COMPANIES (AMENDMENT) ACT, 1999

Table of Sections

1. Interpretation.

2. Restriction of section 108 of Act of 1990.

3. Disclosure of interests in relevant share capital.

4. Amendment of section 110 of Act of 1990.

5. Removal of difficulties.

6. Revocations.

7. Short title, collective citation, construction and commencement.

<1> SCHEDULE
Stabilisation Rules

1.-#(1) In this Act-

  • ”the Act of 1990” means the Companies Act, 1990;
  • ”closing date” has the meaning assigned by the Stabilisation Rules;
  • ”the Principal Act” means the Companies Act, 1963;
  • ”stabilising period” has, in relation to anything done in the State
    pursuant to the Stabilisation Rules, the meaning assigned by the Stabilisation
    Rules and, in relation to anything done in a jurisdiction outside the State
    for the purpose of stabilising or maintaining the market price of securities,
    means the period beginning on-

(a) in the case of an issue or offer for sale of securities (not being an
issue of debentures or other debt securities), the date on which the earliest
public announcement of such issue or offer is made which states the issue price
or the offer price, as the case may be, for those securities, or

(b) in the case of an issue of debentures or other debt securities, the date
on which the earliest public announcement of such issue is made, whether or not
that announcement states the issue price,

  • and ending on the expiration of-

(i) the day which is 30 days after the closing date, or

(ii) the day which a manager appointed by the issuer or, as the case may be,
the offeror to conduct stabilising activity shall have notified a stock exchange
on which stabilising activity was being conducted as the day on which it
determined that it would take no further action to stabilise or maintain the
market price of the securities concerned, whichever first occurs;

  • ”Stabilisation Rules” means the rules referred to by that name which are
    set out in the Schedule.

(2) In this Act-

(a) a reference to a Part, section or Schedule is a reference to a Part or
section of, or a Schedule to, this Act, unless it is indicated that reference to
some other enactment is intended,

(b) a reference to a subsection, paragraph, subparagraph, clause or subclause
is a reference to the subsection, paragraph, subparagraph, clause or subclause
of the provision in which the reference occurs unless it is indicated that
reference to some other provision is intended, and

(c) a reference to any enactment is a reference to that enactment as amended,
extended or adapted by or under any subsequent enactment including this Act.

2.-Section 108 of the Act of 1990 shall not be regarded as
having been contravened by reason of-

(a) anything done in the State for the purpose of stabilising or maintaining
the market price of securities if it is done in conformity with the
Stabilisation Rules, or

(b) any action taken during the stabilising period by a person in any
jurisdiction other than the State for the purpose of stabilising or maintaining
the market price of securities, but only if the action taken is, in all material
respects, permitted by or is otherwise in accordance with all relevant
requirements applicable to such actions in the jurisdiction where such action is
effected, including, if those securities are also listed on a stock exchange in
that jurisdiction, the rules or other regulatory requirements governing that
stock exchange.

3.-#(1) The acquisition or disposal of interests in relevant
share capital by a person during the stabilising period concerned,
which-

(a) is done for the purpose of stabilising or maintaining the market price of
securities, and

(b) is so done either in conformity with the Stabilisation Rules or is an
acquisition or disposal to which section 2(b) relates,

  • shall be disregarded during the stabilising period for the purposes of
    sections 67 to 79 of the Act of 1990.

(2) Any interest in relevant share capital which-

(a) was acquired by a person during the stabilising period for the purpose of
stabilising or maintaining the market price of securities,

(b) was so acquired in accordance with this Act, and

(c) continues to be held by such person at the end of the stabilising
period,

  • shall be treated, for the purposes of sections 67 to 79 of the Act of
    1990, as having been acquired by such person on the first day following the
    end of the stabilising period that is not a Saturday, Sunday or public
    holiday.

(3) Notwithstanding subsection (1), subsection (4) of section 91 of the Act
of 1990 shall operate to determine the interests which are to be notified to the
Irish Stock Exchange Limited, and the manner in which they are to be so
notified, under subsection (2) of that section.

(4) In this section ”relevant share capital” has the meaning assigned by
section 67(2) of the Act of 1990.

