of any register or report, the court may by order compel an immediate inspection of it; and in the case of failure to send a copy required under this section, the court may by order direct that the copy required shall be sent to the person requiring it.

89 The 1988 Directive.

89.—Sections 90 to 96 are for the purpose of giving effect to Council Directive 88/627/EEC of 12th December, 1988 [^*] (“the 1988 Directive”) on the information to be published when a major holding in a listed company is acquired or disposed of.

90 Provisions as to interpretation.

90.—(1) In sections 91 to 96—

“the Exchange” means the Committee of the Irish Unit of the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited;

“functions” includes powers and duties and references to the exercise of functions include, as respects powers and duties, references to the exercise of powers and the carrying out of duties.

(2) For the purposes of sections 91 to 96, each of the following shall be a “relevant authority” in relation to the Exchange—

(i) its committee of management,

(ii) its manager, however described.

91 Obligation to notify certain interests to the Exchange.

91.—(1) This section applies to interests in shares which—

(a) are comprised in relevant share capital of a public limited company, and

(b) are officially listed on the Exchange.

(2) Where a person becomes aware that he has acquired or ceased to have an interest in shares to which this section applies and, following that acquisition or disposal, the percentage level (within the meaning of section 69) of his interest in that share capital exceeds or falls below the percentage levels referred to in subsection (3), he shall, in addition to the obligation of disclosure to which he is subject under section 67, be under an obligation to notify the Exchange of his interest in the shares following the acquisition or cessation, as the case may be.

(3) The percentage levels referred to in subsection (2) are 10 per cent, 25 per cent, 50 per cent and 75 per cent.

(4) The provisions of this Chapter shall apply as regards the interests which are to be notified to the Exchange, and the manner in which they are to be so notified, as they apply to the interests to be notified to a company under this Chapter.

(5) Where the Exchange receives a declaration under this section it shall, subject to subsection (6), publish, in such manner as it shall determine, and within three days of its receipt, the information contained in that declaration.

(6) The Exchange may decide not to publish the information contained in the declaration if, but only if, it is satisfied—

(a) that the disclosure of such information would be contrary to the public interest, or

(b) that such disclosure would be seriously detrimental to the company or companies concerned:

Provided that—

(i) the Exchange shall not decide not to publish the information under paragraph (b) unless it is satisfied that a decision to do so would be unlikely to mislead the public with regard to the facts and circumstances knowledge of which is necessary for the assessment of the interests in question, and

(ii) notwithstanding any decision taken under this subsection, the Exchange may publish the information later than three days after its receipt where it is satisfied that the considerations in paragraph (a) or (b) no longer apply.

92 Duty of relevant authority to report to Director of Public Prosecutions.

92.—(1) If it appears to a relevant authority of the Exchange that any person has contravened section 91, such authority shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to the Director of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of such authority and relating to the matter in question, as the Director of Public Prosecutions may require.

(2) Where it appears to a member of the Exchange that any person has contravened section 91, he shall report the matter forthwith to a relevant authority of the Exchange, who shall thereupon come under the duty referred to in subsection (1).

(3) If it appears to a court in any proceedings that any person has committed a contravention as aforesaid, and that no report relating to the matter has been made to the Director of Public Prosecutions under subsection (1), that court may, on the application of any person interested in the proceedings concerned or of its own motion, direct a relevant authority of the Exchange to make such a report, and on a report being made accordingly, this section shall have effect as though the report had been made in pursuance of subsection (1).

(4) If, where any matter is reported or referred to the Director of Public Prosecutions under this section, he considers that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of a relevant authority of the Exchange, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director of Public Prosecutions to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the prosecution which he or they are reasonably able to give.

(5) A relevant authority shall have the same powers and duties for the purposes of this section as it has under section 117.

(6) Where the Minister considers it necessary or expedient to do so for the proper and effective administration of this section, he may make such regulations as he thinks appropriate in relation to—

(a) the powers of authorised persons, or

(b) the matters in respect of which, or the persons from whom, authorised persons may require information under section 117, as applied by subsection (5).

93 Application and amendment of the 1984 Regulations.

93.—(1) The annual report required by Regulation 11 of the European Communities (Stock Exchange) Regulations, 1984 (S.I. No. 282 of 1984) (“the 1984 Regulations”) shall include—

(a) the number of written complaints received suggesting possible contraventions of section 91,

(b) the number of reports made under section 92,

(c) the number of instances in which, following the exercise of powers by authorised persons under section 117, as applied by section 92, reports were not so made, and

(d) such other information as may be prescribed.

(2) The First Schedule to the 1984 Regulations is hereby amended by the substitution, for paragraph 5 (c) of Schedule C of the Annex to Council Directive 79/279/EEC of 5 March 1979 [^*] set out in that Schedule, of the following.

“(c) The company must inform the public of any changes in the structure (shareholders and breakdown of holdings) of the major holdings in its capital as compared with information previously published on that subject as soon as such changes come to its notice.

In particular, a company which is not subject to Council Directive 88/627/EEC on the information to be published when a major holding in a listed company is acquired or disposed of must inform the public within nine calendar days whenever it comes to its notice that a person or entity has acquired or disposed of a number of shares such that his or its holding exceeds or falls below one of the thresholds laid down in Article 4 of that Directive.”.

94 Obligation of professional secrecy.

94.—(1) Information obtained by any of the following persons by virtue of the exercise by the Exchange of its functions under this Part shall not be disclosed except in accordance with law, namely—

(a) a relevant authority of the Exchange,

(b) an authorised person, or

(2) Subsection (1) shall not prevent a relevant authority of the Exchange from disclosing any information to the Minister under this Part or to a similar authority in another Member State of the European Communities pursuant to section 96.

(3) Any person who contravenes subsection (1) shall be guilty of an offence.

95 Immunity from suit.

95.—A relevant authority of the Exchange shall not be liable in damages in respect of anything done or omitted to be done by the authority in connection with the exercise by it of its functions under sections 91 to 96 unless the act or omission complained of was done or omitted to be done in bad faith.

96 Co-operation between authorities in Member States.

96.—A relevant authority of the Exchange in exercising its functions under sections 91 to 94 shall comply with Article 12 (co-operation between competent authorities in Member States) of the 1988 Directive.

Chapter 3 Disclosure Orders: Companies other than Public Limited Companies

97 Application of Chapter 3.

97.—(1) The provisions of this Chapter shall apply to all bodies corporate incorporated in the State other than—

(a) a public limited company;

(b) a society registered under the Industrial and Provident Societies Acts, 1893 to 1978;

(d) any body corporate which is prohibited by statute or otherwise from making any distribution of its income or property among its members while it is a going concern or when it is in liquidation.

(2) Any reference in this Chapter to a company shall be deemed to be a reference to any body corporate to which, by virtue of subsection (1), this Chapter applies.

(3) Any reference in this Chapter to share capital or relevant share capital shall, in relation to a company, be deemed to be a reference to the issued share capital of a class carrying rights to vote in all circumstances at general meetings of the company, and references to shares shall be construed accordingly.

98 Disclosure order.

98.—(1) For the purposes of this Chapter, “disclosure order”means an order of the court which obliges—

(a) any person whom the court believes to have or to be able to obtain any information as to—

(i) persons interested at present, or at any time during a period specified in the order, in the shares or debentures of a company,

(ii) the names and addresses of any of those persons,

(iii) the names and address of any person who acts or has acted on behalf of any of those persons in relation to the shares or debentures,

to give such information to the court; or

(b) any person whom the court believes to be, or at any time during a period specified in the order to have been, interested in shares or debentures of a company to confirm that fact or (as the case may be) to indicate whether or not it is the case and, where he holds or has during that period held any interest in such shares or debentures, to give such further information as the court may require; or

(c) any person interested in shares or debentures of a company specified in the order to disclose to the court the information required under subparagraphs (i) and (ii) and (iii) of paragraph (a) and such further information as the court may require.

(2) Any person who has a financial interest in a company may apply to the court for a disclosure order in respect of all or any of the shares of or debentures in the company.

