COMPANIES ACT 2014- PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

COMPANIES ACT 2014- PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

COMPANIES ACT 2014- PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

UCITS FOR INVESTMENT MANAGERS 2014 1 COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

COMPANIES ACT 2014- PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

WILLIAM FRY 2

CONTENTS THE ACT 3 BENEFITS OF THE ACT 3 NEW COMPANY TYPES 4 CONVERSION PROCESS 5 THE ADVANTAGES OF THE NEW LTD COMPANY 6 WHY CONVERT TO A DAC? 6 OTHER COMPANY TYPES 7 FOREIGN COMPANIES 8 COMPANY CONSTITUTIONS 8 PARTICULAR ISSUES FOR DIRECTORS 9 CORPORATE TRANSACTIONS 11 ACCOUNTS 12 ACTION REQUIRED 13 TIPS 15 EXPECTED TIMELINE 15 HOW WILLIAM FRY CAN HELP 16 1

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3 COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES THE ACT BENEFITS OF THE ACT The Companies Act 2014 is due to be commenced on 1 June 2015 and will affect all Irish registered companies. Although much of the current law will remain the same, the Act introduces some significant changes, many of which are designed to make it easier to operate a corporate business in Ireland. The Act has many benefits, including: • Consolidating all company law provisions into one piece of legislation, rather than being spread over 17 Acts and numerous Statutory Instruments; • Making legal obligations clearer and easing the administrative burden on companies; • Simplifying procedures for carrying out certain corporate transactions, removing the need to obtain court approval in certain instances (for example when reducing company capital); and • Widening the audit exemption to include dormant companies, qualifying group companies and guarantee companies and expanding the exemption thresholds.

WILLIAM FRY 4 One of the most significant features of the Act is that it provides for two new forms of private company limited by shares. The current form of private company limited by shares will cease to exist 18 months after the commencement of the Act (known as the ‘transition period’). To deal with this situation, existing private companies limited by shares have three options: 1. Convert to a LTD; 2. Convert to a DAC; or 3. Do nothing and be deemed a DAC during the transition period and a LTD thereafter. Although the Act provides for an automatic default to a LTD at the end of the transition period, it is not recommended that existing private companies take no action and merely rely on the default provisions in the Act to convert to the new company type for the following reasons: 1. If the directors fail to prepare a new constitution for the company as required by the Act, they will be in breach of a legal obligation, although this does not carry any specific sanction under the Act; 2. The memorandum and articles of association of the LTD on the public record will, on the expiration of the transition period, be deemed to be its constitution, although it will not include the objects clause or provisions inconsistent with mandatory provisions of the Act. However, those provisions will not be physically redacted from the constitution as available on the public register, with the result that the constitution on the public record will not reflect the actual constitution of the company; and 3. References in the constitution to the old Companies Acts will remain, possibly causing confusion.

NEW COMPANY TYPES LTD (Limited) A new form of simplified model private company limited by shares, having a single constitutional document and unlimited legal capacity. DAC (Designated Activity Company) Similar to existing form of private limited company. Will continue to have a memorandum and articles of association, with an objects clause limiting its legal capacity.

5 COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES CONVERSION PROCESS It is relatively straightforward to convert to either of the new company types. To convert to a LTD the members should pass a special resolution (75%) authorising the conversion (and putting in place a new constitution) before the end of the transition period. If the members of the company do not resolve to convert to a LTD (or a DAC), then there is an obligation on the directors to prepare a new constitution for the company in the form of a LTD before the end of the transition period and to deliver it to each member of the company and the CRO. To convert to a DAC the members can pass an ordinary resolution (50%) within the first 15 months of the transition period. 1 Where an existing private company limited by shares has debentures admitted to trading or listed on any debt market, it must convert to a DAC by way of a director’s resolution before the end of the transition period if it has not already converted using the member’s ordinary resolution process.

Where an existing private company limited by shares does not re-register as a DAC before the end of the transition period, certain of its members or creditors 2 may apply to court for an order directing the company to re-register as a DAC. In addition, a company which has been deemed to have converted to a LTD at the end of the transition period can subsequently convert to a DAC should it so wish using the standard conversion provisions in the Act. Upon successful conversion to either of the new company types, a new certificate of incorporation will be issued, with the company retaining its original registration number. For more detailed information on conversion options for your company please see our publication entitled ‘The New Forms of Limited Company and How to Convert’ which is available on our website.

