Companies (Miscellaneous Provisions) (Covid-19) Act 2020

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Companies (Miscellaneous Provisions) (Covid-19) Act 2020.

(2) This Act shall come into operation on such day or days as the Minister for Business, Enterprise and Innovation may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Definitions

2. In this Act—

“Act of 1893” means the Industrial and Provident Societies Act 1893;

“Act of 2014” means the Companies Act 2014.

PART 2 Amendment to Companies Act 2014

3. Amendment of section 2 of Act of 2014

3. Section 2 of the Act of 2014 is amended, in subsection (1), by the insertion of the following definitions:

“ ‘Covid-19’ means a disease caused by infection with the virus SARS-CoV-2 and specified as an infectious disease in accordance with Regulation 6 of, and the Schedule to, the Infectious Diseases Regulations 1981 (S.I. No. 390 of 1981) or any variant of the disease so specified as an infectious disease in those Regulations;

‘interim period’ means—

(a) the period beginning on the commencement of section 3 of the Companies (Miscellaneous Provisions) (Covid-19) Act 2020 and ending on 31 December 2020, and

(b) such other period (if any) as may be specified by order under section 12A;”.

4. Extension of interim period

4. The Act of 2014 is amended by the insertion of the following section after section 12:

“12A. (1) The Government may, at the request of the Minister made after consultation with the Minister for Health, from time to time, by order extend the interim period, either generally or with reference to any particular purpose or provision, for such period as they consider appropriate if they are satisfied that, having regard to—

(a) the threat to public health presented by Covid-19,

(b) the highly contagious nature of that disease,

(c) the need to restrict the movement of persons in order to prevent the spread of the disease among the population and the effect that such restriction may have on travel and meetings, and

(d) the need to mitigate the economic effects arising from Covid-19,

the making of such order is in the public interest.

(2) Every order 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 such House within the next 21 days on which that House sits after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.”.

5. Execution of instruments during interim period

5. The Act of 2014 is amended by the insertion of the following section after section 43:

“43A. (1) Subsections (2) to (4) apply to a company during the interim period only and notwithstanding any provision of—

(a) section 43(2)(b) or (3), or

(b) the company’s constitution.

(2) As respects an instrument to be made or executed by a company, other than an instrument to which subsection (3) applies, such an instrument may consist of several documents in like form if—

(a) one such document is signed by a person referred to in section 43(2)(b)(i),

(b) one such document is signed by a person referred to in section 43(2)(b)(ii), and

(c) one such document has the company’s seal affixed to it.

(3) As respects an instrument to be made or executed by a registered person in exercise of the powers of a company, such an instrument may consist of several documents in like form if—

(a) one such document is signed by the registered person,

(b) one such document is signed by a person referred to in section 43(2)(b)(i),

(c) one such document is signed by a person referred to in section 43(2)(b)(ii), and

(d) one such document has the company’s seal affixed to it.

(4) An instrument consisting of several documents that comply with subsection (2) or (3) shall be valid and effective for all purposes as if the documents were, taken together, one document.”.

6. General meetings during interim period

6. Part 4 of the Act of 2014 is amended, in Chapter 6, by the insertion in that Chapter of the following section before section 175:

“174A. (1) This section (including any regulations made thereunder) shall apply to the general meetings of a company during the interim period only and shall so apply notwithstanding any other provision of this Act or of the company’s constitution.

(2) This section is in addition to, and does not derogate from, the provisions of subsection (3) of section 175.

(3) If, as respects the year 2020, the requirement to hold an annual general meeting (the ‘relevant requirement’) would, but for this subsection, fall to be complied with by a company on a date in that year (the ‘relevant date’) that is earlier than 31 December 2020, then the company may opt to satisfy the relevant requirement by its holding the annual general meeting on a date that is a date subsequent to the relevant date (but that is not a date later than 31 December 2020).

(4) Where a company opts to avail itself of subsection (3), section 341(2) shall apply to the company as if, in that section, the words ‘at the meeting last-mentioned in section 174A(3)’ were substituted for the words ‘not later than 9 months after the financial year end date’.

(5) A company need not hold a general meeting at a physical venue but may conduct the meeting wholly or partly by the use of electronic communications technology as long as all attendees have a reasonable opportunity to participate in the meeting in accordance with this section.

(6) (a) A company may provide for participation in a general meeting by providing or facilitating, for that purpose, the use of electronic communications technology, including a mechanism for casting votes by a member, whether before or during the meeting.

(b) The mechanism referred to in paragraph (a) shall not require the member to be physically present at the general meeting or require the member to appoint a proxy who is to be physically present at the meeting.

(7) The use of electronic communications technology pursuant to subsection (6) may be made subject only to such requirements or restrictions put in place by the company as are necessary to ensure the identification of attendees and the security of the electronic communications technology, to the extent that such requirements or restrictions are proportionate to the achievement of those objectives.

