Summary Approval Procedure

Section 82 Companies Act 2014. It is not lawful for a company to give any financial assistance for the purchase of shares in the company or in the company’s holding company (if applicable). The prohibition applies whether the assistance is given directly or indirectly or is by means of a loan or guarantee, the provision of security or otherwise (previously section 31 of the Companies Act 1990).

There are exceptions and section 82(5) allows the financial assistance where the company’s principal purpose in giving the assistance is not for the purpose of the acquisition or where it is incidental in relation to some larger purpose and the assistance is given in good faith. Section 82(6) lists the exceptions to the prohibition which include:

• the giving of financial assistance in accordance with the Summary Approval Procedure
• for dividends or distribution out of profits
• for discharge of lawfully incurred liabilities
• lending money as part of ordinary business
• employee share schemes
• refinancing
• representations, warranties and indemnities
• fees, commissions and expenses.

It is a category 2 offence for contravention of section 82.

The Summary Approval Procedure is set out in section 202 and 203 of the Companies Act 2014 notice of the meeting has enclosed a copy of the declaration and other documents where required.

A copy of the declaration must be attached to the notice of the meeting not earlier than 30 days before the date of the meeting to pass the special resolution or if the resolution is being passed in writing not earlier than 30 days before the signature of the last person to sign. The declaration is completed by the directors or a majority of the directors, in relation to a transaction under section 82 or 239 (prohibition of loans to directors, connected persons) and the declaration must state

• the circumstances in which the transaction or arrangement is to be entered into;
• the nature of the transaction or arrangement;
• the person or persons to or for whom the transaction or arrangement is to be made;
• the purpose for which the company is entering into the arrangement or transaction;
• the nature of the benefit which will accrue to the company directly or indirectly from entering into the transaction or arrangement; and
• the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company, having entered into the transaction or arrangement, will be able to pay or discharge its debts and other liabilities in full as they fall due within a 12 month period from the date of entering into the transaction or arrangement.

The declaration must be submitted to the Registrar of Companies not later than 21 days after the date on which the carrying on the restricted activity concerned is commenced.

If the declaration is not submitted within the time limit, the failure to do so invalidates the carrying on of the activity. Under section 203(4) Companies Act 2014, the High Court has the power to validate the Summary Approval Procedure which was done incorrectly.

Section 84 of the Companies Act 2014 replaces section 72 of the Companies Act 1963 and allows a company to reduce its capital without the need for court intervention as it provides a secondary method to be used under the Summary Approval Procedure.

Section 84 of the Companies Act 2014 allows for a company, unless a company’s constitution prohibits, to reduce its capital in any way and therefore:

• it may extinguish or reduce the liability on any of it shares in respect of share capital not paid up;
• it may either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or
• it may either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the company.

Company capital, under section 64 of the Companies Act 2014, refers to the aggregate value, expressed as a currency amount, of the consideration received by the company in respect of the allotment of shares of the company and that part of the company’s undenominated capital constituted by the transfer of sums referred to in sections 106(4) and 108(3).

Section 91(1) is a new provision which enables a company to vary its capital on re-organisation. A company can enter into a transaction to dispose of assets, undertakings or liabilities or a combination to another body corporate in return for shares or securities being allotted to the members of the company as consideration (or to its holding company).

The Summary Approval Procedure is set out in sections 202 and 204 of the Companies Act 2014 notice of the meeting has enclosed a copy of the declaration and other documents where required.

A copy of the declaration must be attached to the notice of the meeting not earlier than 30 days before the date of the meeting to pass the special resolution or if the resolution is being passed in writing not earlier than 30 days before the signature of the last person to sign. The declaration is completed by the directors or a majority of the directors, in relation to a transaction under section 84 or 91. The declaration must state:

• the circumstances in which the transaction or arrangement is to be entered into;
• the nature of the transaction or arrangement;
• the person or persons to or for whom the transaction or arrangement is to be made;
• the total amount of the company’s assets and liabilities as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making;
• the anticipated total amount of the company’s assets and liabilities immediately after the restricted activity having taken place;
• that the declarants have made a full inquiry into the affairs of the company and that, having done so, they have formed the opinion that the company is able to pay or discharge its debts and other liabilities in full during the 12 month period following the restricted activity; (being the debts and liabilities identified for the purposes of the total amount of the company’s assets and liabilities and so far as not already paid or discharged) and
• that the declarants do not have actual or constructive notice that the company will incur any material, extraordinary, future liability within the period of 12 months after the date of the making of the declaration.

The declaration must be submitted to the Registrar of Companies not later than 21 days after the date on which the carrying on the restricted activity concerned is commenced. The declaration has no effect unless accompanied by a report. The report forms part of the document and must include a statement by a person who is qualified to be appointed, or continue to be, the statutory auditor of the company. The statement must be as to whether, in the opinion of that person, the declaration is not unreasonable.

