PART 7 ARRANGEMENTS, RECONSTRUCTIONS
AND AMALGAMATIONS |
| Power to compromise with creditors, members and holders of units of shares |
210.—(1) Where a compromise or an arrangement is proposed between —| (a) | a company and its creditors or any class of them; | | (b) | a company and its members or any class of them; or | | (c) | a company and holders of units of shares of the company or any class of them, |
| the Court may, on the application in a summary way of any person referred to in subsection (2), order a meeting of the creditors, the members of the company, the holders of units of shares of the company, or a class of such persons, to be summoned in such manner as the Court directs. |
[36/2014] (2) The persons referred to in subsection (1) are —| (a) | in the case of a company being wound up — the liquidator; and | | (b) | in any other case —| (i) | the company; or | | (ii) | any creditor, member or holder of units of shares of the company. [36/2014] |
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(3) A meeting held pursuant to an order made under subsection (1) may be adjourned from time to time if the resolution for the adjournment is approved by a majority in number representing three‑fourths in value of —| (a) | the creditors or class of creditors; | | (b) | the members or class of members; or | | (c) | the holders of units of shares or class of holders of units of shares, |
| present and voting either in person or by proxy at the meeting. |
[36/2014] |
(3AA) If the conditions set out in subsection (3AB) are satisfied, a compromise or an arrangement is binding —| (a) | in the case of a company in the course of being wound up, on the liquidator and contributories of the company, and on all —| (i) | the creditors or class of creditors; | | (ii) | the members or class of members; or | | (iii) | the holders of units of shares or class of holders of units of shares, |
| | (b) | in the case of any other company, on the company and on all —| (i) | the creditors or class of creditors; | | (ii) | the members or class of members; or | | (iii) | the holders of units of shares or class of holders of units of shares, |
[36/2014; 35/2018] |
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(3AB) The conditions referred to in subsection (3AA) are as follows:| (a) | unless the Court orders otherwise, a majority in number of —| (i) | the creditors or class of creditors; | | (ii) | the members or class of members; or | | (iii) | the holders of units of shares or class of holders of units of shares, |
| present and voting either in person or by proxy at the meeting or the adjourned meeting agrees to the compromise or arrangement; |
| | (b) | the majority in number referred to, or such number as the Court may order, under paragraph (a) represents three‑fourths in value of —| (i) | the creditors or class of creditors; | | (ii) | the members or class of members; or | | (iii) | the holders of units of shares or class of holders of units of shares, |
| present and voting either in person or by proxy at the meeting or the adjourned meeting, as the case may be; |
| | (c) | the compromise or arrangement is approved by order of the Court. [36/2014] |
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| (3A) [Deleted by Act 40 of 2018] |
| (4) The Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just. [1/2007; 40/2018] |
| (4A) [Deleted by Act 40 of 2018] |
| (5) An order under subsection (3AB)(c) has no effect until a copy of the order is lodged with the Registrar, and upon being so lodged, the order takes effect on and from the date of lodgment or such earlier date as the Court may determine and as may be specified in the order. [36/2014] |
| (6) Subject to subsection (7), a copy of every order made under subsection (3AB)(c) must be annexed to every copy of the constitution of the company issued after the order has been made. [36/2014] |
| (7) The Court may, by order, exempt a company from compliance with the requirements of subsection (6) or determine the period during which the company must so comply. |
(8) Where any such compromise or arrangement (whether or not for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies) has been proposed, the directors of the company must —| (a) | if a meeting of the members of the company by resolution so directs, instruct such accountants or solicitors or both as are named in the resolution to report on the proposals and forward their report or reports to the directors as soon as possible; and | | (b) | make such report or reports available at the registered office of the company for inspection by the shareholders, creditors and holders of units of shares of the company at least 7 days before the date of any meeting ordered by the Court to be summoned as provided in subsection (1). [36/2014] |
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| (9) Every company which makes default in complying with subsection (6) or (8) and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000. |
| Power of Court to restrain proceedings |
| (10) Where no order has been made or resolution passed for the winding up of a company and any such compromise or arrangement has been proposed between the company and its creditors or any class of such creditors, the Court may, in addition to any of its powers, on the application in a summary way of the company or of any member, creditor or holder of units of shares of the company restrain further proceedings in any action or proceeding against the company except by permission of the Court and subject to such terms as the Court imposes. [36/2014] [Act 25 of 2021 wef 01/04/2022] |
| (10A) Where the terms of any compromise or arrangement approved under this section provides for any money or other consideration to be held by or on behalf of any party to the compromise or arrangement in trust for any person, the person 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] |
