PwC International Business Reorganisations Network Monthly Legal Update Edition 3, August 2015 Contents The new Irish Companies At 2014 1 - New deision of the Regional Court of Frankfurt on matters of odetermination of employees 5 Foreign investment law update 7 Welome Welome to the third edition of the PwC International Business Reorganisations (IBR) Network Monthly Legal Update for 2015. The PwC IBR Network provides legal servies to assist multinational organisations with their rossborder reorganisations. We fous on post-deal integration, pre-transation separation and arve outs, single entity projets, and legal entity rationalisation and simplifiation as well as general business and orporate and ommerial struturing. Eah month our global legal network brings you insights and updates on key legal issues and developments relevant to multinational organisations. We hope that you will find this publiation helpful, and we look forward to hearing from you. In this issue In our August 2015 issue: gives a high level overview of some of the signifiant hanges brought in by the new Irish Companies At 2014; reports on a new deision of the Regional Court of Frankfurt on matters of odetermination of employees; and provides an update on foreign investment law developments in Australia. Contat us For your global ontat and more information on PwC s IBR servies, please ontat: Rihard Edmundson Partner and Head of International Business Reorganisations, London +44 (0) 20 7212 1512 rihard.j.edmundson@pwlegal.o.uk PwC International Business Reorganisations Network Monthly Legal Update Edition 3, August 2015
At a glane After 15 years of preparation, a new Companies At for Ireland was enated on 23 Deember 2014 (the At). The bulk of legislation ame into fore on 1 June 2015. Irish ompany law was previously based on the needs of large publi limited ompanies, but the new law fouses on the private limited ompany with shares and simplifies the existing law. The law in relation to ompanies remains substantially the same, but there are some signifiant hanges inluding new obligations and exposures on Diretors, amendments to the type of entity and the introdution of a new regime whereby two Irish private ompanies an now merge. In detail 1. New Company Types and Conversion From ommenement of the At on 1 June 2015, there is a transition period of 18 months during whih time all existing private ompanies with shares must hoose to beome either: a a Private Company Limited by Shares (LTD); b a Designated Ativity Company (DAC); and another form of ompany. Other entities in Ireland now inlude: a an unlimited ompany (UC); b a publi ompany (PLC); and Some of the main differenes between the LTD and the existing private ompany limited by shares (EPC) are set out below: EPC Minimum of two diretors No requisite skills requirement for seretary Two doument Memorandum & Artiles of Assoiation LTD Minimum of one diretor Company seretary must have the requisite skills or aess thereto Single doument Constitution a guarantee ompany (CLG). If the ompanies do nothing, i.e. do not onvert to a LTD or DAC, they will be deemed a DAC for the transition period and a LTD thereafter. Company limited by shares The LTD ompany type will have a number of advantages inluding a more simplified format allowing for a simple onstitution. No name hange is required. Capaity limited by powers in Memorandum ultra vires No faility available to register persons authorised to bind the ompany at CRO Ultra vires does not apply Option to register those entitled to bind the ompany at CRO PwC 1
Only single member ompanies may dispense with AGM Written resolutions must be passed by all members Designated Ativity Company Multi member ompanies may dispense with AGM May pass written resolutions by the relevant majority Certain ompanies will be required to register as a DAC (e.g. regulated finanial institutions). Others will need to deide if a DAC vehile will suit their urrent or desired struture. These ompanies will have a two doument onstitution and must have two diretors. A name hange will also be required whereby Designated Ativity Company or DAC must replae Limited. Unlimited Company An unlimited ompany will ontinue to have a Memorandum and Artiles of Assoiation alled a Constitution. However, it may opt to have just one member (urrently it must have at least two), it must have two diretors and it must add the suffix Unlimited Company or UC to its name. Publi Limited Companies This is the only ompany type permitted to have shares listed on the stok exhange. A PLC will ontinue to have a Memorandum and Artiles of Assoiation alled a Constitution. However, it may opt to have just one member (urrently it must have at least seven) and at least two diretors. No name hange is required. Guarantee Companies This is the most ommon form of entity used by harities, sports and soial lubs and management ompanies. A CLG will ontinue to have a Memorandum and Artiles of Assoiation alled a Constitution. However, it may opt to have just one member (urrently it must have at least seven). It will be able to take advantage of the audit exemption (not urrently available) and it must have two diretors. Finally, a name hange will also be required whereby Company Limited by Guarantee or CLG must replae Limited. 