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COMPANIES (AMENDMENT) ACT 1990

      1.      Definitions. 2.      Power of court to appoint examiner. 3.      Petition for court. 4.      Related companies. 5.      Effect of petition to appoint examiner petition on creditors and others. 6.      Effect on receiver or provisional liquidator of order appointingexaminer. 7.      Powers of an examiner. 8.      Production of documents and evidence. 9.      Further powers of court. 10.     Incurring of certain liabilities incurred examiner. 11.     Power to deal with charged property, etc. 12.     Notification of appointment of examiner. 13.     General Provisions as to examiners. 14.     Information to be given when examiner appointed. 15.     Examination of affairs of company. 16.     Examiner's report. 17.     Hearing of matters arising from examiner's report. 18.     Further report by examiner. 19.     Examiner's report under section 18. 20.     Repudiation of certain contracts. 21.     Appointment of creditors' committee. 22.     Contents of proposals. 23.     Consideration by members and creditors of proposals. 24.     Confirmation of proposals. 25.     Objection to confirmation by court of proposals. 26.     Cessation of protection of company and termination of appointment of examiner. 27.     Revocation. 28.     Disqualification of examiners. 29.     Costs and remuneration of examiners. 30.     Publicity. 31.     Hearing of proceedings otherwise than in public. 32.     No lien over company's books, records etc. 33.     Civil liability of persons concerned for fraudulent trading of company.
      AN ACT TO AMEND THE LAW RELATING TO COMPANIES AND TO PROVIDE FOR RELATED MATTERS.
      [29th August, 1990]
      BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS: COMPANIES (AMENDMENT) ACT 1990 - SECT 1
      Definitions.
      1.-In this Act, unless the context otherwise requires-
      "the Companies Acts" means the Principal Act, and every enactment
      (including this Act) which is to be construed as one with that
      Act;
      "examiner" means an examiner appointed under section 2;
      "interested party", in relation to a company to which section 2 (1)
      relates, means-
      ( a ) a creditor of the company,
      ( b ) a member of the company;
      "the Minister" means the Minister for Industry and Commerce;
      "the Principal Act" means the Companies Act, 1963. COMPANIES (AMENDMENT) ACT 1990 - SECT 2
      Power of court to appoint examiner.
      2.-(1) Where it appears to the court that-
      ( a ) a company is or is likely to be unable to pay its debts,
      and
      ( b ) no notice of a resolution for the winding-up of the company
      has been given under section 252 of the Principal Act more than 7
      days before the application hereinafter referred to, and
      ( c ) no order has been made for the winding-up of the company,
      it may, on application by petition presented, appoint an examiner to
      the company for the purpose of examining the state of the company's
      affairs and performing such duties in relation to the company as
      may be imposed by or under this Act.
      (2) Without prejudice to the general power of the court under
      subsection (1), it may, in particular, make an order under this
      section if it considers that such order would be likely to
      facilitate the survival of the company, and the whole or any part
      of its undertaking, as a going concern.
      (3) For the purposes of this section, a company is unable to pay
      its debts if-
      ( a ) it is unable to pay its debts as they fall due,
      ( b ) the value of its assets is less than the amount of its
      liabilities, taking into account its contingent and prospective
      liabilities, or
      ( c ) section 214 ( a ) or (b) of The Principal Act applies to
      the company.
      (4) In deciding whether to make an order under this section the
      court may also have regard to whether the company has sought from
      its creditors significant extensions of time for the payment of its
      debts, from which it could reasonably be inferred that the company
      was likely to be unable to pay its debts. COMPANIES (AMENDMENT) ACT 1990 - SECT 3
      Petition for court.
      3.-(1) Subject to subsection (2), a petition under section 2 may be
      presented by-
      ( a ) the company, or
      ( b ) the directors of the company, or
      ( c ) a creditor, or contingent or prospective creditor (including
      an employee), of the company, or
      ( d ) members of the company holding at the date of the
      presentation of a petition under that section not less than one
      tenth of such of the paid-up capital of the company as carries at
      that date the right of voting at general meetings of the company,
      or by all or any of those parties, together or separately.
      ( 2 ) ( a ) Where the company referred to in section 2 is an
      insurer, a petition under that section may be presented only by the
      Minister, and subsection (1) of this section shall not apply to the
      company.
      ( b ) Where the company referred to in section 2 is the holder
      of a licence under section 9 of the Central Bank Act, 1971, or
      any other company supervised by the Central Bank under any
      enactment, a petition under section 2 may be presented only by the
      Central Bank, and subsection (1) of this section shall not apply to
      the company.
      (3) A petition presented under section 2 shall-
      ( a ) nominate a person to be appointed as examiner, and
      ( b ) be supported by such evidence as the court may require for
      the purpose of showing that the petitioner has good reason for
      requiring the appointment of an examiner, and
      ( c ) where the petition is presented by any person or persons
      referred to in subsection (1) ( a ) or (b), include a statement
      of the assets and liabilities of the company (in so far as they
      are known to them) as they stand on a date not earlier than 7
      days before the presentation of the petition.
      (4) A petition presented under section 2 shall be accompanied-
      ( a ) by a consent signed by the person nominated to be examiner,
      and
      ( b ) if proposals for a compromise or scheme of arrangement in
      relation to the company's affairs have been prepared for submission
      to interested parties for their approval, by a copy of the
      proposals.
      (5) The court shall not give a hearing to a petition under section
      2 presented by a contingent or prospective creditor until such
      security for costs has been given as the court thinks reasonable,
      and until a prima facie case for the protection of the court has
      been established to the satisfaction of the court.
      (6) The court shall not give a hearing to a petition under section
      2 if a receiver stands appointed to the company the subject of the
      petition and such receiver has stood so appointed for a continuous
      period of at least 14 days prior to the presentation of the
      petition.
      (7) On hearing a petition under this section, the court may dismiss
      it, or adjourn the hearing conditionally or unconditionally, or make
      any interim order, or any other order it thinks fit.
      (8) Without prejudice to the generality of subsection (7), an
      interim order under that subsection may restrict the exercise of any
      powers of the directors or of the company (whether by reference to
      the consent of the court or otherwise).