(10B) The Official Receiver must —| (a) | deal with any moneys received under subsection (10A) 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 (10A) 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] |
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(11) In this section —| “arrangement” includes a reorganisation of the share capital of a company by the consolidation of shares of different classes or by the division of shares into shares of different classes or by both these methods; |
| “company” means any corporation liable to be wound up under the Insolvency, Restructuring and Dissolution Act 2018; |
| “holder of units of shares” does not include a person who holds units of shares only beneficially. [36/2014; 40/2018] |
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| Information as to compromise with creditors, members and holders of units of shares of company |
211.—(1) Where a meeting is summoned under section 210, there must —| (a) | with every notice summoning the meeting which is sent to a creditor, member or holder of units of shares of the company — be sent also a statement explaining the effect of the compromise or arrangement and in particular stating any material interests of the directors, whether as directors or as members, creditors or holders of units of shares of the company or otherwise, and the effect thereon of the compromise or arrangement in so far as it is different from the effect on the like interests of other persons; and | | (b) | in every notice summoning the meeting which is given by advertisement — be included either such a statement or a notification of the place at which and the manner in which creditors, members or holders of units of shares of the company entitled to attend the meeting may obtain copies of such a statement. [36/2014] |
| (2) Where the compromise or arrangement affects the rights of debenture holders, the statement must give the like explanation with respect to the trustee for the debenture holders as, under subsection (1), a statement is required to give with respect to the directors. |
| (3) Where a notice given by advertisement includes a notification that copies of such a statement can be obtained, every creditor, member or holder of units of shares of the company entitled to attend the meeting must on making application in the manner indicated by the notice be furnished by the company free of charge with a copy of the statement. [36/2014] |
| (4) Each director and each trustee for debenture holders must give notice to the company of such matters relating to the director or the trustee as may be necessary for the purposes of this section within 7 days of the receipt of a request in writing for information as to such matters. |
| (5) Where default is made in complying with any requirement of this section, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months. |
| (6) For the purpose of subsection (5), the liquidator of the company and any trustee for debenture holders are deemed to be officers of the company. |
| (7) Despite subsection (5), a person shall not be liable under that subsection if the person shows that the default was due to the refusal of any other person, being a director or trustee for debenture holders, to supply the necessary particulars as to the person’s interests. |
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| 211A. [Repealed by Act 40 of 2018] |
| 211B. [Repealed by Act 40 of 2018] |
| 211C. [Repealed by Act 40 of 2018] |
| 211D. [Repealed by Act 40 of 2018] |
| 211E. [Repealed by Act 40 of 2018] |
| 211F. [Repealed by Act 40 of 2018] |
| 211G. [Repealed by Act 40 of 2018] |
| 211H. [Repealed by Act 40 of 2018] |
| 211I. [Repealed by Act 40 of 2018] |
| 211J. [Repealed by Act 40 of 2018] |
| Approval of compromise or arrangement by Court |
212.—(1) Where an application is made to the Court under this Part or section 71 of the Insolvency, Restructuring and Dissolution Act 2018 for the approval of a compromise or arrangement and it is shown to the Court that the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any 2 or more companies, and that under the scheme the whole or any part of the undertaking or the property of any company concerned in the scheme (called in this section the transferor company) is to be transferred to another company (called in this section the transferee company), the Court may either by the order approving the compromise or arrangement or by any subsequent order provide for all or any of the following matters:| (a) | the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of the transferor company; | | (b) | the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company which under the compromise or arrangement are to be allotted or appropriated by that company to or for any person; | | (c) | the continuation by or against the transferee company of any legal proceedings pending by or against the transferor company; | | (d) | the dissolution, without winding up, of the transferor company; | | (e) | the provision to be made for any persons who, within such time and in such manner as the Court directs, dissent from the compromise or arrangement; | | (f) | such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or amalgamation is fully and effectively carried out. [1/2007; 40/2018] |
| (1A) [Deleted by Act 40 of 2018] |
| (2) Where an order made under this section provides for the transfer of property or liabilities, then by virtue of the order that property is transferred to and vests in, and those liabilities are transferred to and become the liabilities of, the transferee company, free in the case of any particular property if the order so directs, from any charge which is by virtue of the compromise or arrangement to cease to have effect. |
