|
| |
| |
| |
“(3) | Within one month of the time specified in subsection (1B), (1C) or (2), |
| |
as the case may be, the offeror shall give any shareholder who has |
| |
not accepted the offer notice in the prescribed manner of— |
| |
(a) | the rights that are exercisable by the shareholder under that |
| 5 |
| |
(b) | the period within which the rights are exercisable; |
| |
| and if the notice is given before the end of the period within which |
| |
the offer can be accepted, it shall state that the offer is still open for |
| |
| 10 |
(6) | After that subsection insert— |
| |
“(3A) | Subsection (3B) applies where— |
| |
(a) | a shareholder exercises rights conferred on him by subsection |
| |
| |
(b) | at the time when he does so, there are shares in the company |
| 15 |
which the offeror has contracted to acquire subject to |
| |
conditions being met, and in relation to which the contract |
| |
has not become unconditional; and |
| |
(c) | the requirement imposed by subsection (1B)(b), (1C)(b) or |
| |
(2)(b) (as the case may be) would not be satisfied if those |
| 20 |
shares were not taken into account. |
| |
(3B) | The shareholder shall be treated for the purposes of section 430B as |
| |
not having exercised his rights under this section unless the |
| |
requirement imposed by paragraph (b) of subsection (1B), (1C) or (2) |
| |
(as the case may be) would be satisfied if— |
| 25 |
(a) | the reference in that paragraph to other shares in the |
| |
company which the offeror has contracted to acquire |
| |
unconditionally or subject to conditions being met were a |
| |
reference to such shares which he has unconditionally |
| |
contracted to acquire; and |
| 30 |
(b) | the reference in that subsection to the period within which |
| |
the offer can be accepted were a reference to the period |
| |
referred to in subsection (2C).”. |
| |
(7) | Subsection (4) (period during which shareholder’s rights exercisable) is |
| |
| 35 |
Section 430B: effect of notice under section 430A |
| |
5 (1) | Section 430B of the Companies Act 1985 (c. 6) is amended as follows. |
| |
(2) | After subsection (3) (choice of consideration) insert— |
| |
“(3A) | Subsection (3) applies whether or not any time-limit or other |
| |
conditions applicable to the choice under the terms of the offer can |
| 40 |
still be complied with.”. |
| |
(3) | In subsection (4) (consideration taken to be cash equivalent)— |
| |
(a) | for the words before paragraph (a) substitute “If the consideration |
| |
offered to or (as the case may be) chosen by the holder of the shares”; |
| |
(b) | for “the chosen consideration” substitute “the consideration offered |
| 45 |
or (as the case may be) chosen”. |
| |
| |
| |
|
| |
| |
Section 430C: applications to the court |
| |
6 (1) | Section 430C of the Companies Act 1985 (c. 6) is amended as follows. |
| |
(2) | After subsection (3) insert— |
| |
“(3A) | On an application under subsection (1) or (3)— |
| |
(a) | the court shall not require consideration of a higher value |
| 5 |
than that specified in the terms of the offer (“the offer value”) |
| |
to be given for the shares to which the application relates |
| |
unless the holder of the shares shows that the offer value |
| |
| |
(b) | the court shall not require consideration of a lower value than |
| 10 |
the offer value to be given for the shares.”. |
| |
(3) | In subsection (5) (power of court to authorise notice under section 429 where |
| |
offer not accepted to necessary extent because shareholders untraceable)— |
| |
(a) | for “subsection (1) or (2)” substitute “subsection (1A) or (2A)”; |
| |
(b) | for paragraph (b) substitute— |
| 15 |
“(b) | that the requirements of that subsection would have |
| |
been met if the person, or all the persons, mentioned |
| |
in paragraph (a) above had accepted the offer; and”. |
| |
(4) | After that subsection insert— |
| |
“(6) | A holder of shares who has made an application under subsection (1) |
| 20 |
or (3) shall give notice of the application to the offeror. |
| |
(7) | An offeror who is given notice of an application under subsection (1) |
| |
or (3) shall give a copy of the notice to— |
