| Company Law Reform Bill [Lords] - continued | House of Commons |
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Joint offers Margaret Hodge NC365 To move the following Clause:— ‘(1) In the case of a takeover offer made by two or more persons jointly, this Chapter has effect as follows. (2) The conditions for the exercise of the rights conferred by section (Right of offeror to buy out minority shareholder) are satisfied— (a) in the case of 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 unconditionally contracting to acquire the necessary shares either jointly or separately. (3) The conditions for the exercise of the rights conferred by section (Right of minority shareholder to be bought out by offeror) are satisfied— (a) in the case of 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 unconditionally or subject to conditions being met) to acquire the necessary shares either jointly or separately. (4) Subject to the following provisions, the rights and obligations of the offeror under sections (Right of offeror to buy out minority shareholder) to (Effect of requirement under section (Right of minority shareholder to be bought out by offeror)) are respectively joint rights and joint and several obligations of the joint offerors. (5) A provision of sections (Right of offeror to buy out minority shareholder) to (Applications to the court) that requires or authorises a notice or other document to be given or sent by or to the joint offerors is complied with if the notice or document is given or sent by or to any of them (but see subsection (6)). (6) The statutory declaration required by section (Further provision about notices given under section (Right of offeror to buy out minority shareholder))(4) must be made by all of the joint offerors and, where one or more of them is a company, signed by a director of the company. (7) In sections (Meaning of “takeover offer”) to (Shares to which an offer relates), (Right of offeror to buy out minority shareholder)(9), (Effect of notice under section (Right of offeror to buy out minority shareholder))(6), (Right of minority shareholder to be bought out by offeror)(8) and (Associates) references to the offeror are to be read as references to the joint offerors or any of them. (8) In section (Effect of notice under section (Right of offeror to buy out minority shareholder))(7) and (8) references to the offeror are to be read as references to the joint offerors or such of them as they may determine. (9) In sections (Effect of notice under section (Right of offeror to buy out minority shareholder))(5)(a) and (Effect of requirement under section (Right of minority shareholder to be bought out by offeror))(5)(a) references to the offeror being no longer able to provide the relevant consideration are to be read as references to none of the joint offerors being able to do so. (10) In section (Applications to the court) references to the offeror are to be read as references to the joint offerors, except that— (a) an application under subsection (3) or (9) may be made by any of them, and (b) the reference in subsection (9)(a) to the offeror having been unable to trace one or more of the persons holding shares is to be read as a reference to none of the offerors having been able to do so.’. Associates Margaret Hodge NC366 To move the following Clause:— ‘(1) In this Chapter “associate”, in relation to an offeror, means— (a) a nominee of the offeror, (b) a holding company, subsidiary or fellow subsidiary of the offeror or a nominee of such a holding company, subsidiary or fellow subsidiary, (c) a body corporate in which the offeror is substantially interested, (d) a person who is, or is a nominee of, a party to a share acquisition agreement with the offeror, or (e) (where the offeror is an individual) his spouse or civil partner and any minor child or step-child of his. (2) For the purposes of subsection (1)(b) a company is a fellow subsidiary of another body corporate if both are subsidiaries of the same body corporate but neither is a subsidiary of the other. (3) For the purposes of subsection (1)(c) an offeror has a substantial interest in a body corporate if— (a) the body or its directors are accustomed to act in accordance with his directions or instructions, or (b) he is entitled to exercise or control the exercise of one-third or more of the voting power at general meetings of the body. Subsections (2) and (3) of section 630 (which contain provision about when a person is treated as entitled to exercise or control the exercise of voting power) apply for the purposes of this subsection as they apply for the purposes of that section. (4) For the purposes of subsection (1)(d) an agreement is a share acquisition agreement if— (a) it is an agreement for the acquisition of, or of an interest in, shares to which the offer relates, (b) it includes provisions imposing obligations or restrictions on any one or more of the parties to it with respect to their use, retention or disposal of such shares, or their interests in such shares, acquired in pursuance of the agreement (whether or not together with any other shares to which the offer relates or any other interests of theirs in such shares), and (c) it is not an excluded agreement (see subsection (5)). (5) An agreement is an “excluded agreement”— (a) if it is not legally binding, unless it involves mutuality in the undertakings, expectations or understandings of the parties to it, or (b) if it is an agreement to underwrite or sub-underwrite an offer of shares in the company, provided the agreement is confined to that purpose and any matters incidental to it. (6) The reference in subsection (4)(b) to the use of interests in shares is to the exercise of any rights or of any control or influence arising from those interests (including the right to enter into an agreement for the exercise, or for control of the exercise, of any of those rights by another person). (7) In this section— (a) “agreement” includes any agreement or arrangement; (b) references to provisions of an agreement include— (i) undertakings, expectations or understandings operative under an arrangement, and (ii) any provision whether express or implied and whether absolute or not.’