4.-Section 110 of the Act of 1990 is hereby amended by the
insertion of the following after subsection (2): **”(2A) A person shall be
regarded as having entered in good faith into a transaction to which subsection
(2)(b) relates, if such person enters in good faith into-

(a) negotiations with a view to entering an agreement to which paragraph
(b)or (c) would relate, or

(b) an agreement to underwrite securities, or

(c) an agreement, in advance of dealing facilities being provided by a
recognised stock exchange for securities, to acquire or subscribe for a
specified number of those securities, or

(d) a transaction in accordance with such person’s obligations under an
agreement to which paragraph (b) or (c) relates.”.**

5.-#(1) Where, in any respect, any difficulty arises in the
operation of any provision of the Stabilisation Rules, the Minister for
Enterprise, Trade and Employment may by regulations amend the Stabilisation
Rules to do anything which appears to him or her to be necessary or expedient
for removing that difficulty, and any such regulations may modify any provision
of the Stabilisation Rules or add thereto so far as may be necessary or
expedient for carrying the Schedule into effect.

(2) Every regulation made 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 such 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.

6.-The Companies Act, 1990 (Insider Dealing) Regulations, 1991
(S.I. No. 151 of 1991), and the Companies Act, 1990 (Insider Dealing)
Regulations, 1992 (S.I. No. 131 of 1992), are hereby revoked.

7.-#(1) This Act may be cited as the Companies (Amendment) Act,
1999.

(2) This Act and the Companies Acts, 1963 to 1990, may be cited together as
the Companies Acts, 1963 to 1999, and shall be construed together as one.

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

<1>SCHEDULE Stabilisation Rules

  • Definitions.
  • 1. In these Rules-
  • ”associated securities” means securities-

(a) which are in all respects uniform with the relevant securities, or

(b) for which the relevant securities may be exchanged or into which they may
be converted, or

(c) which the holders of the relevant securities have, by virtue of their
holdings of those securities, rights to acquire or to subscribe for, or

(d) which are depository receipts which represent or confer property rights
in respect of relevant securities or securities to which paragraph (a), (b), (c)
or (f) relates or which represent or confer a contractual right (other than an
option) to acquire such securities otherwise than by subscription; or

(e) which represent or confer any right, option or obligation in respect of
an index relating to relevant securities or to securities to which paragraph
(a), (b), (c) or (d) relates, or

(f) which represent or confer a right to acquire a particular amount of
relevant securities or of any securities to which paragraph (a), (b), (c), (d)
or (e) relates at a future date at a particular price (”associated call
options”) or which otherwise represent or confer any right, option or
obligation in respect of such securities;

  • ”closing date” means-

(a) in the case of an issue of securities, the date on which the issuer of
the securities receives the proceeds of the issue or, where the issuer receives
those proceeds in instalments, the date on which it receives the first
instalment; and

(b) in the case of an offer for sale of securities, the date on which the
offeror or, as the case may be, the offerors receive the proceeds of the offer
for sale, or where the offeror or, as the case may be, the offerors receive
those proceeds in instalments, the date on which the offeror or, where there is
more than one offeror, one or more of the offerors receives the first
instalment;

  • ”introductory period” means the period starting at the time of the first
    public announcement from which it could reasonably be deducted that the issue
    was intended to take place in some form and at some time, and ending with the
    beginning of the stabilising period;
  • “issue”, except in the definitions of ”closing date” and ”stabilising
    period” and in Rule 2, includes offer for sale and ”issued” shall be
    construed accordingly;
  • ”issue price” means the specified price at which the relevant securities
    are issued without deducting any selling concession or commission;
  • ”issuer”, except in the definition of ”closing date”, includes
    offeror;
  • ”manager” means the person instructed by the issuer of the securities to
    manage the issue;
  • ”public announcement” means any communication made by or on behalf of
    the issuer or the manager, being a communication made in circumstances in
    which it is likely that members of the public will become aware of the
    communication;
  • ”recognised stock exchange” has the meaning assigned by section 107 of
    the Companies Act, 1990;
  • ”the Register” has the meaning assigned by Rule 5(1)(d);
  • ”relevant day” means-

