Anglo Irish Bank Corporation Act 2009

1.. Definitions.

1.— In this Act—

“Anglo Irish Bank” means the company known before its re-registration by virtue of section 6 as Anglo Irish Bank Corporation Public Limited Company and, after that re-registration, as Anglo Irish Bank Corporation Limited;

“articles” means articles of association;

“Assessor” means the person appointed under section 22;

“Central Bank” means the Central Bank F1[…] of Ireland;

“commercially sensitive information” means information the disclosure of which could reasonably be expected to—

(a) materially prejudice the commercial or industrial interests of a person or of a group or class of persons, or

(b) prejudice the competitive position of a person in the conduct of the person’s business, profession or occupation;

“credit institution” has the same meaning as in the Central Bank Act 1997;

“extinguished rights” means rights extinguished by section 10(1) in or in relation to Anglo Irish Bank;

“Governor” has the same meaning as in the Central Bank Act 1942;

“memorandum” means memorandum of association;

“Minister” means Minister for Finance;

“nominee” means nominee of the Minister, including a nominee that is a company;

“regulated market” has the same meaning as in the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007);

F2[…]

“security interest” includes any mortgage, charge, lien, pledge or other encumbrance;

“shares” includes ordinary shares, preference shares, share warrants and stock;

“subsidiary”, in relation to Anglo Irish Bank, has the same meaning as in section 155 of the Companies Act 1963;

“subsidiary undertaking”, in relation to Anglo Irish Bank, has the same meaning as in the European Communities (Companies: Group Accounts) Regulations 1992 (S.I. No. 201 of 1992);

“transferred shares” means the shares in Anglo Irish Bank transferred to the Minister under section 5.

2.. Functions performed in the public interest.

2.— (1) The Minister has, in the public interest, the functions provided for under this Act because, after consulting the directors of Anglo Irish Bank, the Governor and the Regulatory Authority, the Minister is of the opinion that—

(a) there are serious concerns about the viability of Anglo Irish Bank, or would be if those functions were not performed, and

(b) the performance of those functions is necessary, in the public interest—

(i) to remedy a serious disturbance in the economy of the State,

(ii) to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

(iii) to preserve the capacity of Anglo Irish Bank to continue its operations as a going concern.

(2) The Minister may continue to consult the Governor F3[and the Central Bank] in the continuing performance of the Minister’s functions under this Act.

(3) Nothing in this Act prevents the performance by the Central Bank F4[…] of its functions in relation to Anglo Irish Bank or any credit institution authorised or regulated in the State, or affects any obligation arising under the treaties governing the European Communities (within the meaning given by section 1 of the European Communities Act 1972) or the ESCB Statute (within the meaning given by section 2 of the Central Bank Act 1942).

3.. Relationship framework between the Minister and Anglo Irish Bank.

3.— (1) The Minister may from time to time specify a relationship framework in writing to govern the relationship between the Minister or the Minister’s nominee and Anglo Irish Bank, and may from time to time amend or revoke any such relationship framework. The relationship framework shall recognise the separation of Anglo Irish Bank from the Minister or the Minister’s nominee and limit intervention by the Minister or the Minister’s nominee in the conduct of Anglo Irish Bank’s business to that necessary to protect the public interest. The relationship framework shall at all times comply with regulatory requirements.

(2) Anglo Irish Bank and any nominee of the Minister shall act in accordance with any relationship framework specified under subsection (1).

(3) The Minister may give a direction in writing to Anglo Irish Bank requiring it to do or refrain from doing anything the doing or refraining from doing of which is, in the opinion of the Minister, necessary or expedient in the public interest, subject to regulatory requirements.

(4) The Minister may authorise the Minister’s nominee to give a direction under subsection (3), and a direction given by a nominee under such an authority has the same effect as a direction by the Minister.

(5) Anglo Irish Bank shall comply with a direction under subsection (3).

4.. Effect of this Act.

4.— The provisions of this Act have effect notwithstanding anything in—

(a) the Companies Acts or any other enactment, or

(b) the memorandum and articles of Anglo Irish Bank or any of its subsidiaries or subsidiary undertakings.

5.. Acquisition of shares in Anglo Irish Bank.

5.— (1) On the commencement of this Act, all the shares in Anglo Irish Bank are transferred to the Minister.

(2) Subsection (1) transfers the shares in Anglo Irish Bank without the necessity for any instrument.

(3) Subsection (1) vests title to the shares in the Minister—

(a) freed from any liability or any equitable or beneficial right, title or interest (including a security interest) formerly attaching to any such share, and

(b) together with all rights, benefits and privileges which, on or after the commencement of this Act, attach or accrue to or arise from any such share.

6.. Effect of acquisition of shares.

6.— (1) On the commencement of this Act, the Minister—

(a) is to be taken to be entered in the register of members of Anglo Irish Bank as the holder of the transferred shares, and

(b) becomes a member of Anglo Irish Bank.