. Convertible securities Margaret Hodge NC367 To move the following Clause:— ‘(1) For the purposes of this Chapter securities of a company are treated as shares in the company if they are convertible into or entitle the holder to subscribe for such shares. References to the holder of shares or a shareholder are to be read accordingly. (2) Subsection (1) is not 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.’. Debentures carrying voting rights Margaret Hodge NC368 To move the following Clause:— ‘(1) For the purposes of this Chapter debentures issued by a company to which subsection (2) applies are treated as shares in the company if they carry voting rights. (2) This subsection applies to a company that has voting shares, or debentures carrying voting rights, which are admitted to trading on a regulated market. (3) In this Chapter, in relation to debentures treated as shares by virtue of subsection (1)— (a) references to the holder of shares or a shareholder are to be read accordingly; (b) references to shares being allotted are to be read as references to debentures being issued.’. Interpretation Margaret Hodge NC369 To move the following Clause:— ‘(1) In this Chapter— “the company” means the company whose shares are the subject of a takeover offer; “date of the offer” means— (m) where the offer is published, the date of publication; (n) where the offer is not published, or where any notices of the offer are given before the date of publication, the date when notices of the offer (or the first such notices) are given; “non-voting shares” means shares that are not voting shares; “offeror” means (subject to section (Joint offers)) the person making a takeover offer; “voting rights” means rights to vote at general meetings of the company, including rights that arise only in certain circumstances; “voting shares” means shares carrying voting rights. (2) For the purposes of this Chapter a person contracts unconditionally to acquire shares if his entitlement under the 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 read accordingly.’. Offence of fraudulent trading Margaret Hodge NC370 To move the following Clause:— ‘(1) If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who is knowingly a party to the carrying on of the business in that manner commits an offence. (2) This applies whether or not the company has been, or is in the course of being, wound up. (3) A person guilty of an offence under this section is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding ten years or a fine (or both); (b) on summary conviction— (i) in England and Wales, to imprisonment for a term not exceeding twelve months or 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 a fine not exceeding the statutory maximum (or both).’. Petition by company member Margaret Hodge NC371 To move the following Clause:— ‘(1) A member of a company may apply to the court by petition for an order under this Part on the ground— (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. (2) The provisions of this Part apply to a person who is not a member of a company but to whom shares in the company have been transferred or transmitted by operation of law as they apply to a member of a company. (3) In this section, and so far as applicable for the purposes of this section in the other provisions of this Part, “company” means— (a) a company within the meaning of this Act, or (b) a company that is not such
a company but is a statutory water company within the meaning of the
Petition by Secretary of State Margaret Hodge NC372 To move the following Clause:— ‘(1) This section applies to a company in respect of which— (a) the Secretary of State has
received a report under section 437 of the (b) the Secretary of State has exercised his powers under section 447 or 448 of that Act (powers to require documents and information or to enter and search premises); (c) the Secretary of State or
the Financial Services Authority has exercised his or its powers under
Part 11 of the (d) the Secretary of State has received a report from an investigator appointed by him or the Financial Services Authority under that Part. (2) If it appears to the Secretary of State that in the case of such a company— (a) the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members, or (b) an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial, he may apply to the court by petition for an order under this Part. (3) The Secretary of State may do this in addition to, or instead of, presenting a petition for the winding up of the company. (4) In this section, and so
far as applicable for the purposes of this section in the other provisions
of this Part, “company” means any body corporate that is
liable to be wound up under the Powers of the court under this Part Margaret Hodge NC373 To move the following Clause:— ‘(1) If the court is satisfied that a petition under this Part is well founded, it may make such order as it thinks fit for giving relief in respect of the matters complained of. (2) Without prejudice to the generality of subsection (1), the court’s order may— (a) regulate the conduct of the company’s affairs in the future; (b) require the company— (i) to refrain from doing or continuing an act complained of, or (ii) to do an act that the petitioner has complained it has omitted to do; (c) authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct; (d) require the company not to make any, or any specified, alterations in its articles without the leave of the court; (e) provide for the purchase of the shares of any members of the company by other members or by the company itself and, in the case of a purchase by the company itself, the reduction of the company’s capital accordingly.’