Irish Takeover Panel Bill, 1996: Committee and Final Stages.
On the Order of Business as sent out to me, it was stated that Report and Final Stages of this Bill would be taken today. As Opposition Chief Whip, I was not notified that Committee Stage was being taken.
I wish to notify the House that, unfortunately, I paired our party's spokesperson on Enterprise and Employment who told me there was total agreement on the Bill, so there will be no Opposition amendments. If we are somewhat silent on this side of the House, due to the Report and Final Stages only having being signalled on my copy of the Order of Business, the Minister of State will know why.
That is not a matter for the Chair.
Government amendment No. 1:
In page 3, subsection (1), line 27, to delete "holding", and substitute "holding,".
This minor amendment is technical in nature. It relates to a comma in the definition of "control" in section 1 between the words "holding" and "whether", in lines 27 and 28.
Amendment agreed to.
Amendments Nos. 2 and 3 are related and may be discussed together.
Government amendment No. 2:
In page 4, subsection (I), lines 21 and 22, to delete the definition of "offeree" and substitute the following:
"‘offeree' means a relevant company—
(a) any securities of which are the subject of an offer that has been made or is intended or required to be made, or
(b) in respect of which, or in connection with which, a person does any act in contemplation of making an offer to holders of securities in that company;".
These amendments, and the subsequent amendments to sections 16 and 20, were sought by the interim panel after the Bill had passed all Stages in the Dáil. Its proposals were the subject of detailed consultations with my Department and with the parliamentary draftsman. I am satisfied that the amendments are necessary for reasons which I will explain as each amendment arises.
In relation to amendments Nos. 2 and 3, the panel sees it as essential to expand the existing definition of "offeror" and "offeree". The reason for this is that the former is defined as the person who makes an offer, while the latter is defined as a company which is the subject of an offer. When one looks at the definition of "offer" in the Bill, one sees that it is defined as an offer made to the holders of securities. The effect of these three definitions is to limit the applicability of the terms "offeror" and "offeree" to a situation where an offer has been made. In other words, neither party comes into existence until an offer is made.
The problem with anchoring the definitions of offeror and offeree to the point where an offer is made is that the panel wishes to regulate for an entire range of scenarios and to be able to make and impose rules, rulings, directions and so on on the offeror and the offeree in respect of certain of their actions taken prior to the stage where an offer is actually made.
What the panel has, therefore, requested is that the definition of "offeror" and "offeree" be redrafted to take in all stages, literally between the point of conception of an offer right through to the making of such an offer. The revised wording in amendments Nos. 2 and 3 takes account of the concerns of the panel.
Amendment agreed to.
Government amendment No. 3:
In page 4, subsection (1), line 23, to delete the definition of "offeror" and substitute the following:
"‘offeror' means a person who makes, or intends or is required to make, an offer or does any act in contemplation of making an offer;".
Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 15, inclusive, agreed to.
Government amendment No. 4:
In page 18, subsection (1), to delete lines 26 to 28 and substitute the following:
"8, in relation to a takeover or other relevant transaction,
(e) on any person in respect of a document furnished by him or her to the Panel in relation to any proceedings of the Panel concerning a takeover or other relevant transaction.".
This section concerns the power of the panel to impose charges. The amendment is purely technical. The original text remains unaltered. The necessity for the change arises from a certain ambiguity created by the existing layout of the text which could be read to imply that the panel should make rules under section 8 in respect of charges to be imposed in relation to proceedings of the panel, whereas the clear intention is that the panel be enabled to make charges in respect of the lodging with it of documents in the two specified situations. They are in accordance with rules under section 8 or any proceedings of the panel.
In any event, it would be inappropriate to have, or to appear to have, a provision for rules in relation to proceedings of the panel in a section relating exclusively to the powers of the panel to impose charges in order to finance its activities. Besides, section 11(1) already provides that "the panel shall conduct proceedings and hearings in such a manner as it may determine".