(3) An application under subsection (2) shall be supported by such evidence as the court may require.

(4) The court may, before hearing an application under subsection (2), require the applicant to give security for payment of the costs of hearing the application or any consequential proceedings.

(5) The court may make a disclosure order only if—

(a) it deems it just and equitable to do so; and

(b) it is of the opinion that the financial interest of the applicant is or will be prejudiced by the non-disclosure of any interest in the shares or debentures of the company.

(6) For the purposes of subsection (2) “financial interest” includes any interest as member, contributory, creditor, employee, co-adventurer, examiner, lessor, lessee, licensor, licensee, liquidator or receiver either in relation to the company in respect of whose shares or debentures a disclosure order is sought or a related company.

(7) Where a person authorises any other person (“the agent”) to acquire or dispose of, on his behalf, interests in shares comprised in relevant share capital of a company or in debentures of the company in respect of which a disclosure order is made, he shall, for the duration of that order, ensure that the agent notifies him immediately of acquisitions or disposals of interests in shares or debentures so comprised effected by the agent which will or may give rise to any obligation on his part to provide information in accordance with the terms of the order with respect to his interest in that share capital or those debentures.

99 Procedure on application for disclosure order.

99.—(1) A person intending to apply for the making of a disclosure order shall give not less than 10 days' notice of his intention to the company in respect of whose shares or debentures the order is sought and to the person to whom the order is intended to be directed.

(2) The applicant shall also serve on any person specified by the court such notice of the applications as the court may direct.

(3) On the hearing of the application every person notified under subsection (1) or (2) may appear and adduce evidence.

100 Scope of disclosure order.

100.—(1) A disclosure order may require the person to whom it is addressed—

(a) to give particulars of his own past or present interest in shares comprised in relevant share capital of the company or in debentures of the company held by him at any time during the period mentioned in the order;

(b) where the interest is a present interest and any other interest in the shares or debentures subsists or, in any case, where another interest in the shares or debentures subsisted during that period at any time when his own interest subsisted, to give so far as lies within his knowledge such particulars with respect to that other interest as may be required by the order;

(c) where his interest is a past interest, to give so far as lies within his knowledge particulars of the identity of the person who held that interest immediately upon his ceasing to hold it.

(2) A disclosure order shall specify the information to be supplied to the court under the order in respect of any person, shares or debentures to which it refers and any such information shall be given in writing.

(3) Sections 68 to 79 shall apply as appropriate for the purposes of construing references in this Chapter to persons interested in shares and debentures and to interests in shares and debentures respectively as they apply in relation to section 67 (disregarding section 78) and any reference in those sections to a “percentage level” shall be disregarded.

(4) For the purposes of this section any reference in sections 67 to 79 to “shares” shall, where appropriate and unless the contrary is stated, be deemed to include a reference to debentures.

(5) This section shall apply in relation to a person who has or previously had or is or was entitled to acquire a right to subscribe for shares in or debentures of a company which would on issue be comprised in relevant share capital of that company as it applies in relation to a person who is or was interested in shares so comprised or in debentures of the company; and references in the preceding provisions of this section to an interest in shares so comprised or an interest in debentures and to shares so comprised or debentures shall be read accordingly in any such case as including references respectively to any such right and to shares which would on issue be so comprised.

101 Powers of court.

101.—(1) The court may, on cause shown, rescind or vary a disclosure order.

(2) A disclosure order may specify a person, group or class of persons to which the order applies.

(3) The court may, if it considers—

(a) that it would be just and equitable to do so, and

(b) that the financial interest of the applicant would not be prejudiced thereby,

exempt in whole or in part from the requirements of a disclosure order—

(i) any person or class of persons,

(ii) any interest or class of interest in shares or debentures,

(iii) any share, group or class of shares,

(iv) any debenture, group or class of debentures.

(4) When the court makes a disclosure order it may impose, for a specific period of time, such conditions or restrictions on the rights or obligations attaching to the shares or debentures in respect of which the order is made as it deems fit.

(5) Any person whose interests are affected by any conditions or restrictions imposed on shares or debentures under subsection (4) may apply to the court for relief from all or any of those conditions and the court may, if it considers it just and equitable to do so, grant such relief in whole or in part and on such terms and conditions as it sees fit.

102 Notice of disclosure order.

102.—(1) The applicant shall cause notice in the prescribed form of the making of a disclosure order together with a copy of the order to be sent by registered post within 7 days of the making of the order to—

(a) the company (at its registered office) in respect of whose shares or debentures the order has been made,

(b) the registrar of companies,

(c) the registered holder of any shares or debentures in respect of which the disclosure order has been made where it appears to the court that—

(i) such holder is not at the date of the making of the order resident in the State, and

(ii) such holder should be notified,

(d) such other person as the court sees fit.

(2) The applicant shall cause notice of the making of a disclosure order to be published, within 7 days of the making of the order, in at least 2 daily newspapers which circulate in the district in which the registered office of the company, in respect of whose shares or debentures the order has been made, is situate.

(3) For the purposes of subsection (1) (a)—

(a) the address of the registered office of the company at the date of the making of the disclosure order shall be deemed to be the address of that office which was last delivered to the registrar of companies or otherwise published, as such case may be (in accordance with and in the manner required by the law relating to the company) prior to the date of making the order; and

(b) if no address of the registered office has ever been duly delivered to the registrar of companies or if the location of the last delivered address has been destroyed, the requirements of subsection (1) (a) shall be deemed to have been complied with by sending the required notice of the order together with a copy thereof to the registrar of companies.

(4) For the purposes of subsection (1) (c)—

(a) the address of a non-resident registered holder of shares or debentures shall be deemed to be the address of that holder which was last delivered to the registrar of companies or otherwise published, as the case may be (in accordance with and in the manner required by the law relating to the company) prior to the date of making of the order; and

(b) if no address of the non-resident registered holder has ever been duly delivered to the registrar of companies the requirements of subsection (1) (c) shall be deemed to have been complied with by sending the required notice of the order together with a copy thereof to the registrar of companies.

(5) Any reference in this section to the registered office of a company shall, in the case of a company not registered under the Companies Acts, be construed as a reference to the principal office of the company.

103 Information disclosed under order.

103.—(1) An obligation to provide any information imposed on any person by a disclosure order shall be treated as not being fulfilled unless the notice by means of which it purports to be fulfilled identifies him and gives his current address.

(2) Where information is given to the court in compliance with the terms of a disclosure order, a prescribed officer of the court shall, unless the court otherwise directs, cause such information to be furnished (in whole or in part as the court may direct) to the applicant and to the company in respect of whose shares or debentures the order was made.

(3) In reaching its decision under subsection (2), the court shall have regard to whether the requirements of section 102 have been complied with.

(4) Where any information is furnished to the applicant or the company in pursuance of subsection (2), the court may impose such restrictions as it sees fit as to the publication of the information by the person to whom it has been furnished.

104 Civil consequences of contravention of disclosure order.

104.—(1) Where a person—

(a) fails to fulfil, within the proper period, an obligation to provide information required by a disclosure order, or

(b) in purported fulfilment of any such obligation makes to the court a statement which he knows to be false or recklessly makes to the court a statement which is false,

no right or interest of any kind whatsoever in respect of any shares in or debentures of the company concerned held by him shall be enforceable by him whether directly or indirectly, by action or legal proceeding.

(2) Where any right or interest is restricted under subsection (1), any person in default under that subsection or any other person affected by such restriction may apply to the court for relief against a disability imposed by or arising out of subsection (1) and the court on being satisfied that the default was accidental, or due to inadvertence, or some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may grant such relief either generally, or as respects any particular right or interest on such terms and conditions as it sees fit.

(3) Where an applicant for relief under subsection (2) is a person referred to in subsection (1), the court may not grant such relief if it appears that the default has arisen as a result of any deliberate act or omission on the part of the applicant.

(4) The acquisition by any person of an interest in shares or debentures of a company registered in the State shall be deemed to be a consent by that person to the disclosure by him, his agents or intermediaries of any information required to be disclosed in relation to shares or debentures by the Companies Acts.