(3) Where an order is made under this section, every company in relation to which the order is made must lodge within 7 days of the making of the order —| (a) | a copy of the order with the Registrar; and | | (b) | where the order relates to land, an office copy of the order with the appropriate authority concerned with the registration or recording of dealings in that land, |
| and every company which makes default in complying with this section and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 and also to a default penalty. |
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| (4) No vesting order, referred to in this section, has any effect or operation in transferring or otherwise vesting land until the appropriate entries are made with respect to the vesting of that land by the appropriate authority. |
(5) In this section —| “liabilities” includes duties; |
| “property” includes property, rights and powers of every description. |
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| (6) In this section, “company” means any corporation liable to be wound up under the Insolvency, Restructuring and Dissolution Act 2018. [36/2014; 40/2018] |
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| 213. [Repealed by S 675/2001] |
| 214. [Repealed by S 675/2001] |
| 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] |
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(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] |
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| (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] |
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| (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] |
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(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] |
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(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. |
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(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] |
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| 215AA.—(1) In the case of a scheme involving an offer to acquire all of the shares in a company, or all of the shares in any particular class in a company, by 2 or more persons jointly (called in this section the joint transferees), section 215 is to be read subject to this section. [36/2014] (2) The conditions for the exercise of the rights conferred by section 215(1) are satisfied —| (a) | in the case of acquisitions of shares by virtue of acceptances of the offer — by the joint transferees acquiring or unconditionally contracting to acquire the necessary shares jointly; or | | (b) | in other cases — by the joint transferees acquiring or unconditionally contracting to acquire the necessary shares either jointly or separately. [36/2014] |
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(3) The conditions for the exercise of the rights conferred by section 215(3) are satisfied —| (a) | in the case of acquisitions of shares by virtue of acceptances of the offer — by the joint transferees acquiring or unconditionally contracting to acquire the necessary shares jointly; or | | (b) | in other cases — by the joint transferees acquiring or contracting (whether unconditionally or subject to conditions being met) to acquire the necessary shares either jointly or separately. [36/2014] |
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| (4) Subject to this section, the rights and obligations of the transferee under section 215 are respectively joint rights and joint and several obligations of the joint transferees. [36/2014] |
| (5) Subject to subsection (6), any notice or other document given or sent by or to the joint transferees under section 215 is complied with if the notice or document is given or sent by or to any of them. [36/2014] |
| (6) The notice required to be given by the joint transferees under section 215(1) and (3) must be made by all of the joint transferees and, where one or more of them is a company, signed by a director of that company. [36/2014] |
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| Effect of impossibility, etc., of communicating or accepting offer made under scheme or contract |
215AB.—(1) Where there are holders of shares in a company to whom an offer to acquire shares in the company is not communicated, that does not prevent the offer from being an offer made under a scheme or contract for the purposes of section 215 if —| (a) | those shareholders have no address in Singapore registered with the company; | | (b) | the offer was not communicated to those shareholders —| (i) | in order not to contravene the law of a country or territory outside Singapore; or | | (ii) | because communication to those shareholders would in the circumstances be unduly onerous; and |
| | (c) | either —| (i) | the offer is published in the Gazette; or | | (ii) | the offer can be inspected, or a copy of it obtained, at a place in Singapore or on a website, and a notice is published in the Gazette specifying the address of that place or website. [36/2014] |
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| (2) Where an offer is made to acquire shares in a company and there are persons for whom, by reason of the law of a country or territory outside Singapore, it is impossible to accept the offer, or more difficult to do so, that does not prevent the offer from being made under a scheme or contract for the purposes of section 215. [36/2014] |
(3) It is not to be inferred —| (a) | that an offer which is not communicated to every holder of shares in the company cannot be an offer made under a scheme or contract for the purposes of section 215 unless the requirements of subsection (1)(a), (b) and (c) are met; or | | (b) | that an offer which is impossible, or more difficult, for certain persons to accept cannot be an offer made under a scheme or contract for those purposes unless the reason for the impossibility or difficulty is the reason mentioned in subsection (2). [36/2014] |
