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Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the “Act”)

AUTHOR(S): Brendan Colgan, Patrick Molloy
KEY CONTACT(S): Brendan Colgan, Patrick Molloy
PRACTICE AREA GROUP: Finance and Capital Markets, Corporate Restructuring and Insolvency
DATE: 25.08.2020

The Act was commenced by the Minister for Business, Enterprise and Innovation on 21 August 2020.  The primary purpose of the Act is to provide for interim measures and for temporary amendments to the Companies Act 2014 to deal with the impact of the Covid-19 pandemic on day-to-day actions taken by and in relation to Irish companies.

The Act provides for a number of helpful amendments, including the following:

Interim Period

The measures implemented under the Act apply during an “interim period” which expires on 31 December 2020, however the Minister may extend this interim period (either for all measures or for particular provisions set out in the Act) if they are satisfied that it is in the public interest to do so due to the effects of Covid-19.

Execution of Documents

The Act provides for the execution of documents under seal to be signed in counterparts.  Under the Act, the company seal and each of the relevant countersignatures may be made on separate pages, irrespective of any provision in the company’s constitution.  This is intended to deal with the practical difficulties of officers of a company all being required to sign a single page.

General Meetings

General meetings (including (i) a company’s annual general meeting (AGM); (ii) an extraordinary general meeting (EGM); (iii) meetings of particular classes of shareholders; or (iv) a scheme meeting) may be held electronically during the interim period, provided all attendees have a reasonable opportunity to participate in the meeting (including casting of votes).  A company should also ensure appropriate restrictions are in place to properly identify participants and provide for the security of electronic communications.

The Act sets out the notice requirements which apply where a general meeting is proposed to be held using electronic communications technology which include details to access the electronic meeting and the procedures for communicating questions and voting on resolutions proposed to be passed at the meeting.

The Act also provides for the Minister to make further provisions for the convening, attendance and participation in meetings by electronic means, if they consider it appropriate.

Extension of AGM Date

If the requirement for the holding of a company’s AGM falls prior to the end of 2020, that company may opt to satisfy this requirement on any date during the year prior to 31 December 2020.

Dividends

Where the directors of a company have recommended that the declaration of a dividend be adopted by resolution at a general meeting and subsequently form a view that, due to the effects of Covid-19 on the business, the dividend should be cancelled or reduced, the directors may withdraw or amend the resolution accordingly.  Such a withdrawal or amendment may be done notwithstanding any provision to the contrary in a company’s constitution if all the members of the company agree in writing and notice of this action is given no later than three days prior to the general meeting.

Examiner’s Report

In normal circumstances an examiner of an Irish company will have 70 days to provide a report to the court, which may be extended by 30 days to 100 days in exceptional circumstances.  Under the Act, an additional extension period of 50 days is provided for which means, where the court is satisfied that it is warranted by exceptional circumstances, an examiner may be afforded up to 150 days to present their report (ie, 70 + 30 + 50 days), thus increasing the period of court protection for such a company.

Creditors’ Process

Under the Companies Act 2014 as currently in force, the debt threshold to commence a winding up by the court is €10,000 for an individual debt and €20,000 for aggregate debts.  The Act increases this threshold to €50,000 in both cases.

Additionally, the Act provides for creditors’ meetings to be held virtually, provided all those entitled to attend have a reasonable opportunity to participate.  Importantly, the amendments require that where a meeting is held physically, members must be given the opportunity to participate by electronic means and they must set out the notice and information requirements relating to such meetings.

Conclusion

The measures implemented by the Act are welcome in light of the logistical and administrative difficulties experienced by Irish companies during the Covid-19 pandemic and the restrictions on movement and contact during this time.  It remains to be seen whether the interim period will be extended beyond 31 December 2020 or whether further measures will be added by the Minister.

If you have any queries in relation to the possible implications of this legislation, please contact Brendan Colgan, Patrick Molloy, Paul Carroll or your usual Matheson contact.

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