Ireland

General overview

What legislation governs M&A activity in your jurisdiction?

Mergers and acquisitions in Ireland are governed by the Irish Takeover Panel Act, 1997 (the Takeover Act) and the:

• Takeover Rules 2001;
• Substantial Acquisitions Rules 2001;
• Relevant Company Regulations 2001; and
• Takeover (Amendment) Rules 2002 (the 2002 Rules).

The Takeover Rules apply to public companies incorporated in Ireland that trade, or have in the previous five years traded, on the Irish Stock Exchange or the London Stock Exchange, New York Stock Exchange, Nasdaq, or Easdaq.

Generally the Takeover Act and the Takeover Rules do not apply to private companies unless:

• the acquisition is a reverse takeover of a listed company, that is, the vendor private company acquires a stake of 30% or more of the shares in a publicly listed purchaser, triggering a Rule 9 bid under the Takeover Rules (and the whitewash procedure is not obtained from the Takeover Panel); or
• its securities have at any time within the previous five years been authorized for trading on any of the above exchanges.

The EC Merger Control Regulation applies when the merger or acquisition has a Community dimension. If not, the merger or acquisition may be subject to the Competition Act 2002.

The Companies Acts 1963 to 2003 legislate for various aspects of public and private mergers and acquisitions transactions, in addition to governing the formation and administration of companies incorporated in Ireland and the duties of their directors and officers. The Companies Act 1963 (CA 1963) contains rules relating to prospectuses, financial assistance, compulsory acquisition of minority interests and minority shareholder remedies.

The European Communities (Stock Exchange) Regulations 1984, which implemented the Admissions Directive 79/279/EEC, the Listing Particulars Directive 80/390/EEC and the Interim Reports Directive 82/121/EEC, state that certain provisions of the CA 1963 regarding the form of a prospectus will not apply when the relevant document sets out Listing Particulars approved by the Irish Stock Exchange or indicates where such particulars can be obtained or inspected.

The European Communities (Transferable Securities and Stock Exchange) Regulations 1992 implemented the Prospectus Directive 89/298/EEC, and amend the information required to be set out in a prospectus under the CA 1963.

The Listing Rules issued by the UK Listing Authority (Purple Book) as amended by the Notes of the Irish Stock Exchange apply in Ireland to companies admitted or seeking admission to the Irish Stock Exchange. The ITEQ Admission Rules, Exploration Securities Market Rules and Developing Companies Market Rules (the Irish AIM) cover admission to specialist markets of the Exchange.

The Investment Intermediaries Act 1995 states that, when a party proposes to acquire directly or indirectly shareholdings exceeding 10%, 20%, 33% or 50% of an authorized investment business firm, that party and the disposing party must notify Irish Financial Services Regulatory Authority (IFSRA) of the proposal as soon as possible. IFSRA then has one month to request additional information and can approve or impose conditions on the acquisition. Notification to IFSRA is also required in respect of any direct or indirect acquisition or disposal of shares or other interest in any other undertaking or business by an authorized investment business firm, other than for trading book activities.

The Central Bank Act 1989/ Building Societies Act 1989 and the EC (Licensing and Supervision of Credit Institutions) Regulations 1992 also apply. A credit institution must not acquire, directly or indirectly, more than 10% in any undertaking or business without written approval of IFSRA, and the credit institution must notify IFSRA of any divestment of such holdings. A party proposing to acquire holdings exceeding 10%, 20%, 33% or 50% of the shares in a credit institution must notify and receive the approval of IFSRA.

The Finance Act 1980 applies to companies with International Financial Services Centre trading certificates, which are subject to a number of conditions imposed by the Department of Finance, including a prohibition on the direct or indirect disposal of assets to connected persons unless the assets are disposed of on an arm's length basis and the transferee has formal procedures to ensure compliance with the conditions in the certificate. Any material change in the control of the company must be approved by the Department of Finance.

