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- Year: 1999
- Country: Ireland
- Language: English
- Document Type: Domestic Law or Regulation
- Topic: Foreign Funding
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ÐÐÐÐÐÐÐÐ
Number8of1999
ÐÐÐÐÐÐÐÐ
COMPANIES (AMENDMENT) ACT, 1999
ÐÐÐÐÐÐÐÐ
ARRANGEMENT OF SECTIONS
Section
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.
SCHEDULE
Stabilisation Rules
ÐÐÐÐÐÐÐÐ
1
Acts Referred to
Companies Act, 1963 1963, No. 33
Companies Act, 1990 1990, No. 33
ÐÐÐÐÐÐÐÐ
Number8of1999
ÐÐÐÐÐÐÐÐ
COMPANIES (AMENDMENT) ACT, 1999
ÐÐÐÐÐÐÐÐ
AN ACT TO AMEND AND EXTEND PARTS IV AND V OF
THE COMPANIES ACT, 1990, TO PERMIT STABILISING
ACTIVITY IN RELATION TO THE ISSUE OR SALE OF
SECURITIES AND TO PROVIDE FOR CONNECTED
MATTERS. [19th May, 1999]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.Ð(1) In this ActÐ
“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 onÐ
(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 ofÐ
(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 deter-
mined that it would take no further action to stabilise or
maintain the market price of the securities concerned,
3
Interpretation.
Restriction of
section 108 of Act
of 1990.
Disclosure of
interests in relevant
share capital.
4 whichever first occurs;
“Stabilisation Rules” means the rules referred to by that name which
are set out in theSchedule.
(2) In this ActÐ
(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 ref-
erence to some other provision is intended, and
(c) a reference to any enactment is a reference to that enact-
ment as amended, extended or adapted by or under any
subsequent enactment including this Act.
2.ÐSection 108 of the Act of 1990 shall not be regarded as having
been contravened by reason ofÐ
(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 rel-
evant requirements applicable to such actions in the juris-
diction where such action is effected, including, if those
securities are also listed on a stock exchange in that juris-
diction, the rules or other regulatory requirements gov-
erning that stock exchange.
3.Ð(1) The acquisition or disposal of interests in relevant share
capital by a person during the stabilising period concerned, whichÐ
(a) is done for the purpose of stabilising or maintaining the mar-
ket price of securities, and
(b) is so done either in conformity with the Stabilisation Rules
or is an acquisition or disposal to whichsection 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 whichÐ
(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 [1999.]Companies (Amendment) Act,1999. [No.8.] (c) continues to be held by such person at the end of the sta-
bilising 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 follow-
ing the end of the stabilising period that is not a Saturday, Sunday
or public holiday.
(3) Notwithstandingsubsection (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.ÐSection 110 of the Act of 1990 is hereby amended by the inser-
tion 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 intoÐ
(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 pro-
vided 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 obli-
gations under an agreement to which paragraph (b)
or (c) relates.”.
5.Ð(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
Scheduleinto 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 regu-
lation is laid before it, the regulation shall be annulled accordingly,
but without prejudice to the validity of anything previously done
thereunder.
6.ÐThe 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.
5S.3
Amendment of
section 110 of Act
of 1990.
Removal of
difficulties.
Revocations. [No.8.]Companies (Amendment) Act,1999. [1999.] Short title,
collective citation,
construction and
commencement.
Section 1(1).
6 7.Ð(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.
SCHEDULE
Stabilisation Rules
Definitions.
1. In these RulesÐ
“associated securities” means securitiesÐ
(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 securi-
ties to whichparagraph (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 sub-
scription; or
(e) which represent or confer any right, option or obligation in
respect of an index relating to relevant securities or to
securities to whichparagraph (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 obli-
gation in respect of such securities;
“closing date” meansÐ
(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 instal-
ments, 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 [1999.]Companies (Amendment) Act,1999. [No.8.] 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 inRule 2, includes offer for sale and “issued” shall be
construed accordingly;
“issue price” means the specified price at which the relevant securi-
ties 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 securi-
ties 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 byRule 5(1)(d);
“relevant day” meansÐ
(a) the 30th day after the closing date or,
(b) where before the 30th day after the closing date the stabilis-
ing 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 toRule 8; the
day he or she so determined;
“relevant securities” has the meaning given byRule 2;
“securities” has the meaning assigned by section 107 of the Compan-
ies Act, 1990;
“stabilising action” means a purchase of, or agreement to purchase
or offer to purchase relevant securities or associated securities per-
mitted to be made byRule 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
7Sch. [No.8.]Companies (Amendment) Act,1999. [1999.] Sch.