(a) the 30th day after the closing date or,

(b) where before the 30th day after the closing date the stabilising manager
has determined that he or she would take no further action to stabilise or
maintain the market price of the relevant securities and has notified the Irish
Stock Exchange Limited accordingly pursuant to Rule 8; the day he or she so
determined;

  • ”relevant securities” has the meaning given by Rule 2;
  • ”securities” has the meaning assigned by section 107 of the Companies
    Act, 1990;
  • ”stabilising action” means a purchase of, or agreement to purchase or
    offer to purchase relevant securities or associated securities permitted to be
    made by Rule 3;
  • ”stabilising manager” means the person who is manager or, if there be
    more than one manager, such one of the managers as shall have been agreed
    between them to be the one to conduct stabilising action in the State in
    relation to the issue of the relevant securities;
  • ”stabilising period” means the period beginning with the date on which
    the earliest public announcement of the issue or offer for sale which states
    the issue price or offer price, as the case may be, is made and ending with
    the relevant day, save that, in relation to an issue of relevant securities
    which are debentures or other debt securities, the stabilising period means
    the period beginning with the date on which the earliest public announcement
    of the issue is made (whether or not that announcement states the issue price)
    and ending with the relevant day;
  • ”takeover offer” means an offer made generally to holders of shares in a
    company to acquire those shares or a specified proportion of them, or to
    holders of a particular class of those shares to acquire the shares of that
    class or a specified proportion of them.
  • Application.
  • 2. These Rules apply to-

(a) an issue of securities for cash,

(b) an offer of securities for cash for which securities dealing facilities
are not already provided by a recognised stock exchange, and

(c) an offer of securities for cash for which securities dealing facilities
are already provided by a recognised stock exchange, if the total cost of the
securities which are the subject of the offer is at least £15,000,000 (or the
equivalent in the currency or unit of account in which the price of the
securities is stated),

  • and which is made other than in connection with a takeover offer and at a
    specified price and which securities may be dealt in on a recognised stock
    exchange without a formal application, or in respect of which application has
    been made to a recognised stock exchange for the securities to be dealt in on
    that exchange, and such securities are in these Rules referred to as
    ”relevant securities”.
  • Permitted stabilising action.
  • 3. (1) Subject to paragraph (2) and Rules 6 and 7, the stabilising manager
    may during the stabilising period do any or all of the following, with a view
    to stabilising or maintaining the market price of the relevant securities:

(a) purchase, agree to purchase or offer to purchase any of the relevant
securities, and

(b) purchase, agree to purchase or offer to purchase any associated
securities.

(2) A stabilising manager may effect a stabilising action pursuant to
paragraph (1) only if the stabilising manager reasonably believes that the
conditions specified in Rule 5 have been fulfilled.

(3) A stabilising manager who effects a stabilising action pursuant to
paragraph (1) shall comply with Rule 9.

  • Permitted action ancillary to stabilising action.
  • 4. (1) Subject to paragraph (2) and Rule 6, the stabilising manager may-

(a) with a view to effecting stabilising actions, either or both-

(i) make allocations of a greater number of relevant securities than will be
issued, and

(ii) sell, offer to sell, or agree to sell a greater number of relevant
securities or associated securities than the stabilising manager has available
for sale,

(b) sell, offer to sell, or agree to sell relevant securities or associated
securities in order to close out or liquidate any position established by
stabilising actions whether or not those actions were in accordance with Rule 3,
and

(c) purchase, offer to purchase or agree to purchase relevant securities or
associated securities in order to close out or liquidate any position
established pursuant to clause (i) or (ii) of subparagraph (a).

(2) A stabilising manager may act pursuant to paragraph (1) only if he or she
reasonably believes that the conditions specified in Rule 5 have been
fulfilled.

(3) A stabilising manager who acts pursuant to paragraph (1) shall comply
with Rule 9.

(4) A transaction of the type described in paragraph (1)(c) may be effected
without regard to the requirements as to purchasing price limits set out in Rule
7.