105 Power to alter maximum inspection etc. charges.

105.—(1) The Minister may, by order, alter any of the charges referred to in—

(a) section 60 (5) of this Act or section 92 (1), 119 (1) or 195 (10) (inserted by section 51 of this Act) of the Principal Act, or

(b) section 60(8) or 88 (3) of this Act, or section 92 (2), 92 (3), 119 (2) or 146 (2) of the Principal Act.

(2) The Minister may also, by order, alter the basis of any of the charges referred to in the provisions specified in subsection (1) (b) from the basis referred to in those provisions to some other basis.

(3) In making any order under this section, the Minister shall take into account the general costs incurred by a company in facilitating the inspection, or providing copies, of the registers or other documents referred to in subsection (1).

(4) Every order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

106 Transitional provisions.

106.—(1) Where on the commencement of this section a person has an interest which, if it was acquired after such commencement, would be subject to a notification requirement under Chapter 1 or 2 he shall be under an obligation to make to the company the notification with respect to his interest required by the Chapter concerned.

(2) For the purposes of subsection (1), sections 56 and 71 (1) shall apply as if, for the period of 5 days mentioned in each of those provisions, there were substituted a period of 14 days.

(3) Section 73 shall apply in relation to an agreement notwithstanding that it was made before the commencement of this section or that any such acquisition of shares as is mentioned in subsection (1) (b) of that section took place before such commencement.

PART V Insider Dealing

107 Interpretation.

107.—In this Part, except where the context otherwise requires—

“dealing”, in relation to securities, means (whether as principal or agent) acquiring, disposing of, subscribing for or underwriting the securities, or making or offering to make, or inducing or attempting to induce a person to make or to offer to make, an agreement—

(a) for or relating to acquiring, disposing of, subscribing for or underwriting the securities; or

(b) the purpose or purported purpose of which is to secure a profit or gain to a person who acquires, disposes of, subscribes for or underwrites the securities or to any of the parties to the agreement in relation to the securities;

“director” includes a shadow director within the meaning of section 27;

“officer”, in relation to a company, includes—

(a) a director, secretary or employee;

(b) a liquidator;

(d) an examiner;

(e) an auditor; and

(f) a receiver;

“public office” means an office or employment which is remunerated out of the Central Fund or out of moneys provided by the Oireachtas or money raised by local taxation or charges, or an appointment to or employment under any commission, committee, tribunal, board or body established by the Government or any Minister of the Government or by or under any statutory authority;

“recognised stock exchange” includes, in particular, any exchange prescribed by the Minister which provides facilities for the buying and selling of rights or obligations to acquire stock;

“related company”, in relation to a company, means any body corporate which is the company's subsidiary or holding company, or a subsidiary of the company's holding company;

“relevant authority”, in relation to a recognised stock exchange, means—

(i) its board of directors, committee of management or other management body, or

(ii) its manager, however described;

“securities” means—

(a) shares, debentures or other debt securities issued or proposed to be issued, whether in the State or otherwise, and for which dealing facilities are, or are to be, provided by a recognised stock exchange;

(b) any right, option or obligation in respect of any such shares, debentures or other debt securities referred to in paragraph (a);

(c) any right, option or obligation in respect of any index relating to any such shares, debentures or other debt securities referred to in paragraph (a); or

(d) such interests as may be prescribed;

“underwrite” includes sub-underwrite.

108 Unlawful dealings in securities by insiders.

108.—(1) It shall not be lawful for a person who is, or at any time in the preceding 6 months has been, connected with a company to deal in any securities of that company if by reason of his so being, or having been, connected with that company he is in possession of information that is not generally available, but, if it were, would be likely materially to affect the price of those securities.

(2) It shall not be lawful for a person who is, or at any time in the preceding 6 months has been, connected with a company to deal in any securities of any other company if by reason of his so being, or having been, connected with the first-mentioned company he is in possession of information that—

(a) is not generally available but, if it were, would be likely materially to affect the price of those securities, and

(b) relates to any transaction (actual or contemplated) involving both those companies or involving one of them and securities of the other, or to the fact that any such transaction is no longer contemplated.

(3) Where a person is in possession of any such information as is mentioned in subsection (1) or (2) that if generally available would be likely materially to affect the price of securities but is not precluded by either of those subsections from dealing in those securities, it shall not be lawful for him to deal in those securities if he has received the information, directly or indirectly, from another person and is aware, or ought reasonably to be aware, of facts or circumstances by virtue of which that other person is then himself precluded by subsection (1) or (2) from dealing in those securities.

(4) It shall not be lawful for a person at any time when he is precluded by subsection (1), (2) or (3) from dealing in any securities, to cause or procure any other person to deal in those securities.

(5) It shall not be lawful for a person, at any time when he is precluded by subsection (1), (2) or (3) from dealing in any securities by reason of his being in possession of any information, to communicate that information to any other person if he knows, or ought reasonably to know, that the other person will make use of the information for the purpose of dealing, or causing or procuring another person to deal, in those securities.

(6) Without prejudice to subsection (3), but subject to subsections (7) and (8), it shall not be lawful for a company to deal in any securities at a time when any officer of that company is precluded by subsection (1), (2) or (3) from dealing in those securities.

(7) Subsection (6) does not preclude a company from entering into a transaction at any time by reason only of information in the possession of an officer of that company if—

(a) the decision to enter into the transaction was taken on its behalf by a person other than the officer;

(b) it had in operation at that time written arrangements to ensure that the information was not communicated to that person and that no advice relating to the transaction was given to him by a person in possession of the information; and

(8) Subsection (6) does not preclude a company from dealing in securities of another company at any time by reason only of information in the possession of an officer of the first-mentioned company, being information that was received by the officer in the course of the performance of his duties as an officer of the first-mentioned company and that consists only of the fact that the first-mentioned company proposes to deal in securities of that other company.

(9) This section does not preclude a person from dealing in securities, or rights or interests in securities, of a company if—

(a) he enters into the transaction concerned as agent for another person pursuant to a specified instruction of that other person to effect that transaction; and

(b) he has not given any advice to the other person in relation to dealing in securities, or rights or interests in securities, of that company that are included in the same class as the first-mentioned securities.

(10) This section does not preclude a person from dealing in securities if, while not otherwise taking advantage of his possession of information referred to in subsection (1)—

(a) he gives at least 21 days' notice to a relevant authority of the relevant stock exchange of his intention to deal, within the period referred to in paragraph (b), in the securities of the company concerned, and

(b) the dealing takes place within a period beginning 7 days after the publication of the company's interim or final results, as the case may be and ending 14 days after such publication, and

(11) For the purposes of this section, a person is connected with a company if, being a natural person—

(a) he is an officer of that company or of a related company;

(b) he is a shareholder in that company or in a related company; or

(c) he occupies a position (including a public office) that may reasonably be expected to give him access to information of a kind to which subsections (1) and (2) apply by virtue of—

(i) any professional, business or other relationship existing between himself (or his employer or a company of which he is an officer) and that company or a related company; or

(ii) his being an officer of a substantial shareholder in that company or in a related company.

(12) For the purposes of subsection (11) “substantial shareholder” means a person who holds shares in a company, the number of which is above the notifiable percentage for the time being in force under section 70.

(13) The prohibitions in subsections (1), (3), (4) and (5) shall extend to dealings in securities issued by the State as if the references in subsections (1), (9) and (11) (other than paragraphs (a) and (b) of the last mentioned subsection) to a company were references to the State.

109 Civil liability for unlawful dealing.

109.—(1) Where a person deals in or causes or procures another person to deal in securities in a manner declared unlawful by section 108 or communicates information in any such manner, that person shall, without prejudice to any other cause of action which may lie against him, be liable—

(a) to compensate any other party to the transaction who was not in possession of the relevant information for any loss sustained by that party by reason of any difference between the price at which the securities were dealt in in that transaction and the price at which they would have been likely to have been dealt in in such a transaction at the time when the first-mentioned transaction took place if that information had been generally available; and

(b) to account to the company that issued or made available those securities for any profit accruing to the first-mentioned person from dealing in those securities.