Amendment No. 4 makes it clear that rules under section 8 do not have to have any provisions in relation to proceedings of the panel. The effect of the amendment is to set out the last two lines of section 16(1)(d) as new separate sub-paragraph 16(1)(e). The amendment is purely technical.
Amendment agreed to.
Section 16, as amended, agreed to.
Sections 17 to 19, inclusive, agreed to.
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
Government amendment No. 5:
In page 20, subsection (4), lines 33 and 34, to delete "Subject to the provisions of any enactment or rule of laws the Panel may" and substitute the following:
"Without prejudice to subsection (5), the Panel may, subject to the provisions of any enactment or rule of law,".
Section 24 of the Bill currently provides that, subject to the provisions of any enactment or rule of law, the panel may indemnify its officers in respect of anything done or omitted to be done by them in the carrying out of their duties. In line with the practice of the London panel, the Irish panel wants to be able to take out insurance policies in respect of its officers and so forth against possible legal actions against them for defamation outside of this jurisdiction.
However, the panel believes the provisions of section 200 of the Companies Act, 1963, prohibits it from taking out such insurance. This provision is essentially seen as preventing a company from taking out insurance to indemnify an officer of the company from liability for a specified event — for example, negligence, default, breach of duty or breach of trust. Any policy of that nature taken out by a company is rendered void except in the restrictive circumstances set out in the section.
Given the nature of the panel's functions, it is important that we remove any doubt about the capability of the panel to take out such insurance. However, the solution I have arrived at in amendments Nos. 5 and 6 does not amount to a disapplication of section 200 of the 1963 Act in respect of the panel. It will be seen that the solution involves a slight amendment to the existing subsection (4) and provision of a new subsection (5). The proposed solution is acceptable to the interim panel.
Amendment agreed to.
Government amendment No. 6:
In page 20, between lines 37 and 38, to insert the following subsection:
"(5) The Panel may indemnify any member, director, officer or employee of the Panel in respect of any liability on his or her part to pay damages or costs by reason of anything done or omitted to be done by him or her in the carrying out of his or her duties as such member, director, officer or employee, being a liability that—
(a) has been determined in proceedings before a court or tribunal of another state or arises by virtue of an agreement entered into in settlement of proceedings before such a court or tribunal, and
(b) would not have been determined if the provisions of this section had been applied in those proceedings by the court or tribunal or, as the case may be, would not have been the subject of an agreement as aforesaid but for the reliance, in good faith, by the member or other person aforesaid on any legal opinion or advice to the effect that the provisions of this section would not be applied by the court or tribunal in those proceedings.".
Amendment agreed to.
Section 20, as amended, agreed to.
Sections 21 to 27, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank the Members for accepting these technical amendments. The spokesperson for Fianna Fáil cannot be present for the reasons indicated by Senator Fitzgerald, but he was present on Second Stage when I said I would have to introduce minor technical amendments at the request of the interim panel. I appreciate those amendments being facilitated in this manner by the House.
The Bill could be described as a technical measure. It certainly will not set the hustings alight. It is my burden to introduce legislation such as this which does not immediately strike a chord with the electorate. Nonetheless, it is important for the smooth functioning of commerce.
This is a technical but important Bill. I thank the Minister of State for the manner in which he introduced it and for explaining its provisions in simple and plain language. It will solve the problem for which it is intended.
I echo the Senator's sentiments. The Minister of State always recognises the role of the House and treats it with great respect. It is easy to deal with the Minister of State as he has a positive approach to these matters. I was impressed with his concluding remarks about his disappointment that he does not always have responsibility for legislation that will strike a chord with the electorate. He certainly had such a responsibility yesterday.
This was a most difficult Bill to read, perhaps because I am not involved in taking over businesses and so forth. While neither my nor the Minister of State's voters will be interested in this measure, it is important that business can be transacted smoothly and in accordance with legislation in other jurisdictions where people might have business to transact. That is the important feature of the Bill.
Question put and agreed to.
When is it proposed to sit again?
At 10.30 tomorrow morning.