      ( 9 ) ( a ) Where it appears to the court that the total
      liabilities of the company (taking into account its contingent and
      prospective liabilities) do not exceed £250,000, the court may, after
      making such interim or other orders as it thinks fit, order that
      the matter be remitted to the judge of the Circuit Court in whose
      circuit the company has its registered office or principal place of
      business.
      ( b ) Where an order is made by the court under this subsection
      the Circuit Court shall have full jurisdiction to exercise all the
      powers of the court conferred by this Act in relation to the
      company and every reference to the court in this Act shall be
      construed accordingly.
      ( c ) Where, in any proceedings under this Act which have been
      remitted to the Circuit Court by virtue of this subsection, it
      appears to the Circuit Court that the total liabilities of the
      company exceed £250,000, it shall make, after making such interim
      orders as it thinks fit, an order transferring the matter to the
      court. COMPANIES (AMENDMENT) ACT 1990 - SECT 4
      Related companies.
      4.-(1) Where the court appoints an examiner to a company, it may,
      at the same or any time thereafter, make an order-
      ( a ) appointing the examiner to be examiner for the purposes of
      this Act to a related company, or
      ( b ) conferring on the examiner, in relation to such company, all
      or any of the powers or duties conferred on him in relation to
      the first-mentioned company.
      (2) In deciding whether to make an order under subsection (1), the
      court shall have regard to whether the making of the order would
      be likely to facilitate the survival of the company, or of the
      related company, or both, and the whole or any part of its or
      their undertaking, as a going concern.
      (3) A related company to which an examiner is appointed shall be
      deemed to be under the protection of the court for the period
      beginning on the date of the making of an order under this section
      and continuing for the period during which the company to which it
      is related is under such protection.
      (4) Where an examiner stands appointed to two or more related
      companies, he shall have the same powers and duties in relation to
      each company, taken separately, unless the court otherwise directs.
      (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. COMPANIES (AMENDMENT) ACT 1990 - SECT 5
      Effect of petition to appoint examiner petition on creditors and
      others.
      5.-(1) During the period beginning with the presentation of a for
      the appointment of an examiner to a company and (subject to section
      18 (3) or(4)) ending on the expiry of three months from that date
      or on the withdrawal or refusal of the petition, whichever first
      happens, the company shall be deemed to be under the protection of
      the court. Y
      (2) For so long as a company is under the protection of the court
      in a case under this Act, the following provisions shall have
      effect
      ( a ) no proceedings for the winding-up of the company may be
      commenced or resolution for winding-up passed in relation to that
      company and any resolution so passed shall be of no effect;
      ( b ) no receiver over any part of the property or undertaking of
      the company shall be appointed, or, if so appointed before the
      presentation of a petition under section 2, shall, subject to
      section 6, be able to act;
      ( c ) no attachment, sequestration, distress or execution shall be
      put into force against the property or effects of the company,
      except with the consent of the examiner;
      ( d ) where any claim against the company is secured by a charge
      on the whole or any part of the property, effects or income of
      the company, no action may be taken to realise the whole or any
      part of such security, except with the consent of the examiner;
      ( e ) no steps may be taken to repossess goods in the company's
      possession under any hire-purchase agreement (within the meaning of
      section 11 (8)), except with the consent of the examiner;
      ( f ) where, under any enactment, rule of law or otherwise, any
      person other than the company is liable to pay all or any part of
      the debts of the company-
      (i) no attachment, sequestration, distress or execution shall be put
      into force against the property or effects of such person in
      respect of the debts of the company, and
      (ii) no proceedings of any sort may be commenced against such
      person in respect of the debts of the company.
      (3) Subject to subsection (2), no other proceedings in relation to
      the company may be commenced except by leave of the court and
      subject to such terms as the court may impose and the court may
      onthe application of the examiner make such order as it thinks
      proper in relation to any existing proceedings including an order to
      stay such proceedings.
      (4) Complaints concerning the conduct of the affairs of the company
      while it is under the protection of the court shall not constitute
      a basis for the making of an order for relief under section 205
      of the Principal Act. COMPANIES (AMENDMENT) ACT 1990 - SECT 6
      Effect on receiver or provisional liquidator of order appointing
      examiner.
      6.-(1) Where the court appoints an examiner to a company and a
      receiver stands appointed to the whole or any part of the property
      or undertaking of that company the court may make such order as it
      thinks fit including an order as to any or all of the following
      matters-
      ( a ) that the receiver shall cease to act as such from a date
      specified by the court,
      ( b ) that the receiver shall, from a date specified by the
      court, act as such only in respect of certain assets specified by
      the court,
      ( c ) directing the receiver to deliver all books, papers and
      other records, which relate to the property or undertaking of the
      company (or any part thereof) and are in his possession or control,
      to the examiner within a period to be specified by the court,
      ( d ) directing the receiver to give the examiner full particulars
      of all his dealings with the property or undertaking of the
      company.
      (2) Where the court appoints an examiner to a company and a
      provisional liquidator stands appointed to that company, the court
      may make such order as it thinks fit including an order as to any
      or all of the following matters-
      ( a ) that the provisional liquidator be appointed as examiner of
      the company,
      ( b ) appointing some other person as examiner of the company,
      ( c ) that the provisional liquidator shall cease to act as such
      from the date specified by the court,
      ( d ) directing the provisional liquidator to deliver all books,
      papers and other records, which relate to the property or
      undertaking of the company or any part thereof and are in his
      possession or control, to the examiner within a period to be
      specified by the court,
      ( e ) directing the provisional liquidator to give the examiner
      full particulars of all his dealings with the property or
      undertaking of the company.
      (3) In deciding whether to make an order under subsection (1) ( a
      ) or (b), or subsection (2) (c), the court shall have regard to
      whether the making of the order would be likely to facilitate the
      survival of the company, and the whole or any part of its
      undertaking, as a going concern.
      (4) Where the court makes an order under subsection (1) or (2), it
      may, for the purpose of giving full effect to the order, include
      such conditions in the order and make such ancillary or other
      orders as it deems fit.
