Power to acquire shares of shareholders dissenting from scheme or contract approved by 90% majority
215.—(1)  Where a scheme or contract involving the transfer of all of the shares or all of the shares in any particular class in a company (referred to in this section as the transferor company) to a person (referred to in this section as the transferee) has, within 4 months after the making of the offer in that behalf by the transferee, been approved as to the shares or as to each class of shares whose transfer is involved by the holders of not less than 90% of the total number of those shares (excluding treasury shares) or of the shares of that class (other than shares already held at the date of the offer by the transferee, and excluding any shares in the transferor company held as treasury shares), the transferee may at any time within 2 months, after the offer has been so approved, give notice in the prescribed manner to any dissenting shareholder that it desires to acquire his shares; and when such a notice is given the transferee shall, unless on an application made by the dissenting shareholder within one month from the date on which the notice was given or within 14 days of a statement being supplied to a dissenting shareholder pursuant to subsection (2) (whichever is the later) the Court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms which, under the scheme or contract the shares of the approving shareholders are to be transferred to the transferee or if the offer contained 2 or more alternative sets of terms upon the terms which were specified in the offer as being applicable to dissenting shareholders.
[15/84; 8/2003; 21/2005]
[Act 36 of 2014 wef 03/01/2016]
(1A)  Where alternative terms were offered to the shareholders, a dissenting shareholder is entitled to elect not later than the end of one month after the date on which the notice is given under subsection (1), or 14 days after a statement is supplied under subsection (2), whichever is the later, which of those terms the dissenting shareholder prefers.
[Act 36 of 2014 wef 03/01/2016]
(1B)  In offering alternative terms to the shareholders, the transferee shall state which of those terms is to apply to the acquisition of the shares of a dissenting shareholder where the dissenting shareholder fails to make the election within the time allowed under subsection (1A).
[Act 36 of 2014 wef 03/01/2016]
(1C)  In determining whether the scheme or contract has been approved by the holders of the requisite number of shares, or shares of any particular class, under subsection (1), the following shares shall be disregarded:
(a)shares that are issued after the date of the offer; and
(b)relevant treasury shares that cease to be held as treasury shares after the date of the offer.
[Act 36 of 2014 wef 03/01/2016]
(1D)  In subsection (1C)(b), “relevant treasury shares” means —
(a)shares that are held by the transferor company as treasury shares on the date of the offer; or
(b)shares that become shares held by the transferor company as treasury shares after the date of the offer but before a date specified in or determined in accordance with the terms of the offer.
[Act 36 of 2014 wef 03/01/2016]
(2)  Where a transferee has given notice to any dissenting shareholder that it desires to acquire his shares, the dissenting shareholder shall be entitled to require the transferor company by a demand in writing served on the transferor company, within one month from the date on which the notice was given, to supply him with a statement in writing of the names and addresses of all other dissenting shareholders as shown in the register of members, and the transferee shall not be entitled or bound to acquire the shares of the dissenting shareholders until 14 days after the posting of the statement of such names and addresses to the dissenting shareholder.
[Act 36 of 2014 wef 03/01/2016]
(3)  Where, in pursuance of any such scheme or contract, shares in a transferor company are transferred to a transferee or its nominee and those shares together with any other shares in the transferor company held by the transferee at the date of the transfer comprise or include 90% of the total number of the shares in the transferor company or of any class of those shares, then —
(a)the transferee shall within one month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or contract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holders of the remaining shares or of the remaining shares of that class who have not assented to the scheme or contract; and
(b)any such holder may within 3 months from the giving of the notice to him require the transferee to acquire the shares in question,
and where a shareholder gives notice under paragraph (b) with respect to any shares, the transferee shall be entitled and bound to acquire those shares on the terms on which under the scheme or contract the shares of the approving shareholders were transferred to it, or on such other terms as are agreed or as the Court on the application of either the transferee or the shareholder thinks fit to order.
[Act 36 of 2014 wef 03/01/2016]
(3A)  In subsection (3), for the purpose of calculating whether 90% of the total number of shares are held by the transferee, shares held by the transferor company as treasury shares are to be treated as having been acquired by the transferee.