(2) The amount of compensation for which a person is liable under subsection (1) or the amount of the profit for which a person is liable to account under that subsection is—

(a) subject to paragraph (b), the amount of the loss sustained by the person claiming the compensation or the amount of the profit referred to in subsection (1) (b), as the case may be; or

(b) if the person so liable has been found by a court to be liable to pay an amount or amounts to any other person or persons by reason of the same act or transaction, the amount of that loss or profit less the amount or the sum of the amounts for which that person has been found to be liable.

(3) For the purposes of subsection (2), the onus of proving that the liability of a person to pay an amount to another person arose from the same act or transaction from which another liability arose lies on the person liable to pay the amount.

(4) An action under this section for recovery of a loss or profit shall not be commenced after the expiration of 2 years after the date of completion of the transaction in which the loss or profit occurred.

110 Exempt transactions.

110.—(1) Nothing in section 108 shall prevent a person from—

(a) acquiring securities under a will or on the intestacy of another person; or

(b) acquiring securities in a company pursuant to an employee profit sharing scheme—

(i) approved by the Revenue Commissioners for the purposes of the Finance Acts, and

(ii) the terms of which were approved by the company in general meeting, and

(iii) under which all permanent employees of the company are offered the opportunity to participate on equal terms relative to specified objective criteria;

(2) This subsection applies to the following kinds of transactions—

(a) the obtaining by a director of a share qualification under section 180 of the Principal Act;

(b) a transaction entered into by a person in accordance with his obligations under an underwriting agreement;

(c) a transaction entered into by a personal representative of a deceased person, a trustee, or liquidator, receiver or examiner in the performance of the functions of his office; or

(d) a transaction by way of, or arising out of, a mortgage of or charge on securities or a mortgage, charge, pledge or lien on documents of title to securities.

(3) This Part shall not apply to transactions entered into in pursuit of monetary, exchange rate, national debt management or foreign exchange reserve policies by any Minister of the Government or the Central Bank, or by any person on their behalf.

111 Criminal liability for unlawful dealing.

111.—A person who deals in securities in a manner declared unlawful by section 108 shall be guilty of an offence.

112 Restriction on dealing.

112.—(1) Subject to subsection (2), a person convicted of anoffence under section 111 or this section shall not deal within the period of 12 months from the date of the conviction.

(2) Where a person convicted of an offence under subsection (1) has, before the date of his conviction, initiated a transaction under which some element of performance remains to be rendered, subsection (1) shall not prohibit him from completing the transaction where a relevant authority of a recognised stock exchange has indicated in writing, to the parties to the transaction, its satisfaction that—

(a) the transaction was initiated but not completed before the date of the conviction, and

(b) if the transaction were not concluded, the rights of an innocent third party would be prejudiced, and

(3) A person who contravenes this section shall be guilty of an offence.

113 Duty of agents in relation to unlawful dealing.

113.—(1) A person shall not deal on behalf of another person if he has reasonable cause to believe or ought to conclude that the deal would be unlawful, within the meaning of section 108.

(2) A person who contravenes this section shall be guilty of an offence.

114 Penalties for offences under this Part.

114.—A person who commits an offence under this Part shall be liable—

(a) on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,000 or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine not exceeding £200,000 or to both.

115 Duty of recognised stock exchange in relation to unlawful dealing.

115.—(1) If it appears to a relevant authority of a recognised stock exchange that any person has committed an offence under this Part, such authority shall forthwith report the matter to the Director of Public Prosecutions and shall furnish to the Director of Public Prosecutions such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of such authority and relating to the matter in question, as the Director of Public Prosecutions may require.

(2) Where it appears to a member of a recognised stock exchange that any person has committed an offence under this Part, he shall report the matter forthwith to a relevant authority of the recognised stock exchange concerned, who shall thereupon come under the duty referred to in subsection (1).

(3) If it appears to a court in any proceedings that any person has committed an offence as aforesaid, and that no report relating to the matter has been made to the Director of Public Prosecutions under subsection (1), that court may, on the application of any person interested in the proceedings concerned or of its own motion, direct a relevant authority of the recognised stock exchange concerned to make such a report, and on a report being made accordingly, this section shall have effect as though the report had been made in pursuance of subsection (1).

(4) If, where any matter is reported or referred to the Director of Public Prosecutions under this section, he considers that the case is one in which a prosecution ought to be instituted and institutes proceedings accordingly, it shall be the duty of a relevant authority of the recognised stock exchange concerned, and of every officer of the company whose securities are concerned, and of any other person who appears to the Director of Public Prosecutions to have relevant information (other than any defendant in the proceedings) to give all assistance in connection with the prosecution which he or they are reasonably able to give.

(5) If it appears to the Minister, arising from a complaint to a relevant authority of a recognised stock exchange concerning an alleged offence under this Part, that there are circumstances suggesting that—

(a) the relevant authority ought to use its powers under this Part but has not done so, or

(b) that a report ought to be made to the Director of Public Prosecutions under subsection (1), but that the relevant authority concerned has not so reported,

he may direct the relevant authority to use such powers or make such a report, and on a report being made accordingly, this section shall have effect as though the report had been made in pursuance of subsection (1).

(6) Where the Minister gives a direction under subsection (5), the relevant authority concerned shall communicate the results of its investigations, or a copy of its report under subsection (1), as the case may be, to the Minister.

(7) A relevant authority of a recognised stock exchange shall not be liable in damages in respect of anything done or omitted to be done by the authority in connection with the exercise by it of its functions under this Part unless the act or omission complained of was done or omitted to be done in bad faith.

116 Co-operation with other authorities outside the State.

116.—(1) This section applies where a relevant authority of a recognised stock exchange receives a request for information from a similar authority in another Member State of the European Communities in relation to the exercise by the second-named authority of its functions under any enactment of the European Communities relating to unlawful dealing within the meaning of this Part, whether in the State or elsewhere.

(2) The relevant authority concerned shall, in so far as it is reasonably able to do so, and making use of its powers under this Part where appropriate, obtain the information requested and shall, subject to the following provisions of this section, provide such information accordingly.

(3) Where a relevant authority of a recognised stock exchange receives a request under subsection (1), it shall advise the Minister who, on being satisfied as to any of the matters referred to in subsection(4), may direct the authority to refuse to provide all or part of the information requested.

(4) The matters referred to in subsection (3) are that—

(a) communication of the information requested might adversely affect the sovereignty, security or public policy of the State;

(b) civil or criminal proceedings in the State have already been commenced against a person in respect of any acts in relation to which a request for information has been received under subsection (1);

117 Authorised persons.

117.—(1) In this section and sections 118 and 121, “authorised person” means a person approved by the Minister to be an authorised person for the purposes of this Part being—

(a) the manager, however described, of a recognised stock exchange, or

(b) a person nominated by a relevant authority of a recognised stock exchange.

(2) Where an alleged offence under this Part is investigated by an authorised person, the relevant authorities of the recognised stock exchange concerned shall be under a general duty to ensure that potential conflicts of interest are avoided, as far as possible, on the part of any such authorised person.

(3) For the purpose of obtaining any information necessary for the exercise by a relevant authority of such exchange of the function referred to in section 115, an authorised person may, on production of his authorisation if so required, require any person whom he or such relevant authority has reasonable cause to believe to have dealt in securities, or to have any information about such dealings, to give the authorised person any information which he may reasonably require in regard to—

(a) the securities concerned,

(b) the company which issued the securities,

(d) any other information the authorised person reasonably requires in relation to such securities or such dealings,

and give him such access to and facilities for inspecting and taking copies of any documents relating to the matter as he reasonably requires.

(4) Every document purporting to be a warrant or authorisation and to be signed or authenticated by or on behalf of a relevant authority shall be received in evidence and shall be deemed to be such warrant or authorisation without further proof until the contrary is shown.

(5) An authorised person, or any person on whom he has made a requirement under this section, may apply to the court for a declaration under this section.

