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33 1990

COMPANIES ACT, 1990

Chapter 3

Disclosure Orders: Companies other than Public Limited Companies

Application of Chapter 3.

97. —(1) The provisions of this Chapter shall apply to all bodies corporate incorporated in the State other than—

(a) a public limited company;

(b) a society registered under the Industrial and Provident Societies Acts, 1893 to 1978;

(c) a society registered under the Building Societies Act, 1989 ; and

(d) any body corporate which is prohibited by statute or otherwise from making any distribution of its income or property among its members while it is a going concern or when it is in liquidation.

(2) Any reference in this Chapter to a company shall be deemed to be a reference to any body corporate to which, by virtue of subsection (1), this Chapter applies.

(3) Any reference in this Chapter to share capital or relevant share capital shall, in relation to a company, be deemed to be a reference to the issued share capital of a class carrying rights to vote in all circumstances at general meetings of the company, and references to shares shall be construed accordingly.

Disclosure order.

98. —(1) For the purposes of this Chapter, “disclosure order”means an order of the court which obliges—

(a) any person whom the court believes to have or to be able to obtain any information as to—

(i) persons interested at present, or at any time during a period specified in the order, in the shares or debentures of a company,

(ii) the names and addresses of any of those persons,

(iii) the names and address of any person who acts or has acted on behalf of any of those persons in relation to the shares or debentures,

to give such information to the court; or

(b) any person whom the court believes to be, or at any time during a period specified in the order to have been, interested in shares or debentures of a company to confirm that fact or (as the case may be) to indicate whether or not it is the case and, where he holds or has during that period held any interest in such shares or debentures, to give such further information as the court may require; or

(c) any person interested in shares or debentures of a company specified in the order to disclose to the court the information required under subparagraphs (i) and (ii) and (iii) of paragraph (a) and such further information as the court may require.

(2) Any person who has a financial interest in a company may apply to the court for a disclosure order in respect of all or any of the shares of or debentures in the company.

(3) An application under subsection (2) shall be supported by such evidence as the court may require.

(4) The court may, before hearing an application under subsection (2), require the applicant to give security for payment of the costs of hearing the application or any consequential proceedings.

(5) The court may make a disclosure order only if—

(a) it deems it just and equitable to do so; and

(b) it is of the opinion that the financial interest of the applicant is or will be prejudiced by the non-disclosure of any interest in the shares or debentures of the company.

(6) For the purposes of subsection (2)financial interest” includes any interest as member, contributory, creditor, employee, co-adventurer, examiner, lessor, lessee, licensor, licensee, liquidator or receiver either in relation to the company in respect of whose shares or debentures a disclosure order is sought or a related company.

(7) Where a person authorises any other person (“the agent”) to acquire or dispose of, on his behalf, interests in shares comprised in relevant share capital of a company or in debentures of the company in respect of which a disclosure order is made, he shall, for the duration of that order, ensure that the agent notifies him immediately of acquisitions or disposals of interests in shares or debentures so comprised effected by the agent which will or may give rise to any obligation on his part to provide information in accordance with the terms of the order with respect to his interest in that share capital or those debentures.

Procedure on application for disclosure order.

99. —(1) A person intending to apply for the making of a disclosure order shall give not less than 10 days' notice of his intention to the company in respect of whose shares or debentures the order is sought and to the person to whom the order is intended to be directed.

(2) The applicant shall also serve on any person specified by the court such notice of the applications as the court may direct.

(3) On the hearing of the application every person notified under subsection (1) or (2) may appear and adduce evidence.

Scope of disclosure order.

100. —(1) A disclosure order may require the person to whom it is addressed—

(a) to give particulars of his own past or present interest in shares comprised in relevant share capital of the company or in debentures of the company held by him at any time during the period mentioned in the order;

(b) where the interest is a present interest and any other interest in the shares or debentures subsists or, in any case, where another interest in the shares or debentures subsisted during that period at any time when his own interest subsisted, to give so far as lies within his knowledge such particulars with respect to that other interest as may be required by the order;

(c) where his interest is a past interest, to give so far as lies within his knowledge particulars of the identity of the person who held that interest immediately upon his ceasing to hold it.

(2) A disclosure order shall specify the information to be supplied to the court under the order in respect of any person, shares or debentures to which it refers and any such information shall be given in writing.

(3) Sections 68 to 79 shall apply as appropriate for the purposes of construing references in this Chapter to persons interested in shares and debentures and to interests in shares and debentures respectively as they apply in relation to section 67 (disregarding section 78 ) and any reference in those sections to a “percentage level” shall be disregarded.

(4) For the purposes of this section any reference in sections 67 to 79 to “shares” shall, where appropriate and unless the contrary is stated, be deemed to include a reference to debentures.

(5) This section shall apply in relation to a person who has or previously had or is or was entitled to acquire a right to subscribe for shares in or debentures of a company which would on issue be comprised in relevant share capital of that company as it applies in relation to a person who is or was interested in shares so comprised or in debentures of the company; and references in the preceding provisions of this section to an interest in shares so comprised or an interest in debentures and to shares so comprised or debentures shall be read accordingly in any such case as including references respectively to any such right and to shares which would on issue be so comprised.