(8) A company shall inform attendees, before the general meeting concerned, of any requirements or restrictions which it has put in place pursuant to subsection (7).

(9) A company that provides for the use of electronic communications technology for participation in a general meeting by an attendee shall ensure, as far as practicable, that—

(a) such technology—

(i) provides for the security of any electronic communications by the attendee,

(ii) minimises the risk of data corruption and unauthorised access, and

(iii) provides certainty as to the source of the electronic communications,

(b) in the case of any failure or disruption of such technology, that failure or disruption is remedied as soon as practicable, and

(c) such technology enables the attendee to—

(i) hear what is said by the chairperson of the meeting and any person introduced by the chairperson, and

(ii) speak and submit questions and comments during the meeting to the chairperson to the extent that the attendee is entitled to do so under the constitution of the company.

(10) Any temporary failure or disruption of electronic communications technology shall not invalidate the general meeting or any proceedings relating to the meeting.

(11) Unless such failure or disruption is attributable to any wilful act of the company, a company shall not be liable in respect of any failure or disruption relating to the equipment used by an attendee to access a general meeting by electronic communications technology that occurs and which failure or disruption prevents or interferes with the attendee’s participation, by way of such technology, in the meeting.

(12) Where, in the opinion of the directors of a company, it is deemed necessary—

(a) in order to comply with the public health guidance of the Government or regulations made under sections 5 and 31A of the Health Act 1947 in respect of the movement or gathering of persons for the purposes of preventing, limiting, minimising or slowing the spread of Covid-19, the directors may, at any time up to the end of the day prior to the day on which a general meeting is to be held and in accordance with section 181A—

(i) cancel the meeting,

(ii) change the venue of the meeting, or

(iii) change the means of holding the meeting (including providing for facilitating attendees to participate in such meeting by way of electronic communications technology),

or

(b) due to exceptional and unexpected circumstances, the directors may cancel such meeting at any time prior to the holding of that meeting.

(13) The Minister may, if he or she considers it appropriate, by regulations make further provision for all or any of the following in relation to general meetings to be held by way of electronic communications technology:

(a) the convening and conduct of the meetings;

(b) attendance at the meetings;

(c) access to and participation in the meetings.

(14) In this section and sections 181(5)(aa), 181A, 182(2A), 186A, 195A and 1103(2)(aa)—

‘attendee’, in relation to a general meeting of a company, means—

(a) a member of the company,

(b) a proxy of a member of the company,

(c) an authorised person representing a body corporate under section 185,

(d) the auditor, or

(e) a person entitled to attend the meeting by virtue of provisions in the constitution of the company or the terms of issue of debt securities issued by the company;

‘electronic communications technology’, in relation to a general meeting of a company, means technology that enables real time transmission and real time two-way audio-visual or audio communication enabling attendees as a whole with a reasonable opportunity to participate in the meeting using such technology from a remote location;

‘electronic platform’, in relation to a general meeting of a company, means an electronic system for the delivery of audio-visual or audio communication, including websites, access software and access telephone details or any other electronic technology that delivers such communication;

‘general meeting’, in relation to a company, means any of the following:

(a) an annual general meeting of the company;

(b) an extraordinary general meeting of the company;

(c) a general meeting of holders of shares in the company of a particular class;

(d) a scheme meeting (within the meaning of section 449),

and includes a meeting referred to in paragraph (a), (b), (c) or (d) that has been rescheduled.”.

7. Amendment of section 181 of Act of 2014

7. Section 181 of the Act of 2014 is amended, in subsection (5), by the insertion of the following paragraph after paragraph (a):

“(aa) in the case of a meeting during the interim period proposed to be held wholly or partly by the use of electronic communications technology—

(i) the electronic platform to be used for the meeting,

(ii) details for access to the electronic platform,

(iii) the time and manner by which an attendee must confirm his or her intention to attend the meeting,

(iv) any requirements or restrictions which the company has put in place in order to identify attendees who intend to attend the meeting,

(v) the procedure for attendees to communicate questions and comments during the meeting, and

(vi) the procedure to be adopted for voting on resolutions proposed to be passed at the meeting;”.

8. Notice of rescheduled general meeting during interim period

8. The Act of 2014 is amended by the insertion of the following section after section 181:

“181A. (1) Notwithstanding section 181 but subject to subsection (2), notice for the purposes of section 174A(12) shall be given in the same manner as the notice for the general meeting referred to in that last-mentioned section but where, in the opinion of the directors of the company, giving such notice in that manner is not reasonably practicable, notice shall be given—

(a) where the company has a website, on that website,

(b) by email to all members for whom the company has an email address, and

(c) in a national newspaper.