(6) The court, having heard such evidence as may be adduced and any representations that may be made by the authorised person and a person referred to in subsection (5), may at its discretion declare—

(a) that the exigencies of the common good do not warrant the exercise by the authorised person of the powers conferred on him by this section, or

(b) that the exigencies of the common good do so warrant.

(7) Where the court makes a declaration under subsection (6) (a), the authorised person shall, as soon as may be, withdraw the relevant requirement under this section.

(8) Where the court makes a declaration under subsection (6) (b), the person on whom the requirement was imposed shall, as soon as may be, furnish the required information to the authorised person.

(9) Where, in contravention of subsection (8), a person refuses, or fails within a reasonable time, to comply with a requirement of an authorised person, the authorised person may certify the refusal under his hand to the court, and the court may, after hearing any statement which may be offered in defence, punish the offender in like manner as if he had been guilty of contempt of court.

118 Obligation of professional secrecy.

118.—(1) Information obtained by any of the following persons by virtue of the exercise by a recognised stock exchange of its functions under this Part shall not be disclosed except in accordance with law, namely—

(a) a relevant authority of the exchange,

(b) an authorised person, or

(2) Subsection (1) shall not prevent a relevant authority of a recognised stock exchange from disclosing any information to the Minister, whether pursuant to a request under section 115 (5) or otherwise, or to a similar authority in another Member State of the European Communities.

(3) Any person who contravenes subsection (1) shall be guilty of an offence.

119 Extension of Council Directive 79/279/EEC.

119.—The provisions of Schedule C.5 (a) of Council Directive 79/279/EEC of 5 March 1979 [^] coordinating the conditions for the admission of securities to official stock exchange listing, as given effect by the European Communities (Stock Exchange) Regulations, 1984 (S.I. No. 282 of 1984), shall also apply to securities within the meaning of section 107*.

120 Annual report of recognised stock exchange.

120.—(1) An annual report shall be presented to the Minister on behalf of every recognised stock exchange on the exercise of the functions of the relevant authorities of the exchange concerned under this Part and, in particular, the report shall include— [^*]

(a) the number of written complaints received concerning possible contraventions of this Part,

(b) the number of reports made to the Director of Public Prosecutions under this Part,

(c) the number of instances in which, following the exercise of powers by authorised persons under this Part, reports were not made to the Director of Public Prosecutions, and

(d) such other information as may be prescribed.

(2) A copy of the report referred to in subsection (1) shall, subject to subsection (3), be laid before each House of the Oireachtas.

(3) If the Minister, after consultation with a relevant authority of the recognised stock exchange concerned, is of the opinion that the disclosure of any information contained in the report referred to in subsection (1) would materially injure or unfairly prejudice the legitimate interests of any person, or that otherwise there is good reason for not divulging any part of such a report, he may lay the report under subsection (2) with that information or that part omitted.

121 Power of Minister to make supplementary regulations.

121.—(1) If, in any respect, any difficulty arises in bringing any provision of this Part into operation or in relation to the operation of any such provision, the Minister may by regulations do anything which appears to him to be necessary or expedient for removing that difficulty, for bringing the provision into operation, or for securing or facilitating its operation, and any such regulations may modify any provision of this Part so far as may be necessary or expedient for carrying such provision into effect for the purposes aforesaid.

(2) Without prejudice to the generality of subsection (1), where the Minister considers it necessary or expedient to do so for the proper and effective administration of sections 115 and 117, he may make such regulations as he thinks appropriate in relation to—

(a) the powers of authorised persons, or

(b) the matters in respect of which, or the persons from whom, authorised persons may require information under this Part.

(3) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

Registration of Charges

122 Amendment of section 99 of the Principal Act.

122.—Section 99 of the Principal Act is hereby amended—

(a) in subsection (2), by the substitution for paragraph (h) of the following paragraph—

“(h) a charge on a ship or aircraft or any share in a ship or aircraft;”, and

(b) by the insertion of the following subsections—

“(2A) The Minister may by regulations amend subsection (2) so as to add any description of charge to, or remove any description of charge from, the charges requiring registration under this section.

(2B) The power of the Minister under subsection (2A) shall include a power to amend by regulations the description of any charge referred to in subsection (2).

(2C) Every regulation made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.

Winding Up by the Court

123 Amendment of sections 214 and 345 of Principal Act.

123.—Section 214 (a) (which relates to the circumstances in which a company is unable to pay its debts) and section 345 (5) (a) (which relates to unregistered companies) of the Principal Act are hereby amended by the substitution in each case for “£50” of “£1,000”.

124 Amendment of section 231 of the Principal Act.

124.—Section 231 of the Principal Act is hereby amended by the insertion after subsection (1) of the following subsection—

“(1A) (a) The liquidator of a company shall not sell by private contract a non-cash asset of the requisite value to a person who is, or who, within three years prior to the date of commencement of the winding-up, has been, an officer of the company unless the liquidator has given at least 14 days' notice of his intention to do so to all creditors of the company who are known to him or who have been intimated to him.

(b) In this subsection—

(i) ‘non-cash asset’ and ‘requisite value’ have the meanings assigned to them by section 29 of the Companies Act, 1990, and

(ii) ‘officer’ includes a person connected, within the meaning of section 26 of the Companies Act, 1990, with a director, and a shadow director.”.

125 No lien over company's books, records, etc.

125.—The Principal Act is hereby amended by the insertion after section 244 of the following section—

“244A.—Where the court has appointed a provisional liquidator or a company is being wound up by the court or by means of a creditors' voluntary winding up, no person shall be entitled as against the liquidator or provisional liquidator to withhold possession of any deed, instrument, or other document belonging to the company, or the books of account, receipts, bills, invoices, or other papers of a like nature relating to the accounts or trade, dealings or business of the company, or to claim any lien thereon provided that—

(a) where a mortgage, charge or pledge has been created by the deposit of any such document or paper with a person, the production of the document or paper to the liquidator or provisional liquidator by the person shall be without prejudice to the person's rights under the mortgage, charge or pledge (other than any right to possession of the document or paper),

(b) where by virtue of this section a liquidator or provisional liquidator has possession of any document or papers of a receiver or that a receiver is entitled to examine, the liquidator or provisional liquidator shall, unless the court otherwise orders, make the document or papers available for inspection by the receiver at all reasonable times.”.

126 Power of court to summon persons for examination.

126.—The Principal Act is hereby amended by the substitution for section 245 of the following section—

“245.—(1) The court may, at any time after the appointment of a provisional liquidator or the making of a winding-up order, summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the court deems capable of giving information relating to the promotion, formation, trade, dealings, affairs or property of the company.

(2) The court may examine such person on oath concerning the matters aforesaid, either by word of mouth or on written interrogatories, and may reduce his answers to writing and require him to sign them.

(3) The court may require such person to produce any accounting records, deed, instrument, or other document or paper relating to the company that are in his custody or power.

(4) The court may, before the examination takes place, require such person to place before it a statement, in such form as the court may direct, of any transactions between him and the company of a type or class which the court may specify.

(5) If, in the opinion of the court, it is just and equitable to do so, it may direct that the costs of the examination be paid by the person examined.

(6) A person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of the answers of such person shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer.

(7) If a person without reasonable excuse fails at any time to attend his examination under this section, he shall be guilty of contempt of court and liable to be punished accordingly.

(8) In a case where a person without reasonable excuse fails at any time to attend his examination under this section or there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding or delaying his examination under this section, the court may cause that person to be arrested and his books and documents and moveable personal property to be seized and him and them to be detained until such time as the court may order.”.

127 Order for payment or delivery of property against person examined under section 245 of Principal Act.

127.—The Principal Act is hereby amended by the insertion before section 246 of the following section—

“245A.—If in the course of an examination under section 245 it appears to the court that any person being examined—

(a) is indebted to the company, or

(b) has in his possession or control any money, property or books and papers of the company,

the court may order such person—

(i) to pay to the liquidator the amount of the debt or any part thereof, or

(ii) to pay, deliver, convey, surrender or transfer to the liquidator such money, property or books and papers or any part thereof,

as the case may be, at such time and in such manner and on such terms as the court may direct.”.