The EC (Non-Life Insurance) Framework Regulations 1994 and the EC (Life Assurance) Framework Regulations 1994 govern the operation and supervision of insurance undertakings in Ireland. Any party proposing to acquire 10% or more of the voting rights in an insurance undertaking must notify IFSRA and on a proposed increase to 20%, 33% or 50% or more. IFSRA must consult competent authorities in other member states if the insurance undertaking would become a subsidiary of a credit institution, investment firm or another insurance undertaking in the member state concerned. IFSRA will have three months to oppose the acquisition. Disposals must also be notified to IFSRA. The insurance undertaking itself must notify IFSRA on becoming aware of any of the above acquisitions or disposals and must notify IFSRA annually of the names of qualifying shareholders and the size of the shareholdings.

The UCITS Regulations/Unit Trusts Act 1990/Part XIII of the Companies Act, 1990/Investment Partnerships Act 1994 regulate firms that provide services to collective investment schemes (management/administration companies of unit trust schemes and investment companies and the general partner of an investment limited partnership). Approval from IFSRA is required in respect of any proposed change in ownership or in significant shareholdings (10% of more) of those firms. The new UCITS Regulations bring the qualifying shareholder requirements for management companies into line with the standards for insurance undertakings noted above.

What impact have recent legislative changes had on the nature and amount of M&A activity?

The Finance Act 2004 introduced a full exemption from tax on gains arising on the disposal of substantial shareholdings in subsidiaries in the EU or in countries with which Ireland has a taxation treaty, and an improved double tax credit on foreign dividends.

The Finance Bill 2005 will reduce companies capital duty, which is payable on the issue of shares, from 1% to 0.5%. The reduced rate applies to transactions occurring from December 2 2004 onwards. These proposals should indirectly boost acquisitions activity by increasing Ireland's attractiveness as a holding company location.

What have been the most significant M&A transactions in your jurisdiction over the past year?

The Irish M&A market in 2004 was again driven by low interest rates and better corporate results, and an availability of private equity resulted in Irish individuals and companies being net buyers, rather than sellers. The value of deals involving Irish companies rose by 28% to over €10 billion ($13 billion) in 2004, up from €7.8 billion in 2003, although the actual number of major deals fell from 252 to 191 (25% decrease).

The largest single deal was Danske Bank's acquisition of National Australia Bank's assets - National Irish Bank in the Republic and Northern Bank in Northern Ireland - for €1.4 billion.

In the leisure and property sector, Quinlan Private purchased the Savoy Hotel Group for €1.1 billion, Precinct acquired Gresham Hotels for €117 million and the Quinn Group bought the Hilton Hotel in Prague for an undisclosed sum.

The secondary buyout of Clondalkin Group (packaging and print) by Warburg Pincus closed for €630 million.

The strategic rationale for deals varied from continuing growth strategies in the case of Kerry Group's acquisition of Quest Food Ingredients from ICI Group for $440 million and Cement Roadstone Holding's (CRH) purchase of 49% of Secil for €333 million to disposals of non-core assets (Waterford Wedgewood of All-Clad to Group SEB for $250 million).

In 2004, there was only one transaction blocked by the Competition Authority of Ireland - IBM's proposed acquisition of the Irish operations of Schlumberger.

How, and to what extent, is foreign involvement in M&A transactions in your jurisdiction regulated/restricted?

In repealing the Mergers, Takeovers and Monopolies (Control) Act 1978 (as amended) and the Competition Act 1991, the Competition Act 2002 eliminated the common good criteria from the substantive test adopted by the Competition Authority, replacing it with a substantial lessening of competition test. This has ensured that mergers and acquisitions are now assessed purely on competition grounds rather than political or other considerations.

The Broadcasting Commission licenses and monitors broadcasting in Ireland. The Commission's Ownership and Control Policy Statement requires applicants to maintain a local ethos but does not regard local ownership as an essential element in achieving this. The Commission does consider reciprocal arrangements for investment and licensing when reviewing applications from non-EU applicants.

Due diligence

What are the principal disclosure requirements in a typical M&A transaction?

In Ireland the principle of caveat emptor largely applies to a bidder in a merger and acquisition transaction.