2. Codifiation of Diretors Duties Previously, judges have deided what the fiduiary and are duties of diretors are. These are now restated and odified in eight rules in the At, as set out below Diretors duties - At in good faith - At honestly and responsibly - At in aordane with the ompany s onstitution and to exerise those powers only for lawful purposes - Not to use ompany property unless approved by the members or the ompany onstitution - Not to fetter disretion unless permitted by the onstitution or unless it is in the ompany s interest - To avoid onflits of interest - To exerise are, skill and diligene - To have regard for the interests of members as well as employees A breah of diretors duties an result in a diretor having to personally aount for any diret or indiret gains arued by the diretor and to indemnify the ompany for any loss or damage arising from the breah. A ourt may grant relief from liability where it is satisfied that the diretor ated honestly and reasonably at all times. Company Law Offenes are ategorised 1 to 4 (1 being the most serious and arrying a maximum fine of EUR500,000 and/or up to a maximum of 10 years in prison). PwC 2
Other statutory duties for Diretors Diretors of all publi limited ompanies and ertain larger private ompanies (those with a balane sheet exeeding EUR12.5m and turnover exeeding EUR25m) will be required to produe a ompliane statement to be inluded in the diretor s report on the finanial statements. Eah diretor will be required to onfirm in the diretors report that all relevant audit information of whih they are aware (having made reasonable enquiries) has been onveyed to the auditors. It will be an offene to knowingly or reklessly make a false statement. The dislosure of interests in shares and share options has been amended so that de minimis interests of less than 1% are no longer required to be notified. 3. New Merger Regime for Private Limited Companies Part 9 of the At now provides for a new regime whereby two Irish private ompanies an merge. The proedure is modelled on the CBM Regulations appliable to ross-border mergers. It allows for merger by: a aquisition one ompany aquires the assets and liabilities of another ompany whih is then dissolved by operation of law (without the requirement to be plaed into liquidation); b absorption a parent ompany absorbs the assets and liabilities of the wholly owned subsidiary whih is then dissolved by operation of law (without the requirement to be plaed into liquidation); or formation of a new ompany a newly inorporated ompany aquires the assets and liabilities of a ompany whih is then dissolved by operation of law (without the requirement to be plaed into liquidation). Mergers under Part 9 of the At an be effeted by either ourt order onfirming the merger or by using a new Summary Approvals Proedure (SAP) under whih a majority of the diretors of eah merging ompany swears a delaration in respet of the postmerger solveny of the suessor ompany. No later than 30 days after this delaration is sworn, the members of eah merging ompany must pass a unanimous speial resolution approving the ommon draft terms of the merger. Please note the SAP is not available where one of the ompanies is a PLC. In this situation an appliation must be made to the High Court. 4. Diretors Loans The new At introdues hanges to the requirements relating to diretors loans in that all loans should be properly doumented. Under the new At, if a loan to a diretor is not in writing, it is presumed that the loan is repayable on demand and bears interest. If a loan by a diretor to a ompany is not in writing, it is presumed not to be a loan and is not repayable. If the diretor an prove that it is a loan but it has not been doumented, the loan will be interest free, unseured and to the extent that it is not seured, it is subordinate to all other indebtedness of the ompany. 5. Loans / Intra-group transations Under the At, a ompany is prohibited from: a making a loan or a quasi-loan to a diretor of the ompany of its holding ompany or a person onneted with suh a diretor; b entering into a redit transation as a reditor for suh a diretor or a person so onneted; or entering into a guarantee or providing any seurity in onnetion a loan, quasi-loan or redit transation made by any other person for suh a diretor or a person so onneted. However, the At provides that a ompany is not prohibited from making a loan or quasi-loan to any body orporate whih is its holding ompany, subsidiary or a subsidiary of its holding ompany. 6. Commentary Now is an opportune time for organisations with a large number of ompanies to review their group struture before the end of the transition period and so we are likely to see an inrease in group simplifiations in Ireland. PwC 3