      (5) Where a petition is presented under section 2 in respect of a
      company at a date subsequent to the presentation of a petition for
      the winding-up of that company, but before a provisional liquidator
      has been appointed or an order made for its winding-up, both
      petitions shall be heard together. COMPANIES (AMENDMENT) ACT 1990 - SECT 7
      Powers of an examiner.
      7.-(1) Any provision of the Companies Acts relating to the rights
      and powers of an auditor of a company and the supplying of
      information to and co-operation with such auditor shall, with the
      necessary modifications, apply to an examiner.
      (2) Notwithstanding any provision of the Companies Acts relating to
      notice of general meetings, an examiner shall have power to convene,
      set the agenda for, and preside at meetings of the board of
      directors and general meetings of the company to which he is
      appointed and to propose motions or resolutions and to give reports
      to such meetings.
      (3) An examiner shall be entitled to reasonable notice of, to
      attend and be heard at, all meetings of the board of directors of
      a company and all general meetings of the company to which he is
      appointed.
      (4) For the purpose of subsection (3) "reasonable notice" shall be
      deemed to include a description of the business to be transacted at
      any such meeting.
      (5) Where an examiner becomes aware of any actual or proposed act,
      omission, course of conduct, decision or contract, by or on behalf
      of the company to which he has been appointed, its officers,
      employees, members or creditors or by any other person in relation
      to the income, assets or liabilities of that company which, in his
      opinion, is or is likely to be to the detriment of that company,
      or any interested party, he shall, subject to the rights of parties
      acquiring an interest in good faith and for value in such income,
      assets or liabilities, have full power to take whatever steps are
      necessary to halt, prevent or rectify the effects of such act,
      omission, course of conduct, decision or contract.
      (6) The examiner may apply to the court to determine any question
      arising in the course of his office, or for the exercise in
      relation to the company of all or any of the powers which the
      court may exercise under this Act, upon the application to it of
      any member, contributory, creditor or director of a company.
      (7) The examiner shall, if so directed by the court, have power to
      ascertain and agree claims against the company to which he has been
      appointed. COMPANIES (AMENDMENT) ACT 1990 - SECT 8
      Production of documents and evidence.
      8.-(1) It shall be the duty of all officers and agents of the
      company or a related company to produce to the examiner all books
      and documents of or relating to any such company which are in
      their custody or power, to attend before him when required so to
      do and otherwise to give to him all assistance in connection with
      his functions which they are reasonably able to give.
      (2) If the examiner considers that a person other than an officer
      or agent of any such company is or may be in possession of any
      information concerning its affairs, he may require that person to
      produce to him any books or documents in his custody or power
      relating to the company, to attend before him and otherwise to give
      him all assistance in connection with his functions which he is
      reasonably able to give; and it shall be the duty of that person
      to comply with the requirement.
      (3) If the examiner has reasonable grounds for believing that a
      director, or past director, of any such company maintains or has
      maintained a bank account of any description, whether alone or
      jointly with another person and whether in the State or elsewhere,
      into or out of which there has been paid-
      ( a ) any money which has resulted from or been used in the
      financing of any transaction, arrangement or agreement particulars of
      which have not been disclosed in the accounts of any company for
      any financial year as required by law; or
      ( b ) any money which has been in any way connected with any act
      or omission, or series of acts or omissions, which on the part of
      that director constituted misconduct (whether fraudulent or not)
      towards that company or its members;
      the examiner may require the director to produce to him all
      documents in the director's possession, or under his control,
      relating to that bank account; and in this subsection "bank account"
      includes an account with any person exempt by virtue of section 7
      (4) of the Central Bank Act, 1971, from the requirement of holding
      a licence under section 9 of that Act.
      (4) An examiner may examine on oath, either by word of mouth or
      on written interrogatories, the officers and agents of such company
      or other person as is mentioned in subsection (1) or (2) in
      relation to its affairs and may-
      ( a ) administer an oath accordingly,
      ( b ) reduce the answers of such person to writing and require
      him to sign them.
      (5) If any officer or agent of such company or other person
      refuses to produce to the examiner any book or document which it
      is his duty under this section so to produce, refuses to attend
      before the examiner when required so to do or refuses to answer
      any question which is put to him by the examiner with respect to
      the affairs of the company, the examiner may certify the refusal
      under his hand to the court, and the court may thereupon enquire
      into the case and, after hearing any witnesses who may be produced
      against or on behalf of the alleged offender and any statement
      which may be offered in defence, punish the offender in like manner
      as if he had been guilty of contempt of court.
      (6) In this section, any reference to officers or to agents shall
      include past, as well as present, officers or agents, as the case
      may be, and "agents", in relation to a company, shall include the
      bankers and solicitors of the company and any persons employed by
      the company as auditors, whether those persons are or are not
      officers of the company. COMPANIES (AMENDMENT) ACT 1990 - SECT 9
      Further powers of court.
      9.-(1) Where it appears to the court, on the application of the
      examiner, that, having regard to the matters referred to in
      subsection (2), it is just and equitable to do so, it may make an
      order that all or any of the functions or powers which are vested
      in or exercisable by the directors (whether by virtue of the
      memorandum or articles of association of the company or by law or
      otherwise) shall be per formable or exercisable only by the
      examiner.
      (2) The matters to which the court is to have regard for the
      purpose of subsection (1) are-
      ( a ) that the affairs of the company are being conducted, or are
      likely to be conducted, in a manner which is calculated or likely
      to prejudice the interests of the company or of its employees or
      of its creditors as a whole, or
      ( b ) that it is expedient, for the purpose of preserving the
      assets of the company or of safeguarding the interests of the
      company or of its employees or of its creditors as a whole, that
      the carrying on of the business of the company by, or the exercise
      of the powers of, its directors or management should be curtailed
      or regulated in any particular respect, or
      ( c ) that the company, or its directors, have resolved that such
      an order should be sought, or
      ( d ) any other matter in relation to the company the court
      thinks relevant.