The bidder will generally carry out due diligence enquiries and, in an acquisition of a private company, seek warranties and indemnities. The extent of the due diligence exercise that can be carried out will largely depend on the time available, the financial and technical resources available to the bidder and the willingness of the vendor and target to disclose confidential information. If a bid is recommended, the vendor and target may voluntarily make information available to the bidder, however, if hostile, due diligence will be restricted to information in the public domain, such as information required to be disclosed under the Companies Acts, the Takeover Rules and the Irish Listing Rules.

To what extent do disclosure requirements achieve market transparency?

A certain amount of information is required to be disclosed by public companies under the Companies Acts, the Takeover Rules and, if quoted, the Irish Listing Rules. Both public and private companies are required to file particular documents and information at the Companies Registration Office and Office of the Revenue Commissioners. These disclosure requirements, which achieve a transparent market for securities in Ireland, are broadly comparable to those in the UK.

How significant an issue is prospectus liability in a typical M&A transaction?

In Ireland the CA 1963 imposes criminal sanctions for including false or misleading information in a prospectus that has the effect of inducing members of the public to invest in the company. Highlighting the importance of verification of the prospectus document, the sanctions imposed are: on summary conviction a fine of up to €634.87 or a term of imprisonment not exceeding six months, or both, and on indictment a fine of up to €3,174.35 or a term of imprisonment not exceeding two years, or both.

CA 1963 also provides for statutory compensation to persons suffering loss or damage as a result of the misstatement or omission.

There are also civil sanctions for the publication of untrue statements in a prospectus under common law, tort and in equity.

How have recent M&A transactions and/or current legislation dealt with the issue of material adverse change clauses?

As a result of the 2001 decision of the UK Takeover Panel regarding the offer by WPP Group plc for Tempus Group plc there is a question as to the enforceability of material adverse change clauses in Ireland.

An Irish bidder seeking to avoid completion would probably have to show the Takeover Panel that the exceptional circumstances could not have been reasonably foreseen at the time of the making of the offer and the effect of the new circumstances is sufficiently adverse to affect the longer term prospects of the offeree company.

The use of material adverse change clauses is still common in Ireland. For example, in the 2002 acquisition of Unicare Pharmacy Group Limited by Gehe, the German pharmacy group, Gehe sought to avoid completion when the Irish government deregulated the pharmacy sector in Ireland.

What are the key unresolved issues in your jurisdiction?

Section 204 CA 1963 allows a bidder to compulsorily acquire minority shareholdings on achieving a level of acceptances from 80% in value of the shares of the company. When the Takeovers Directive is adopted into Irish law (expected early 2006) this level is set to rise to between 90% and 95% of the voting rights of the company, making a takeover of a company in Ireland potentially more difficult. The level of voting rights is unknown.

Takeovers

Are there any specific regulatory bodies governing takeovers in your jurisdiction?

The Irish Stock Exchange regulates listing and trading of securities on the Exchange.

The Irish Takeover Panel is the body responsible for the monitoring and supervision of takeovers and other relevant transactions in relation to securities in relevant companies in Ireland.

The Competition Authority is a statutory body that administers and enforces the primary antitrust legislation relating to the acquisition of Irish undertakings.

In the case of media mergers or acquisitions, the Minister for Enterprise, Trade and Employment can require the Competition Authority to investigate the merger or acquisition and override a determination of the Competition Authority.

The powers and functions of the Irish Financial Services Regulatory Authority and the Department of Finance are mentioned above.

What are the various methods by which a takeover can be achieved?

A takeover of a company in Ireland can be achieved by any of the following methods:

Takeover offer

A bid made for all of the equity shares of the target must be conditional on the bidder acquiring shares carrying more than 50% of the voting rights of the target but it is usual for the acceptance condition to be set at 80%, as Section 204 of CA 1963 allows a bidder to compulsorily acquire minority shareholdings on achieving this level of acceptances in value within four months of the publication of an offer. If the bidder already holds 20% or more of the shares in the target at the date of the offer, it must receive acceptances from holders of not less than 80% in value of the remaining shares which must constitute not less than 75% in number of the holders of those shares.