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| 215A. Without affecting section 212 and any other law relating to the merger or amalgamation of companies, 2 or more companies may amalgamate and continue as one company, which may be one of the amalgamating companies or a new company, in accordance with sections 215B to 215G, where applicable. |
215B.—(1) An amalgamation proposal must contain the terms of an amalgamation under section 215A and, in particular —| (a) | the name of the amalgamated company; | | (b) | the registered office of the amalgamated company; | | (c) | the full name of every director of the amalgamated company; | | (ca) | the residential address or alternate address (as the case may be) of every director of the amalgamated company which is entered in the register of directors kept by the Registrar under section 173(1)(a) in respect of the company; | | (d) | the share structure of the amalgamated company, specifying —| (i) | the number of shares of the amalgamated company; | | (ii) | the rights, privileges, limitations and conditions attached to each share of the amalgamated company; and | | (iii) | whether the shares are transferable or non‑transferable and, if transferable, whether their transfer is subject to any condition or limitation; |
| | (e) | a copy of the constitution of the amalgamated company; | | (f) | the manner in which the shares of each amalgamating company are to be converted into shares of the amalgamated company; | | (g) | if shares of an amalgamating company are not to be converted into shares of the amalgamated company, the consideration that the holders of those shares are to receive instead of shares of the amalgamated company; | | (h) | any payment to be made to any member or director of an amalgamating company, other than a payment of the kind described in paragraph (g); and | | (i) | details of any arrangement necessary to complete the amalgamation and to provide for the subsequent management and operation of the amalgamated company. [36/2014] |
| (2) An amalgamation proposal may specify the date on which the amalgamation is intended to become effective. |
(3) If shares of one of the amalgamating companies are held by or on behalf of another of the amalgamating companies, the amalgamation proposal —| (a) | must provide for the cancellation of those shares without payment or the provision of other consideration when the amalgamation becomes effective; and | | (b) | must not provide for the conversion of those shares into shares of the amalgamated company. |
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| (4) A cancellation of shares under this section is not deemed to be a reduction of share capital within the meaning of this Act. |
(5) For the purposes of subsection (1)(a), the name of the amalgamated company may be —| (a) | the name of one of the amalgamating companies; or | | (b) | a new name that has been reserved under section 27(12B). [36/2014] |
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| Manner of approving amalgamation proposal |
215C.—(1) An amalgamation proposal must be approved —| (a) | subject to the constitution of each amalgamating company, by the members of each amalgamating company by special resolution at a general meeting; and | | (b) | by any other person, where any provision in the amalgamation proposal would, if contained in any amendment to the constitution of an amalgamating company or otherwise proposed in relation to that company, require the approval of that person. [36/2014] |
(2) The board of directors of each amalgamating company must, before the general meeting mentioned in subsection (1)(a) —| (a) | resolve that the amalgamation is in the best interest of the amalgamating company; | | (b) | make a solvency statement in relation to the amalgamating company in accordance with section 215I; and | | (c) | make a solvency statement in relation to the amalgamated company in accordance with section 215J. |
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(3) Every director who votes in favour of the resolution and the making of the statements mentioned in subsection (2) must sign a declaration stating —| (a) | that, in his or her opinion, the conditions specified in subsection (2)(a), section 215I(1)(a) and (b) (in relation to the amalgamating company) and section 215J(1)(a) and (b) (in relation to the amalgamated company) are satisfied; and | | (b) | the grounds for that opinion. |
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(4) The board of directors of each amalgamating company must send to every member of the amalgamating company, not less than 21 days before the general meeting mentioned in subsection (1)(a) —| (a) | a copy of the amalgamation proposal; | | (b) | a copy of the declarations given by the directors under subsection (3); | | (c) | a statement of any material interests of the directors, whether in that capacity or otherwise; and | | (d) | such further information and explanation as may be necessary to enable a reasonable member of the amalgamating company to understand the nature and implications, for the amalgamating company and its members, of the proposed amalgamation. |
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(5) The directors of each amalgamating company must, not less than 21 days before the general meeting mentioned in subsection (1)(a) —| (a) | send a copy of the amalgamation proposal to every secured creditor of the amalgamating company; and | | (b) | cause to be published in at least one daily English newspaper circulating generally in Singapore a notice of the proposed amalgamation, including a statement that —| (i) | copies of the amalgamation proposal are available for inspection by any member or creditor of an amalgamating company at the registered offices of the amalgamating companies and at such other place as may be specified in the notice during ordinary business hours; and | | (ii) | a member or creditor of an amalgamating company is entitled to be supplied free of charge with a copy of the amalgamation proposal upon request to an amalgamating company. |
