|
| |
|
(3) | An allotment is in connection with a share exchange if— |
| |
(a) | the shares are allotted in connection with an arrangement under which |
| |
the whole or part of the consideration for the shares allotted is provided |
| |
| |
(i) | the transfer to the company allotting the shares of shares (or |
| 5 |
shares of a particular class) in another company, or |
| |
(ii) | the cancellation of shares (or shares of a particular class) in |
| |
| |
(b) | the allotment is open to all the holders of the shares of the other |
| |
company in question (or, where the arrangement applies only to shares |
| 10 |
of a particular class, to all the holders of the company’s shares of that |
| |
class) to take part in the arrangement in connection with which the |
| |
| |
(4) | In determining whether a person is a holder of shares for the purposes of |
| |
subsection (3), there shall be disregarded— |
| 15 |
(a) | shares held by, or by a nominee of, the company allotting the shares; |
| |
(b) | shares held by, or by a nominee of— |
| |
(i) | the holding company of the company allotting the shares, |
| |
(ii) | a subsidiary of the company allotting the shares, or |
| |
(iii) | a subsidiary of the holding company of the company allotting |
| 20 |
| |
(5) | It is immaterial, for the purposes of deciding whether an allotment is in |
| |
connection with a share exchange, whether or not the arrangement in |
| |
connection with which the shares are allotted involves the issue to the |
| |
company allotting the shares of shares (or shares of a particular class) in the |
| 25 |
| |
(6) | There is a proposed merger with another company if one of the companies |
| |
concerned proposes to acquire all the assets and liabilities of the other in |
| |
exchange for the issue of its shares or other securities to shareholders of the |
| |
other (whether or not accompanied by a cash payment). |
| 30 |
| “Another company” includes any body corporate. |
| |
(7) | For the purposes of this section— |
| |
(a) | the consideration for an allotment does not include any amount |
| |
standing to the credit of any of the company’s reserve accounts, or of its |
| |
profit and loss account, that has been applied in paying up (to any |
| 35 |
extent) any of the shares allotted or any premium on those shares; and |
| |
(b) | “arrangement” means any agreement, scheme or arrangement, |
| |
including an arrangement sanctioned in accordance with— |
| |
(i) | section 425 of the Companies Act 1985 (c. 6) (company |
| |
compromise with creditors and members), or |
| 40 |
(ii) | section 110 of the Insolvency Act 1986 (c. 45) or Article 96 of the |
| |
Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. |
| |
19)) (liquidator in winding up accepting shares as consideration |
| |
for sale of company’s property). |
| |
94 | Application and accompanying documents |
| 45 |
(1) | An application for re-registration as a public company must contain— |
| |
(a) | a statement of the company’s proposed name on re-registration; and |
| |
(b) | a statement of the company’s proposed secretary (see section 95). |
| |
|
| |
|
| |
|
(2) | The application must be accompanied by— |
| |
(a) | a copy of the special resolution that the company should re-register as |
| |
a public company (unless a copy has already been forwarded to the |
| |
registrar under Chapter 3 of Part 3); |
| |
(b) | a copy of the company’s articles as proposed to be amended; |
| 5 |
(c) | a copy of the balance sheet and other documents referred to in section |
| |
| |
(d) | if section 93 applies (recent allotment of shares for non-cash |
| |
consideration), a copy of the valuation report (if any) under subsection |
| |
| 10 |
(3) | The statement of compliance required to be delivered together with the |
| |
application is a statement that the requirements of this Part as to re-registration |
| |
as a public company have been complied with. |
| |
(4) | The registrar may accept the statement of compliance as sufficient evidence |
| |
that the company is entitled to be re-registered as a public company. |
| 15 |
95 | Statement of proposed secretary |
| |
(1) | The statement of the company’s proposed secretary must contain the required |
| |
particulars of the person who is or the persons who are to be (or continue to be) |
| |
the secretary or joint secretaries of the company. |
| |
(2) | The required particulars are the particulars that will be required to be stated in |
| 20 |
the company’s register of secretaries (see sections 260 to 262). |
| |
(3) | The statement must also contain a consent by the person named as secretary, |
| |
or each of the persons named as joint secretaries, to act in the relevant capacity. |
| |
| If all the partners in a firm are to be joint secretaries, consent may be given by |
| |
one partner on behalf of all of them. |
| 25 |
96 | Issue of certificate of incorporation on re-registration |
| |
(1) | If on an application for re-registration as a public company the registrar is |
| |
satisfied that the company is entitled to be so re-registered, the company shall |
| |
be re-registered accordingly. |
| |
(2) | The registrar must issue a certificate of incorporation altered to meet the |
| 30 |
circumstances of the case. |
| |
(3) | The certificate must state that it is issued on re-registration and the date on |
| |
| |
(4) | On the issue of the certificate— |
| |
(a) | the company by virtue of the issue of the certificate becomes a public |