8 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 toÐ
(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 equiv-
alent 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 toparagraph (2)andRules 6and7, the stabilising
manager may during the stabilising period do any or all of the follow-
ing, 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 associ-
ated securities.
(2) A stabilising manager may effect a stabilising action pursuant
toparagraph (1)only if the stabilising manager reasonably believes
that the conditions specified inRule 5have been fulfilled.
(3) A stabilising manager who effects a stabilising action pursuant
toparagraph (1)shall comply withRule 9.
Permitted action ancillary to stabilising action.
4. (1) Subject toparagraph (2)andRule 6, the stabilising manager
mayÐ
(a) with a view to effecting stabilising actions, either or bothÐ
(i) make allocations of a greater number of relevant
securities than will be issued, and [1999.]Companies (Amendment) Act,1999. [No.8.] (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 associ-
ated securities in order to close out or liquidate any posi-
tion established by stabilising actions whether or not
those actions were in accordance withRule 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 toclause (i)
or(ii)ofsubparagraph (a).
(2) A stabilising manager may act pursuant toparagraph (1)only
if he or she reasonably believes that the conditions specified in
Rule 5have been fulfilled.
(3) A stabilising manager who acts pursuant toparagraph (1)
shall comply withRule 9.
(4) A transaction of the type described inparagraph (1)(c)may
be effected without regard to the requirements as to purchasing price
limits set out inRule 7.
Preliminary steps before stabilising action, etc.
5. (1) The following are the conditions which have, in the reason-
able belief of the stabilising manager, to have been fulfilled before
any stabilising action or action pursuant toRule 4(1)may be taken
in accordance with these Rules:
(a) from the beginning of the introductory periodÐ
(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 prelimi-
nary 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 sta-
bilising, if commenced, may be discontinued at any
time”,
9Sch. [No.8.]Companies (Amendment) Act,1999. [1999.] Sch.
10 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 rel-
evant 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 personÐ
(i) to enter into, or refrain from entering into any bar-
gain or other transaction relative to such security, or
(ii) to exercise or refrain from exercising any rights con-
ferred 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
byRule 9.
(2) (a) Any disclosure required byparagraph (1)(a)to be
included in a document or communication, or any disclos-
ure statement required byparagraph (1)(b)to be
included in a circular or prospectus, shall be set out prom-
inently and in a legible form in the document or com-
munication 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 communi-
cation or announcement made or advertisement or docu-
ment issued in that jurisdiction.
(3) (a) Except where provided for bysubparagraphs (a)and(b)
ofparagraph (1), this Rule shall not apply to any com-
munication, advertisement or document.
(b) Without prejudice to the generality ofsubparagraph (a),
a disclosure or a disclosure statement need not be set out
in anyÐ
(i) allotment telex or similar document,
(ii) pricing telex or similar document,
(iii) contract note, or [1999.]Companies (Amendment) Act,1999. [No.8.] (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
becauseÐ
(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 sub-
scribe 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 securi-
ties (not being debentures or other debt securities)Ð
(i) for the initial stabilising action, the issue price,
(ii) for subsequent actionsÐ
(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 rel-
evant 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 des-
cribed insubclause (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 associ-
ated call options)Ð
(i) for the initial stabilising action, the market bid price
of the associated securities at the beginning of the
stabilising period,
11Sch. [No.8.]Companies (Amendment) Act,1999. [1999.] Sch.
12 (ii) for subsequent actionsÐ
(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 rel-
evant exchange which has not been done by or
on the instructions of the stabilising manager,
the market bid price inclause (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 insubclause (I), the market bid price
as inclause (i), or the initial stabilising price for
the associated securities, whichever is the lower,
and
(c) in the case of associated call optionsÐ
(i) for the initial stabilising action, the market price of
the associated call option at the beginning of the sta-
bilising period,
(ii) for subsequent actionsÐ
(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 rel-
evant exchange which has not been done by or
on the instructions of the stabilising manager,
the market price inclause (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 insubclause (I), the market price as
inclause (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 RuleÐ
(i) where the price of any relevant securities or associ-
ated securities on the relevant exchange is in a cur-
rency 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 underparagraph (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, [1999.]Companies (Amendment) Act,1999. [No.8.] (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 clos-
ing quotation price in respect of such securities on
the previous business day as published in the rel-
evant 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 insubparagraph (2)in relation to transactions
effected pursuant toRules 3and4and 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 secur-
ity 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 withsubparagraph (a)(ii)(I),
(b)(ii)(I)or(c)(ii)(I)ofRule 7(2)shall record in the Register details
of the transaction which affects the maximum price of the stabilising
action.
13Sch.