(2) Subsection (1) shall not apply where all members agree in writing to the cancellation, change of venue or change of means of holding the general meeting concerned, or to dispensing with notice for the general meeting.”.

9. Amendment of section 182 of Act of 2014

9. Section 182 of the Act of 2014 is amended by the insertion of the following subsection after subsection (2):

“(2A) Notwithstanding subsection (2) or any provision of a company’s constitution, during the interim period, each member and proxy who participates in a general meeting by the use of electronic communications technology in accordance with section 174A shall be counted in the quorum for the meeting.”.

10. Withdrawal or amendment of dividend resolutions

10. The Act of 2014 is amended by the insertion of the following section after section 186:

“186A. (1) Subject to subsection (2), where the directors of a company have recommended that the declaration of a dividend be adopted by resolution at a general meeting and, subsequent to convening the meeting, the directors form the opinion that, due to the actual or perceived consequences of Covid-19 on the affairs of the company, the dividend ought to be cancelled or reduced to a particular amount, the directors may—

(a) withdraw the resolution to approve the dividend, or

(b) propose an amendment to that resolution to provide for a dividend less than that originally recommended.

(2) The resolution to approve the dividend may be withdrawn or amended notwithstanding any provision to the contrary in the company’s constitution where—

(a) all the members of the company agree in writing to such withdrawal or amendment, and

(b) notice of the formation of the opinion of the directors referred to in subsection (1) and consequent proposed withdrawal or amendment of the resolution is given no later than 3 days before the general meeting.”.

11. Voting on resolutions at general meeting during interim period

11. The Act of 2014 is amended by the insertion of the following section after section 195:

“195A. (1) Where, during the interim period, a company has included, in the notice of a general meeting, a notice of intention to require voting on a poll on all resolutions in the first-mentioned notice—

(a) all resolutions at the meeting shall be taken on a poll, and

(b) subsections (1), (2), (3) and (7) of section 189 shall not apply to the voting on a poll at that meeting.

(2) Where, during the interim period, a general meeting is conducted by way of electronic communications technology in accordance with section 174A, the chairperson of the meeting may conduct a vote to decide on a resolution by a show of hands of every member who is participating in the meeting by way of such technology where the chairperson is of the opinion that he or she can identify the members entitled to vote and verify the content of voting instructions relating to the resolution.”.

12. Amendment of section 520 of Act of 2014

12. Section 520 of the Act of 2014 is amended, in subsection (2)(b), by the substitution of “section 534(3), (3A) and (4)” for “section 534(3) and (4)”.

13. Amendment of section 534 of Act of 2014

13. Section 534 of the Act of 2014 is amended—

(a) in subsection (3), by the substitution of “Subject to subsection (3A), where” for “Where”,

(b) the insertion of the following subsection after subsection (3):

“(3A) (a) Paragraph (b) applies where the examiner has obtained an order under subsection (3) extending the period of 70 days referred to in section 520(2).

(b) Where, during the interim period, on the application of the examiner, the court is satisfied that—

(i) the examiner has been unable to report under subsection (2) to the court within the period of 70 days referred to in section 520(2),

(ii) having obtained an order of the court under subsection (3) to extend the period referred to in section 520(2), he or she would be unable to report under subsection (2) to the court within the period as so extended by the court under subsection (3),

(iii) the examiner would be able to report under subsection (2) to the court if the period as extended under subsection (3) were further extended, and

(iv) exceptional circumstances exist in respect of the company the subject of the application,

the court may by order further extend the extended period by not more than 50 days to enable the examiner to make his or her report.

(c) In paragraph (b), ‘exceptional circumstances’ include (but are not limited to) the nature and potential or actual impact of Covid-19 on the company.”,

and

(c) in subsection (4), by the insertion of “and any further extended period allowed under subsection (3A)” after “subsection (3)”.

14. Amendment of section 570 of Act of 2014

14. Section 570 of the Act of 2014 is amended—

(a) in paragraphs (a) and (b), by the substitution of “if, other than during the interim period—” for “if—”, and

(b) by the insertion of the following paragraph after paragraph (b):

“(ba) if, during the interim period—

(i) one or more creditors, by assignment or otherwise, to whom, in aggregate, the company is indebted in a sum exceeding €50,000 then due, has served on the company (by leaving it at the registered office of the company) a demand in writing requiring the company to pay the sum so due, and

(ii) the company has, for 21 days after the date of the service of that demand, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of each of the creditors,”.

15. Amendment of section 584 of Act of 2014

15. Section 584 of the Act of 2014 is amended by the insertion of the following subsections after subsection (1):

“(1A) Where a meeting of creditors is summoned in accordance with subsection (1) and the meeting is to be held wholly or partly by the use of electronic communications technology during the interim period, the notice of the creditors’ meeting shall specify—

(a) the electronic platform to be used for the meeting,