1 Alternatively a member or members holding more than 25 per cent of the voting rights in the company can serve a notice in writing on the company requiring it to re-register as a DAC before the end of the transition period. 2 Member(s) holding not less than 15% in nominal value of the company’s issued share capital or any class thereof or creditor(s) holding not less than 15% of the company’s debentures entitling them to object to alterations to its objects.

WILLIAM FRY WHY CONVERT TO A DAC? The following companies cannot be a LTD under the new legislation and must convert to a DAC if they wish to continue as a private company limited by shares:- • Credit institutions • Insurance undertakings • Companies that have (or wish to have) debentures admitted to trading or listed on a market It is possible that the Central Bank of Ireland may require other regulated entities falling within its remit to convert to a DAC, although this has not yet been confirmed.

In addition, minority shareholders and shareholders of joint venture companies and special purpose vehicles may wish to convert to a DAC to ensure that the company in which they have invested continues only to carry on a particular business. If they convert to a LTD, the company will have unlimited capacity to carry on any business the directors decide to pursue. However, such restrictions on the nature or scope of a company’s business could generally be achieved by way of a shareholders agreement instead, although as the shareholders agreement is a private document, third parties dealing with the company may not be aware of such business restrictions. It is expected that the majority of existing private companies limited by shares will become a LTD under the new law given the advantages associated with that company type. A LTD, for example: • Will not have an objects clause and so will have unlimited legal capacity to carry on any lawful business or activity; • Need not have an authorised share capital; • May have a single director; and • May dispense with the need to hold a physical AGM each year, whether it is a single member or multi-member company, dealing instead with the relevant matters by way of written resolution. The benefits associated with the LTD cannot be availed of during the transition period until the company has converted to that new company type. Otherwise, the law applying to the DAC will apply to all private companies limited by shares until the end of the transition period. 6 THE ADVANTAGES OF THE NEW LTD COMPANY

7 OTHER COMPANY TYPES COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES Aside from the private company limited by shares, all other company types - for example, public limited companies (PLCs), guarantee companies (CLGs) and unlimited companies (UCs) will continue in their current corporate form following the commencement of the Act without the need to convert to a new company type. These companies may wish to review their existing memorandum and articles of association to assess whether optional provisions in the new Act should be disapplied by the company 3 and also update references to the old Companies Acts. Guarantee companies and unlimited companies will be obliged to change their name, and therefore their memorandum and articles of association (as set out below), unless they have been granted an exemption.

The following are the main features of those other company types: PUBLIC LIMITED COMPANIES GUARANTEE COMPANIES UNLIMITED COMPANIES Will retain objects clause Will retain objects clause Will retain objects clause No name change required Name change may be required (see below) Name change may be required (see below) Can now have single member Can now have a single member Can now have single member Minimum of 2 directors Minimum of 2 directors Minimum of 2 directors Can offer shares to the public Can now avail of audit exemption, provided company falls within thresholds Can be a private unlimited company (ULC), a public unlimited company (PUC) or a public unlimited company with no share capital (PULC) 3 For example, provisions of the Act on the automatic rotation of directors, shareholder approval of director remuneration and voting by directors on matters in which s/he is interested will apply by default to PLCs and CLGs if these provisions are not disapplied or modified by the constitution of the company. For some PLCs, these provisions will already have been disapplied by existing articles of association.

WILLIAM FRY 8 The new LTD company will have a simplified one-document constitution. All other company types will retain a memorandum and articles of association, with these documents being collectively referred to as a ‘constitution’. The Act differentiates between mandatory and optional provisions. Optional provisions are ones which can be disapplied or modified in the constitution of a company, for example provisions contained in the Act in relation to how board meetings are to be conducted. A mandatory provision is one which cannot be disapplied or modified by the company in its constitution, for example the requirement for directors to keep minutes of their meetings. Following commencement, any provisions in the constitution of a company that are inconsistent with a mandatory provision of the Act will be invalid.

