Comparison View

Formal Consolidation |  2020 RevEd
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 (called in this section the transferor company) to a person (called in this section 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 the dissenting shareholder’s shares; and when such a notice is given the transferee is, 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, 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.
[36/2014]
(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.
[36/2014]
(1B)  In offering alternative terms to the shareholders, the transferee must 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).
[36/2014]
(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 are to be disregarded:
(a)shares that are issued after the date of the offer;
(b)relevant treasury shares that cease to be held as treasury shares after the date of the offer.
[36/2014]
(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.
[36/2014]
(2)  Where a transferee has given notice to any dissenting shareholder that it desires to acquire the dissenting shareholder’s shares, the dissenting shareholder is entitled to require the transferor company by a written demand served on the transferor company, within one month from the date on which the notice was given, to supply the dissenting shareholder with a written statement of the names and addresses of all other dissenting shareholders as shown in the register of members, and the transferee is not 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.
[36/2014]
(3)  Where, pursuant to 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 must within one month from the date of the transfer (unless on a previous transfer pursuant to 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 such holder 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 is 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.
[36/2014]
(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.
[36/2014]
(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 must, 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 —
(a)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
(b)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 must thereupon register the transferee as the holder of those shares.
[36/2014]
(5)  Any sums received by the transferor company under this section must be paid into a separate bank account, and any such sums and any other consideration so received must be held by the transferor company in trust for the several persons entitled to the shares in respect of which they were respectively received.
[36/2014]
(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 must 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.
[36/2014]
(7)  The Official Receiver must —
(a)deal with any moneys received under subsection (6) as if the moneys were paid to the Official Receiver under section 197 of the Insolvency, Restructuring and Dissolution Act 2018; and
(b)sell or dispose of any other consideration received under subsection (6) in such manner as the Official Receiver thinks fit and must deal with the proceeds of such sale or disposal as if it were moneys paid to the Official Receiver under section 197 of the Insolvency, Restructuring and Dissolution Act 2018.
[36/2014; 40/2018]
(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 the shareholder’s shares to the transferee in accordance with the scheme or contract.
[36/2014]
(8A)  In this section and sections 215AA and 215AB —
(a)“shares” includes 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.
[36/2014]
(8B)  Nothing in the definition of “shares” in subsection (8A) is to 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.
[36/2014]
(9)  For the purposes of this section, shares held or acquired —
(a)by a nominee on behalf of the transferee; or
(b)by a related corporation of the transferee or by a nominee of that related corporation,
are to be treated as held or acquired by the transferee.
[36/2014]
(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 is not to 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.
[36/2014]
(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 (called in this subsection 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 is to 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.
[36/2014]
Informal Consolidation | Amended Act 17 of 2023
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 (called in this section the transferor company) to a person (called in this section 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 the dissenting shareholder’s shares; and when such a notice is given the transferee is, 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, 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.
[36/2014]
(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.
[36/2014]
(1B)  In offering alternative terms to the shareholders, the transferee must 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).
[36/2014]
(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 are to be disregarded:
(a)shares that are issued after the date of the offer;
(b)relevant treasury shares that cease to be held as treasury shares after the date of the offer.
[36/2014]
(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.
[36/2014]
(2)  Where a transferee has given notice to any dissenting shareholder that it desires to acquire the dissenting shareholder’s shares, the dissenting shareholder is entitled to require the transferor company by a written demand served on the transferor company, within one month from the date on which the notice was given, to supply the dissenting shareholder with a written statement of the names and addresses of all other dissenting shareholders as shown in the register of members, and the transferee is not 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.
[36/2014]
(3)  Where, pursuant to 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 must within one month from the date of the transfer (unless on a previous transfer pursuant to 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 such holder 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 is 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.
[36/2014]
(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.
[36/2014]
(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 must, 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 —
(a)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
(b)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 must thereupon register the transferee as the holder of those shares.
[36/2014]
(5)  Any sums received by the transferor company under this section must be paid into a separate bank account, and any such sums and any other consideration so received must be held by the transferor company in trust for the several persons entitled to the shares in respect of which they were respectively received.
[36/2014]
(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 must 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.
[36/2014]
(7)  The Official Receiver must —
(a)deal with any moneys received under subsection (6) as if the moneys were paid to the Official Receiver under section 197 of the Insolvency, Restructuring and Dissolution Act 2018; and
(b)sell or dispose of any other consideration received under subsection (6) in such manner as the Official Receiver thinks fit and must deal with the proceeds of such sale or disposal as if it were moneys paid to the Official Receiver under section 197 of the Insolvency, Restructuring and Dissolution Act 2018.
[36/2014; 40/2018]
(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 the shareholder’s shares to the transferee in accordance with the scheme or contract.
[36/2014]
(8A)  In this section and sections 215AA and 215AB —
(a)“shares” includes 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.
[36/2014]
(8B)  Nothing in the definition of “shares” in subsection (8A) is to 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.
[36/2014]
(9)  For the purposes of this section, shares held or acquired —
(a)by a nominee on behalf of the transferee; or
(b)by a related corporation of the transferee or by a nominee of that related corporation,
are to be treated as held or acquired by the transferee.
[36/2014]
(9A)  In addition to subsection (9), in respect of an offer made on or after the date of commencement of section 10(a) of the Companies, Business Trusts and Other Bodies (Miscellaneous Amendments) Act 2023, shares held or acquired —
(a)by a person who is accustomed or is under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of the transferee in respect of the transferor company;
(b)by the transferee’s spouse, parent, brother, sister, son, adopted son, stepson, daughter, adopted daughter or stepdaughter;
(c)by a person whose directions, instructions or wishes the transferee is accustomed or is under an obligation whether formal or informal to act in accordance with, in respect of the transferor company; or
(d)by a body corporate that is controlled (within the meaning of subsection (12)) by the transferee or a person mentioned in paragraph (a), (b) or (c),
are also to be treated as held or acquired by the transferee.
[Act 17 of 2023 wef 01/07/2023]
(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 is not to 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.
[36/2014]
(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 (called in this subsection 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 is to 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.
(12)  For the purposes of subsection (9A)(d), a body corporate is controlled by a transferee or person mentioned in paragraph (a), (b) or (c) of subsection (9A) if —
(a)the transferee or person (as the case may be) is entitled to exercise or control the exercise of not less than 50% of the voting power in the body corporate or such percentage of the voting power in the body corporate as may be prescribed, whichever is lower; or
(b)the body corporate is, or a majority of its directors are, accustomed or under an obligation whether formal or informal to act in accordance with the directions, instructions or wishes of the transferee or the person (as the case may be).
[36/2014]
[Act 17 of 2023 wef 01/07/2023]