If your company has issued bearer shares and does not convert them into registered shares within eighteen months of the 2014 Act coming into force, the Minister for Finance will become your shareholder!
Bearer shares are a type of share that function very similar to cash in that they are each represented by a piece of paper that has a value and which can be given to another person simply by handing it to that person. In legal terms, bearer shares are shares of a company, which are evidenced by a share certificate and which entitle or purport to entitle the bearer of the shares to transfer the ownership of those shares by delivery of the share relevant share certificates. Originally used for administrative convenience, bearer shares are less common than they used to be as, unlike registered shares where ownership is evidenced by entry on a share register, bearer shares are subject to the risk of loss or theft. Their main uses now are for investors with concerns in relation to confidentiality and/or anonymity.
The move away from bearer shares is in line with a global trend towards greater transparency. In January 2011 an OECD body charged with in-depth monitoring and review of the implementation of the OECD’s international standards of transparency and exchange of information for tax purposes, conducted a review of Ireland and recommended that “Ireland should take necessary measures to ensure that appropriate mechanisms are in place to identify the owners of share warrants to bearers…”. Similar measures will be implemented in the UK in the near future through the Small Business, Enterprise and Employment Act 2015.
Until now, an Irish PLC, if authorised to do so by its articles, could issue bearer shares under section 88 of the Companies Act 1963 (1963 Act). Private companies were not expressly prevented by the 1963 Act from issuing bearer shares, although the prevailing view is that Section 33 of the 1963 Act, which requires that a private company restrict the right to transfer its shares in its articles of association, means that bearer shares are not possible for private companies. This view is supported by Regulation 2 of Table A, Part 2, of the 1963 Act, which states that "the company shall not have power to issue share warrants to bearer".
The Companies Act 2014 (2014 Act) removes any doubt in relation to the capacity of a private company to issue bearer shares, as such shares are expressly prohibited by Section 66(9). The 2014 Act also includes at Section 66(10) an anti-avoidance provision which provides that any purported issuance of a bearer shares will be treated as a debt of the company to the purported subscriber for the bearer instrument. Section 1019(3) and (4) of the 2014 Act imposes similar restrictions in relation to the issuance of bearer shares on PLCs.
PLCs that have issued bearer shares have until the end of December 2016 to procure the entry in their registers of members of the names of the holders of those bearer shares. Failure to do so will result in the Minister for Finance becoming the full beneficial owner of those bearer shares! Additionally, the right to transfer bearer shares by delivery shall cease twenty-one days before end of December 2016.