  • Preliminary steps before stabilising action, etc.
  • 5. (1) The following are the conditions which have, in the reasonable
    belief of the stabilising manager, to have been fulfilled before any
    stabilising action or action pursuant to Rule 4(1) may be taken in accordance
    with these Rules:

(a) from the beginning of the introductory period-

(i) any electronic screen-based statement, including any screen facility
provided by the stabilising manager through which persons are informed of the
sale or purchase price of securities, or

(ii) any announcement intended for publication in any newspaper and any other
announcement of a public nature, or

(iii) any invitation telex or equivalent document;

  • which refers to the issue concerned and is made or published by or on
    behalf of the issuer or the stabilising manager shall during the introductory
    period, include a reference to the future prospectus or to the prospectus or
    include the word ”Stabilisation”,

(b) from the beginning of the introductory period, any preliminary offering
circular, preliminary offering prospectus, final offering circular or final
offering prospectus relating to the issue of the securities concerned shall
include the following statement or a statement to the like effect:

  • ”In connection with this issue [name of stabilising manager] may
    over-allot or effect transactions which stabilise or maintain the market price
    of [description of relevant securities and of any associated securities] at a
    level which might not otherwise prevail. Such stabilising, if commenced, may
    be discontinued at any time”,
  • and references in these Rules to a ”disclosure statement” shall be to
    such statement or such statement to like effect,

(c) if there are associated securities in existence the market price of which
was, at the time the issue price of the relevant securities was determined, at a
level higher than it otherwise would have been because of any act performed by,
or any course of conduct engaged in by, any person which the stabilising manager
knows or ought reasonably to know created a false or misleading impression in
the market in or the price or value of that security which may induce, or may
have induced, another person-

(i) to enter into, or refrain from entering into any bargain or other
transaction relative to such security, or

(ii) to exercise or refrain from exercising any rights conferred by that
security,

  • the stabilising manager is satisfied that the issue price of the relevant
    securities is no higher than it would have been had that act not been
    performed or that course of conduct not been engaged in,
  • and

(d) the stabilising manager has established a register (in these Rules
referred to as ”the Register”) to record in relation to each transaction
effected in the relevant securities or associated securities the matters
required to be recorded by Rule 9.

(2) #(a) Any disclosure required by paragraph (1)(a) to be included in a
document or communication, or any disclosure statement required by paragraph
(1)(b) to be included in a circular or prospectus, shall be set out prominently
and in a legible form in the document or communication concerned.

(b) The disclosure statement may be adapted or omitted to comply with the
requirements of any other jurisdiction in which transactions to stabilise or
maintain the market price of securities may be conducted in connection with the
issue and so as not to require any person duly appointed to conduct stabilising
activity in respect of a jurisdiction other than the State to commit any breach
of any legal rule or requirement in respect of any communication or announcement
made or advertisement or document issued in that jurisdiction.

(3) #(a) Except where provided for by subparagraphs (a) and (b) of paragraph
(1), this Rule shall not apply to any communication, advertisement or
document.

(b) Without prejudice to the generality of subparagraph (a), a disclosure or
a disclosure statement need not be set out in any-

(i) allotment telex or similar document,

(ii) pricing telex or similar document,

(iii) contract note, or

(iv) short form or image advertisement, including any newspaper, radio or
television advertisement designed to generate interest in the issue of the
securities concerned and any marketing brochure as long as it does not
constitute a preliminary offering circular or preliminary offering
prospectus.

  • Restriction on stabilising action in associated securities.
  • 6. No stabilising action shall be taken in any associated securities of
    those relevant securities which are debentures or other debt securities and
    which associated securities are associated securities because-

(a) the relevant securities may be exchanged for or converted into the
associated securities, or

(b) the holders of the relevant securities have a right to subscribe for or
to acquire the associated securities,

  • unless the terms on which the relevant securities may be exchanged for or
    converted into the associated securities, or the rights of holders of the
    relevant securities to subscribe for or to acquire the associated securities,
    have been finally settled and been made the subject of a public announcement.
  • Limits on prices.
  • 7. (1) No stabilising action shall be effected by the stabilising manager
    at a price higher than any relevant price determined in accordance with this
    Rule.