[Act 36 of 2014 wef 03/01/2016]
(4)  Where a notice has been given by the transferee under subsection (1) and the Court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee shall, after the expiration of one month after the date on which the notice has been given or, after 14 days after a statement has been supplied to a dissenting shareholder pursuant to subsection (2) or if an application to the Court by the dissenting shareholder is then pending, after that application has been disposed of, transmit a copy of the notice to the transferor company together with an instrument of transfer executed, on behalf of the shareholder by any person appointed by the transferee, and on its own behalf by the transferee, and pay, allot or transfer to the transferor company the amount or other consideration representing the price payable by the transferee for the shares which by virtue of this section the transferee is entitled to acquire, and the transferor company shall thereupon register the transferee as the holder of those shares.
[Act 36 of 2014 wef 03/01/2016]
(5)  Any sums received by the transferor company under this section shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by the transferor company in trust for the several persons entitled to the shares in respect of which they were respectively received.
[Act 36 of 2014 wef 03/01/2016]
(6)  Where any money or other consideration is held in trust by a company for any person under this section, the company holding the money or other consideration may, after the expiration of 2 years and shall before the expiration of 10 years from the date on which the money or other consideration was received by the person, transfer the money or other consideration to the Official Receiver.
[Act 36 of 2014 wef 01/07/2015]
(7)  The Official Receiver shall —
(a)deal with any moneys received under subsection (6) as if the moneys were paid to him under section 322; and
(b)sell or dispose of any other consideration received under subsection (6) in such manner as he thinks fit and shall deal with the proceeds of such sale or disposal as if it were moneys paid to him under section 322.
[Act 36 of 2014 wef 01/07/2015]
(8)  In this section, a dissenting shareholder includes a shareholder who has not assented to the scheme or contract and any shareholder who has failed or refused to transfer his shares to the transferee in accordance with the scheme or contract.
[Act 36 of 2014 wef 01/07/2015]
[Act 36 of 2014 wef 03/01/2016]
(8A)  In this section and sections 215AA and 215AB —
(a)“shares” shall include units of shares;
(b)“shareholders” includes holders of units of shares but does not include a person who holds units of shares only beneficially;
(c)“register of members” includes any records kept by or with respect to the transferor company of the names and addresses of holders of units of shares.
[Act 36 of 2014 wef 03/01/2016]
(8B)  Nothing in the definition of “shares” in subsection (8A) shall be read as requiring any securities to be treated —
(a)as shares of the same class as those into which they are convertible or for which the holder is entitled to subscribe; or
(b)as shares of the same class as other securities by reason only that the shares into which they are convertible or for which the holder is entitled to subscribe are of the same class.
[Act 36 of 2014 wef 03/01/2016]
(9)  For the purposes of this section, shares held or acquired —
(a)by a nominee on behalf of the transferee; or
[Act 36 of 2014 wef 03/01/2016]
(b)by a related corporation of the transferee or by a nominee of that related corporation,
[Act 36 of 2014 wef 03/01/2016]
shall be treated as held or acquired by the transferee.
[8/2003]
[Act 36 of 2014 wef 03/01/2016]
(10)  The reference in subsection (1) to shares already held by the transferee includes a reference to shares which the transferee has contracted to acquire but that shall not be construed as including shares which are the subject of a contract binding the holder thereof to accept the offer when it is made, being a contract entered into by the holder for no consideration and under seal or for no consideration other than a promise by the transferee to make the offer.
[8/2003]
[Act 36 of 2014 wef 03/01/2016]
(11)  Where, during the period within which an offer for the transfer of shares to the transferee can be approved, the transferee acquires or contracts to acquire any of the shares whose transfer is involved but otherwise than by virtue of the approval of the offer, then, if —
(a)the consideration for which the shares are acquired or contracted to be acquired (referred to in this subsection as the acquisition consideration) does not at that time exceed the consideration specified in the terms of the offer; or
(b)those terms are subsequently revised so that when the revision is announced the acquisition consideration, at the time referred to in paragraph (a), no longer exceeds the consideration specified in those terms,
the transferee shall be treated for the purposes of this section as having acquired or contracted to acquire those shares by virtue of the approval of the offer.
[8/2003]
[UK, 1948, s. 209; UK, 1985, ss. 428, 429; Aust., 1961, s. 185; HK, s. 168]
[Act 36 of 2014 wef 03/01/2016]