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The attention of the Business Law Committee has been drawn to the practice of Enterprise Ireland to seek a form of opinion from solicitors acting for companies into which Enterprise Ireland proposes to make an equity investment. The committee has taken the matter up with Enterprise Ireland.

Enterprise Ireland explained that, due to the large number of equity investments that Enterprise Ireland makes each year in Irish companies, it does not carry out a review of the statutory books of the companies nor does it conduct searches at the Companies Registration Office against the companies as part of its investment process. Accordingly, reliance is placed by Enterprise Ireland on the opinion given by each company’s solicitor to obtain verification on the various points contained in the opinion. The committee considered the form of the opinion sought by Enterprise Ireland and, following discussion with Enterprise Ireland, agreed that an opinion in the form of that set out on the facing page could be described by Enterprise Ireland as having been agreed with the Business Law Committee.

The Business Law Committee is not advising solicitors that they ought to give such an opinion. Rather, the purpose of this note is to advise that the form of the opinion set out opposite is that which the Business Law Committee has agreed. Practitioners should decide themselves in individual cases whether they are willing to give such an opinion or not. The committee was advised that some solicitors have preferred to issue a certificate rather than to express an opinion. While it is a matter for individual solicitors to decide which format they use, it is the view of the committee that it is preferable to express an opinion as to matters of law (which the practitioner can verify) rather than to certify certain matters. Accordingly, the committee recommends opining as to legal issues rather than certifying factual matters.

[Headed notepaper of solicitor representing the company]

Enterprise Ireland
Wilton House
Wilton Place
Dublin 2

[Insert date]

Matter: [insert name of investee company] Limited (‘the Company’)

Dear Sirs,

1. CONTEXT

We represent the Company in relation to the subscription by Enterprise Ireland for [insert the no and class of share being allotted] in the Company (‘the Shares’) pursuant to the Investment Agreement dated [ ] between the Shareholders (as defined in the Agreement) the Company and Enterprise Ireland (‘the Agreement’).

We have been asked by the Company to give Enterprise Ireland this Opinion/Certificate in connection with its subscription for the Shares.

2. EXAMINATION

 For the purpose of this Opinion/ Certificate, we have examined the following documents only:

1. A copy of the Memorandum and Articles of Association of the Company certified by either a director or secretary of the Company, as being a true and the most up to date copy;

2. A copy of the signed board minutes of the Company relating to a meeting of the board of directors held on [ ] approving the execution of the Agreement by the Company and the allotment of the Shares to Enterprise Ireland, certified by either a director or secretary of the Company as being a true copy;

3. The original Agreement executed by all the parties;

4. The result of searches conducted on [insert date] against the Company at the Companies Registration Office;

 5. A statement of the share capital table of the Company detailing (i) the authorised and issued share capital of the Company and (ii) the names of the shareholders of the Company and their respective shareholdings by number and class, which is certified by

6. A confirmation from a director of the Company confirming that the Company has not received any notice of strike off from the Registrar of Companies.

[Insert specific details of any further documents that the solicitor for the company may have considered necessary for the giving of the certificate, for example, minutes of shareholder meetings.]

(collectively referred to as the ‘Documents’).

3. ASSUMPTIONS

In rendering this Opinion/ Certificate we have assumed, without responsibility on our part if any assumption is incorrect:

1. The authenticity and conformity of all the copy Documents submitted to us with the originals;

2. The genuineness of all signatures and seals on the Documents;

3. The accuracy and completeness of all the Documents, and that such Documents remain in full force and effect as at the date of entering into the Agreement by the Company and have not been amended in any way;

4. That the signed minutes of meetings of directors of the Company and of members of the Company (that comprise part of the Documents) correctly record the proceedings of those meetings, the meetings referred to in each of the minutes were duly convened and held, those present at any such meetings acted bona fide throughout and in the best interests of the Company, the resolutions set out in such minutes were duly passed and are in full force and effect and no further resolutions were passed or corporate or other action taken which would or might alter the effectiveness thereof;

5. That all representations and information given to us by or on behalf of the Company in reply to any enquiries we have made which we have considered necessary for the purpose of giving this certificate are true, correct and accurate;

6. That each of the directors of the Company were validly appointed and that all persons referred to as directors in the minutes attached to this letter were directors at the time of the relevant board meetings;

7. That nothing has been lodged for filing on, or has appeared on the file of the Company at the Companies registration Office subsequent to the results set out in the online search of the Company.

4. QUALIFICATIONS AND RESERVATIONS

1. This Opinion/Certificate is given only to Enterprise Ireland and in connection with the Agreement. It may not be relied upon as constituting a representation or other statement to any other person or for any other purpose. This certificate may not be provided or copied to any third party without our prior written consent.

2. We are solicitors of the courts of Ireland and members of the Law Society of Ireland. Accordingly our Opinion/Certificate is limited solely to the laws of Ireland. We express no opinion concerning the laws of any other jurisdiction.

5. CERTIFICATION/OPINION

Based solely on the Documents and on the Assumptions set out in clause 3 hereof and the Qualifications and Reservations set out in clause 4 hereof we hereby certify/ are of the opinion that:

1. The Company is a private company limited by shares and is duly incorporated under the laws of Ireland.

2. The Company has not been struck off the Register of Companies and has not received any notification of strike off from the Registrar of Companies.

3. The Company has sufficient authorised and unissued share capital of the relevant class to allot the Shares to Enterprise Ireland.

4. The execution and delivery of the Agreement by the Company to Enterprise Ireland does not violate the most up to date Memorandum and Articles of Association of the Company.

5. The directors are authorised to issue the Shares to Enterprise Ireland and the Company has been authorised by its board of directors to execute the Agreement under seal and to issue the Shares to Enterprise Ireland.

This Certificate/Opinion is given as of the date hereof and we are not under any obligation to update or supplement the certificate/ opinion in this letter to reflect any facts or circumstances which may come to our attention or any changes in the law that may occur, after the date of this letter, in each case.

Yours faithfully

____________________________

[Insert name of firm of solicitors]

Note to solicitor acting for company:

1. Please use either ‘certificate’ or ‘opinion’ where highlighted throughout the text.

2. Please don’t amend the substance of the letter.

3. Please insert relevant text where italicised print appears.