If the declaration is not submitted within the time limit, the failure to do so invalidates the carrying on of the activity. Under section 204(2) Companies Act 2014, the High Court has the power to validate the Summary Approval Procedure which was completed incorrectly.

The other method for the reduction of the share capital is by an application to the High Court for confirming order. The company must cause notice of the passing of the resolution to be advertised at least once in 2 daily newspapers circulating in the district where the registered office or principal place of business is situated and all creditors, resident outside the State, must be informed by ordinary post.

Creditors have the right to object where they can credibly demonstrate that the reduction would put the satisfaction of their debt at risk. The court order must be sent to the CRO for registration thereafter.

Private and Public Unlimited Companies may reduce their company capital using section 1252 Companies Act 2014. A special resolution must be passed.

The Summary Approval Procedure (SAP) is used in relation to the members liquidation of a company under section 207.

Form E1 is used as the declaration of solvency. The other option for the drafting of the declaration is under section 580 of the Companies Act 2014 but this section only refers to companies which have a Fixed Duration set in its constitution for the company to exist. 99% of companies will complete the declaration under section 207 and the SAP. In either case, a statement by the independent person (person who is or is qualified to be the auditor of the company) that the declaration of solvency is not unreasonable is required.

The independent person is the auditor of the company or someone who is qualified to be the auditor of the company. A declaration pursuant to section 204/205/207 of the Act of 2014 shall have no effect for the purposes of the Act of 2014 unless it is:

(i) accompanied by a report that contains, at least, relevant information in accordance with the headings set out below, and
(ii) drawn up by a person who is qualified at the time of making the report to be appointed, or continue to be, the statutory auditor of the company.

The report shall be addressed to the declarant company and shall contain, at least, the following information:

I. Introductory paragraph identifying the directors’ declaration and accompanying documents to which the report relates;
II. Statement on the responsibilities of directors;
III. Statement on the responsibilities of statutory auditor;
IV. Scope of work performed by statutory auditor;
V. Other relevant facts (if any) that the statutory auditor has relied on in reaching his/her opinion that the declaration is not unreasonable;
VI. The opinion of the statutory auditor that the declaration pursuant to section 204/205/207 is not unreasonable; and
VII. Date and signature of statutory auditor, who having compiled the report, has formed the opinion that the declaration pursuant to section 204/205/207 is not unreasonable.

None of the merging companies under Part 9 of the Companies Act 2014 can be a Public Limited Company and one of the companies must be an LTD company (private company limited by shares, registered under Part 2 of the Companies Act 2014) (See section 2 and 462 Companies Act 2014 for definition).

There are several means of achieving a merger. It can be done by means of the Summary Approval Procedure set out in Part 4 of the Act or by the means of merger available under Part 9. Acquisition can be separately employed under Chapter 1 of Part 9 of the Act. Under the Part 9 merger procedure, Form DM1 is submitted together with the Common Draft Terms. Court permission then required. Following the merger, the transferor companies are dissolved without entering liquidation.

Merger can be by acquisition, absorption or formation of a new company and can be made under Part 9 of the Act.

• Merger by Acquisition is where a company, without going into liquidation, is dissolved and its assets and liabilities are transferred to a company in exchange for shares in the acquiring company with/without any cash payment.
• Merger by Absorption is where a company, without going into liquidation, is dissolved and its assets and liabilities are transferred to a company that is the holder of all of the shares representing the capital of the dissolving company.
• Merger by formation of a new company – one or more companies, without going into liquidation, is/are dissolved and the assets/liabilities are transferred to a company in exchange for shares in the new company with or without any cash payment.

Procedure: Summary Approval Procedure
The CRO must receive the following documents from each of the companies involved. Please note that it is a requirement of the Act that separate declarations/resolutions are made by EACH individual company in the process. One form will not cover all the companies involved in the process.

• The special resolution to approve the merger. The resolution must be unanimous. It cannot be a majority decision.
• The declaration made under section 206 Companies Act 2014.  The declaration made under section 206 must be accompanied by a statement under section 209 Companies Act 2014. The declaration made under section 206 must be made by a majority of the directors.

The declaration must include the following:

• the total amount of the assets and liabilities of the merging company in question as at the latest practicable date before the date of making of the declaration and in any event at a date not more than 3 months before the date of that making; and
• that the declarants have made a full inquiry into the affairs of the company and the other merging companies and that, having done so, they have formed the opinion that the successor company (within the meaning of Chapter 3 of Part 9) will be able to pay or discharge the debts and other liabilities of it and the transferor company or companies in full as they fall due during the period of 12 months after the date on which the merger takes effect.
• The statement under section 209 must confirm that the common draft terms of merger provide for such particulars of each relevant matter as will enable each of the prescribed effects provisions to operate without difficulty in relation to the merger; or specifying such particulars of each relevant matter as will enable each of those effects provisions to operate without difficulty in relation to the merger.

The declaration must be submitted not later than 21 days after the event. Upon receipt of both the declaration and the resolution, the registration of the merger can be effected. It needs to be made clear which company or companies is/are to be merged.