If the bidder can meet the required level of acceptances, it may at any time within six months of the publication of the offer give notice to dissenting shareholders to acquire the remaining shares. A dissenting shareholder has one calendar month from the date of the notice to apply to Court to prevent the acquisition. There is no time limit within which the Court decision must be given.

Private placement

A bidder may offer to acquire shares privately from the target's existing controllers without making a general offer to the target's shareholders in certain permissible circumstances, including when:

• the acquisition is from a single holder of securities and the only acquisition within seven days;
• the acquisition immediately precedes or follows the announcement by the bidder of a firm intention to make an offer for the target; or
• the acquisition is by way of acceptance of an offer made in accordance with the Takeover Rules.

Mandatory offer

The Takeover Rules oblige a bidder to make a cash offer for the remaining securities in the target if either:

• the bidder (including any persons acting in concert with the bidder) acquires a holding of 30% or more of the voting rights of the target; or
• the bidder's holding (combined with any persons acting in concert) of less than 30% of the voting rights increases to 30% or more; or
• the bidder's holding (combined with any persons acting in concert) of 30% or more, but less than 50%, of the voting rights increases by more than 0.05% of the aggregate percentage of the voting rights in the target in any 12 months.

Scheme of arrangement

A bidder may acquire control of the target by means of an arrangement under Section 201 of CA 1963 by having all of the shares in the target cancelled and shares in the bidder (or cash) transferred to the existing shareholders as compensation for their loss. The scheme will require the cooperation of the board of the target and the approval of 75% in value of its members voting at a general meeting. Court approval is also necessary to sanction the scheme of arrangement and copy of the Court order must be delivered to the Registrar of Companies.

The proposed Takeover (Amendment) Rules 2004 and Substantial Acquisition (Amendment) Rules 2004 apply the Takeover Rules and SARs to schemes of arrangement, with some important amendments:

• the offer will generally be deemed to have been made to the members in the company at the time the seller summons the scheme meeting; and
• the seller must make a number of different announcements to the Irish Stock Exchange and the Takeover Panel, including notification as to whether the High Court has approved the scheme in question and the details of any conditions it has imposed.

The new legislation reflects a desire to regulate schemes of arrangement, which are becoming increasingly common in Ireland.

Reverse takeover

A bidder can acquire control of a target by arranging for the target to make an offer for the bidder in return for the issue of shares in the target. If the target is listed, the Irish Listing Rules require the transaction to be approved by more than 50% of the shareholders of the target.

Under Section 204 CA 1963, acceptances must be received from 80% of the shareholders of the original bidder, meaning that if the original bidder's shareholders are more receptive to the transaction than the target's shareholders, this method is desirable.

How differently does legislation treat hostile and voluntary takeover bids?

Where a bid is recommended by the target's board, the offer document will generally be a joint document that includes the target board's views as to the offer. If hostile, the views of the target board will be contained in a separate document issued within 14 days of the offer document. In a hostile bid the target cannot, without the consent of the Takeover Panel, announce trading results, profit or dividend forecast, an asset valuation, proposal for a dividend payment or other information after the 39th day following the date on which the offer document is posted.

What penalties are imposed for parties who violate takeover regulations (or equivalent)?

Irish Takeover Panel

The Takeover Panel may conduct hearings to determine if a person has acted in accordance with the Takeover Rules. It is an offence to fail to attend the Panel when summonsed, attend without just cause, refuse to testify under oath, perjure oneself or obstruct the Panel in the conduct of its hearings.

The Takeover Panel may impose a maximum fine on summary conviction of €1,900 or 12 months' imprisonment or both.

If the Panel considers that a party is not complying with its rulings or directions it may apply to the High Court seeking an order to require any party to the transaction to do, or refrain from doing, any act, or annul any transaction that has been carried out in defiance of its rulings or directions. The Court may order consequential or restitutionary relief.