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| (6) Any director who contravenes subsection (3) shall be guilty of an offence. |
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215D.—(1) A company (called in this subsection the amalgamating holding company) and one or more of its wholly‑owned subsidiaries (called in this subsection the amalgamating subsidiary company) may amalgamate and continue as one company, being the amalgamated holding company or the amalgamated subsidiary company, without complying with sections 215B and 215C if the members of each amalgamating company, by special resolution at a general meeting, resolve to approve an amalgamation of the amalgamating companies on the terms that —| (a) | in the case —| (i) | where the amalgamating companies continue as the amalgamated holding company — the shares of each amalgamating subsidiary company will be cancelled without any payment or any other consideration; or | | (ii) | where the amalgamating companies continue as an amalgamated subsidiary company — the shareholders of the amalgamating holding company are to be issued and hold the same number of shares in the amalgamated subsidiary company as they hold in the amalgamating holding company without any payment or other consideration and the shares of each amalgamating company, except for the shares in the amalgamated subsidiary company which are issued to the shareholders of the amalgamating holding company, will be cancelled without any payment or any other consideration; |
| | (b) | the constitution of the amalgamated company will be the same as the constitution of the amalgamating company whose shares are not cancelled; | | (c) | the directors of the amalgamating holding company and every amalgamating subsidiary company are satisfied that the amalgamated company will be able to pay its debts as they fall due as at the date on which the amalgamation is to become effective; and | | (d) | the person or persons named as director or directors in the resolution of each amalgamating company will be the director or directors of the amalgamated company. [36/2014] |
(2) Two or more wholly‑owned subsidiary companies of the same corporation may amalgamate and continue as one company without complying with sections 215B and 215C if the members of each amalgamating company, by special resolution at a general meeting, resolve to approve an amalgamation of the amalgamating companies on the terms that —| (a) | the shares of all but one of the amalgamating companies will be cancelled without payment or other consideration; | | (b) | the constitution of the amalgamated company will be the same as the constitution of the amalgamating company whose shares are not cancelled; | | (c) | the directors of every amalgamating company are satisfied that the amalgamated company will be able to pay its debts as they fall due as at the date on which the amalgamation is to become effective; and | | (d) | the person or persons named in each resolution will be the director or directors of the amalgamated company. [36/2014] |
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| (3) The directors of each amalgamating company must, not less than 21 days before the general meeting mentioned in subsection (1) or (2) (as the case may be) give written notice of the proposed amalgamation to every secured creditor of the amalgamating company. |
| (4) The resolution mentioned in subsection (1) or (2) (as the case may be) is deemed to be an amalgamation proposal that has been approved. |
| (5) The board of directors of each amalgamating company must, before the commencement of the general meeting mentioned in subsection (1) or (2) (as the case may be), make a solvency statement in relation to the amalgamated company in accordance with section 215J. [36/2014] |
(6) Every director who votes in favour of the making of the solvency statement mentioned in subsection (5) must sign a declaration stating —| (a) | that, in the director’s opinion, the conditions specified in section 215J(1)(a) and (b) are satisfied; and | | (b) | the grounds for that opinion. |
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| (7) Any director who contravenes subsection (6) shall be guilty of an offence. |
| (8) A cancellation of shares under this section is not deemed to be a reduction of share capital within the meaning of this Act. |
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| Registration of amalgamation |
215E.—(1) For the purpose of effecting an amalgamation, the following documents must be filed with the Registrar, in the prescribed form with such particulars as may be required in the form, together with payment of the prescribed fee:| (a) | the amalgamation proposal that has been approved; | | (aa) | any solvency statement made under section 215C(2) or 215D(5), as the case may be; | | (b) | any declaration required under section 215C(3) or 215D(6), as the case may be; | | (c) | a declaration signed by the directors of each amalgamating company stating that the amalgamation has been approved in accordance with this Act and the constitution of the amalgamating company; | | (d) | where the amalgamated company is a new company or the amalgamation proposal provides for a change of the name of the amalgamated company, a copy of any notice or other documentary evidence that the name which it is proposed to be registered or the proposed new name (as the case may be) has been reserved under section 27(12B); | | (e) | a declaration signed by the directors, or proposed directors, of the amalgamated company stating that, where the proportion of the claims of the creditors of the amalgamated company in relation to the value of the assets of the amalgamated company is greater than the proportion of the claims of the creditors of an amalgamating company in relation to the value of the assets of the amalgamating company, no creditor will be prejudiced by that fact. [36/2014] |