Declaration of Solvency

128 Statutory declaration of solvency in case of proposal to wind up voluntarily.

128.—The Principal Act is hereby amended by the substitution for section 256 of the following section—

“256.—(1) Where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than two directors, the majority of the directors may, at a meeting of the directors, make a statutory declaration to the effect that they have made a full inquiry into the affairs of the company, and that having done so, they have formed the opinion that the company will be able to pay its debts in full within such period not exceeding 12 months from the commencement of the winding up as may be specified in the declaration.

(2) A declaration made as aforesaid shall have no effect for the purposes of this Act unless—

(a) it is made within the 28 days immediately preceding the date of the passing of the resolution for winding up the company and delivered to the registrar of companies not later than the date of the delivery to the registrar, in accordance with the provisions of section 143, of a copy of the resolution for winding up the company;

(b) it embodies a statement of the company's assets and liabilities as at the latest practicable date before the making of the declaration and in any event at a date not more than three months before the making of the declaration;

(d) it embodies a statement by the independent person referred to in paragraph (c) that he has given and has not withdrawn his written consent to the issue of the declaration with the report attached thereto; and

(e) a copy of the declaration is attached to the notice issued by the company of the general meeting at which it is intended to propose a resolution for voluntary winding up under paragraph (a) or (b) of section 251 (1).

(3) The report referred to in paragraph (c) of subsection (2) shall be made by an independent person, that is to say, a person qualified at the time of the report to be appointed, or to continue to be, auditor of the company.

(4) The report shall state whether, in his opinion and to the best of his information and according to the explanations given to him—

(a) the opinion of the directors referred to in subsection (1), and

(b) the statement of the company's assets and liabilities embodied in the said declaration,

are reasonable.

(5) If within 28 days after the resolution for voluntary winding up has been advertised under subsection (1) of section 252, a creditor applies to the court for an order under this subsection, and the court is satisfied that such creditor together with any creditors supporting him in his application represents one-fifth at least in number or value of the creditors of the company, and the court is of opinion that it is unlikely that the company will be able to pay its debts within the period specified in the declaration, the court may order that all the provisions of this Act relating to a creditors' voluntary winding up shall apply to the winding up.

(6) If the court orders that all the provisions of this Act in relation to a creditors' voluntary winding up shall apply to the winding up, the person who held the office of liquidator immediately prior to the making of the order or, if no liquidator is acting, the company shall within 21 days after the making of the order, deliver an office copy of such order to the registrar of companies.

(7) If default is made in complying with subsection (6), any person who is in default shall be liable to a fine not exceeding £1,000.

(8) Where a statutory declaration is made under this section and it is subsequently proved to the satisfaction of the court that the company is unable to pay its debts, the court on the application of the liquidator or any creditor or contributory of the company may, if it thinks it proper to do so, declare that any director who was a party to the declaration without having reasonable grounds for the opinion that the company would be able to pay its debts in full within the period specified in the declaration shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.

(9) Where a company's debts are not paid or provided for in full within the period stated in the declaration of solvency, it shall for the purposes of subsection (8) be presumed, until the contrary is shown, that the director did not have reasonable grounds for his opinion.

(10) Where the court makes a declaration under subsection (8), it may give such further directions as it thinks proper for the purpose of giving effect to that declaration.

(11) A winding up in the case of which a declaration has been made and delivered in accordance with this section is in this Act referred to as ‘a members’ voluntary winding up' and a voluntary winding up in the case of which a declaration has not been made and delivered as aforesaid or in the case of which an order is made under subsection (5) or in the case to which section 261 (3) applies is in this Act referred to as ‘a creditors’ voluntary winding up'.”.

Provisions applicable to a Members' Voluntary Winding Up

129 Duty of liquidator to call creditors' meeting if he is of opinion that company is unable to pay its debts.

129.—The Principal Act is hereby amended by the substitution for section 261 of the following section—

“261.—(1) If the liquidator is at any time of the opinion that the company will not be able to pay its debts in full within the period stated in the declaration under section 256 he shall—

(a) summon a meeting of creditors for a day not later than the fourteenth day after the day on which he formed that opinion;

(b) send notices of the creditors' meeting to the creditors by post not less than seven days before the day on which that meeting is to be held;

(c) cause notice of the creditors' meeting to be advertised, at least ten days before the date of the meeting, once in Iris Oifigiúil and once at least in two daily newspapers circulating in the locality in which the company's principal place of business in the State was situated during the relevant period; and

(d) during the period before the day on which the creditors' meeting is to be held, furnish creditors free of charge with such information concerning the affairs of the company as they may reasonably require;

and the notice of the creditors' meeting shall state the duty imposed by paragraph (d).

(2) The liquidator shall also—

(a) make out a statement in the prescribed form as to the affairs of the company, including a statement of the company's assets and liabilities, a list of the outstanding creditors and the estimated amount of their claims;

(b) lay that statement before the creditors' meeting; and

(3) As from the day on which the creditors' meeting is held under this section, the Companies Acts shall have effect as if—

(a) without prejudice to the powers of the court under section 256, the directors' declaration under that section had not been made; and

(b) the creditors' meeting and the company meetings at which it was resolved that the company be wound up voluntarily were the meetings mentioned in section 266;

and, accordingly, the winding up shall become a creditors' voluntary winding up and any appointment made or committee established by the creditors' meeting shall be deemed to have been made or established by the creditors' meeting so mentioned.

(4) The appointment of a liquidator at a meeting called under this section shall not, subject to subsection (5), affect the validity of any action previously taken by the liquidator appointed by the members of the company.

(5) Where the creditors appoint a liquidator at a meeting called under this section and there is a dispute as to any or all of the costs, charges or expenses incurred by, including the remuneration of, the liquidator appointed by the members of the company, the liquidator appointed by the creditors, or any creditor, may apply to the court to determine the dispute and the court may, on such application, make such order as it deems fit.

(6) Nothing in this section shall be deemed to take away any right in this Act of any person to present a petition to the court for the winding up of a company.

(7) If the liquidator fails to comply with subsection (1) he shall be liable to a fine.”.

Provisions applicable to a Creditors' Voluntary Winding Up

130 Amendment of section 266 of the Principal Act.

130.—Section 266 of the Principal Act is hereby amended by the insertion in subsection (2) after “advertised” of the following:

“, at least ten days before the date of the meeting,”.

131 Creditors' voluntary winding up.

131.—(1) This section applies where, in the case of a creditors' voluntary winding up, a liquidator has been nominated by the company.

(2) The powers conferred on the liquidator by section 276 of the Principal Act shall not be exercised, except with sanction of the court, during the period before the holding of the creditors' meeting under section 266 of that Act.

(3) Subsection (2) does not apply in relation to the power of the liquidator—

(a) to take into his custody or under his control all the property to which the company is or appears to be entitled;

(b) to dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of;

(4) The liquidator shall attend the creditors' meeting held under section 266 of the Principal Act and shall report to the meeting on any exercise by him of his powers (whether or not under this section or under section 276 or 280 of that Act).

(5) If default is made—

(a) by the company in complying with subsection (1) or (2) of section 266 of the Principal Act, or

(b) by the directors in complying with subsection (3) of the said section,

the liquidator shall, within 7 days of the relevant day, apply to the court for directions as to the manner in which that default is to be remedied.

(6) “The relevant day” means the day on which the liquidator was nominated by the company or the day on which he first became aware of the default, whichever is the later.

(7) If a liquidator without reasonable excuse fails to comply with this section, he shall be guilty of an offence.

Provisions applicable to every Voluntary Winding Up

132 Amendment of section 275 of the Principal Act.

132.—The Principal Act is hereby amended by the substitution for section 275 of the following section—

“275.—(1) Subject to the provisions of this Act as to preferential payments, the property of a company on its winding up—

(a) shall, subject to subsection (2), be applied in satisfaction of its liabilities pari passu, and

(b) shall, subject to such application, and unless the articles otherwise provide, be distributed among the members according to their rights and interests in the company.