Irish Stock Exchange

The Irish Stock Exchange (ISE) may privately censure an issuer (and/or its directors) for contravention of the Irish Listing Rules or may refer the matter to its Listing Committee, which may censure or suspend or cancel the listing of the issuer's securities, or any class of securities.

Office of the Director of Corporate Enforcement (Director) and Director of Public Prosecutions (DPP)

The Director may prosecute:

• criminal offences under the Companies Act by way of summary proceedings (offences punishable by a fine not exceeding €1,904.61 or by imprisonment for a term not exceeding 12 months or both); and
• civil offences on indictment or summarily by either seeking an injunction to require a company or an officer to make good a default, freezing assets, or requiring the restoration of money or property.

The DPP is the only person who can prosecute indictable criminal offences. The maximum penalty for a criminal offence under the Companies Acts when prosecuted on indictment is €12,697.38 and the maximum term of imprisonment is five years (but these can be higher in relation to specified offences). The most serious indictable offences that carry maximum prison terms in excess of five years are fraudulent trading, three specific offences relating to insider dealing in shares and furnishing false information.

Under the Companies Act 1990 (CA 1990), the Director, the DPP, members/officers/employees and creditors of companies and the Registrar of Companies also have standing to seek an order to disqualify a director.

Private persons, when members or creditors of a company can also take action to force compliance with the Companies Acts.

What are the thresholds for disclosing bids and offers?

CA 1990 provides that any person who acquires an interest in voting shares in a public company must notify the company within a specified period if the acquisition results in them having an interest in 5% or more of any class of those shares. Once the 5% threshold has been reached, each increase or decrease needs to be notified, including decreases that bring the interest below the 5% threshold. The term interest is broadly defined and includes rights to call for the delivery of shares and rights or obligations to acquire or take an interest in shares, whether such rights or obligations are conditional or absolute. Failure to notify the company will result in a loss of the ability to enforce rights in relation to the shares.

If a company is listed on the Irish Stock Exchange, the CA 1990 (implementing EU Council Directive 88/627/EEC) also provides for the disclosure to the Exchange of voting interests at thresholds of 10%, 25%, 50% and 75%.

Competition/Antitrust

What have been the major recent developments in competition policy and legislation as they relate to M&A in your jurisdiction?

The Competition Act, 2002 raised the thresholds for mergers or acquisitions which must be notified to the Competition Authority, to those for which:

• the worldwide turnover of two or more of the undertakings involved is not less than €40 million; and
• each of two or more of the undertakings involved carry on business in any part of the island of Ireland; and
• the turnover in the state of any one of the undertakings involved is not less than €40 million; or
• fall within a class specified in a ministerial order made under the Act.

This has reduced the number of mandatory notifiable mergers since 2002 (102). In 2004, the Competition Authority received 81 notifications in total, of which one was blocked (IBM's proposal to purchase Schlumberger's Irish operations), 76 were cleared (including the takeover by Grafton Group of Heiton Group, which proceeded to a phase 2 investigation) and four are yet to be decided upon (as of February 10 2005).

The Authority has provided a voluntary notification procedure that the Authority has stated will result in legal certainty for notifying parties. The Authority can use its functions and powers under the Act to investigate any mergers or acquisitions on the basis that they prevent, restrict or distort competition in trade of goods or services in the state or are in breach of Article 81(1) of the EC Treaty, regardless of whether they fall below the thresholds.

The Authority has provided a new standard form of notification, which has simplified the notification procedure.

How are the competition/antitrust regulations enforced in your jurisdiction?

The Competition Act 2002 is enforced by the Competition Authority under powers provided to the Authority in that Act and the DPP.

Mergers and acquisitions

The Authority can impose a fine for a failure to notify a notifiable transaction:

• on summary conviction not exceeding €3,000; and
• on indictment not exceeding €250,000.

For continuing offences, a daily fine of €300 on summary conviction and €25,000 on indictment may be levied.

The fines may be levied against persons in control of an undertaking, including officers of companies, partners of partnerships and other individuals who authorize or permit the contravention.

Any merger or acquisition that is put into effect in contravention of the Act (including voluntary notified mergers or acquisitions) is void.