Powers of court.

101. —(1) The court may, on cause shown, rescind or vary a disclosure order.

(2) A disclosure order may specify a person, group or class of persons to which the order applies.

(3) The court may, if it considers—

(a) that it would be just and equitable to do so, and

(b) that the financial interest of the applicant would not be prejudiced thereby,

exempt in whole or in part from the requirements of a disclosure order—

(i) any person or class of persons,

(ii) any interest or class of interest in shares or debentures,

(iii) any share, group or class of shares,

(iv) any debenture, group or class of debentures.

(4) When the court makes a disclosure order it may impose, for a specific period of time, such conditions or restrictions on the rights or obligations attaching to the shares or debentures in respect of which the order is made as it deems fit.

(5) Any person whose interests are affected by any conditions or restrictions imposed on shares or debentures under subsection (4) may apply to the court for relief from all or any of those conditions and the court may, if it considers it just and equitable to do so, grant such relief in whole or in part and on such terms and conditions as it sees fit.

Notice of disclosure order.

102. —(1) The applicant shall cause notice in the prescribed form of the making of a disclosure order together with a copy of the order to be sent by registered post within 7 days of the making of the order to—

(a) the company (at its registered office) in respect of whose shares or debentures the order has been made,

(b) the registrar of companies,

(c) the registered holder of any shares or debentures in respect of which the disclosure order has been made where it appears to the court that—

(i) such holder is not at the date of the making of the order resident in the State, and

(ii) such holder should be notified,

(d) such other person as the court sees fit.

(2) The applicant shall cause notice of the making of a disclosure order to be published, within 7 days of the making of the order, in at least 2 daily newspapers which circulate in the district in which the registered office of the company, in respect of whose shares or debentures the order has been made, is situate.

(3) For the purposes of subsection (1) (a)

(a) the address of the registered office of the company at the date of the making of the disclosure order shall be deemed to be the address of that office which was last delivered to the registrar of companies or otherwise published, as such case may be (in accordance with and in the manner required by the law relating to the company) prior to the date of making the order; and

(b) if no address of the registered office has ever been duly delivered to the registrar of companies or if the location of the last delivered address has been destroyed, the requirements of subsection (1) (a) shall be deemed to have been complied with by sending the required notice of the order together with a copy thereof to the registrar of companies.

(4) For the purposes of subsection (1) (c)

(a) the address of a non-resident registered holder of shares or debentures shall be deemed to be the address of that holder which was last delivered to the registrar of companies or otherwise published, as the case may be (in accordance with and in the manner required by the law relating to the company) prior to the date of making of the order; and

(b) if no address of the non-resident registered holder has ever been duly delivered to the registrar of companies the requirements of subsection (1) (c) shall be deemed to have been complied with by sending the required notice of the order together with a copy thereof to the registrar of companies.

(5) Any reference in this section to the registered office of a company shall, in the case of a company not registered under the Companies Acts, be construed as a reference to the principal office of the company.

Information disclosed under order.

103. —(1) An obligation to provide any information imposed on any person by a disclosure order shall be treated as not being fulfilled unless the notice by means of which it purports to be fulfilled identifies him and gives his current address.

(2) Where information is given to the court in compliance with the terms of a disclosure order, a prescribed officer of the court shall, unless the court otherwise directs, cause such information to be furnished (in whole or in part as the court may direct) to the applicant and to the company in respect of whose shares or debentures the order was made.

(3) In reaching its decision under subsection (2), the court shall have regard to whether the requirements of section 102 have been complied with.

(4) Where any information is furnished to the applicant or the company in pursuance of subsection (2), the court may impose such restrictions as it sees fit as to the publication of the information by the person to whom it has been furnished.

Civil consequences of contravention of disclosure order.

104. —(1) Where a person—

(a) fails to fulfil, within the proper period, an obligation to provide information required by a disclosure order, or

(b) in purported fulfilment of any such obligation makes to the court a statement which he knows to be false or recklessly makes to the court a statement which is false,

no right or interest of any kind whatsoever in respect of any shares in or debentures of the company concerned held by him shall be enforceable by him whether directly or indirectly, by action or legal proceeding.

(2) Where any right or interest is restricted under subsection (1), any person in default under that subsection or any other person affected by such restriction may apply to the court for relief against a disability imposed by or arising out of subsection (1) and the court on being satisfied that the default was accidental, or due to inadvertence, or some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may grant such relief either generally, or as respects any particular right or interest on such terms and conditions as it sees fit.

(3) Where an applicant for relief under subsection (2) is a person referred to in subsection (1), the court may not grant such relief if it appears that the default has arisen as a result of any deliberate act or omission on the part of the applicant.

(4) The acquisition by any person of an interest in shares or debentures of a company registered in the State shall be deemed to be a consent by that person to the disclosure by him, his agents or intermediaries of any information required to be disclosed in relation to shares or debentures by the Companies Acts.