      (3) Where the court makes an order under subsection (1), it may,
      for the purpose of giving full effect to the order, include such
      conditions in the order and make such ancillary or other orders as
      it sees fit.
      (4) Without prejudice to the generality of subsections (1) and (3),
      an order under this section may provide that the examiner shall
      have all or any of the powers that he would have if he were a
      liquidator appointed by the court in respect of the company and, where such order so provides, the court shall have all the powers
      that it would have if it had made a winding-up order and appointed
      a liquidator in respect of the company concerned. COMPANIES (AMENDMENT) ACT 1990 - SECT 10
      Incurring of certain liabilities incurred examiner.
      10.-(1) Where an order is made under this Act for the winding
      liabilities by up of the company or a receiver is appointed, any
      by the company during the protection period which are referred to
      in subsection (2) shall be treated as expenses properly incurred,
      for the purpose of section 29, by the examiner.
      (2) The liabilities referred to in subsection (1) are those
      certified by the examiner at the time they are incurred, to have
      been incurred in circumstances where, in the opinion of the
      examiner, the survival of the company as a going concern during the
      protection period would otherwise be seriously prejudiced.
      (3) In this section, "protection period" means the period, beginning
      with the appointment of an examiner, during which the company is
      under the protection of the court. COMPANIES (AMENDMENT) ACT 1990 - SECT 11
      Power to deal with charged property, etc.
      11.-(1) Where, on an application by the examiner, the court is
      satisfied that the disposal (with or without other assets) of any
      property of the company which is subject to a security which, as
      created, was a floating charge or the exercise by the examiner of
      his powers in relation to such property would be likely to
      facilitate the survival of the whole or any part of the company as
      a going concern, the court may by order authorise the examiner to
      dispose of the property, or exercise his powers in relation to it,
      as the case may be, as if it were not subject to the security.
      (2) Where, on an application by the examiner, the court is
      satisfied that the disposal (with or without other assets) of-
      ( a ) any property of the company subject to a security other
      than a security to which subsection (1) applies, or
      ( b ) any goods in the possession of the company under a
      hire-purchase agreement,
      would be likely to facilitate the survival of the whole or any
      part of the company as a going concern, the court may by order
      authorise the examiner to dispose of the property as if it were
      not subject to the security or to dispose of the goods as if all
      rights of the owner under the hire-purchase agreement were vested in
      the company.
      (3) Where property is disposed of under subsection (1), the holder
      of the security shall have the same priority in respect of any
      property of the company directly or indirectly representing the
      property disposed of as he would have had in respect of the
      property subject to the security.
      (4) It shall be a condition of an order under subsection (2) that-
      ( a ) the net proceeds of the disposal, and
      ( b ) where those proceeds are less than such amount as may be
      determined by the court to be the net amount which would be
      realised on a sale of the property or goods in the open market by
      a willing vendor, such sums as may be required to make good the
      deficiency,
      shall be applied towards discharging the sums secured by the
      security or payable under the hire-purchase agreement.
      (5) Where a condition imposed in pursuance of subsection (4) relates
      to two or more securities, that condition requires the net proceeds
      of the disposal and, where paragraph ( b ) of that subsection
      applies, the sums mentioned in that paragraph to be applied towards
      the sums secured by those securities in the order of their
      priorities.
      (6) An office copy of an order under subsection (1) or (2) in
      relation to a security shall, within 7 days after the making of
      the order, be delivered by the examiner to the registrar of
      companies.
      (7) If the examiner without reasonable excuse fails to comply with
      subsection (6), he shall be liable to a fine not exceeding £1,000.
      (8) References in this section to a hire-purchase agreement include
      a conditional sale agreement, a retention of title agreement and an
      agreement for the bailment of goods which is capable of subsisting
      for more than 3 months. COMPANIES (AMENDMENT) ACT 1990 - SECT 12
      Notification of appointment of examiner.
      12.-(1) Where a petition is presented under section 2, notice of
      the petition in the prescribed form shall, within 3 days after its
      presentation, he delivered by the petitioner to the registrar of
      companies.
      ( 2 ) ( a ) An examiner shall, within the time limits specified
      in paragraph ( b ), cause to be published in Iris Oifigi il and
      in at least two daily newspapers circulating in the district in
      which the registered office or principal place of business of the
      company is situate a notice of-
      (i) his appointment and the date thereof, and
      (ii) the date, if any, set for the hearing of the matters arising
      out of the report to be prepared by the examiner under section 15.
      ( b ) The time limits referred to in paragraph ( a ) are-
      (i) twenty-one days after his appointment in the case of Iris
      Oifigi il, and
      (ii) three days after his appointment in the other case referred to
      in that paragraph.
      (3) An examiner shall, within three days after his appointment,
      deliver to the registrar of companies a copy of the order
      appointing him.
      (4) Where a company is, by virtue of section 5, deemed to be
      under the protection of the court, every invoice, order for goods
      or business letter issued by or on behalf of the company, being a
      document on or in which the name of the company appears, shall
      contain the statement "under the protection of the court".
      (5) A person who fails to comply with the provisions of this
      section shall be guilty of an offence and shall be liable, on
      summary conviction, to a fine not exceeding £1,000 and, on
      conviction on indictment, to a fine not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 13
      General Provisions as to examiners.
      13.-(1) An examiner may resign or, on cause shown, be removed by
      the court.
      (2) If for any reason a vacancy occurs in the office of examiner,
      the court may by order fill the vacancy.
      (3) An application for an order under subsection (2) may be made
      by-
      ( a ) any committee of creditors established under section 21, or
      ( b ) the company or any interested party.
      (4) An examiner shall be described by the style of "the examiner"
      of the particular company in respect of which he is appointed and
      not by his individual name.
      (5) The acts of an examiner shall be valid notwithstanding any
      defects that may afterwards be discovered in his appointment or
      qualification.
      (6) An examiner shall be personally liable on any contract entered
      into by him in the performance of his functions (whether such
      contract is entered into by him in the name of the company or in
      his own name as examiner or otherwise) unless the contract provides
      that he is not to be personally liable on such contract, and he
      shall be entitled in respect of that liability to indemnity out of
      the assets; but nothing in this subsection shall be taken as
      limiting any right to indemnity which he would have apart from this
      subsection, or as limiting his liability on contracts entered into
      without authority or as conferring any right to indemnity in respect
      of that liability.