While the At has simplified muh of the existing ompany law legislation, it has plaed a far greater burden on diretors and lients should be properly advised on the impliations that the new At ould have on their onstitution. Who to ontat For more information, please ontat: Ruairí Cosgrove Diretor + 353 (0) 1 792 6070 ruairi.osgrove@ie.pw.om Trudy Kealy Senior Manager +353 (0) 1 792 6881 trudy.kealy@ie.pw.om PwC 4
- New deision of the Regional Court of Frankfurt on matters of odetermination of employees At a glane The Regional Court of Frankfurt (the Court) deided on 16 February 2015 (File Number Az. 3/16 O 1/14) that employees who do not work in Germany are to be inluded when determining the threshold of Se. 1, 5 German Codetermination At (Mitbestimmungsgesetz MitbestG. This is in ontrast to the urrent pratie where only employees working in Germany are onsidered. The deision is not yet final and binding. It is up to the Higher Regional Court to uphold or rejet the deision In detail A German orporation employing more than 2,000 employees has to set up a supervisory board whereby half of its members are omposed of employees or their representatives (Se. 1 MitbestG). The employees of the subsidiaries of a group are deemed to be employees of the ontrolling ompany (Se. 5 MitbestG). Aording to the deision of the Court this omprises also employees of other EU ountries. Prior to the deision of the Court, it was generally aepted that only employees working in Germany are to be onsidered when determining the threshold. The Courts deision was issued following a legal dispute at Deutshe Börse AG. This orporation only exeeds the threshold of Se. 1 MitbestG when taking employees of other EU ountries into aount. Up to then, its supervisory board had been put together aording to the German One-Third Codetermination At (Drittelbeteiligungsgesetz - DrittelbG) (i. e. just one third of its members had been eleted by the employees). A university professor of labour law from Munih had filed a motion for reviewing the omposition of the supervisory board after aquiring 100 registered shares in Deutshe Börse AG. Justifiation for deision The Court justified its deision as follows a the materials pertaining to the MitbestG were based on the premise of taking employees from Germany into aount only. This, however, originated from the territoriality priniple whih hanged due to EU legislation; b the wording of the MitbestG does not indiate to exlude employees employed in ountries other than Germany; the MitbestG does also not onstitute a onept of its own regarding orporate groups but refers to the general terms of Se. 17, 18 German Stok Corporation At (Aktiengesetz - AktG) whih does not distinguish between domesti and foreign dependent ompanies; and PwC 5
d at least subsidiaries situated in EU-ountries must be taken into aount mandatorily. Any divergent pratie would violate the European Community laws priniple of nondisrimination as stated in Art. 18 of the Treaty on the Funtioning of the European Union (TFEU). Views on this subjet Most law sholars are ritiizing the Courts deision. Espeially the legislative materials pertaining to the MitbestG speak against the inlusion of the foreign workfore. Any hanges on this sensitive issue are the sole responsibility of the German legislators who up to now did not see any good reasons to do so. Nearly all law sholars are of the opinion that this deision will be overruled by the higher ourt. Consequenes In ase the deision of the Court is upheld, there would be far-reahing onsequenes espeially for medium-size ompanies with a large work fore and international strutures. Many of their supervisory boards would then be omposed inorretly or even would have to be newly formed. Our reommendations We reommend to attentively follow up on the future development of this matter. German orporations that would presently not been affeted by mandatory odetermination or are subjet to the DrittelbG, should monitor the numbers of their employees, espeially taking into aount subsidiaries in other EU ountries. International group restrutures and aquisitions should also be viewed from the perspetive of the German odetermination law. However, in our opinion one should not at hasty and struture the group without areful planning. In order to prevent any surprises, it ould be worthwhile ontemplating alternate strutures. Whether a business partnership with a foreign general partner or the founding of a Soietas Europea (SE), there are several group strutures whih are still not subjet to German odetermination. Who to ontat For more information, please ontat: Robert Dorr Loal Partner and German Head of International Business Reorganisations, Stuttgart Diret: +49 (0) 711 25034 1505 Email: robert.dorr@de.pw.om Dirk Krome Senior Manager, Stuttgart Diret: +49 (0) 711 25034 1530 Email: dirk.krome@de.pw.om PwC 6
