|
|
| |
| |
|
| | (a) | the shares to which the offer relates included shares falling within |
|
| | paragraph (b) of subsection (6), and |
|
| | (b) | in relation to shares falling within that paragraph, the words “by virtue of |
|
| | acceptances of the offer” in subsection (2) or (4) were omitted. |
|
| | (8) | Where a takeover offer is made and, during the period beginning with the date of |
|
| | the offer and ending when the offer can no longer be accepted, the offeror— |
|
| | (a) | acquires or unconditionally contracts to acquire any of the shares to |
|
| | which the offer relates, but |
|
| | (b) | does not do so by virtue of acceptances of the offer, |
|
| | | then, if subsection (10) applies, the offeror is treated for the purposes of this |
|
| | section as having acquired or contracted to acquire those shares by virtue of |
|
| | acceptances of the offer. |
|
| | (9) | Where a takeover offer is made and, during the period beginning with the date of |
|
| | the offer and ending when the offer can no longer be accepted, an associate of the |
|
| | offeror acquires or unconditionally contracts to acquire any of the shares to which |
|
| | the offer relates, then, if subsection (10) applies, those shares are treated for the |
|
| | purposes of this section as shares to which the offer relates. |
|
| | (10) | This subsection applies if— |
|
| | (a) | at the time the shares are acquired or contracted to be acquired as |
|
| | mentioned in subsection (8) or (9) (as the case may be), the value of the |
|
| | consideration for which they are acquired or contracted to be acquired |
|
| | (“the acquisition consideration”) does not exceed the value of the |
|
| | consideration specified in the terms of the offer, or |
|
| | (b) | those terms are subsequently revised so that when the revision is |
|
| | announced the value of the acquisition consideration, at the time |
|
| | mentioned in paragraph (a), no longer exceeds the value of the |
|
| | consideration specified in those terms.’. |
|
| |
| | Further provision about notices given under section (Right of offeror to buy out minority |
|
| | |
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | A notice under section (Right of offeror to buy out minority shareholder) must be |
|
| | given in the prescribed manner. |
|
| | (2) | No notice may be given under section (Right of offeror to buy out minority |
|
| | shareholder)(2) or (4) after the end of— |
|
| | (a) | the period of three months beginning with the day after the last day on |
|
| | which the offer can be accepted, or |
|
| | (b) | the period of six months beginning with the date of the offer, where that |
|
| | period ends earlier and the offer is one to which subsection (3) below |
|
| | |
| | (3) | This subsection applies to an offer if the time allowed for acceptance of the offer |
|
| | is not governed by rules under section 643(1) that give effect to Article 7 of the |
|
| | |
| | | In this subsection “the Takeovers Directive” has the same meaning as in section |
|
| | |
|
|
| |
| |
|
| | (4) | At the time when the offeror first gives a notice under section (Right of offeror to |
|
| | buy out minority shareholder) in relation to an offer, he must send to the |
|
| | |
| | (a) | a copy of the notice, and |
|
| | (b) | a statutory declaration by him in the prescribed form, stating that the |
|
| | conditions for the giving of the notice are satisfied. |
|
| | (5) | Where the offeror is a company (whether or not a company within the meaning |
|
| | of this Act) the statutory declaration must be signed by a director. |
|
| | (6) | A person commits an offence if— |
|
| | (a) | he fails to send a copy of a notice or a statutory declaration as required by |
|
| | |
| | (b) | he makes such a declaration for the purposes of that subsection knowing |
|
| | it to be false or without having reasonable grounds for believing it to be |
|
| | |
| | (7) | It is a defence for a person charged with an offence for failing to send a copy of |
|
| | a notice as required by subsection (4) to prove that he took reasonable steps for |
|
| | securing compliance with that subsection. |
|
| | (8) | 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— |
|
| | (i) | in England and Wales, to imprisonment for a term not exceeding |
|
| | twelve months or to a fine not exceeding the statutory maximum |
|
| | (or both) and, for continued contravention, a daily default fine |
|
| | not exceeding one-fiftieth of the statutory maximum; |
|
| | (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) and, for continued contravention, a daily |
|
| | default fine not exceeding one-fiftieth of the statutory |
|
| | |
| |
| | Effect of notice under section (Right of offeror to buy out minority shareholder) |