      (7) A company to which an examiner has been appointed or an
      interested party may apply to the court for the determination of
      any question arising out of the performance or otherwise by the
      examiner of his functions. COMPANIES (AMENDMENT) ACT 1990 - SECT 14
      Information to be given when examiner appointed.
      14.-(1) The directors of a company to which an examiner has been
      appointed shall, within 7 days of the appointment, cause to be made
      out, verified by affidavit and submitted to the examiner a statement
      in accordance with this section as to the affairs of the company.
      (2) The statement shall, in so far as is reasonably possible to do
      so, show as at the date of the examiner's appointment particulars
      of the company's assets, debts and liabilities (including contingent
      and prospective liabilities), the names and addresses of its
      creditors, the securities held by them respectively, the dates when
      the securities were respectively given and such further information
      as may be prescribed or as the court may direct.
      (3) A person to whom subsection (1) applies who makes default in
      complying with the requirements of this section shall be guilty of
      an offence and shall be liable, on summary conviction, to a fine
      not exceeding £1,000 and, on conviction on indictment, to a fine
      not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 15
      Examination of affairs of company.
      15.-(1) It shall be the duty of an examiner to conduct an
      examination of the affairs of the company to which he is appointed
      and report to the court, within 21 days of his appointment or such
      longer period as the court may allow, the results of his
      examination in accordance with section 16.
      (2) Notwithstanding any other provision of this Act the court may
      impose on the examiner such other duties as it deems appropriate.
      (3) The examiner shall deliver a copy of his report under this
      section to the company on the same day as his delivery of such
      report to the court.
      (4) The examiner shall also supply a copy of his report under this
      section to any interested party on written application, provided that
      such supply may, if the court so directs, be subject to the
      omission of such parts of the report as the court thinks fit.
      (5) The court may, in particular, give a direction under subsection
      (4) if it considers that the inclusion of certain information in
      the report to be supplied under that subsection would be likely to
      prejudice the survival of the company, or the whole or any part of
      its undertaking. COMPANIES (AMENDMENT) ACT 1990 - SECT 16
      Examiner's report.
      16.-The examiner's report under section 15 shall comprise the
      following-
      ( a ) the names and permanent addresses of the officers of the
      company and, in so far as the examiner can establish, any person
      in accordance with whose directions or instructions the directors of
      the company are accustomed to act,
      ( b ) the names of any other bodies corporate of which the
      directors of the company are also directors,
      ( c ) a statement as to the affairs of the company, showing,
      insofar as is reasonably possible to do so, particulars of the
      company's assets, debts and liabilities (including contingent and
      prospective liabilities) as at the latest practicable date, the names
      and addresses of its creditors, the securities held by them
      respectively and the dates when the securities were respectively
      given,
      ( d ) whether in the opinion of the examiner any deficiency
      between the assets and the liabilities of the company has been
      satisfactorily accounted for or, if not, whether there is evidence
      of a substantial disappearance of property that is not adequately
      accounted for,
      ( e ) a statement of opinion by the examiner as to whether the
      company, and the whole or any part of its undertaking, would be
      capable of survival as a going concern and a statement of the
      conditions which he feels are essential to ensure such survival,
      whether as regards the internal management and controls of the
      company or otherwise,
      ( f ) his opinion as to whether the formulation, acceptance and
      confirmation of proposals for a compromise or scheme of arrangement
      would facilitate such survival,
      ( g ) whether, in his opinion, an attempt to continue the whole
      or any part of the undertaking of the company would be likely to
      be more advantageous to the members as a whole and the creditors
      as a whole, than a winding-up of the company,
      ( h ) recommendations as to the course he thinks should be taken
      in relation to the company including, if warranted, draft proposals
      for a compromise or scheme of arrangement,
      ( i ) his opinion as to whether the facts disclosed would warrant
      further enquiries under sections 33 and 34,
      ( j ) such other matters as the examiner thinks relevant or the
      court directs, and
      ( k ) his opinion as to whether his work would be assisted by a
      direction of the court extending the role or membership of any
      creditors' committee referred to in section 21. COMPANIES (AMENDMENT) ACT 1990 - SECT 17
      Hearing of matters arising from examiner's report.
      17.-(1) Where, in a report made under section 15, the examiner
      expresses the opinion that-
      ( a ) the whole or any part of the undertaking of the company to
      which he has been appointed would not be capable of survival as a
      going concern, or
      ( b ) the formulation, acceptance, or confirmation of proposals for
      a compromise or scheme of arrangement would not facilitate such
      survival, or
      ( c ) an attempt to continue the whole or part of the undertaking
      of the company would not be likely to be more advantageous to the
      members as a whole, or the creditors as a whole, than a winding-up
      of the company, or
      ( d ) there is evidence of a substantial disappearance of property
      that is not adequately accounted for, or of other serious
      irregularities in relation to the company's affairs,
      the court shall, as soon as may be after the receipt of the
      examiner's report, hold a hearing to consider matters arising out of
      the report.
      (2) The following parties shall be entitled to appear and be heard
      at a hearing under subsection (1)-
      ( a ) the examiner,
      ( b ) the company,
      ( c ) any interested party,
      ( d ) any person who is referred to in the report in relation to
      the matters mentioned in subsection (1) (d).
      (3) Following a hearing under this section, the court may make such
      order or orders as it deems fit.
      (4) Without prejudice to the generality of subsection (3), an order
      under that subsection may include an order for-
      ( a ) the discharge from the protection of the court of the whole
      or any part of the assets of the company,
      ( b ) the imposition of such terms and conditions as it sees fit
      for the continuance of the protection of the court,
      ( c ) the winding-up of the company,
      ( d ) the sale of the whole or any part of the undertaking of
      the company on such terms and conditions, including terms and
      conditions relating to the distribution of the proceeds of such
      sale, as the court sees fit, and, if necessary for that purpose,
      the appointment of a receiver,
      ( e ) the formulation by the examiner of proposals for a
      compromise or scheme of arrangement,
      ( f ) the summoning of the meetings mentioned in this Act for the
      purpose of considering proposals for a compromise or scheme of
      arrangement,
      ( g ) the calling, holding and conduct of a meeting of the board
      of directors, or a general meeting of the company, to consider such
      matters as the court shall direct.