| |
(a) | any person (other than the applicant) to whom a notice has |
| |
been given under section 429; |
| 25 |
(b) | any person who has exercised his rights under section 430A. |
| |
(8) | An offeror who makes an application under subsection (3) shall give |
| |
notice of the application to— |
| |
(a) | any person to whom a notice has been given under section |
| |
| 30 |
(b) | any person who has exercised his rights under section |
| |
| |
Section 430D: joint offers |
| |
7 (1) | Section 430D of the Companies Act 1985 is amended as follows. |
| |
(2) | For subsection (2) substitute— |
| 35 |
“(2) | The conditions for the exercise of the rights conferred by section 429 |
| |
shall be satisfied by the joint offerors acquiring or unconditionally |
| |
contracting to acquire the necessary shares jointly (as respects |
| |
acquisitions by virtue of acceptances of the offer) and either jointly or |
| |
separately (in other cases). |
| 40 |
(2A) | The conditions for the exercise of the rights conferred by section |
| |
| |
| |
| |
|
| |
| |
(a) | as respects acquisitions by virtue of acceptances of the offer, |
| |
by the joint offerors acquiring or unconditionally contracting |
| |
to acquire the necessary shares jointly; |
| |
(b) | in other cases, by the joint offerors acquiring or contracting |
| |
(whether conditionally or subject to conditions being met) to |
| 5 |
acquire the necessary shares either jointly or separately. |
| |
(2B) | Subject to the following provisions, the rights and obligations of the |
| |
offeror under sections 429 to 430B shall be respectively joint rights |
| |
and joint and several obligations of the joint offerors.”. |
| |
(3) | In subsection (3) (notices etc may be given by or to any one of joint offerors), |
| 10 |
for “those sections” substitute “sections 429 to 430C”. |
| |
| |
8 (1) | Section 430E of the Companies Act 1985 (c. 6) is amended as follows. |
| |
(2) | In subsection (1) (takeover offer need not include associates’ shares), for “the |
| |
time when the offer is made” substitute “the date of the offer”. |
| 15 |
(3) | After that subsection insert— |
| |
“(1A) | In subsection (1) “contracted” means contracted unconditionally or |
| |
subject to conditions being met.”. |
| |
(4) | In subsection (2) (shares acquired etc by associates of offeror: section |
| |
| 20 |
(a) | for “the period within which a takeover offer can be accepted” |
| |
substitute “the period mentioned in subsection (8) of section 429”; |
| |
(b) | before “contracts” insert “unconditionally”; |
| |
(c) | for “subsection (8)(a) or (b) of section 429” substitute “paragraph (a) |
| |
or (b) of subsection (8A) of that section”. |
| 25 |
(5) | In subsection (3) (shares acquired etc by associates of offeror: section 430A), |
| |
for “In section 430A(1)(b) and (2)(b) the reference” substitute “A reference in |
| |
section 429(3B) or section 430A(1B)(b), (1C)(b), (2)(b), (3A) or (3B)”. |
| |
| |
9 | After section 430F of the Companies Act 1985 insert— |
| 30 |
“430G | Debentures carrying voting rights |
| |
(1) | For the purposes of this Part of this Act debentures issued by a |
| |
company to which subsection (2) applies shall be treated as shares in |
| |
the company if they carry voting rights. |
| |
(2) | This subsection applies to a company that has voting shares, or |
| 35 |
debentures carrying voting rights, which are admitted to trading on |
| |
| |
(3) | In this Part of this Act, in relation to debentures treated as shares by |
| |
virtue of subsection (1)— |
| |
(a) | references to the holder of shares or a shareholder shall be |
| 40 |
| |
(b) | references to shares being allotted shall be construed as |
| |
references to debentures being issued. |
| |
| |
| |
|
| |
| |
| |
(1) | In this Part of this Act— |
| |
“date of the offer” has the meaning given by section 428(6A); |
| |
“non-voting shares” means shares that are not voting shares; |
| |
“voting rights” means rights to vote at general meetings of the |
| 5 |
company, including rights that arise only in certain |
| |
| |
“voting shares” means shares carrying voting rights. |
| |