The Act abandons the concept of ‘place of business’ in the context of foreign companies with a presence in Ireland. The CRO has confirmed that the registration numbers of existing places of business will be cancelled upon commencement of the Act. Existing foreign companies with a place of business registration in Ireland may wish to consider whether they would be more appropriately registered as a branch, provided they meet the registration requirements. Only limited liability companies may register as a branch. Companies should be aware that a foreign company registered as a branch in Ireland must file whatever financial statements it is required to file in its home country with the CRO, unlike a company registered as a place of business.

COMPANY CONSTITUTIONS FOREIGN COMPANIES

9 PARTICULAR ISSUES FOR DIRECTORS COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES The following changes introduced by the Act are of particular relevance to company directors. DIRECTORS’ DUTIES • The Act codifies directors’ duties, bringing together duties from the common law, equity and statute for the first time in a concise manner. The duties listed are non-exhaustive. • On taking up office, both directors and company secretaries are now required to make a statement acknowledging their duties under the law.

• The duty of ensuring the company complies with company law now rests with the director(s) alone and is no longer the obligation of the company secretary. • The duties of the secretary are those which are delegated by the board of directors, in addition to any other statutory and legal duties. • There is now an obligation on the directors of private companies to ensure that the individual (or company) acting as company secretary has the skills or resources necessary to carry out the role. While a person can still act as both a director and secretary of a company, the same person cannot hold both these roles in a single director LTD.

• For more information on directors’ duties under the new Act, see our publication on the topic on our website. LOANS TO/ FROM DIRECTORS • If a loan has not been documented, the following will be presumed to apply:- - Loans to a director from a company will bear interest 4 and be repayable on demand; and - Loans from a director to a company will be considered not to be a loan and will not bear interest. 4 Interest is calculated at the “appropriate rate”, such rate being 5% per annum or such other rate as may be specified by the Minister by way of order.

WILLIAM FRY 10 PARTICULAR ISSUES FOR DIRECTORS, continued. DIRECTORS’ COMPLIANCE STATEMENT • Requirement for directors of all PLCs, in addition to ‘large’ 5 private companies and guarantee companies to produce a compliance statement on an annual basis. Unlimited companies and investment companies are not required to produce such a statement. • Compliance statement must acknowledge the directors are responsible for securing the company’s compliance with its ‘relevant obligations’.

• ‘Relevant obligations’ means the company’s obligations under the Act where a breach of those obligations is considered to be a serious offence (including Market Abuse and Prospectus offences), in addition to the company’s obligations under tax law. • In the statement, directors must confirm that:- (i) the company has a compliance policy statement; (ii) appropriate arrangements or structures are in place to ensure compliance with the company’s obligations; and (iii) a review of these arrangements or structures has taken place during the previous year. • If the directors cannot provide these confirmations, they must explain why the specified actions have not been carried out. • Failure to include a compliance statement in the director’s report of a company where required to do so is a criminal offence. AUDIT INFORMATION • Directors to make a statement confirming there is no relevant audit information not disclosed to the company’s statutory auditors. • Each director must confirm that he/she has taken all the steps they ought to have in order to make himself or herself aware of any relevant audit information and to establish that the company’s statutory auditors have that information. • This provision is new, but a similar statement is, in practice, often required by audit firms. 5 ‘Large’ in this context means where the balance sheet total for the year exceeds €12,500,000 and the turnover for the year exceeds €25,000,000

11 COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES CORPORATE TRANSACTIONS The Act sees the introduction of a number of changes to procedures for certain corporate transactions as part of an overall drive to make it easier for companies to do business. SUMMARY APPROVAL PROCEDURE • There is a new streamlined procedure known as the Summary Approval Procedure involving a director’s declaration and shareholder approval (and an independent auditor’s report in certain circumstances) which can be used to authorise a number of ‘restricted activities’.

• ‘Restricted activities’ include the provision of financial assistance for acquisition of own shares, reductions of company capital, the provision of loans to directors, the treatment of pre-acquisition profits in a holding company’s financial statement as profits available for distribution and the completion of a merger. • It is no longer necessary to obtain court approval for certain restricted activities (for example, reduction of capital) where the Summary Approval Procedure is used.