(2) On the commencement of this Act—

(a) Anglo Irish Bank becomes a private company limited by shares, under the name of “Anglo Irish Bank Corporation Limited”,

(b) its memorandum is to be taken to have been amended to reflect its status as a private company limited by shares,

(c) its objects clause is to be taken to provide for, as objects, the doing of anything required by or authorised by this Act, and acting in support of, connection with and furtherance of the purposes of this Act,

(d) its articles are to be taken to have been amended to comply with section 33 of the Companies Act 1963 and are to be construed accordingly, and

(e) the registrar of companies shall issue to it a certificate of incorporation appropriate to a private company limited by shares.

(3) A share certificate issued before the commencement of this Act in relation to shares in Anglo Irish Bank is not evidence of the ownership, at a time after that commencement, of the shares (other than for the purposes of establishing an entitlement to compensation).

(4) Anglo Irish Bank may not make a call to pay up any outstanding amounts due in respect of any of the shares at any time while the Minister or the Minister’s nominee holds those shares. However, a person who is, at the commencement of this Act, liable to pay to Anglo Irish Bank an amount due in respect of any of those shares remains so liable notwithstanding anything in this subsection.

(5) Publication of this Act is to be taken to satisfy the requirement under the European Communities (Single-Member Private Limited Companies) Regulations 1994 (S.I. No. 275 of 1994)) to give notice of Anglo Irish Bank’s becoming a single-member private limited company (within the meaning of those Regulations) as a result of the transfer of its shares to the Minister under this Act.

7.. General exercise of Minister’s rights as shareholder.

7.— (1) The rights of the Minister as a shareholder in Anglo Irish Bank are exercisable on and from the commencement of this Act.

(2) Where a right or power in respect of a share in Anglo Irish Bank is exercisable by attorney or proxy, the Minister may appoint an attorney or proxy who may exercise the right or power on the Minister’s behalf.

8.. Minister’s power to transfer shares to nominee.

8.— (1) The Minister may at any time transfer some or all of the shares that he or she holds in Anglo Irish Bank to a nominee of the Minister specified by the Minister from time to time.

(2) A nominee of the Minister holds shares transferred to him or her on such terms as the Minister specifies, having regard to the public interest and regulatory requirements.

(3) The Minister’s nominee shall not transfer any such share other than to the Minister or another nominee of the Minister.

(4) The Minister’s nominee may exercise all of the Minister’s functions in relation to Anglo Irish Bank, being functions expressed to be exercisable by the Minister’s nominee.

(5) The Minister may by order confer on a nominee of the Minister any other function of the Minister under this Act.

(6) Notice of the making of an order under subsection (5) shall be published as soon as is practicable in Iris Oifigiúil.

(7) The nominee specified by the Minister under subsection (1) may be the National Treasury Management Agency and, if so, the functions of that Agency are to be taken to include that of acting as a nominee of the Minister for the purposes of this Act.

9.. Effect on certain other rights.

9.— (1) In this section “relevant instrument” means an agreement, licence, security, obligation or other instrument (other than the Credit Institutions (Financial Support) Scheme 2008 (S.I. No. 411 of 2008) or an instrument entered into under that Scheme) to which any of the following is a party or by which any of the following is bound:

(a) Anglo Irish Bank;

(b) any of its subsidiaries or subsidiary undertakings;

(c) any body corporate in which Anglo Irish Bank or any of its subsidiaries or subsidiary undertakings has any interest.

(2) Any provision in a relevant instrument that would (apart from this subsection) cause any of the consequences specified in subsection (4) to follow by virtue of—

(a) the announcement by the Minister of the intention to enact this Act,

(b) the transfer of shares to the Minister under this Act,

(c) the re-registration of Anglo Irish Bank as a private company limited by shares by virtue of section 6,

(d) the de-listing of any equity or other security by virtue of section 12, or

(e) any other thing done or authorised to be done pursuant to or resulting from any provision of this Act,

is of no effect, except to any extent to which the Minister provides otherwise by order under subsection (5).

(3) A provision referred to in subsection (2) shall be taken never to have been of any effect at any time after 14 January 2009, except to any extent to which the Minister provides otherwise by order under subsection (5).

(4) The consequences are the following:

(a) the creation of an obligation;

(b) the suspension or extinction (however described, and whether in whole or in part) of a right or an obligation or the becoming subject to a right or an obligation;

(c) the termination of the relevant instrument concerned or a right or obligation under it;

(d) the becoming exercisable of a right to terminate the instrument or a right or obligation under it;

(e) the becoming due and payable or capable of being declared due and payable of an amount;

(f) any other change in the amount or timing of any payment falling to be made or due to be received by any person;

(g) the becoming exercisable of any right to withhold, net or set off any payment;

(h) the arising of an event of default or breach of a right;

(i) the becoming exercisable of any right not to advance any amount, contingent instrument or credit;

(j) the arising of an obligation to provide or transfer a deposit or collateral;

(k) a right to enforce a guarantee, indemnity or security interest (however described);

(l) the triggering of any mandatory prepayment;

(m) any obligation to return collateral or its equivalent;

(n) the cancellation of any obligation to advance any amount or to provide credit or a contingent instrument;

(o) the becoming maintainable of proceedings to enforce the instrument, to any extent that such proceedings would not have been maintainable had the shares not been transferred or had any other thing done or matter arising by virtue of or in connection with this Act not been done or not arisen, as the case may be;

(p) the arising or becoming exercisable of any other right or remedy (whether or not similar in kind to those referred to in paragraphs (a) to (o));

(q) the termination or alteration of an obligation to provide a service or product.

