On 1 August 2020, the President of Ireland formally signed into law The Companies (Miscellaneous Provisions) (Covid-19) Act 2020 (the “Act”). The Act came into operation on 21 August 2020 and temporarily amends certain provisions of (1) the Companies Act 2014 and (2) the Industrial and Provident Societies Acts 1983 to 2018.
The provisions of the Act will apply for an interim period expiring on 31 December 2020, which interim period may be extended by the government up to 30 June 2021 where this is in the public interest.
The overarching ambition of the Act is to put in place practical measures to allow companies to uphold their statutory and other obligations, whilst also allowing otherwise profitable businesses the requisite “breathing room” amidst the realities of the current pandemic.
Irish law does not currently provide for fully virtual general meetings. Recognising the obvious logistical challenges to this during the current pandemic, the Act makes a number of provisions regarding general meetings.
For example, a company may postpone its AGM up to 31 December 2020.
General meetings will not need to be held at a physical venue and may be conducted wholly or partly electronically. The Act provides that all those entitled to attend must have a reasonable opportunity to participate in the meeting and it sets out specific information which must be provided in the notices of general meetings. Each member and proxy who participate in a general meeting via electronic means would be counted in the quorum. The Act also provides for the holding of votes electronically.
Similar changes are also made to the Industrial and Provident Societies Act 1893, which applies to cooperative societies.
An examiner is ordinarily allowed 70 days to make his report of corporate affairs to the court and, if this is not possible, the court can grant an additional 30 days. Under the Act, where the court is satisfied that “exceptional circumstances” exist whereby the appointed examiner would be unable to complete their assessment within the initial 70 days, or the 30 additional days already provided for, the court can extend the duration of the examinership process by a further 50 days. These exceptional circumstances explicitly include but are not limited to the effects of Covid-19 and the government regulations surrounding it.
- Insolvency and Winding Up
The debt thresholds for the commencement of a winding up by the court, as set out in Section 570 of the 2014 Act, have been temporarily increased from €10,000 for individual debts and €20,000 for aggregate debts to €50,000 for both individual debts and aggregate debts.
In addition, as with general meetings, creditors’ meetings of a company may also be held by virtual or electronic methods, provided all attendees have the ability to participate in the meeting.
Generally, documents which require a company seal to be affixed must be signed by a director and countersigned by a second director or the company secretary.
During the interim period, the Act provides that any instrument to which a company’s common seal must be affixed may be signed and sealed in counterparts, as separate documents and then counted as one instrument for the purposes of the Companies Act 2014.
Directors may have recommended the declaration of a dividend before the potential impact of the Covid-19 pandemic on their company was realised.
Where directors form the opinion that, due to the “actual or perceived consequences of Covid-19 on the affairs of the company”, the dividend should be cancelled or reduced, they may (i) withdraw the resolution to approve the dividend, or (ii) propose an amendment to the resolution to provide for a reduced dividend. Notice of the director’s opinion must be given no later than three days before the general meeting and all the members of the company must agree in writing to the cancellation/reduction.
The Covid-19 pandemic has and will continue to cause disruption for many Irish companies. The Act provides welcome clarification of certain company law issues, addressing many practical difficulties facing Irish companies during the current pandemic.
If you have any queries or concerns regarding the information in this note, please contact your usual Crowley Millar contact or any member of our Corporate Department.
Author: Sean Creed, Trainee Solicitor, Crowley Millar Solicitors LLP
Dated: 25 September 2020
Crowley Millar Solicitors LLP Disclaimer: This is a general information note and is intended for information only. It does not constitute legal advice and should not be regarded as a substitute for legal or other professional advices. Such advice should always be taken before acting on any of the matters referenced in this information note.