. Application of rule-making powers Margaret Hodge NC374 To move the following Clause:— ‘The power to make rules under section 411 of the Insolvency Act 1986 or Article 359 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), so far as relating to a winding-up petition, applies for the purposes of a petition under this Part.’. Copy of order affecting company’s articles to be delivered to registrar Margaret Hodge NC375 To move the following Clause:— ‘(1) Where an order of the court under this Part— (a) alters the company’s articles, or (b) gives leave for the company to make any, or any specified, alterations in its articles, the company must deliver a copy of the order to the registrar. (2) It must do so within 14 days from the making of the order or such longer period as the court may allow. (3) If a company makes default in complying with this section, an offence is committed by— (a) the company, and (b) every officer of the company who is in default. (4) 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.’. Power to strike off company not carrying on business or in operation Margaret Hodge NC376 To move the following Clause:— ‘(1) If the registrar has reasonable cause to believe that a company is not carrying on business or in operation, the registrar may send to the company by post a letter inquiring whether the company is carrying on business or in operation. (2) If the registrar does not within one month of sending the letter receive any answer to it, the registrar must within 14 days after the expiration of that month send to the company by post a registered letter referring to the first letter, and stating— (a) that no answer to it has been received, and (b) that if an answer is not received to the second letter within one month from its date, a notice will be published in the Gazette with a view to striking the company’s name off the register. (3) If the registrar— (a) receives an answer to the effect that the company is not carrying on business or in operation, or (b) does not within one month after sending the second letter receive any answer, the registrar may publish in the Gazette, and send to the company by post, a notice that at the expiration of three months from the date of the notice the name of the company mentioned in it will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved. (4) At the expiration of the time mentioned in the notice the registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register. (5) The registrar must publish notice in the Gazette of the company’s name having been struck off the register. (6) On the publication of the notice in the Gazette the company is dissolved. (7) However— (a) the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved, and (b) nothing in this section affects the power of the court to wind up a company the name of which has been struck off the register.’. Duty to act in case of company being wound up Margaret Hodge NC377 To move the following Clause:— ‘(1) If, in a case where a company is being wound up— (a) the registrar has reasonable cause to believe— (i) that no liquidator is acting, or (ii) that the affairs of the company are fully wound up, and (b) the returns required to be made by the liquidator have not been made for a period of six consecutive months, the registrar must publish in the Gazette and send to the company or the liquidator (if any) a notice that at the expiration of three months from the date of the notice the name of the company mentioned in it will, unless cause is shown to the contrary, be struck off the register and the company will be dissolved. (2) At the expiration of the time mentioned in the notice the registrar may, unless cause to the contrary is previously shown by the company, strike its name off the register. (3) The registrar must publish notice in the Gazette of the company’s name having been struck off the register. (4) On the publication of the notice in the Gazette the company is dissolved. (5) However— (a) the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved, and (b) nothing in this section affects the power of the court to wind up a company the name of which has been struck off the register.’. Supplementary provisions as to service of letter or notice Margaret Hodge NC378 To move the following Clause:— ‘(1) A letter or notice to be sent under section (Power to strike off company not carrying on business or in operation) or (Duty to act in case of company being wound up) to a company may be addressed to the company at its registered office or, if no office has been registered, to the care of some officer of the company. (2) If there is no officer of the company whose name and address are known to the registrar, the letter or notice may be sent to each of the persons who subscribed the memorandum (if their addresses are known to the registrar). (3) A notice to be sent to a liquidator under section (Duty to act in case of company being wound up) may be addressed to him at his last known place of business.’. Striking off on application by company Margaret Hodge NC379 To move the following Clause:— ‘(1) On application by a company, the registrar of companies may strike the company’s name off the register. (2) The application— (a) must be made on the company’s behalf by its directors or by a majority of them, and (b) must contain the prescribed information. (3) The registrar may not strike a company off under this section until after the expiration of three months from the publication by the registrar in the Gazette of a notice— (a) stating that the registrar may exercise the power under this section in relation to the company, and (b) inviting any person to show cause why that should not be done. (4) The registrar must publish notice in the Gazette of the company’s name having been struck off. (5) On the publication of the notice in the Gazette the company is dissolved. (6) However— (a) the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved, and (b) nothing in this section affects the power of the court to wind up a company the name of which has been struck off the register.’. |
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| © Parliamentary copyright 2006 | Prepared: 18 July 2006 |