At a glane As the regulation of foreign investment in Australia ontinues to evolve we provide an update on a number of reent developments: - signing of the China-Australia Free Trade Agreement; - announement of a 3% stamp duty surharge in Vitoria for foreign aquirers of real property; - ommenement of real estate surveillane and enforement by the Australian Taxation Offie; - announement of a pakage of reforms of Australian foreign investment laws; - amendment of omplying fund requirements for the Signifiant Investor Visa program; and - establishment of a Premium Investment Visa program. In detail Signing of the ChAFTA The China Australia Free Trade Agreement (ChAFTA) was signed by both ountries in a eremony in Canberra on 17 June 2015. Eah ountry will now undertake their treaty ratifiation proesses ahead of the agreement beoming effetive; this is expeted by the end of the year. In summary, the benefits of ChAFTA to Chinese investors in Australia are: a the asset threshold for sreening investments made by Chinese private investors in nonsensitive setors will be raised from its urrent level of $252 m to $1,094m, in line with investors from other major trading partners suh as the United States, Japan and New Zealand; b tariffs on resoures, energy and manufatured goods will be eliminated immediately, whilst tariffs in ertain sensitive industries suh as automotive, steel, aluminium, plastis, anned fruit, arpets, lothing and footwear, will be phased out within 2 to 4 years; and Surharges for foreign investors aquiring real estate in Vitoria The Vitorian Government has announed in the 2015-16 State Budget that a 3% surharge will apply to stamp duty payable on the aquisition of residential real estate in Vitoria by foreign investors from 1 July 2015. A 0.5% land tax surharge will also apply to absentee property owners from 2016. Commenement of surveillane and enforement by the Australian Taxation Offie The Australian Taxation Offie (ATO) has assumed responsibility for the audit, ompliane and enforement of foreign investment laws relating to aquisitions of residential real estate. The ATO has ommened using its data mathing apabilities to review foreign investment appliations for the period 1 July 2010 to 30 June 2016 for potential breahes of foreign investment laws. We understand that over 150 ases of potential breahes are urrently under investigation by the ATO. a more liberal approah to visa and immigration requirements will apply to Chinese investors. PwC 7
Responsibility for the administration of the foreign investment regulation of residential real estate, inluding the olletion of the appliation fees, the upfront sreening proess, ompliane ativities and enforement ation, will be transferred to ATO from 1 Deember 2015. Foreign investment reforms Foreign investment in Australia is primarily regulated by the Foreign Aquisitions and Takeovers At 1975 (Cth) (At), the Foreign Aquisitions and Takeovers Regulations 1989 (Cth) (Regulations) and Australia s Foreign Investment Poliy (Poliy). The Australian Government announed a pakage of reforms to enhane ompliane by foreign investors with Australia s foreign investment requirements in May 2015. In support of this, the Australian Government has released an updated edition of the Poliy, whih provides guidane on the measures, and proposed legislative hanges to the At and Regulations. The new legislation is expeted to ome into fore in Deember 2015. Establishment of register of foreign interests in agriultural land A register has now been established by the ATO to reord interests in agriultural land held by foreign investors (Register). Importantly, it is expeted that information in the Register will be made available to the Australian publi in 2016. Compulsory notifiation of foreign interests in agriultural land From 1 July 2015, all aquisitions by foreign investors of interests in Australian agriultural land must be notified to the ATO within 30 days of the aquisition, regardless of value. Foreign investors have until 31 Deember 2015 to notify the ATO of existing interests they may have. Registration is different to national interest