(2) | For the purposes of this Part of this Act a person contracts |
| |
unconditionally to acquire shares if his entitlement under the |
| 10 |
contract to acquire them is not (or is no longer) subject to conditions |
| |
or if all conditions to which it was subject have been met. |
| |
| A reference to a contract becoming unconditional is to be construed |
| |
| |
| 15 |
| |
Amendments of remaining provisions of the Companies Act 1985 relating to |
| |
| |
Misleading, false or deceptive statement in connection with valuation of non-cash |
| |
| |
1 | In section 110 of the Companies Act 1985 (entitlement of valuer to full |
| 20 |
disclosure), for subsections (2) and (3) substitute— |
| |
“(2) | A person who knowingly or recklessly makes a statement to which |
| |
this subsection applies that is misleading, false or deceptive in a |
| |
material particular commits an offence. |
| |
(3) | Subsection (2) applies to a statement— |
| 25 |
(a) | made (whether orally or in writing) to a person carrying out |
| |
a valuation or making a report under section 108 or 109, and |
| |
(b) | conveying or purporting to convey any information or |
| |
explanation which that person requires, or is entitled to |
| |
require, under subsection (1) above. |
| 30 |
(4) | A person guilty of an offence under subsection (2) is liable— |
| |
(a) | on conviction on indictment, to imprisonment for a term not |
| |
exceeding two years or a fine (or both); |
| |
(b) | on summary conviction— |
| |
(i) | in England and Wales, to imprisonment for a term not |
| 35 |
exceeding twelve months or to a fine not exceeding |
| |
the statutory maximum (or both); |
| |
(ii) | in Scotland or Northern Ireland, to imprisonment for |
| |
a term not exceeding six months, or to a fine not |
| |
exceeding the statutory maximum (or both).”. |
| 40 |
Valuation procedures: matters to be communicated to registrar |
| |
2 | For section 111 of the Companies Act 1985 (matters to be communicated to |
| |
| |
| |
|
| |
| |
the registrar) substitute— |
| |
“111ZA | Matters to be communicated to registrar: asset valuation report |
| |
(1) | A company to which a report is made under section 108 as to the |
| |
value of any consideration for which, or partly for which, it proposes |
| |
to allot shares must deliver a copy of the report to the registrar for |
| 5 |
| |
(2) | The copy must be delivered at the same time that the company files |
| |
the return of the allotment of those shares under section 545 of the |
| |
Company Law Reform Act 2006 (return of allotment by limited |
| |
| 10 |
(3) | If default is made in complying with subsection (1) or (2), an offence |
| |
is committed by every officer of the company who is in default. |
| |
(4) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| |
(b) | on summary conviction, to a fine not exceeding the statutory |
| 15 |
maximum and, for continued contravention, a daily default |
| |
fine not exceeding one-tenth of the statutory maximum. |
| |
(5) | In the case of default in delivering to the registrar any document as |
| |
required by this section, the company, or any person liable for the |
| |
default, may apply to the court for relief. |
| 20 |
(6) | The court, if satisfied— |
| |
(a) | that the omission to deliver the document was accidental or |
| |
| |
(b) | that it is just and equitable to grant relief, |
| |
| may make an order extending the time for delivery of the document |
| 25 |
for such period as the court thinks proper. |
| |
111ZB | Matters to be communicated to registrar: copy of resolution as to |
| |
| |
(1) | A company that has passed a resolution under section 104 with |
| |
respect to the transfer of an asset must, within 15 days of doing so, |
| 30 |
deliver to the registrar a copy of the resolution together with the |
| |
valuer’s report required by that section. |
| |
(2) | If a company fails to comply with subsection (1), an offence is |
| |
| |
| 35 |
(b) | every officer of the company who is in default. |
| |
(3) | A person guilty of an offence under this section is liable on summary |
| |
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 3 on the standard scale.”. |