(2) Nothing in paragraph (a) of subsection (1) shall in any way affect any rights or obligations of the company or any other person arising as a result of any agreement entered into (whether before or after the commencement of section 132 of the Companies Act, 1990) by any person under which any particular liability of the company to any general creditor is postponed in favour of or subordinated to the rights or claims of any other person to whom the company may be in any way liable.

(3) In subsection (2)—

‘liability’ includes a contingent liability; and

‘person’ includes a class of persons.”.

133.—The Principal Act is hereby amended by the insertion after section 276 of the following section—

“276A.—(1) The appointment of a liquidator shall be of no effect unless the person nominated has, prior to his appointment, signified his written consent to the appointment.

(2) The chairman of any meeting at which a liquidator is appointed shall, within 7 days of the meeting, notify the liquidator in writing of his appointment, unless the liquidator or his duly authorised representative is present at the meeting where the appointment is made.

(3) A person who fails to comply with subsection (2) shall be liable to a fine not exceeding £1,000.”.

Provisions applicable to every Winding Up

134 Preferential payments in a winding up.

134.—Section 285 of the Principal Act is hereby amended by the insertion of the following subsection—

“(14) The priority conferred by subsection (2) shall apply only to those debts which, within the period of six months after advertisement by the liquidator for claims in at least two daily newspapers circulating in the district where the registered office of the company is situated, either—

(a) have been notified to him; or

(b) have become known to him.”.

135 Fraudulent preference.

135.—The Principal Act is hereby amended by the substitution for section 286 of the following section—

“286.—(1) Subject to the provisions of this section, any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company which is unable to pay its debts as they become due in favour of any creditor, or of any person on trust for any creditor, with a view to giving such creditor, or any surety or guarantor for the debt due to such creditor, a preference over the other creditors, shall, if a winding-up of the company commences within 6 months of the making or doing the same and the company is at the time of the commencement of the winding-up unable to pay its debts (taking into account the contingent and prospective liabilities), be deemed a fraudulent preference of its creditors and be invalid accordingly.

(2) Any conveyance or assignment by a company of all its property to trustees for the benefit of all its creditors shall be void to all intents.

(3) A transaction to which subsection (1) applies in favour of a connected person which was made within two years before the commencement of the winding up of the company shall, unless the contrary is shown, be deemed in the event of the company being wound up—

(a) to have been made with a view to giving such person a preference over the other creditors, and

(b) to be a fraudulent preference,

and be invalid accordingly.

(4) Subsections (1) and (3) shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the company.

(5) In this section, ‘a connected person’ means a person who, at the time the transaction was made, was—

(a) a director of the company;

(b) a shadow director of the company;

(d) a related company, within the meaning of section 140 of the said Act, or

(e) any trustee of, or surety or guarantor for the debt due to, any person described in paragraph (a), (b), (c) or (d).”.

136 Circumstances in which floating charge is invalid.

136.—The Principal Act is hereby amended by the substitution for section 288 of the following section—

“288.—(1) Where a company is being wound up, a floating charge on the undertaking or property of the company created within 12 months before the commencement of the winding up shall, unless it is proved that the company immediately after the creation of the charge was solvent, be invalid, except as to money actually advanced or paid, or the actual price or value of goods or services sold or supplied, to the company at the time of or subsequently to the creation of, and in consideration for, the charge, together with interest on that amount at the rate of 5 per cent per annum.

(2) For the purposes of subsection (1) the value of any goods or services sold or supplied by way of consideration for a floating charge is the amount in money which at the time they were sold or supplied could reasonably have been expected to be obtained for the goods or services in the ordinary course of business and on the same terms (apart from the consideration) as those on which they were sold or supplied to the company.

(3) Where a floating charge on the undertaking or property of a company is created in favour of a connected person, subsection (1) shall apply to such a charge as if the period of 12 months mentioned in that subsection were a period of 2 years.

(4) In this section ‘a connected person’ means a person who, at the time the transaction was made, was—

(a) a director of the company;

(b) a shadow director of the company;

(d) a related company, within the meaning of section 140 of the said Act; or

(e) any trustee of, or any surety or guarantor for the debt due to, any person described in paragraph (a), (b), (c) or (d).”.

137 Criminal liability of persons concerned for fraudulent trading of company.

137.—The Principal Act is hereby amended by the substitution for section 297 of the following section—

“297.—(1) If any person is knowingly a party to the carrying on of the business of a company with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, that person shall be guilty of an offence.

(2) Any person who is convicted of an offence under this section shall be liable—

(a) on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,000 or to both, or

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine not exceeding £50,000 or to both.”.

138 Civil liability of persons concerned for fraudulent or reckless trading of company.

138.—The Principal Act is hereby amended by the insertion after section 297 of the following section—

“297A.—(1) If in the course of winding up of a company or in the course of proceedings under the Companies (Amendment) Act, 1990, it appears that—

(a) any person was, while an officer of the company, knowingly a party to the carrying on of any business of the company in a reckless manner; or

(b) any person was knowingly a party to the carrying on of any business of the company with intent to defraud creditors of the company, or creditors of any other person or for any fraudulent purpose;

the court, on the application of the receiver, examiner, liquidator or any creditor or contributory of the company, may, if it thinks it proper to do so, declare that such person shall be personally responsible, without any limitation of liability, for all or any part of the debts or other liabilities of the company as the court may direct.

(2) Without prejudice to the generality of subsection (1) (a), an officer of a company shall be deemed to have been knowingly a party to the carrying on of any business of the company in a reckless manner if—

(a) he was a party to the carrying on of such business and, having regard to the general knowledge, skill and experience that may reasonably be expected of a person in his position, he ought to have known that his actions or those of the company would cause loss to the creditors of the company, or any of them, or

(b) he was a party to the contracting of a debt by the company and did not honestly believe on reasonable grounds that the company would be able to pay the debt when it fell due for payment as well as all its other debts (taking into account the contingent and prospective liabilities).

(3) Notwithstanding anything contained in subsection (1) the court may grant a declaration on the grounds set out in paragraph (a) of that subsection only if—

(a) paragraph (a), (b) or (c) of section 214 applies to the company concerned, and

(b) an applicant for such a declaration, being a creditor or contributory of the company, or any person on whose behalf such application is made, suffered loss or damage as a consequence of any behaviour mentioned in subsection (1).

(4) In deciding whether it is proper to make an order on the ground set out in subsection (2) (b), the court shall have regard to whether the creditor in question was, at the time the debt was incurred, aware of the company's financial state of affairs and, notwithstanding such awareness, nevertheless assented to the incurring of the debt.

(5) On the hearing of an application under this section, the applicant may himself give evidence or call witnesses.

(6) Where it appears to the court that any person in respect of whom a declaration has been sought under subsection (1) (a), has acted honestly and responsibly in relation to the conduct of the affairs of the company or any matter or matters on the ground of which such declaration is sought to be made, the court may, having regard to all the circumstances of the case, relieve him either wholly or in part, from personal liability on such terms as it may think fit.

(7) Where the court makes any such declaration, it may—

(a) give such further directions as it thinks proper for the purpose of giving effect to that declaration and in particular may make provision for making the liability of any such person under the declaration a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in any mortgage or charge on any assets of the company held by or vested in him or any company or person on his behalf, or any person claiming as assignee from or through the person liable or any company or person acting on his behalf, and may from time to time make such further order as may be necessary for the purpose of enforcing any charge imposed under this subsection;

(b) provide that sums recovered under this section shall be paid to such person or classes of persons, for such purposes, in such amounts or proportions at such time or times and in such respective priorities among themselves as such declaration may specify.

(8) Subsection (1) (a) shall not apply in relation to the carrying on of the business of a company during a period when the company is under the protection of the court.

(9) This section shall have effect notwithstanding that—

(a) the person in respect of whom the declaration has been sought under subsection (1) may be criminally liable in respect of the matters on the ground of which such declaration is to be made; or

(b) any matter or matters on the ground of which the declaration under subsection (1) is to be made have occurred outside the State.