A notification will not be valid when any information provided or statement made is false and misleading in any material respect. Any decision made on the basis of such a notification will be void.

Persons who contravene a commitment, determination or order of the Authority are guilty of a criminal offence and are liable:

• on summary conviction to a fine not exceeding €3,000 and/or imprisonment not exceeding six months; or
• on conviction on indictment, to a fine not exceeding €10,000 and/or imprisonment not exceeding two years.

For continuing offences a daily fine of €300 on summary conviction or €1,000 on indictment may be imposed.

Restrictive agreements and practices

An undertaking guilty of a cartel type offence (direct or indirect fixing of prices; limiting output or sales or the sharing of markets or consumers) has committed a criminal offence and will be liable:

• on summary conviction, to a fine up to €3,000 and, in the case of an individual, to the fine and/or imprisonment not exceeding six months;
• on conviction on indictment, to a fine of the greater of €4 million or 10% of the turnover of the undertaking in the financial year ended 12 months before the conviction (and in the case of an individual, to a fine and/or imprisonment not exceeding five years).

For continuing offences a daily fine of €300 on summary conviction or €4,000 on indictment may be imposed.

Abuse of dominant position

An undertaking guilty of abusing its dominant position in trade for goods or services in the state has committed a criminal offence and will be liable:

• on summary conviction to a fine not exceeding €3,000; or
• on conviction on indictment to a fine not exceeding the greater of €4 million or 10% of the turnover of the undertaking in the financial year ending 12 months before the conviction.

A director, manager or other officer can be liable for an offence of an undertaking when they have authorized or consented to the acts constituting the offence.

Once again, fines of €300 on summary conviction or €4,000 on indictment may be imposed for each day of the continuing offence.

How does legislation approach the issue of abuse of dominant position?

Section 5(1) of the Competition Act 2002 (based on Article 82 of the EC Treaty) provides that any abuse by one or more undertakings of a dominant position in trade for any goods or services in the state is prohibited.

The test as to whether an undertaking holds a dominant position is that it can act independently of its competitors, its trading partners (suppliers and customers) and ultimately the consumer. Dominance is assessed by reference to a number of factors, including market share.

Section 5(2) of the Act states that such abuse may consist in:

• directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
• limiting production, markets or technical development to the prejudice of consumers;
• applying dissimilar conditions to equivalent transactions with other trading parties, placing them at a competitive disadvantage; and
• making the conclusion of contracts subject to the acceptance by other parties of supplementary obligations that by their nature or according to commercial usage have no connection with the subject of the contracts.

To what extent are parties in an M&A transaction subject to prior notification requirements?

Details of notifiable mergers or acquisitions must be submitted to the Competition Authority within one month after the agreement is concluded or the public bid is made and cannot be put into effect until determined by the Authority.

Before the agreement or bid, parties to a merger or acquisition (whether notifiable or not) may discuss jurisdictional and legal issues and the form of any notification with the Authority when they can satisfy the Authority that they have a bona fide intention of proceeding with the transaction. As evidence of this intention, the Authority will accept a signed form of heads of agreement, memorandum of understanding or letter of intent.

Author biography

Abigail St John Kennedy

Dillon Eustace

Abigail St John Kennedy was made a partner in the corporate department of Dillon Eustace in August of 2004. Kennedy relocated to Ireland from Freehills Solicitors (Australia and south-east Asia) in early 2000.

She holds Bachelor of Commerce (1992) and Bachelor of Laws (1996) degrees from the University of Western Australia, and a Masters in Corporate Finance from the Securities Institute, where she holds the title of Associate. Abigail Kennedy has lectured on company law at Edith Cowan University, Perth and the University of Notre Dame, Fremantle.

Abigail Kennedy has substantial Irish and international experience in corporate finance and merger and acquisitions transactions, focusing on corporate, regulatory and competition aspects.

Dillon Eustace
Grand Canal House
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Ireland
Tel: +353 1 667 0022
Fax: +353 1 667 0042
E-mail: info@dilloneustace.ie
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