| 40 |
| |
| |
|
| |
| |
Contravention of certain provisions relating to the amount to be paid for shares and means of |
| |
| |
3 | For section 114 of the Companies Act 1985 substitute— |
| |
“114 | Penalty for contravention of ss.99 to 104 and 106 |
| |
(1) | If a company contravenes any of the provisions of sections 99 to 104 |
| 5 |
and 106, an offence is committed by— |
| |
| |
(b) | every officer of the company who is in default. |
| |
(2) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| 10 |
(b) | on summary conviction, to a fine not exceeding the statutory |
| |
| |
Failure to give notice to registrar of reorganisation of share capital |
| |
4 | For section 122(2) (failure to give notice to registrar of reorganisation of |
| |
share capital) of the Companies Act 1985 substitute— |
| 15 |
“(2) | If default is made in complying with this section, an offence is |
| |
| |
| |
(b) | every officer of the company who is in default. |
| |
(3) | A person guilty of an offence under this section is liable on summary |
| 20 |
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 3 on the standard scale.”. |
| |
Failure to send registrar statement or notice of particulars of shares carrying special rights |
| |
5 | For section 128(5) of the Companies Act 1985 (c. 6) (failure to register |
| 25 |
allotment etc of shares carrying special rights) substitute— |
| |
“(5) | If a company fails to comply with this section, an offence is |
| |
| |
| |
(b) | every officer of the company who is in default. |
| 30 |
(6) | A person guilty of an offence under this section is liable on summary |
| |
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 3 on the standard scale.”. |
| |
Failure to deliver to registrar statement or notice of newly created class rights |
| 35 |
6 | For section 129(4) of the Companies Act 1985 (failure to register newly |
| |
created class rights) substitute— |
| |
“(4) | If a company fails to comply with this section, an offence is |
| |
| |
| 40 |
(b) | every officer of the company who is in default. |
| |
| |
| |
|
| |
| |
(5) | A person guilty of an offence under this section is liable on summary |
| |
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 3 on the standard scale.”. |
| |
Concealment of name of creditor entitled to object to reduction of capital, or wilful |
| 5 |
misrepresentation of nature or amount of claim, etc |
| |
7 (1) | Section 141 of the Companies Act 1985 (c. 6) (penalty for concealment or |
| |
misrepresentation of details of creditor in connection with reduction of |
| |
capital) is amended as follows. |
| |
(2) | Make the existing provision subsection (1). |
| 10 |
(3) | Omit “and liable to a fine”. |
| |
| |
“(2) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| |
(b) | on summary conviction, to a fine not exceeding the statutory |
| 15 |
| |
Director authorising or permitting non-compliance with requirement to convene company |
| |
meeting to consider serious loss of capital |
| |
8 (1) | In section 142(2) of the Companies Act 1985 (failure to convene meeting to |
| |
consider serious loss of capital) for “is liable to a fine” substitute “commits |
| 20 |
| |
(2) | After that provision insert— |
| |
“(2A) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to a fine; |
| |
(b) | on summary conviction, to a fine not exceeding the statutory |
| 25 |
| |
Unlawful acquisition by company of its own shares |
| |
9 (1) | In subsection (2) of section 143 of the Companies Act 1985 (prohibition |
| |
against acquisition by company of its own shares) omit “the company is |
| |
liable to a fine, and every officer of the company who is in default is liable to |
| 30 |
imprisonment or a fine, or both; and,”. |
| |
(2) | At the end of that section add— |
| |
“(4) | If a company purports to act in contravention of this section an |
| |
| |
| 35 |
(b) | every officer of the company who is in default. |
| |
(5) | A person guilty of an offence under this section is liable— |
| |
(a) | on conviction on indictment, to imprisonment for a term not |
| |
exceeding two years or a fine (or both); |
| |
(b) | on summary conviction— |
| 40 |
| |
| |
|