(10) For the purposes of this section—

‘assignee’ includes any person to whom or in whose favour, by the directions of the person liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but does not include an assignee for valuable consideration (not including consideration by way of marriage) given in good faith and without notice of any of the matters on the ground of which the declaration is made;

‘company’ includes any body which may be wound up under the Companies Acts; and

‘officer’ includes any auditor, liquidator, receiver, or shadow director.”.

139 Power of the court to order the return of assets which have been improperly transferred.

139.—(1) Where, on the application of a liquidator, creditor or contributory of a company which is being wound up, it can be shown to the satisfaction of the court that—

(a) any property of the company of any kind whatsoever was disposed of either by way of conveyance, transfer, mortgage, security, loan, or in any way whatsoever whether by act or omission, direct or indirect, and

(b) the effect of such disposal was to perpetrate a fraud on the company, its creditors or members,

the court may, if it deems it just and equitable to do so, order any person who appears to have the use, control or possession of such property or the proceeds of the sale or development thereof to deliver it or pay a sum in respect of it to the liquidator on such terms or conditions as the court sees fit.

(2) Subsection (1) shall not apply to any conveyance, mortgage, delivery of goods, payment, execution or other act relating to property made or done by or against a company to which section 286 (1) of the Principal Act applies.

(3) In deciding whether it is just and equitable to make an order under this section, the court shall have regard to the rights of persons who have bona fide and for value acquired an interest in the property the subject of the application.

140.—(1) On the application of the liquidator or any creditor or contributory of any company that is being wound up, the court, if it is satisfied that it is just and equitable to do so, may order that any company that is or has been related to the company being wound up shall pay to the liquidator of that company an amount equivalent to the whole or part of all or any of the debts provable in that winding up. Any order under this section may be made on such terms and conditions as the court thinks fit.

(2) In deciding whether it is just and equitable to make an order under subsection (1) the court shall have regard to the following matters—

(a) the extent to which the related company took part in the management of the company being wound up;

(b) the conduct of the related company towards the creditors of the company being wound up;

(3) No order shall be made under subsection (1) unless the court is satisfied that the circumstances that gave rise to the winding up of the company are attributable to the actions or omissions of the related company.

(4) Notwithstanding any other provision, it shall not be just and equitable to make an order under subsection (1) if the only ground for making the order is—

(a) the fact that a company is related to another company, or

(b) that creditors of the company being wound up have relied on the fact that another company is or has been related to the first mentioned company.

(5) For the purposes of this Act, a company is related to another company if—

(a) that other company is its holding company or subsidiary; or

(b) more than half in nominal value of its equity share capital (as defined in section 155 (5) of the Principal Act) is held by the other company and companies related to that other company (whether directly or indirectly, but other than in a fiduciary capacity); or

(c) more than half in nominal value of the equity share capital (as defined in section 155 (5) of the Principal Act) of each of them is held by members of the other (whether directly or indirectly, but other than in a fiduciary capacity); or

(d) that other company or a company or companies related to that other company or that other company together with a company or companies related to it are entitled to exercise or control the exercise of more than one half of the voting power at any general meeting of the company; or

(e) the businesses of the companies have been so carried on that the separate business of each company, or a substantial part thereof, is not readily identifiable; or

(f) there is another company to which both companies are related;

and “related company” has a corresponding meaning.

(6) For the purposes of this section “company” includes any body which is liable to be wound up under the Companies Acts and “creditor” means one or more creditors to whom the company being wound up is indebted by more, in aggregate, than £10,000.

(7) Where an application for an order under subsection (1) seeks to require a licensed bank, within the meaning of section 25, to contribute to the debts of a related company, a copy of every such application shall be sent by the applicant to the Central Bank who shall be entitled to be heard by the court before an order is made.

141.—(1) Where two or more related companies are being wound up and the court, on the application of the liquidator of any of the companies, is satisfied that it is just and equitable to make an order under this section, the court may order that, subject to such terms and conditions as the court may impose and to the extent that the court orders, the companies shall be wound up together as if they were one company, and, subject to the provisions of this section, the order shall have effect and all the provisions of this Part and Part VI of the Principal Act shall apply accordingly.

(2) In deciding the terms and conditions of an order under this section the court shall have particular regard to the interests of those persons who are members of some, but not all, of the companies.

(3) Where the court makes an order under subsection (1)—

(a) the court may remove any liquidator of any of the companies, and appoint any person to act as liquidator of any one or more of the companies;

(b) the court may give such directions as it thinks fit for the purpose of giving effect to the order;

(d) debts of a company that are to be paid in priority to all other debts of the company pursuant to section 285 of the Principal Act shall, to the extent that they are not paid out of the assets of that company, be subject to the claims of holders of debentures under any floating charge (as defined in that section) created by any of the other companies;

(e) unless the court otherwise orders, the claims of all unsecured creditors of the companies shall rank equally among themselves.

(4) In deciding whether it is just and equitable to make an order under subsection (1) the court shall have regard to the following matters—

(a) the extent to which any of the companies took part in the management of any of the other companies;

(b) the conduct of any of the companies towards the creditors of any of the other companies;

(c) the extent to which the circumstances that gave rise to the winding up of any of the companies are attributable to the actions or omissions of any of the other companies;

(d) the extent to which the businesses of the companies have been intermingled.

(5) Notwithstanding any other provision, it shall not be just and equitable to make an order under subsection (1) if the only ground for making the order is—

(a) the fact that a company is related to another company, or

(b) that creditors of a company being wound up have relied on the fact that another company is or has been related to the first mentioned company.

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Companies Act , 1990

89 The 1988 Directive.

90 Provisions as to interpretation.

91 Obligation to notify certain interests to the Exchange.

92 Duty of relevant authority to report to Director of Public Prosecutions.

93 Application and amendment of the 1984 Regulations.

94 Obligation of professional secrecy.

95 Immunity from suit.

96 Co-operation between authorities in Member States.

Chapter 3 Disclosure Orders: Companies other than Public Limited Companies

97 Application of Chapter 3.

98 Disclosure order.

99 Procedure on application for disclosure order.

100 Scope of disclosure order.

101 Powers of court.

102 Notice of disclosure order.

103 Information disclosed under order.

104 Civil consequences of contravention of disclosure order.

Chapter 4 General provisions about share registers etc.

105 Power to alter maximum inspection etc. charges.

106 Transitional provisions.

PART V Insider Dealing

107 Interpretation.

108 Unlawful dealings in securities by insiders.

109 Civil liability for unlawful dealing.

110 Exempt transactions.

111 Criminal liability for unlawful dealing.

112 Restriction on dealing.

113 Duty of agents in relation to unlawful dealing.

114 Penalties for offences under this Part.

115 Duty of recognised stock exchange in relation to unlawful dealing.

116 Co-operation with other authorities outside the State.

117 Authorised persons.

118 Obligation of professional secrecy.

119 Extension of Council Directive 79/279/EEC.

120 Annual report of recognised stock exchange.

121 Power of Minister to make supplementary regulations.

PART VI Winding Up and Related Matters

122 Amendment of section 99 of the Principal Act.

123 Amendment of sections 214 and 345 of Principal Act.

124 Amendment of section 231 of the Principal Act.

125 No lien over company's books, records, etc.

126 Power of court to summon persons for examination.

127 Order for payment or delivery of property against person examined under section 245 of Principal Act.

128 Statutory declaration of solvency in case of proposal to wind up voluntarily.

129 Duty of liquidator to call creditors' meeting if he is of opinion that company is unable to pay its debts.

130 Amendment of section 266 of the Principal Act.

131 Creditors' voluntary winding up.

132 Amendment of section 275 of the Principal Act.

133 Consent to appointment as liquidator and notification of appointment.

134 Preferential payments in a winding up.

135 Fraudulent preference.

136 Circumstances in which floating charge is invalid.

137 Criminal liability of persons concerned for fraudulent trading of company.

138 Civil liability of persons concerned for fraudulent or reckless trading of company.

139 Power of the court to order the return of assets which have been improperly transferred.

140 Company may be required to contribute to debts of related companies.

141 Pooling of assets of related companies.