FINANCIAL ASSISTANCE FOR ACQUISITION OF OWN SHARES • Prohibition in current law on the provision of financial assistance for the acquisition of own shares often causes problems in banking transactions. • Act eases the prohibition so that the restriction will only apply to financial assistance used ‘for the purpose of’ the acquisition of shares, and not financial assistance used merely ‘in connection with’ such a transaction. • In addition, there are a number of new exemptions from the prohibition, for example, where the giving of the financial assistance is only an incidental part of some larger purpose.

REGISTRATION OF CHARGES • New optional two-stage registration for charges created by a company designed to ‘lock-in’ priority at an earlier date. • Will provide increased certainty for lending institutions as regards priority of charges. MERGERS ANDDIVISIONS OFPRIVATE COMPANIES • Act introduces statutory framework for mergers and divisions between private companies in a purely national context for the first time under Irish law. • Currently, mergers between private companies may only be implemented if there is a cross-border element to the transaction and by obtaining court approval.

• Summary Approval Procedure (see above) can be used to carry out a merger of private companies under the Act, without the need for court approval. WRITTEN RESOLUTIONS • Both a DAC and a LTD will be permitted to pass majority written resolutions of shareholders under the Act.

WILLIAM FRY 12 ACCOUNTS The following changes will apply to the preparation and filing of financial statements: AUDIT EXEMPTION • Small companies will only be required to meet two of the three size criteria (turnover of under €8.8m, balance sheet of under €4.4m and less than 50 employees) to qualify for an audit exemption. • Audit exemption extended to qualifying group companies, dormant companies and qualifying guarantee companies. MEDIUM SIZED COMPANIES • Increase in the thresholds to qualify as a medium sized company for the purposes of filing abridged accounts. • New thresholds are turnover of under €20m (currently €15.24m), balance sheet total of under €10m (currently €7.62m) and less than 250 employees (no change). The company need only meet two of the three thresholds.

APPROVAL OF FINANCIAL STATEMENTS • Only necessary for the directors to sign the balance sheet and not the profit and loss account. DEFECTIVE FINANCIAL STATEMENTS • Will be permitted to revise defective financial statements already filed with the CRO. FINANCIAL YEAR • Company may now only change its financial year once every 5 years. • However, a company may change its financial year end by 7 days either side without being affected by this restriction. AUDIT COMMITTEES • Large companies 6 and all PLCs must put in place an audit committee or explain why they have not done so.

7 COMMENCE- MENT • It is expected that certain provisions in the Act in relation to financial statements will only apply to financial years beginning on or after 1 June 2015. • This is subject to confirmation. 6 Large company in this context means where, in both the most recent financial year and the preceding financial year, the balance sheet total exceeded €25,000,000 and the turnover exceeded €50,000,000. 7 Currently, ‘public interest entities’ (i.e. banks, insurance undertakings and listed companies) must have an audit committee in place.

13 The Act is expected to come into effect on 1 June 2015, with an 18 month transition period designed to provide private limited companies with an opportunity to decide whether to convert to a LTD or a DAC. However, companies should be aware that, aside from the requirement for such companies to convert to a new company type, most of the new law will come into effect immediately on 1 June 2015. Therefore, we would recommend that companies give some consideration to the following matters:- For existing private companies limited by shares, a decision should be made as to whether to convert to a LTD or a DAC. We recommend that a company be proactive in this regard, rather than relying on the default conversion provisions in the Act. If a company is deemed to convert to a LTD at the end of the transition period, the memorandum and articles of association on the public record will be deemed not to include an objects clause or provisions inconsistent with mandatory provisions of the Act. However, those provisions will not be physically redacted from the constitution as available on the CRO register, and this may cause confusion. It would therefore be sensible to proactively make the required changes to the memorandum and articles of association of a company and file a new constitution with the CRO.

All company types should examine their existing memorandum and articles of association. Companies should determine whether such documents are still fit for purpose and identify if any provisions contained in them conflict with mandatory rules in the new legislation. It would also be preferable to update any references to the prior Companies Acts in such documents. Consent from third parties (e.g. banks) may be required to convert to a new company type and make changes to constitutional documents. Companies should look to document any existing loans to and from directors. This will ensure the disapplication of the new presumptions in the Act highlighted above and ensure that the terms of the loans actually reflect the intention of the parties. Directors should determine whether they will be obliged to produce a directors’ compliance statement. The company should also assess whether the appropriate compliance policies and structures are in place to satisfy the new requirements under the Act.