|
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | Subject to section (Applications to the court), this section applies where the |
|
| | offeror gives a shareholder a notice under section (Right of offeror to buy out |
|
| | |
| | (2) | The offeror is entitled and bound to acquire the shares to which the notice relates |
|
| | on the terms of the offer. |
|
| | (3) | Where the terms of an offer are such as to give the shareholder a choice of |
|
| | consideration, the notice must give particulars of the choice and state— |
|
| | (a) | that the shareholder may, within six weeks from the date of the notice, |
|
| | indicate his choice by a written communication sent to the offeror at an |
|
| | address specified in the notice, and |
|
| | (b) | which consideration specified in the offer will apply if he does not |
|
| | |
|
|
| |
| |
|
| | | The reference in subsection (2) to the terms of the offer is to be read accordingly. |
|
| | (4) | Subsection (3) applies whether or not any time-limit or other conditions |
|
| | applicable to the choice under the terms of the offer can still be complied with. |
|
| | (5) | If the consideration offered to or (as the case may be) chosen by the shareholder— |
|
| | (a) | is not cash and the offeror is no longer able to provide it, or |
|
| | (b) | was to have been provided by a third party who is no longer bound or able |
|
| | |
| | | the consideration is to be taken to consist of an amount of cash, payable by the |
|
| | offeror, which at the date of the notice is equivalent to the consideration offered |
|
| | or (as the case may be) chosen. |
|
| | (6) | At the end of six weeks from the date of the notice the offeror must |
|
| | |
| | (a) | send a copy of the notice to the company, and |
|
| | (b) | pay or transfer to the company the consideration for the shares to which |
|
| | |
| | | Where the consideration consists of shares or securities to be allotted by the |
|
| | offeror, the reference in paragraph (b) to the transfer of the consideration is to be |
|
| | read as a reference to the allotment of the shares or securities to the company. |
|
| | (7) | If the shares to which the notice relates are registered, the copy of the notice sent |
|
| | to the company under subsection (6)(a) must be accompanied by an instrument of |
|
| | transfer executed on behalf of the holder of the shares by a person appointed by |
|
| | |
| | | On receipt of that instrument the company must register the offeror as the holder |
|
| | |
| | (8) | If the shares to which the notice relates are transferable by the delivery of |
|
| | warrants or other instruments, the copy of the notice sent to the company under |
|
| | subsection (6)(a) must be accompanied by a statement to that effect. |
|
| | | On receipt of that statement the company must issue the offeror with warrants or |
|
| | other instruments in respect of the shares, and those already in issue in receipt of |
|
| | |
| | (9) | The company must hold any money or other consideration received by it under |
|
| | subsection (6)(b) on trust for the person who, before the offeror acquired them, |
|
| | was entitled to the shares in respect of which the money or other consideration |
|
| | |
| | | Section (Further provision about consideration held on trust under section |
|
| | (Effect of notice under section (Right of offeror to buy out minority |
|
| | shareholder))(9)) contains further provision about how the company should deal |
|
| | with such money or other consideration.’. |
|
| |
| | Further provision about consideration held on trust under section (Effect of notice under |
|
| | section (Right of offeror to buy out minority shareholder))(9) |
|
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | This section applies where an offeror pays or transfers consideration to the |
|
| | company under section (Effect of notice under section (Right of offeror to buy out |
|
| | minority shareholder))(6). |
|
|
|
| |
| |
|
| | (2) | The company must pay into a separate bank account that complies with |
|
| | |
| | (a) | any money it receives under paragraph (b) of section (Effect of notice |
|
| | under section (Right of offeror to buy out minority shareholder))(6), and |
|
| | (b) | any dividend or other sum accruing from any other consideration it |
|
| | receives under that paragraph. |
|
| | (3) | A bank account complies with this subsection if the balance on the account— |
|
| | (a) | bears interest at an appropriate rate, and |
|
| | (b) | can be withdrawn by such notice (if any) as is appropriate. |
|
| | |
| | (a) | the person entitled to the consideration held on trust by virtue of section |
|