(2) Where the amalgamated company is a new company —| (a) | section 19(1)(a) and (c) is deemed to have been complied with if, and only if, subsection (1) has been complied with; and | | (b) | the reference to a person named in the constitution as a director or the secretary of the proposed company in section 19(2)(b) includes a reference to a proposed director of the amalgamated company. [36/2014] |
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| Notice of amalgamation, etc. |
215F.—(1) Upon the receipt of the relevant documents and fees, the Registrar must —| (a) | if the amalgamated company is the same as one of the amalgamating companies — issue a notice of amalgamation in such form as the Registrar may determine; or | | (b) | if the amalgamated company is a new company — issue a notice of amalgamation in such form as the Registrar may determine together with the notice of incorporation under section 19(4). |
| (2) Where an amalgamation proposal specifies a date on which the amalgamation is intended to become effective, and that date is the same as or later than the date on which the Registrar receives the relevant documents and fees mentioned in subsection (1), the notice of amalgamation and any notice of incorporation issued by the Registrar must be expressed to have effect on the date specified in the amalgamation proposal. |
| (3) The Registrar must, as soon as practicable after the effective date of an amalgamation, remove the amalgamating companies, other than the amalgamated company, from the register. |
| (4) Upon the application of the amalgamated company and payment of the prescribed fee, the Registrar must issue to the amalgamated company a certificate of confirmation of amalgamation. [36/2014] |
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215G. On the date shown in a notice of amalgamation —| (a) | the amalgamation is effective; | | (b) | the amalgamated company has the name specified in the amalgamation proposal; | | (c) | all the property, rights and privileges of each of the amalgamating companies are transferred to and vest in the amalgamated company; | | (d) | all the liabilities and obligations of each of the amalgamating companies are transferred to and become the liabilities and obligations of the amalgamated company; | | (e) | all proceedings pending by or against any amalgamating company may be continued by or against the amalgamated company; | | (f) | any conviction, ruling, order or judgment in favour of or against an amalgamating company may be enforced by or against the amalgamated company; and | | (g) | the shares and rights of the members in the amalgamating companies are converted into the shares and rights provided for in the amalgamation proposal. |
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| Power of Court in certain cases |
215H.—(1) If the Court is satisfied that giving effect to an amalgamation proposal would unfairly prejudice a member or creditor of an amalgamating company or a person to whom an amalgamating company is under an obligation, it may, on the application of that person made at any time before the date on which the amalgamation becomes effective, make any order it thinks fit in relation to the amalgamation proposal, and may, without limiting the generality of this subsection, make an order —| (a) | directing that effect must not be given to the amalgamation proposal; | | (b) | modifying the amalgamation proposal in such manner as may be specified in the order; or | | (c) | directing the amalgamating company or its board of directors to reconsider the amalgamation proposal or any part thereof. |
| (2) An order may be made under subsection (1) on such terms or conditions as the Court thinks fit. |
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| Solvency statement in relation to amalgamating company and offence for making false statement |
215I.—(1) For the purposes of section 215C(2)(b), “solvency statement”, in relation to an amalgamating company, means a statement by the board of directors of the amalgamating company that it has formed the opinion —| (a) | that, as regards the amalgamating company’s situation at the date of the statement, there is no ground on which the amalgamating company could then be found to be unable to pay its debts; and | | (b) | that, at the date of the statement, the value of the amalgamating company’s assets is not less than the value of its liabilities (including contingent liabilities), |
| being a statement which complies with subsection (2). |
(2) The solvency statement —| (a) | if the amalgamating company is exempt from audit requirements under section 205B or 205C, must be in the form of a written declaration; or | | (b) | if the amalgamating company is not such a company, must be in the form of a written declaration or must be accompanied by a report from its auditor that the auditor has inquired into the affairs of the amalgamating company and is of the opinion that the statement is not unreasonable given all the circumstances. [36/2014] |
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| (3) In forming an opinion for the purposes of subsection (1)(a) and (b), the directors must take into account all liabilities of the amalgamating company (including contingent liabilities). |