      (5) On the making of an order under this section, the examiner or
      such other person as the court may direct shall deliver an office
      copy of the order to the registrar of companies for registration.
      (6) Where the court makes an order for the winding-up of a company
      under this Act, such a winding-up shall be deemed to have commenced
      on the date of the making of the order, unless the court otherwise
      orders. COMPANIES (AMENDMENT) ACT 1990 - SECT 18
      Further report by examiner.
      18.-(1) Where, in the opinion of the examiner-
      ( a ) the whole or any part of the undertaking of the company
      would be capable of survival as a going concern, and
      ( b ) an attempt to continue the whole or any part of the
      undertaking of the company would be likely to be more advantageous
      to the members as a whole, and to the creditors as a whole, than
      a winding-up of the company, and
      ( c ) the formulation, acceptance and confirmation of proposals for
      a compromise or scheme of arrangement would facilitate such survival,
      the examiner shall formulate proposals for a compromise or scheme of
      arrangement.
      (2) Notwithstanding any provision of the Companies Acts relating to
      notice of general meetings, (but subject to notice of not less than
      three days in any case) the examiner shall convene and preside at
      such meetings of members and creditors as he thinks proper, to
      consider such proposals and report thereon to the court within 42
      days of his appointment or such longer period as the court may
      allow, in accordance with section 19.
      (3) Where, on the application of the examiner, the court is
      satisfied that the examiner would be unable to report to the court
      within the period of three months referred to in section 5 (1) but
      that he would be able to make a report if that period were
      extended, the court may by order extend that period by not more
      than 30 days to enable him to do so.
      (4) Where the examiner has submitted a report under this section to
      the court and, but for this subsection, the period mentioned in
      section 5 (1) (and any extended period allowed under subsection (3)
      of this section) would expire, the court may, of its own motion or
      on the application of the examiner, extend the period concerned by
      such period as the court considers necessary to enable it to take a decision under section 24.
      (5) The examiner shall deliver a copy of his report under this
      section-
      ( a ) to the company on the same day as his delivery of such
      report to the court, and ( b ) to any interested party on written application,
      provided that such delivery under paragraph (b) may, if the court
      so directs, be subject to the omission of such parts of the report
      as the court thinks fit.
      (6) The court may, in particular, give a direction under subsection
      (5) (b) if it considers that the inclusion of certain information
      in the report to be delivered under that paragraph would be likely
      to prejudice the survival of the company, or the whole or any part
      of its undertaking. COMPANIES (AMENDMENT) ACT 1990 - SECT 19
      Examiner's report under section 18.
      19.-An examiner's report under section 18 shall include-
      ( a ) the proposals placed before the required meetings,
      ( b ) any modification of those proposals adopted at any of those
      meetings,
      ( c ) the outcome of each of the required meetings,
      ( d ) the recommendation of the committee of creditors, if any,
      ( e ) a statement of the assets and liabilities (including
      contingent and prospective liabilities) of the company as at the
      date of his report,
      ( f ) a list of the creditors of the company, the amount owing
      to each such creditor, the nature and value of any security held
      by any such creditor, and the priority status of any such creditor
      under section 285 of the Principal Act or any other statutory
      provision or rule of law,
      ( g ) a list of the officers of the company,
      ( h ) his recommendations,
      ( i ) such other matters as the examiner deems appropriate or the
      court directs. COMPANIES (AMENDMENT) ACT 1990 - SECT 20
      Repudiation of certain contracts.
      20.-(1) Where proposals for a compromise or scheme of arrangement
      are to be formulated in relation to a company, the company may,
      subject to the approval of the court, affirm or repudiate any
      contract under which some element of performance other than payment
      remains to be rendered both by the company and the other
      contracting party or parties.
      (2) Any person who suffers loss or damage as a result of such
      repudiation shall stand as an unsecured creditor for the amount of
      such loss or damage.
      (3) In order to facilitate the formulation, consideration or
      confirmation of a compromise or scheme of arrangement, the court may
      hold a hearing and make an order determining the amount of any
      such loss or damage and the amount so determined shall be due by
      the company to the creditor as a judgement debt.
      (4) Where the examiner is not a party to an application to the
      court for the purposes of subsection (1), the company shall serve
      notice of such application on the examiner and the examiner may
      appear and be heard on the bearing of any such application.
      (5) Where the court approves the affirmation or repudiation of a
      contract under this section, it may in giving such approval make
      such orders as it thinks fit for the purposes of giving full
      effect to its approval including orders as to notice to, or
      declaring the rights of, any party affected by such affirmation or
      repudiation. COMPANIES (AMENDMENT) ACT 1990 - SECT 21
      Appointment of creditors' committee.
      21.-(1) An examiner may, and if so directed by the court shall,
      appoint a committee of creditors to assist him in the performance
      of his functions.
      (2) Save as otherwise directed by the court, a committee appointed
      under subsection (1) shall consist of not more than five members
      and shall include the holders of the three largest unsecured claims
      who are willing to serve.
      (3) The examiner shall provide the committee with a copy of any
      proposals for a compromise or scheme of arrangement and the
      committee may express an opinion on the proposals on its own behalf
      or on behalf of the creditors or classes of creditors represented
      thereon.
      (4) As soon as practicable after the appointment of a committee
      under subsection (1) the examiner shall meet with the committee to
      transact such business as may be necessary. COMPANIES (AMENDMENT) ACT 1990 - SECT 22
      Contents of proposals.