| | (Effect of notice under section (Right of offeror to buy out minority |
|
| | shareholder))(9) cannot be found, and |
|
| | (b) | subsection (5) applies, |
|
| | | the consideration (together with any interest, dividend or other benefit that has |
|
| | accrued from it) must be paid into court. |
|
| | (5) | This subsection applies where— |
|
| | (a) | reasonable enquiries have been made at reasonable intervals to find the |
|
| | |
| | (b) | twelve years have elapsed since the consideration was received, or the |
|
| | |
| | (6) | In relation to a company registered in Scotland, subsections (7) and (8) apply |
|
| | instead of subsection (4). |
|
| | (7) | If the person entitled to the consideration held on trust by virtue of section (Effect |
|
| | of notice under section (Right of offeror to buy out minority shareholder))(9) |
|
| | cannot be found and subsection (5) applies— |
|
| | (a) | the trust terminates, |
|
| | (b) | the company or (if the company is wound up) the liquidator must sell any |
|
| | consideration other than cash and any benefit other than cash that has |
|
| | accrued from the consideration, and |
|
| | |
| | (i) | the consideration so far as it is cash, |
|
| | (ii) | the proceeds of any sale under paragraph (b), and |
|
| | (iii) | any interest, dividend or other benefit that has accrued from the |
|
| | |
| | | must be deposited in the name of the Accountant of Court in a separate |
|
| | bank account complying with subsection (3) and the receipt for the |
|
| | deposit must be transmitted to the Accountant of Court. |
|
| | (8) | Section 58 of the Bankruptcy (Scotland) Act 1985 (c. 66) (so far as consistent |
|
| | with this Act) applies (with any necessary modifications) to sums deposited under |
|
| | subsection (7) as it applies to sums deposited under section 57(1)(a) of that Act. |
|
| | (9) | The expenses of any such enquiries as are mentioned in subsection (5) may be |
|
| | paid out of the money or other property held on trust for the person to whom the |
|
| | |
| |
|
|
| |
| |
|
| | Right of minority shareholder to be bought out by offeror |
|
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | Subsections (2) and (3) apply in a case where a takeover offer relates to all the |
|
| | |
| | | For this purpose a takeover offer relates to all the shares in a company if it is an |
|
| | offer to acquire all the shares in the company within the meaning of section |
|
| | (Meaning of “takeover offer”). |
|
| | (2) | The holder of any voting shares to which the offer relates who has not accepted |
|
| | the offer may require the offeror to acquire those shares if, at any time before the |
|
| | end of the period within which the offer can be accepted— |
|
| | (a) | the offeror has by virtue of acceptances of the offer acquired or |
|
| | unconditionally contracted to acquire some (but not all) of the shares to |
|
| | which the offer relates, and |
|
| | (b) | those shares, with or without any other shares in the company which he |
|
| | has acquired or contracted to acquire (whether unconditionally or subject |
|
| | to conditions being met)— |
|
| | (i) | amount to not less than 90% in value of all the voting shares in |
|
| | the company (or would do so but for section (Debentures |
|
| | carrying voting rights)(1)), and |
|
| | (ii) | carry not less than 90% of the voting rights in the company (or |
|
| | would do so but for section (Debentures carrying voting |
|
| | |
| | (3) | The holder of any non-voting shares to which the offer relates who has not |
|
| | accepted the offer may require the offeror to acquire those shares if, at any time |
|
| | before the end of the period within which the offer can be accepted— |
|
| | (a) | the offeror has by virtue of acceptances of the offer acquired or |
|
| | unconditionally contracted to acquire some (but not all) of the shares to |
|
| | which the offer relates, and |
|
| | (b) | those shares, with or without any other shares in the company which he |
|
| | has acquired or contracted to acquire (whether unconditionally or subject |
|
| | to conditions being met), amount to not less than 90% in value of all the |
|
| | shares in the company (or would do so but for section (Debentures |
|
| | carrying voting rights)(1)). |
|
| | (4) | If a takeover offer relates to shares of one or more classes and at any time before |
|
| | the end of the period within which the offer can be accepted— |
|
| | (a) | the offeror has by virtue of acceptances of the offer acquired or |
|
| | unconditionally contracted to acquire some (but not all) of the shares of |
|
| | any class to which the offer relates, and |
|
| | (b) | those shares, with or without any other shares of that class which he has |
|