(4) In determining, for the purposes of subsection (1)(b), whether the value of the amalgamating company’s assets is or will become less than the value of its liabilities (including contingent liabilities), the board of directors of the amalgamating company —| (a) | must have regard to —| (i) | the most recent financial statements of the amalgamating company that comply with section 201(2) and (5), as the case may be; and | | (ii) | all other circumstances that the directors know or ought to know affect, or may affect, the value of the amalgamating company’s assets and the value of the amalgamating company’s liabilities (including contingent liabilities); and |
| | (b) | may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances. [36/2014] |
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(5) In determining, for the purposes of subsection (4), the value of a contingent liability, the board of directors of the amalgamating company may take into account —| (a) | the likelihood of the contingency occurring; and | | (b) | any claim the amalgamating company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability. |
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| (6) Any director of an amalgamating company who votes in favour of or otherwise causes a solvency statement under this section to be made without having reasonable grounds for the opinions expressed in it shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 3 years or to both. |
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| Solvency statement in relation to amalgamated company and offence for making false statement |
215J.—(1) In sections 215C(2)(c) and 215D(5), “solvency statement”, in relation to an amalgamated company, means a written declaration by the board of directors of each amalgamating company that it has formed the opinion —| (a) | that the amalgamated company will be able to pay its debts as they fall due as at the date on which the amalgamation is to become effective; and | | (b) | that the value of the amalgamated company’s assets will not be less than the value of its liabilities (including contingent liabilities). [36/2014] |
| (2) In forming an opinion for the purposes of subsection (1)(a) and (b), the directors must take into account all liabilities of the amalgamated company (including contingent liabilities). |
(3) In determining, for the purposes of subsection (1)(b), whether the value of the amalgamated company’s assets will become less than the value of its liabilities (including contingent liabilities), the board of directors of each amalgamating company —| (a) | must have regard to —| (i) | the most recent financial statements of the amalgamating company and the other amalgamating companies that comply with section 201(2) and (5), as the case may be; and | | (ii) | all other circumstances that the directors know or ought to know affect, or may affect, the value of the amalgamated company’s assets and the value of the amalgamated company’s liabilities (including contingent liabilities); and |
| | (b) | may rely on valuations of assets or estimates of liabilities that are reasonable in the circumstances. [36/2014] |
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(4) In determining, for the purposes of subsection (3), the value of a contingent liability, the board of directors of each amalgamating company may take into account —| (a) | the likelihood of the contingency occurring; and | | (b) | any claim the amalgamated company is entitled to make and can reasonably expect to be met to reduce or extinguish the contingent liability. |
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| (5) Any director of an amalgamating company who votes in favour of or otherwise causes a solvency statement under this section to be made without having reasonable grounds for the opinions expressed in it shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 3 years or to both. |
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| Transfer of money or other consideration paid under terms of amalgamation to Official Receiver |
| 215K.—(1) Where the terms of any amalgamation proposal that is approved under section 215C, or is deemed to be approved under section 215D, provide for any money or other consideration to be held by or on behalf of any party to the amalgamation in trust for any person, the person 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] (2) The Official Receiver must —| (a) | deal with any moneys received under subsection (1) 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 (1) 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] |
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| Personal remedies in cases of oppression or injustice |
216.—(1) Any member or holder of a debenture of a company or, in the case of a declared company under Part 9, the Minister, may apply to the Court for an order under this section on the ground —| (a) | that the affairs of the company are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more of the members or holders of debentures including the applicant or in disregard of his, her or their interests as members, shareholders or holders of debentures of the company; or | | (b) | that some act of the company has been done or is threatened or that some resolution of the members, holders of debentures or any class of them has been passed or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or holders of debentures (including the applicant). |
(2) If on such application the Court is of the opinion that either of such grounds is established the Court may, with a view to bringing to an end or remedying the matters complained of, make such order as it thinks fit and, without limiting the foregoing, the order may —| (a) | direct or prohibit any act or cancel or vary any transaction or resolution; | | (b) | regulate the conduct of the affairs of the company in future; | | (c) | authorise civil proceedings to be brought in the name of or on behalf of the company by such person or persons and on such terms as the Court may direct; | | (d) | provide for the purchase of the shares or debentures of the company by other members or holders of debentures of the company or by the company itself; | | (e) | in the case of a purchase of shares by the company provide for a reduction accordingly of the company’s capital; or | | (f) | provide that the company be wound up. |