      22.-(1) Proposals for a compromise or scheme of arrangement shall-
      ( a ) specify each class of members and creditors of the company,
      ( b ) specify any class of members and creditors whose interests
      or claims will not be impaired by the proposals,
      ( c ) specify any class of members and creditors whose interests
      or claims will be impaired by the proposals,
      ( d ) provide equal treatment for each claim or interest of a
      particular class unless the holder of a particular claim or interest
      agrees to less favourable treatment,
      ( e ) provide for the implementation of the proposals,
      ( f ) if the examiner considers it necessary or desirable to do
      so to facilitate the survival of the company, and the whole or any
      part of its undertaking, as a going concern, specify whatever
      changes should be made in relation to the management or direction
      of the company,
      ( g ) if the examiner considers it necessary or desirable as
      aforesaid, specify any changes he considers should be made in the
      memorandum or articles of the company, whether as regards the
      management or direction of the company or otherwise,
      ( h ) include such other matters as the examiner deems appropriate.
      (2) A statement of the assets and liabilities (including contingent
      and prospective liabilities) of the company as at the date of the
      proposals shall be attached to each copy of the proposals to be
      submitted to meetings of members and creditors under section 23.
      (3) There shall also be attached to each such copy of the
      proposals a description of the estimated financial outcome of a
      winding-up of the company for each class of members and creditors.
      (4) The court may direct that the proposals include whatever other
      provisions it deems fit.
      (5) For the purposes of this section and sections 24 and 25, a
      creditor's claim against a company is impaired if he receives less
      in payment of his claim than the full amount due in respect of
      the claim at the date of presentation of the petition for the
      appointment of the examiner.
      (6) For the purposes of this section and sections 24 and 25, the
      interest of a member of a company in a company is impaired if-
      ( a ) the nominal value of his shareholding in the company is
      reduced,
      ( b ) where he is entitled to a fixed dividend in respect of his
      shareholding in the company, the amount of that dividend is reduced,
      ( c ) he is deprived of all or any part of the rights accruing
      to him by virtue of his shareholding in the company,
      ( d ) his percentage interest in the total issued share capital of
      the company is reduced, or
      ( e ) he is deprived of his shareholding in the company. COMPANIES (AMENDMENT) ACT 1990 - SECT 23
      Consideration by members and creditors of proposals.
      23.-(1) This section applies to a meeting of members or creditors
      or any class of members or creditors summoned to consider proposals
      for a compromise or scheme of arrangement.
      (2) At a meeting to which this section applies a modification of
      the proposals may be put to the meeting but may only be accepted
      with the consent of the examiner.
      (3) Proposals shall be deemed to have been accepted by a meeting
      of members or of a class of members if a majority of the votes
      validly cast at that meeting, whether in person or by proxy, are
      cast in favour of the resolution for the proposals.
      (4) Proposals shall be deemed to have been accepted by a meeting
      of creditors or of a class of creditors when a majority in number
      representing a majority in value of the claims represented at that
      meeting have voted, either in person or by proxy, in favour of the
      resolution for the proposals.
      ( 5 ) ( a ) Where a State authority is a creditor of the
      company, such authority shall be entitled to accept proposals under
      this section notwithstanding
      (i) that any claim of such authority as a creditor would be
      impaired under the proposals, or
      (ii) any other enactment.
      ( b ) In this subsection, "State authority" means the State, a
      Minister of the Government or the Revenue Commissioners.
      (6) section 144 of the Principal Act shall apply to any resolution
      to which subsection (3) or (4) relates which is passed at any
      adjourned meeting.
      (7) section 202, subsections (2) to (6), of The Principal Act
      shall, with the necessary modifications, apply to meetings held under
      this section.
      (8) With every notice summoning a meeting to which this section
      applies which is sent to a creditor or member, there shall be sent
      also a statement explaining the effect of the compromise or scheme
      of arrangement and in particular stating any material interests of
      the directors of the company, whether as directors or as members or
      as creditors of the company or otherwise and the effect thereon of
      the compromise or arrangement, insofar as it is different from the
      effect on the like interest of other persons. COMPANIES (AMENDMENT) ACT 1990 - SECT 24
      Confirmation of proposals.
      24.-(1) The report of the examiner under section 18 shall be set
      down for consideration by the court as soon as may be after
      receipt of the report by the court.
      (2) The following persons may appear and be heard at a hearing
      under subsection (1)-
      ( a ) the company,
      ( b ) the examiner,
      ( c ) any creditor or member whose claim or interest would be
      impaired if the proposals were implemented.
      (3) At a hearing under subsection (1) the court may, as it thinks
      proper, subject to the provisions of this section and section 25,
      confirm, confirm subject to modifications, or refuse to confirm the
      proposals.
      (4) The court shall not confirm any proposals-
      ( a ) unless at least one class of members and one class of
      creditors whose interests or claims would be impaired by
      implementation of the proposals have accepted the proposals, or
      ( b ) if the sole or primary purpose of the proposals is the
      avoidance of payment of tax due, or
      ( c ) unless the court is satisfied that-
      (i) the proposals are fair and equitable in relation to any class
      of members or creditors that has not accepted the proposals and
      whose interests or claims would be impaired by implementation, and
      (ii) the proposals are not unfairly prejudicial to the interests of
      any interested party.
      (5) Where the court confirms proposals (with or without
      modification), the proposals shall be binding on all the members or
      class or classes of members, as the case may be, affected by the
      proposal and also on the company.
      (6) Where the court confirms proposals (with or without
      modification), the proposals shall, notwithstanding any other
      enactment, be binding on all the creditors or the class or classes
      of creditors, as the case may be, affected by the proposals in
      respect of any claim or claims against the company and any person
      other than the company who, under any statute, enactment, rule of
      law or otherwise, is liable for all or any part of the debts of
      the company.
      (7) Any alterations in, additions to or deletions from the
      memorandum and articles of the company which are specified in the
      proposals shall, after confirmation of the proposals by the court
      and notwithstanding any other provisions of the Companies Acts, take
      effect from a date fixed by the court.
      (8) Where the court confirms proposals under this section it may
      make such orders for the implementation of its decision as it deems
      fit.
      (9) A compromise or scheme of arrangement, proposals for which have
      been confirmed under this section shall come into effect from a
      date fixed by the court, which date shall be not later than 21
      days from the date of their confirmation.
