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COMPANIES ACT 199

COMPANIES ACT 1990 - LONG TITLE
AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
[22nd December, 1990]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
COMPANIES ACT 1990 - PART V
- INSIDER DEALING
COMPANIES ACT 1990 - SECT 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;
( c ) any person administering a compromise or arrangement made
between the company and its creditors;
( 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.
COMPANIES ACT 1990 - SECT 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
( c ) the information was not so communicated and such advice was
not so given.
(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
( c ) the notice referred to in paragraph (a) is published by the
exchange concerned immediately on its receipt.
(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.
COMPANIES ACT 1990 - SECT 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 that transaction and the price
at which they would have been likely to have been dealt 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.
COMPANIES ACT 1990 - SECT 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;
( c ) entering in good faith into a transaction to which
subsection (2) applies.
(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.
COMPANIES ACT 1990 - SECT 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.
COMPANIES ACT 1990 - SECT 112
Restriction on dealing.
112.—(1) Subject to subsection (2), a person convicted of an offence
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
( c ) the transaction would not be unlawful under any other
provision of this Part.
(3) A person who contravenes this section shall be guilty of an
offence.
COMPANIES ACT 1990 - SECT 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.
COMPANIES ACT 1990 - SECT 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 2 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.
COMPANIES ACT 1990 - SECT 115
Duty of recognised stock exchange in 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.
COMPANIES ACT 1990 - SECT 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);
( c ) any person has been convicted in the State of a criminal
offence in respect of any such acts.
COMPANIES ACT 1990 - SECT 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,
( c ) his dealings in such securities, or
( 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.
COMPANIES ACT 1990 - SECT 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
( c ) any person employed or formerly employed by the exchange.
(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.
COMPANIES ACT 1990 - SECT 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*OJ No. L66, 16.3.1979, p.21.*
co-ordinating 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.
COMPANIES ACT 1990 - SECT 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.
COMPANIES ACT 1990 - SECT 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.