(5) If the Minister is satisfied that in a particular case or cases the effect of subsections (1) to (4) in all the circumstances is unduly onerous, or causes undue unfairness or undue hardship, and that it is appropriate in all the circumstances to do so, he or she may by order provide that, notwithstanding anything in those subsections, a provision in a relevant instrument that provides for a consequence mentioned or referred to in subsection (4) has effect to the extent specified in the order.

(6) An order under subsection (5)—

(a) may make provision in relation to the effect of a provision in—

(i) a particular relevant instrument,

(ii) relevant instruments of a particular kind, or

(iii) rights held under a relevant instrument, or relevant instruments of a particular kind, by a particular person or a particular class of persons,

(b) in the case of an order that makes provision in relation to relevant instruments of a particular kind, may specify the kind by reference to any common characteristic of the instruments concerned,

(c) in the case of an order that makes provision in relation to rights held by a particular class of persons, may specify the class by reference to any common characteristic of the persons concerned, and

(d) may be expressed to have retrospective effect to a date falling after 14 January 2009.

(7) Notice of the making of an order under subsection (5) shall be published as soon as is practicable in Iris Oifigiúil.

(8) If the Attorney General considers that an order under subsection (5) contains matter that is commercially sensitive, he or she may direct—

(a) that the obligations in relation to the order under section 3(1) of the Statutory Instruments Act 1947 are to be taken to be satisfied by the printing, sending to the institutions mentioned in section 3(1)(a) of that Act, publication and sale of a version of the order from which the commercially sensitive matter is omitted, or

(b) if the preparation of such a version would be impracticable, or would result in the version being seriously misleading, that the order is exempt from the operation of section 3(1) of that Act.

(9) A version of an order prepared in accordance with a direction given by the Attorney General under subsection (8)(a) shall indicate that matter has been omitted from the version of the order and the general nature of that matter.

(10) A direction given by the Attorney General under subsection (8) shall be published in Iris Oifigiúil.

(11) Evidence of a direction given by the Attorney General under subsection (8) may be given by the production of a copy of IrisOifigiúil purporting to contain the direction.

(12) Nothing in this Act affects the operation of the Asset Covered Securities Acts 2001 and 2007 in relation to Anglo Irish Bank and its subsidiaries and subsidiary undertakings.

10.. Extinguishment of certain rights in relation to shares.

10.— (1) On the commencement of this Act, the following rights are extinguished as against the Minister and Anglo Irish Bank:

(a) rights (however described) to subscribe for shares, or options over shares, in Anglo Irish Bank arising from or in connection with an individual’s employment by or office with Anglo Irish Bank, or any of its subsidiaries or subsidiary undertakings;

(b) other options or rights held by a person to subscribe for or otherwise acquire, from Anglo Irish Bank, shares in Anglo Irish Bank.

(2) At any time after the commencement of this Act, Anglo Irish Bank may resolve to vary the rights attaching to any shares in a company that is its subsidiary or subsidiary undertaking. Such resolution has full force and effect from the date of the resolution notwithstanding anything in the Companies Acts or the memorandum or articles of the company concerned.

11.. Equitable interests in shares.

11.— (1) If any transferred shares were subject, immediately before the commencement of this Act, to an equitable or beneficial right, title or interest (including a security interest), the person who was the legal owner of those shares immediately before that commencement holds any sum paid to him or her as compensation for the acquisition of those shares in trust for the person who held the right, title or interest in proportion to the entitlement concerned.

(2) A person who holds money in trust for another person under subsection (1) does so on the same terms (as nearly as possible) as those of the right, title or interest referred to in that subsection.

12.. De-listing.

12.— (1) On the commencement of this Act, any listing of shares of Anglo Irish Bank is discontinued without the need for any other notice to, or the consent of, any person.

(2) In subsection (1) “listing” has the same meaning as in the European Communities (Admissions to Listing and Miscellaneous Provisions) Regulations 2007 (S.I. No. 286 of 2007).

(3) The Minister may by order make provision for discontinuing the admission to, or trading on, a market (including a regulated market) of any securities (other than those described in subsection (1)) that have been issued by Anglo Irish Bank.

(4) Notice of the making of an order under subsection (3) shall be published as soon as is practicable in Iris Oifigiúil.

13.. Disapplication, etc., of certain provisions of Central Bank Acts.