European Communities (Cross-Border Mergers) Regulations 2008
Statutory Instruments
Source: Statutory Instruments

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paragraphs: (1) These Regulations may be cited as the European Communities (Cross-Border Mergers) Regulations 2008.
(2) Parts 1 and 2 of these Regulations shall be construed as one with the Companies Acts 1963 to 2006.
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paragraphs: (1) In these Regulations—
(a) a merger by acquisition,
(b) a merger by formation of a new company, or
(c) a merger by absorption;
(a) in relation to a cross-border merger in which the successor company is an Irish company, the date specified under Regulation 14(4), or
(b) in relation to a cross-border merger in which the successor company is an EEA company, the date fixed in accordance with the law of the EEA State concerned for the purposes of Article 12 of the Directive;
(a) a company within the meaning of the Act of 1963 with limited liability (other than a company limited by guarantee), or
(b) a body corporate with limited liability to which section 377(1) of the Act of 1963 applies;
(a) in relation to a merger by acquisition or a merger by absorption, a company that is, in relation to that merger, a transferor company or the successor company; and
(b) in relation to a merger by formation of a new company, a company that is, in relation to that merger, a transferor company;
(2) A word or expression used but not defined in these Regulations that is also used in the Directive has the same meaning in these Regulations as it has in the Directive.
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paragraphs: A person convicted of an offence under these Regulations is liable, on summary conviction, to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months, or to both.
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paragraphs: In this Part “Court” means the High Court.
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paragraphs: (1) Where a cross-border merger is proposed to be entered into, common draft terms shall be drawn up in writing by all of the merging companies and adopted by the board of directors of each Irish merging company.
(2) The common draft terms of the merging companies shall state, at least—
(a) in relation to each of the transferor companies—
(i) its name,
(ii) its registered office,
(iii) its legal form and the law by which it is governed,
(iv) the register in which it is entered (including details of the relevant State), and
(v) its registration number in that register,
(b) in relation to the successor company—
(i) where the successor company is an existing company, the particulars specified in clauses (i) to (v) of subparagraph (a), or
(ii) where the successor company is a new company yet to be formed, what is proposed as the particulars specified in clauses (i) to (iv) of that subparagraph,
(c) except in the case of a merger by absorption—
(i) the proposed exchange ratio and amount of any cash payment,
(ii) the proposed terms relating to allotment of shares or other securities in the successor company, and
(iii) the date from which the holding of shares or other securities in the successor company will entitle the holders to participate in profits and any special conditions affecting that entitlement,
(d) the likely repercussions of the cross-border merger on employment,
(e) the date from which the transactions of the transferor companies are to be treated for accounting purposes as being those of the successor company,
(f) the rights to be conferred by the successor company on members of the transferor companies enjoying special rights or on holders of securities other than shares representing a transferor company’s capital, and the measures (if any) proposed concerning them,
(g) any special advantages granted to—
(i) any director of a merging company, or
(ii) any person appointed under Regulation 7(2), or under a corresponding provision of a law of an EEA State, in relation to the merger,
(h) the successor company’s articles of association or, if it does not have articles, the instrument constituting the company or defining its constitution,
(i) where appropriate, information on the procedures by which arrangements for the involvement of employees in the definition of their rights to participation in the company resulting from the cross-border merger are determined under Part 3,
(j) information on the evaluation of the assets and liabilities to be transferred to the successor company, and
(k) the dates of the accounts of every merging company which were used for the purpose of preparing the common draft terms.
(3) The common draft terms may include such additional terms as are not inconsistent with these Regulations.
(4) The common draft terms shall not provide for any shares in the successor company to be exchanged for shares in a transferor company held either—
(a) by the successor company itself or its nominee on its behalf; or
(b) by the transferor company itself or its nominee on its behalf.
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paragraphs: (1) The board of directors of an Irish merging company shall—
(a) draw up a directors’ explanatory report for the members of the company, to be made available pursuant to these Regulations, and
(b) make that report available, not less than 1 month before the date of the general meeting referred to in Regulation 10, to—
(i) the members, and
(ii) the representatives of employees or, where there are no representatives, to the employees, in accordance with these Regulations.
(2) The report shall—
(a) explain the implications of the cross-border merger for members, creditors and employees of the company,
(b) state the legal and economic grounds for the draft terms of merger.
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paragraphs: (1) In relation to each Irish merging company, a report to the members of the company on the common draft terms shall be drawn up in accordance with this Regulation, unless—
(a) the cross-border merger is a merger by absorption,
(b) the cross-border merger is a merger in which the successor company (not being a company formed for the purpose of the merger) holds 90% or more (but not all) of the shares or other securities carrying the right to vote at general meetings of each transferor company, or
(c) every member of every merging company agrees that such report is not necessary.
(2) The report shall be prepared by a person or persons (in this Regulation referred to as the “expert”), being—
(a) a qualified person appointed for the Irish merging company by its directors,
(b) a qualified person, or qualified persons, appointed by the Court, on the application of all of the merging companies, for all of them, or
(c) a person appointed for all the merging companies for the purposes of Article 8 of the Directive by a competent authority of another EEA State.
(3) A person is a qualified person for the purposes of subparagraphs (a) and (b) of paragraph (2), and of paragraphs (7) and (8), if that person—
(a) is eligible for appointment as an auditor in accordance with section 187 of the Companies Act 1990 , and
(b) is not—
(i) a person who is or, within 12 months of the date of the common draft terms, has been an officer or employee of that company;
(ii) except with the leave of the Court, a parent, spouse, brother, sister or child of an officer of that company; or
(iii) a person who is a partner, or in the employment, of an officer or employee of that company.
(4) The report shall be made available not less than 1 month before the date of the general meeting referred to in Regulation 10 and shall be in writing and shall—
(a) state the method or methods used to arrive at the proposed exchange ratio,
(b) give the opinion of the expert whether the proposed exchange ratio is fair and reasonable,
(c) give the opinion of the expert as to the adequacy of the method or methods used in the case in question,
(d) indicate the values arrived at using each such method,
(e) give the opinion of the expert as to the relative importance attributed to such methods in arriving at the values decided on, and
(f) specify any special valuation difficulties which have arisen.
(5) The expert is entitled to require from each of the merging companies and their officers such information and explanation (whether oral or in writing), and to carry out such investigations, as the expert thinks necessary for the purposes of preparing the report.
(6) Where a company, being an Irish merging company—
(a) fails, on request, to supply to the expert any information or explanation in the power, possession or procurement of that person that the expert thinks necessary for the purposes of the report that company, being an Irish merging company and every officer in default shall be guilty of an offence, or
(b) knowingly or recklessly, makes a statement (whether orally or in writing), or provides a document, to the expert, being a statement or document which—
(i) conveys or purports to convey any information or explanation that the expert requires, or is entitled to require, under paragraph (5), and
(ii) is misleading, false or deceptive in a material particular,
(7) If a person appointed under paragraph (a) or (b) of paragraph (2) ceases to be a qualified person, that person—
(a) shall immediately cease to hold office, and
(b) shall give notice in writing of the disqualification to the Company or to the Court (as the case requires) within 14 days of ceasing to be a qualified person,
(8) A person who purports to carry out the functions of an expert under this Regulation after ceasing to be a qualified person shall be guilty of an offence.
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paragraphs: (1) Each Irish merging company shall deliver to the Registrar for registration—
(a) a copy of the common draft terms, and