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| (3) Where an order that the company be wound up is made pursuant to subsection (2)(f), the provisions of the Insolvency, Restructuring and Dissolution Act 2018 relating to the winding up of a company apply, with such adaptations as are necessary, as if the order had been made upon an application duly made to the Court by the company. [40/2018] |
| (4) Where an order under this section makes any alteration in or addition to any company’s constitution, then, despite anything in any other provision of this Act, but subject to the provisions of the order, the company concerned does not have power, without the permission of the Court, to make any further alteration in or addition to the constitution inconsistent with the provisions of the order; but subject to the foregoing provisions of this subsection the alterations or additions made by the order are of the same effect as if duly made by resolution of the company. [36/2014] [Act 25 of 2021 wef 01/04/2022] |
| (5) A copy of any order made under this section must be lodged by the applicant with the Registrar within 14 days after the making of the order. |
| (6) Any person who fails to comply with subsection (5) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 and also to a default penalty. |
| (7) This section applies to a person who is not a member of a company but to whom shares in the company have been transmitted by operation of law as it applies to members of a company; and references to a member or members are to be construed accordingly. |
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| Derivative or representative actions |
216A.—(1) In this section and section 216B, “complainant” means —| (a) | any member of a company; | | (b) | the Minister, in the case of a declared company under Part 9; or | | (c) | any other person who, in the discretion of the Court, is a proper person to make an application under this section. [36/2014] |
| (2) Subject to subsection (3), a complainant may apply to the Court for permission to bring an action or arbitration in the name and on behalf of the company or intervene in an action or arbitration to which the company is a party for the purpose of prosecuting, defending or discontinuing the action or arbitration on behalf of the company. [36/2014] [Act 25 of 2021 wef 01/04/2022] |
(3) No action or arbitration may be brought and no intervention in an action or arbitration may be made under subsection (2) unless the Court is satisfied that —| (a) | the complainant has given 14 days’ notice to the directors of the company of the complainant’s intention to apply to the Court under subsection (2) if the directors of the company do not bring, diligently prosecute or defend or discontinue the action or arbitration; | | (b) | the complainant is acting in good faith; and | | (c) | it appears to be prima facie in the interests of the company that the action or arbitration be brought, prosecuted, defended or discontinued. [36/2014] |
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| (4) Where a complainant on an application can establish to the satisfaction of the Court that it is not expedient to give notice as required in subsection (3)(a), the Court may make such interim order as it thinks fit pending the complainant giving notice as required. |
(5) In granting permission under this section, the Court may make such orders or interim orders as it thinks fit in the interests of justice, including (but not limited to) the following:| (a) | an order authorising the complainant or any other person to control the conduct of the action or arbitration; | | (b) | an order giving directions for the conduct of the action or arbitration by the person so authorised; | | (c) | an order requiring the company to pay reasonable legal fees and disbursements incurred by the complainant in connection with the action or arbitration. [36/2014] [Act 25 of 2021 wef 01/04/2022] |
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| (6) Where the action has been commenced or is to be brought in the State Courts, an application for permission under subsection (2) must be made in a District Court. [5/2014] [Act 25 of 2021 wef 01/04/2022] |
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| Evidence of shareholders’ approval not decisive — Court approval to discontinue action under section 216A |
216B.—(1) An application made or an action brought or intervened in under section 216A must not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the company has been or may be approved by the members of the company, but evidence of approval by the members may be taken into account by the Court in making an order under section 216A.| (2) An application made or an action brought or intervened in under section 216A must not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the Court given upon such terms as the Court thinks fit and, if the Court determines that the interest of any complainant may be substantially affected by such stay, discontinuance, settlement or dismissal, the Court may order any party to the application or action to give notice to the complainant. |
| (3) In an application made or an action brought or intervened in under section 216A, the Court may at any time order the company to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be accountable for such interim costs upon final disposition of the application or action. |
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