| 35 |
| |
(b) | the changes in the company’s name and articles take effect, and |
| |
(c) | the person or persons named in the statement under section 95 |
| |
(statement of proposed secretary) as secretary or joint secretary of the |
| |
company are deemed to have been appointed to that office. |
| 40 |
(5) | The certificate is conclusive evidence that the requirements of this Act as to re- |
| |
registration have been complied with. |
| |
|
| |
|
| |
|
Public company becoming private |
| |
97 | Re-registration of public company as private limited company |
| |
(1) | A public company may be re-registered as a private limited company if— |
| |
(a) | a special resolution that it should be so re-registered is passed, |
| |
(b) | the conditions specified below are met, and |
| 5 |
(c) | an application for re-registration is delivered to the registrar in |
| |
accordance with section 100, together with— |
| |
(i) | the other documents required by that section, and |
| |
(ii) | a statement of compliance. |
| |
(2) | The conditions are that— |
| 10 |
(a) | where no application under section 98 for cancellation of the resolution |
| |
| |
(i) | having regard to the number of members who consented to or |
| |
voted in favour of the resolution, no such application may be |
| |
| 15 |
(ii) | the period within which such an application could be made has |
| |
| |
(b) | where such an application has been made— |
| |
(i) | the application has been withdrawn, or |
| |
(ii) | an order has been made confirming the resolution and a copy of |
| 20 |
that order has been delivered to the registrar. |
| |
(3) | The company must make such changes— |
| |
| |
| |
| as are necessary in connection with its becoming a private company limited by |
| 25 |
shares or, as the case may be, by guarantee. |
| |
98 | Application to court to cancel resolution |
| |
(1) | Where a special resolution by a public company to be re-registered as a private |
| |
limited company has been passed, an application to the court for the |
| |
cancellation of the resolution may be made— |
| 30 |
(a) | by the holders of not less in the aggregate than 5% in nominal value of |
| |
the company’s issued share capital or any class of the company’s issued |
| |
share capital (disregarding any shares held by the company as treasury |
| |
| |
(b) | if the company is not limited by shares, by not less than 5% of its |
| 35 |
| |
(c) | by not less than 50 of the company’s members; |
| |
| but not by a person who has consented to or voted in favour of the resolution. |
| |
(2) | The application must be made within 28 days after the passing of the resolution |
| |
and may be made on behalf of the persons entitled to make it by such one or |
| 40 |
more of their number as they may appoint for the purpose. |
| |
(3) | On the hearing of the application the court shall make an order either |
| |
cancelling or confirming the resolution. |
| |
| |
|
| |
|
| |
|
(a) | make that order on such terms and conditions as it thinks fit, |
| |
(b) | if it thinks fit adjourn the proceedings in order that an arrangement |
| |
may be made to the satisfaction of the court for the purchase of the |
| |
interests of dissentient members, and |
| |
(c) | give such directions, and make such orders, as it thinks expedient for |
| 5 |
facilitating or carrying into effect any such arrangement. |
| |
(5) | The court’s order may, if the court thinks fit— |
| |
(a) | provide for the purchase by the company of the shares of any of its |
| |
members and for the reduction accordingly of the company’s capital; |
| |
| 10 |
(b) | make such alteration in the company’s articles as may be required in |
| |
consequence of that provision. |
| |
(6) | The court’s order may, if the court thinks fit, require the company not to make |
| |
any, or any specified, alterations in its articles without the leave of the court. |
| |
99 | Notice to registrar of court application or order |
| 15 |
(1) | On making an application under section 98 (application to court to cancel |
| |
resolution) the applicants, or the person making the application on their behalf, |
| |
must immediately give notice to the registrar. |
| |
| This is without prejudice to any provision of rules of court as to service of |
| |
notice of the application. |
| 20 |
(2) | On being served with notice of any such application, the company must |
| |
immediately give notice to the registrar. |
| |
(3) | Within 15 days of the making of the court’s order on the application, or such |
| |
longer period as the court may at any time direct, the company must deliver to |
| |
the registrar a copy of the order. |
| 25 |
(4) | If a company fails to comply with subsection (2) or (3) an offence is committed |
| |
| |
| |
(b) | every officer of the company who is in default. |
| |
(5) | A person guilty of an offence under this section is liable on summary |
| 30 |
conviction to a fine not exceeding level 3 on the standard scale and, for |
| |
continued contravention, a daily default fine not exceeding one-tenth of level |
| |
| |
100 | Application and accompanying documents |
| |
(1) | An application for re-registration as a private limited company must contain a |
| 35 |
statement of the company’s proposed name on re-registration. |
| |
(2) | The application must be accompanied by— |
| |
(a) | a copy of the resolution that the company should re-register as a private |
| |
