Companies Act 2014

F304[Process adviser to determine whether eligible company has reasonable prospect of survival

558C

558C. (1) This section applies where a director of an eligible company submits a statement and a statutory declaration to a process adviser under section 558B(4).

(2) The process adviser shall determine whether there is a reasonable prospect of the survival of the eligible company, and the whole or any part of its undertaking, as a going concern.

(3) In making a determination under subsection (2), the process adviser shall have regard to—

(a) the statement, and

(b) such of the matters specified in subsection (4) as appear to the process adviser to be relevant in the circumstances.

(4) The matters referred to in subsection (3) are—

(a) the nature of, and prospects for, the business of the eligible company,

(b) the availability of funding for, and investment in, the eligible company in the future, including expressions of interest by external funders,

(c) the cost structure of the eligible company, including any cost reductions already achieved or that may be achieved,

(d) whether projections and business plans for the eligible company are based on objective and independent evidence,

(e) whether the eligible company can generate a sufficient return to remunerate investment and repay funding,

(f) the wider economic situation,

(g) the circumstances of the market in which the eligible company is operating, including the likely future prospects of the market,

(h) the expertise, brand and historic success of the eligible company,

(i) where the eligible company is part of a group of companies, the place of the company in the structure of the group and its prospects in that context,

(j) whether a secured creditor has expressed an interest in (or attempted to initiate) a trading receivership,

(k) such other matters as the process adviser considers relevant in the circumstances.

(5) The process adviser shall—

(a) hold a meeting with the directors of the eligible company for the purpose of informing the directors of the determination and the reasons for it, and

(b) give the directors of the eligible company confirmation in writing of the determination and the reasons for it.]

Annotations:

Amendments:

F304

Inserted (7.12.2021) by Companies (Rescue Process for Small and Micro Companies) Act 2021 (30/2021), s. 3, S.I. No. 673 of 2021.