      (10) On the confirmation of proposals a copy of any order made by
      the court under this section shall be delivered by the examiner, or
      by such person as the court may direct, to the registrar of
      companies for registration.
      (11) Where-
      ( a ) the court refuses to confirm proposals under this section,
      or
      ( b ) the report of an examiner under section 18 concludes that,
      following the required meetings of members and creditors of a
      company under this Act, it has not been possible to reach agreement
      on a compromise or scheme of arrangement,
      the court may, if it considers it just and equitable to do so,
      make an order for the winding-up of the company, or any other
      order as it deems fit. COMPANIES (AMENDMENT) ACT 1990 - SECT 25
      Objection to confirmation by court of proposals.
      25.-(1) At a hearing under section 24 in relation to proposals a
      member or creditor whose interest or claim would be impaired by the
      proposals may object in particular to their confirmation by the
      court on any of the following grounds-
      ( a ) that there was some material irregularity at or in relation
      to a meeting to which section 23 applies,
      ( b ) that acceptance of the proposals by the meeting was obtained
      by improper means,
      ( c ) that the proposals were put forward for an improper purpose,
      ( d ) that the proposals unfairly prejudice the interests of the
      objector.
      (2) Any person who voted to accept the proposals may not object to
      their confirmation by the court except on the grounds-
      ( a ) that such acceptance was obtained by improper means, or
      ( b ) that after voting to accept the proposals he became aware
      that the proposals were put forward for an improper purpose.
      (3) Where the court upholds an objection under this section, the
      court may make such order as it deems fit, including an order that
      the decision of any meeting be set aside and an order that any
      meeting be reconvened. COMPANIES (AMENDMENT) ACT 1990 - SECT 26
      Cessation of protection of company and termination of appointment of
      examiner.
      26.-(1) Subject to section 5, the protection deemed to be granted
      to a company under that section shall cease-
      ( a ) on the coming into effect of a compromise or scheme of
      arrangement under this Act, or
      ( b ) on such earlier date as the court may direct.
      (2) Where a company ceases to be under the protection of the
      court, the appointment of the examiner shall terminate on the date
      of such cessation. COMPANIES (AMENDMENT) ACT 1990 - SECT 27
      Revocation.
      27.-The company or any interested party may, within 180 days after
      the confirmation of the proposals by the court, apply to the court
      for revocation of that confirmation on the grounds that it was
      procured by fraud and the court, if satisfied that such was the
      case, may revoke that confirmation on such terms and conditions,
      particularly with regard to the protection of the rights of parties
      acquiring interests or property in good faith and for value in
      reliance on that confirmation, as it deems fit. COMPANIES (AMENDMENT) ACT 1990 - SECT 28
      Disqualification of examiners.
      28.-(1) A person shall not be qualified to be appointed or act as
      an examiner of a company if he would not be qualified to act as
      its liquidator.
      (2) A person who acts as examiner of a company while disqualified
      under this section shall be guilty of an offence, and shall be
      liable, on summary conviction, to a fine not exceeding £1,000 and,
      on conviction on indictment, to a fine not exceeding £10,000. COMPANIES (AMENDMENT) ACT 1990 - SECT 29
      Costs and remuneration of examiners.
      29.-(1) The court may from time to time make such orders as it
      thinks proper for payment of the remuneration and costs of, and
      reasonable expenses properly incurred by, an examiner.
      (2) Unless the court otherwise orders, the remuneration, costs and
      expenses of an examiner shall be paid and the examiner shall be
      entitled to be indemnified in respect thereof out of the revenue of
      the business of the company to which he has been appointed, or the
      proceeds of realisation of the assets (including investments).
      (3) The remuneration, costs and expenses of an examiner which have
      been sanctioned by order of the court shall be paid in full and
      shall be paid before any other claim, secured or unsecured, under
      any compromise or scheme of arrangement or in any receivership or
      winding-up of the company to which he has been appointed.
      (4) The functions of an examiner may be performed by him with the
      assistance of persons appointed or employed by him for that purpose
      provided that an examiner shall, insofar as is reasonably possible,
      make use of the services of the staff and facilities of the
      company to which he has been appointed to assist him in the
      performance of his functions.
      (5) In considering any matter relating to the costs, expenses and
      remuneration of an examiner the court shall have particular regard
      to the proviso to subsection (4). COMPANIES (AMENDMENT) ACT 1990 - SECT 30
      Publicity.
      30.-(1) An examiner or, where appropriate, such other person as the
      court may direct, shall, within 14 days after the delivery to the
      registrar of companies of every order made under section 17 or 24,
      cause to be published in Iris Oifigi il notice of such delivery.
      (2) Where a person fails to comply with this section, that person,
      and where that person is a company, the company and every officer
      of the company who is in default, shall be guilty of an offence
      and shall be liable to a fine not exceeding £1,000.
      (3) Proceedings in relation to an offence under this section may be
      brought and prosecuted by the registrar of companies. COMPANIES (AMENDMENT) ACT 1990 - SECT 31
      Hearing of proceedings otherwise than in public.
      31.-The whole or part of any proceedings under this Act may be
      heard otherwise than in public if the court, in the interests of
      justice, considers that the interests of the company concerned or of
      its creditors as a whole so require. COMPANIES (AMENDMENT) ACT 1990 - SECT 32
      No lien over company's books, records etc.
      32.-Where the court has appointed an examiner, no person shall be
      entitled as against the examiner 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 examiner by the person shall be
      without prejudice to the person's rights under the mortgage or
      charge (other than any right to possession of the document or
      paper),
      ( b ) where by virtue of this section an examiner has possession
      of any document or papers of a receiver or that a receiver is
      entitled to examine, the examiner shall, unless the court otherwise
      orders, make the document or papers available for inspection by the
      receiver at all reasonable times. COMPANIES (AMENDMENT) ACT 1990 - SECT 33
      Civil liability of persons concerned for fraudulent trading of
      company.
      33.-(1) If in the course of proceedings under this Act 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 examiner, or any creditor or
      contributory