limited company (unless a copy has already been forwarded to the |
| |
registrar under Chapter 3 of Part 3); and |
| 40 |
(b) | a copy of the company’s articles as proposed to be amended. |
| |
(3) | The statement of compliance required to be delivered together with the |
| |
application is a statement that the requirements of this Part as to re-registration |
| |
as a private limited company have been complied with. |
| |
|
| |
|
| |
|
(4) | The registrar may accept the statement of compliance as sufficient evidence |
| |
that the company is entitled to be re-registered as a private limited company. |
| |
101 | Issue of certificate of incorporation on re-registration |
| |
(1) | If on an application for re-registration as a private limited company the |
| |
registrar is satisfied that the company is entitled to be so re-registered, the |
| 5 |
company shall be re-registered accordingly. |
| |
(2) | The registrar must issue a certificate of incorporation altered to meet the |
| |
circumstances of the case. |
| |
(3) | The certificate must state that it is issued on re-registration and the date on |
| |
| 10 |
(4) | On the issue of the certificate— |
| |
(a) | the company by virtue of the issue of the certificate becomes a private |
| |
| |
(b) | the changes in the company’s name and articles take effect. |
| |
(5) | The certificate is conclusive evidence that the requirements of this Act as to re- |
| 15 |
registration have been complied with. |
| |
Private limited company becoming unlimited |
| |
102 | Re-registration of private limited company as unlimited |
| |
(1) | A private limited company may be re-registered as an unlimited company if— |
| |
(a) | all the members of the company have assented to its being so re- |
| 20 |
| |
(b) | the condition specified below is met, and |
| |
(c) | an application for re-registration is delivered to the registrar in |
| |
accordance with section 103, together with— |
| |
(i) | the other documents required by that section, and |
| 25 |
(ii) | a statement of compliance. |
| |
(2) | The condition is that the company has not previously been re-registered as |
| |
| |
(3) | The company must make such changes in its name and its articles— |
| |
(a) | as are necessary in connection with its becoming an unlimited |
| 30 |
| |
(b) | if it is to have a share capital, as are necessary in connection with its |
| |
becoming an unlimited company having a share capital. |
| |
(4) | For the purposes of this section— |
| |
(a) | a trustee in bankruptcy of a member of the company is entitled, to the |
| 35 |
exclusion of the member, to assent to the company’s becoming |
| |
| |
(b) | the personal representative of a deceased member of the company may |
| |
assent on behalf of the deceased. |
| |
(5) | In subsection (4)(a), “a trustee in bankruptcy of a member of the company” |
| 40 |
| |
|
| |
|
| |
|
(a) | a permanent trustee or an interim trustee (within the meaning of the |
| |
Bankruptcy (Scotland) Act 1985 (c. 66)) on the sequestrated estate of a |
| |
| |
(b) | a trustee under a protected trustee deed (within the meaning of the |
| |
Bankruptcy (Scotland) Act 1985) granted by a member of the company. |
| 5 |
103 | Application and accompanying documents |
| |
(1) | An application for re-registration as an unlimited company must contain a |
| |
statement of the company’s proposed name on re-registration. |
| |
(2) | The application must be accompanied by— |
| |
(a) | the prescribed form of assent to the company’s being registered as an |
| 10 |
unlimited company, authenticated by or on behalf of all the members |
| |
| |
(b) | a copy of the company’s articles as proposed to be amended. |
| |
(3) | The statement of compliance required to be delivered together with the |
| |
application is a statement that the requirements of this Part as to re-registration |
| 15 |
as an unlimited company have been complied with. |
| |
(4) | The statement must contain a statement by the directors of the company— |
| |
(a) | that the persons by whom or on whose behalf the form of assent is |
| |
authenticated constitute the whole membership of the company, and |
| |
(b) | if any of the members have not authenticated that form themselves, that |
| 20 |
the directors have taken all reasonable steps to satisfy themselves that |
| |
each person who authenticated it on behalf of a member was lawfully |
| |
| |
(5) | The registrar may accept the statement of compliance as sufficient evidence |
| |
that the company is entitled to be re-registered as an unlimited company. |
| 25 |
104 | Issue of certificate of incorporation on re-registration |
| |
(1) | If on an application for re-registration of a private limited company as an |
| |
unlimited company the registrar is satisfied that the company is entitled to be |
| |
so re-registered, the company shall be re-registered accordingly. |
| |
(2) | The registrar must issue a certificate of incorporation altered to meet the |
| 30 |
circumstances of the case. |
| |
(3) | The certificate must state that it is issued on re-registration and the date on |
| |
| |
(4) | On the issue of the certificate— |
| |
(a) | the company by virtue of the issue of the certificate becomes an |
| 35 |
| |
(b) | the changes in the company’s name and articles take effect. |
| |
(5) | The certificate is conclusive evidence that the requirements of this Act as to re- |
| |
registration have been complied with. |
| |
|
| |
|