On 30 July 2020, the Oireachtas passed the Companies (Miscellaneous Provisions) (COVID-19) Act 2020 (the "Act"). The Act was signed into law by the President on 1 August 2020 and will now require a commencement order from the Minister for Business, Enterprise and Innovation before coming into operation.
The purpose of the Act is to alleviate some of the practical difficulties faced by companies in complying with their legislative obligations as a result of COVID-19. To this end, the majority of the provisions temporarily amend the Companies Act 2014 and the Industrial and Provident Societies Act 1893 (the "1893 Act"). These provisions will apply until 31 December 2020 unless extended by the Government (the "interim period").
The Act introduces a number of changes which will afford welcome flexibility to companies in complying with their statutory obligations, particularly in respect of executing documents and holding meetings:
Sealing of Documents
Generally, any document which is required to have the seal of a company affixed to it must be a single document signed by one director and the company secretary or a second director. The Act provides that during the interim period such documents can be sealed and signed in counterpart as individual documents and these documents taken together can be treated as one.
The Act provides that a company that was due to hold its annual general meeting this year can postpone it until 31 December 2020.
The Act further provides that general meetings do not have to be held in a physical venue but can instead be held remotely, either wholly or partly, provided that every attendee has a reasonable opportunity to participate. The Act makes similar provisions in respect of registered societies in its amendments to the 1893 Act.
Also of note is the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 which was signed into law on 6 August 2020 and which permits unincorporated bodies, such as clubs, to hold meetings of its members by means of electronic communication.
The Act provides that where Directors have recommended the payment of a dividend and convened a general meeting and they subsequently 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 can then accordingly withdraw or amend the resolution to approve the dividend.
The Act also contains a number of provisions which will help to provide breathing space to companies facing short-term difficulties as a result of COVID-19 but which would otherwise be viable:
The Act allows an Examiner of a company to seek a further extension from the Court of 50 days within which to submit his/her report where exceptional circumstances exist in respect of the company in examinership. This is in addition to the initial 70 day period an Examiner has to submit a report and the 30 day extension that he or she can presently seek. This means that the total period of an examinership can be extended to up to 150 days.
"Exceptional circumstances" include, but are not limited to, the nature and actual or potential impact of COVID-19 on the company.
Petitions for the Winding Up of Companies and Creditors Meetings
During the interim period, the debt required for a creditor to commence the winding up of a company will be increased from €10,000.00 for individual debts and €20,000.00 for aggregate debts to €50,000.00 for individual and aggregate debts.
The Act also allows creditors meetings to be held remotely during the interim period in the same fashion as general meetings provided that all attendees have a reasonable opportunity to participate in the meeting. Where a creditors' meeting is to be held either electronically, either wholly or partly, the Act specifies certain information which must be included in the notice of the meeting, including the platform being used to host the meeting, any requirements put in place in order for attendees to identify themselves and the procedure being used to conduct the meeting.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.