(2) The limits on prices at which stabilising action may be effected shall be
as follows:

(a) in the case of relevant securities and associated securities which are in
all respects uniform with the relevant securities (not being debentures or other
debt securities)-

(i) for the initial stabilising action, the issue price,

(ii) for subsequent actions-

(I) where there has been a deal at a price above the price at which the
initial stabilising action took place (the ”initial stabilising price”) on the
relevant exchange which has not been done by or on the instructions of the
stabilising manager, the issue price, or the price at which that deal was done,
whichever is the lower, or

(II) where there has been no deal of the type described in subclause (I), the
issue price, or the initial stabilising price, whichever is the lower,

(b) in the case of associated securities (not being debentures or other debt
securities, associated securities which are in all respects uniform with the
relevant securities, or associated call options)-

(i) for the initial stabilising action, the market bid price of the
associated securities at the beginning of the stabilising period,

(ii) for subsequent actions-

(I) where there has been a deal at a price above the price at which the
initial stabilising action took place (the ”initial stabilising price”) on the
relevant exchange which has not been done by or on the instructions of the
stabilising manager, the market bid price in clause (i) or the price at which
that deal in the associated securities was done, whichever is the lower, or

(II) where there has been no deal of the type described in subclause (I), the
market bid price as in clause (i), or the initial stabilising price for the
associated securities, whichever is the lower,

  • and

(c) in the case of associated call options-

(i) for the initial stabilising action, the market price of the associated
call option at the beginning of the stabilising period,

(ii) for subsequent actions-

(I) where there has been a deal at a price above the price at which the
initial stabilising action took place (the ”initial stabilising price”) on the
relevant exchange which has not been done by or on the instructions of the
stabilising manager, the market price in clause (i) or the price at which that
deal in the associated call option was done, whichever is the lower, or

(II) where there has been no deal of the type described in subclause (I), the
market price as in clause (i), or the initial stabilising price for the
associated call option, whichever is the lower.

(3) #(a) In this Rule ”relevant exchange” means the stock exchange which
the stabilising manager reasonably believes to be the principal stock exchange
on which those securities, or as the case may be, options, are dealt in at the
time of the transaction.

(b) For the purposes of this Rule-

(i) where the price of any relevant securities or associated securities on
the relevant exchange is in a currency other than the currency of the price of
the securities to be stabilised, stabilising actions may be made at a price that
reflects any movement in the relevant rate of exchange, but this shall not
permit stabilising action under paragraph (2)(a) at a price above the
equivalent, in the other currency, of the issue price in the currency on the
relevant exchange,

(ii) any convertible bond which is both a debenture or other debt security
and an associated call option shall be treated as a debenture only,

(iii) where no market bid price is quoted in respect of the associated
security concerned at the beginning of the stabilising period, the relevant
price shall be the closing quotation price in respect of such securities on the
previous business day as published in the relevant stock exchange list.

  • Notification of termination of stabilising action.
  • 8. Where the stabilising manager determines, before the 30th day after the
    closing date that he or she will take no further action to stabilise or
    maintain the market price of the relevant securities, he or she shall notify
    the Irish Stock Exchange Limited without delay of that determination and the
    Irish Stock Exchange Limited shall publish that information in such form as it
    sees fit.
  • Recording of stabilisation transactions.
  • 9. (1) The stabilising manager shall record in the Register the matters
    specified in subparagraph (2) in relation to transactions effected pursuant to
    Rules 3 and 4 and that record shall be made before the opening of business on
    the day that is not a Saturday, Sunday or public holiday which next follows
    the day the transaction was effected and a copy of that record shall be
    communicated to the Irish Stock Exchange Limited before the end of that day.

(2) The following matters shall be recorded in the Register:

(a) the names of the persons to whom the relevant securities were allocated
or issued and, in relation to each person, the amount allocated or issued to him
or her;

(b) the description of the security which is the subject of the
transaction;

(c) the price (excluding any commission payable) of each security which is
the subject of the transaction;

(d) the number of securities which are the subject of the transaction;

(e) the date and time of the transaction; and

(f) the identity of the counterparty to the transaction.

(3) A stabilising manager who offers or effects a stabilising action at a
price determined in accordance with subparagraph (a)(ii)(I),

(b)(ii)(I) or (c)(ii)(I) of Rule 7(2) shall record in the Register details of
the transaction which affects the maximum price of the stabilising action.

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