Companies should assess whether they will be affected by the provisions of the Act dealing with the establishment of audit committees. Large companies and all PLCs will be obliged to decide whether to establish an audit committee and to explain the basis of their decision. See footnotes 6 and 7 on page 12 for more information. Companies should examine whether they will be in a position to avail of the extended audit exemption. Companies that do not currently qualify for the audit exemption may qualify in future given the amended provisions in the Act increasing the thresholds and extending the exemption to qualifying group companies, dormant companies and qualifying guarantee companies.

Certain companies will be required to change their name before the end of the transition period. - The name of a DAC must end with the words ‘designated activity company’ (or the Irish language equivalent or permitted abbreviations thereof). COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES ACTION REQUIRED

WILLIAM FRY 14 - The name of a guarantee company must end with the words ‘company limited by guarantee’ (or the Irish language equivalent of permitted abbreviations thereof). - The name of an unlimited company must end with the words ‘unlimited company’ (or the Irish language equivalent or permitted abbreviations thereof). - Companies changing their name will be obliged to update their company stationary, company seal and signage etc. to reflect their new name. - Certain exemptions are available from the above requirements for all three company types.

Foreign companies registered as a place of business in Ireland should bear in mind that their registration will lapse on 1 June 2015. Such entities may wish to consider whether it would be more appropriate to register as a branch, if the requirements for branch registration are met.

15 TIPS EXPECTED TIMELINE Group companies may wish to take the opportunity to review their general group structure to assess whether there are any dormant or unnecessary companies in the group which could be wound up or struck off the register before the end of the transition period. This will avoid the time and cost of converting such companies to a LTD or a DAC. Where companies are considering undertaking a restricted transaction (for example, a reduction of company capital) that is not time critical, it might be advisable to delay the transaction until after commencement of the Act. In this way, the company may be able to avail of the new Summary Approval Procedure (as outlined above) to validate the transaction, which would be less costly and time-consuming than the procedure available under the current law. Guarantee companies should consider whether they are in a position to apply for an exemption from using the words “company limited by guarantee” after their name. If an existing guarantee company has already obtained an exemption from the requirement to use the word “limited” following its name, this exemption will be carried over under the Act. The Act envisages a specified scope to be given to the company secretarial function on its role, stating that the duties of a secretary (in addition to statutory and legal duties) are those which have been delegated by the board of directors. This should be an item for consideration by the board of directors, in order that it can be described and delegated appropriately. 23 Dec 2014 ENACTMENT 30 Nov 2016 END OF TRANSITION PERIOD 31 Aug 2016 DEADLINE FOR CONVERSION TO DAC 01 Jun 2015 COMMENCEMENT COMPANIES ACT 2014 - PRACTICAL IMPLICATIONS FOR IRISH COMPANIES

The William Fry team is happy to help on any queries arising from this briefing. In particular, we can: • Advise on conversion options for existing private companies limited by shares • Provide new constitutional documentation where required • Draft the necessary shareholder resolutions to convert to a new company type and deal with Companies Registration Office filings • Review existing memorandum and articles of association • Advise directors on their new obligations under the Act • Assist with the annual compliance statement process William Fry will shortly be publishing a more extensive booklet on the Act which will examine the new law in greater detail. This will be available on the Companies Act 2014 section of our website in due course.

IMPORTANT NOTE This document represents a high level summary of the changes brought about by the Companies Act 2014. It does not present a comprehensive summary of the Act or its implications and does not constitute specific legal advice for any particular client or company. HOW WILLIAM FRY CAN HELP 16

DUBLIN • LONDON • NEW YORK • SILICON VALLEY Tel: +353 1 639 5OOO • E- mail: info@williamfry.com www.williamfry.com This publication is for general information purposes only and does not constitute and should not be regarded as a substitute for taking legal advice. While every care has been taken in the preparation of the information in this publication, readers are advised to seek specific legal advice in relation to any decision or course of action. The information does not take account of specific circumstances and is not legal advice. Please contact any of the individuals listed or your regular William Fry contact if you require legal advice on any of the issues raised in this publication.

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