sreening The obligation to register the aquisition of an interest in agriultural land is distint from the obligation to notify the Treasurer of a proposed aquisition of an interest in Rural Land or vaant Urban Land for assessment of whether the aquisition is ontrary to the Australian national interest. The term Agriultural Land is defined in the Poliy as: land in Australia that is used, or that ould be reasonably used, for a primary prodution business. In ontrast, the term Rural Land is defined in the Poliy more narrowly as: land used wholly and exlusively for arrying on a business of primary prodution. To be a business of primary prodution, the business must be substantial and have a ommerial purpose or harater. For ompleteness, these definitions will be aptured in the new legislation. For instane, an aquisition of an interest in vaant land that might be used for agriulture may require registration as Agriultural Land but may not fall within the definition of Rural Land. In this ase it is likely to be onsidered Urban Land and may be subjet to ompulsory national interest sreening under the Poliy, regardless of value. For ompleteness, we also set out below the sreening thresholds for aquisitions of Rural Land : Investor US, NZ, Chile private investor Singapore, Thailand private investor All other private investors Foreign government investors Sreening threshold $1,094m standalone basis $55m standalone basis $15m - umulative basis $0 PwC 8
New omplying investment framework for Signifiant Investor Visa program The Australian Government has announed hanges to the omplying investment framework for the popular Signifiant Investor Visa (SIV) program in order to diret investment away from residential real estate and passive investment towards investment in innovation and industrial development. The hanges to the investment framework will ommene from 1 July 2015 and will require a visa appliant to invest at least $5 m over four years in the following investments: Minimum Investment amount Type of investment $500,000 AusIndustry registered funds (either Early Stage Venture Capital Limited Partnership or Venture Capital Limited Partnership). $1,500,000 Funds investing in emerging ompanies (e.g. a ompany that have a market apitalisation of less than $500,000,000 at the time the seurities of the ompany are purhased by the fund). Balane up to $3,000,000 Managed funds (open or lose-end) or Listed Investment Companies that invest in a ombination of eligible assets that inlude other ASX listed ompanies, orporate bonds, annuities and real property. Importantly, investment in residential real estate will only be permitted to omprise 10% of the $5m minimum investment amount (although investors may invest in exess of this outside of this limit). New premium investment visa program A new lass of investment visa, the Premium Investment Visa (PIV) program will be introdued on 1 July 2015. Unlike SIV whih requires investor to invest $5 m into omplying investments for a minimum of 4 years before being eligible to apply for a permanent visa, PIV offers a more expeditious, 12 month pathway to permanent resideny. It is established to attrat talented entrepreneurs and innovators and aess to the program will be by invitation of the Australian Government. An appliant under the PIV will be required to invest a minimum of $15,000,000 in managed funds or diret investment in ASX listed assets, government or semi-government bonds or notes, orporate bonds or notes, proprietary limited ompanies, real property in Australia (exluding residential property), annuities or government approved philanthropi donations. Who to ontat For more information, please ontat: Andrew Wheeler Partner, Sydney +61 (2) 8266 6401 andrew.wheeler@au.pw.om Simon Lewis Diretor, Sydney +61 (2) 8266 2161 simon.lewis@au.pw.om Kent Chong Assoiate, Sydney +61 (2) 8266 0289 kent.a.hong@au.pw.om PwC 9
www.pw.om This publiation has been prepared for general guidane on matters of interest only, and does not onstitute professional advie. You should not at upon the information ontained in this publiation without obtaining speifi professional advie. No representation or warranty (express or implied) is given as to the auray or ompleteness of the information ontained in this publiation and, to the extent permitted by law, PwC does not aept or assume any liability, responsibility or duty of are for any onsequenes of you or anyone else ating, or refraining to at, in reliane on the information ontained in this publiation or for any deision based on it. 2015 PwC. All rights reserved. PwC refers to the PriewaterhouseCoopers global network and/or one or more of its member firms, eah of whih is a separate legal entity. Please see www.pw.om/struture for further details.