| | acquired or contracted to acquire (whether unconditionally or subject to |
|
| | |
| | (i) | amount to not less than 90% in value of all the shares of that |
|
| | |
| | (ii) | in a case where the shares of that class are voting shares, carry |
|
| | not less than 90% of the voting rights carried by the shares of that |
|
| | |
| | | the holder of any shares of that class to which the offer relates who has not |
|
| | accepted the offer may require the offeror to acquire those shares. |
|
|
|
| |
| |
|
| | (5) | For the purposes of subsections (2) to (4), in calculating 90% of the value of any |
|
| | shares, shares held by the company as treasury shares are to be treated as having |
|
| | been acquired by the offeror. |
|
| | (6) | Subsection (7) applies where— |
|
| | (a) | a shareholder exercises rights conferred on him by subsection (2), (3) or |
|
| | |
| | (b) | at the time when he does so, there are shares in the company 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 (2)(b), (3)(b) or (4)(b) (as the |
|
| | case may be) would not be satisfied if those shares were not taken into |
|
| | |
| | (7) | The shareholder is treated for the purposes of section (Effect of requirement under |
|
| | section (Right of minority shareholder to be bought out by offeror)) as not having |
|
| | exercised his rights under this section unless the requirement imposed by |
|
| | paragraph (b) of subsection (2), (3) or (4) (as the case may be) would be satisfied |
|
| | |
| | (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 |
|
| | (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 section (Further |
|
| | provision about rights conferred by section (Right of minority |
|
| | shareholder to be bought out by offeror))(2). |
|
| | (8) | A reference in subsection (2)(b), (3)(b), (4)(b), (6) or (7) to shares which the |
|
| | offeror has acquired or contracted to acquire includes a reference to shares which |
|
| | an associate of his has acquired or contracted to acquire.’. |
|
| |
| | Further provision about rights conferred by section (Right of minority shareholder to be |
|
| | |
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | Rights conferred on a shareholder by subsection (2), (3) or (4) of section (Right |
|
| | of minority shareholder to be bought out by offeror) are exercisable by a written |
|
| | communication addressed to the offeror. |
|
| | (2) | Rights conferred on a shareholder by subsection (2), (3) or (4) of that section are |
|
| | not exercisable after the end of the period of three months from— |
|
| | (a) | the end of the period within which the offer can be accepted, or |
|
| | (b) | if later, the date of the notice that must be given under subsection (3) |
|
| | |
| | (3) | Within one month of the time specified in subsection (2), (3) or (4) (as the case |
|
| | may be) of that section, the offeror must 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 subsection, |
|
| | |
| | (b) | the period within which the rights are exercisable. |
|
|
|
| |
| |
|
| | | If the notice is given before the end of the period within which the offer can be |
|
| | accepted, it must state that the offer is still open for acceptance. |
|
| | (4) | Subsection (3) does not apply if the offeror has given the shareholder a notice in |
|
| | respect of the shares in question under section (Right of offeror to buy out |
|
| | |
| | (5) | An offeror who fails to comply with subsection (3) commits an offence. |
|
| | | If the offeror is a company, every officer of the company who is in default or to |
|
| | whose neglect the failure is attributable also commits an offence. |
|
| | (6) | If an offeror other than a company is charged with an offence for failing to |
|
| | comply with subsection (3), it is a defence for him to prove that he took all |
|
| | reasonable steps for securing compliance with that subsection. |
|
| | (7) | 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 maximum |
|
| | and, for continued contravention, a daily default fine not exceeding one- |
|
| | fiftieth of the statutory maximum.’. |
|
| |
| | Effect of requirement under section (Right of minority shareholder to be bought out by |
|
| | |
| |
| | |
| To move the following Clause:— |
|
| | ‘(1) | Subject to section (Applications to the court), this section applies where a |
|
| | shareholder exercises his rights under section (Right of minority shareholder to |
|
| | be bought out by offeror) in respect of any shares held by him. |
|
| | (2) | The offeror is entitled and bound to acquire those shares on the terms of the offer |
|
| | or on such other terms as may be agreed. |
|
| | (3) | Where the terms of an offer are such as to give the shareholder a choice of |
|
| | |
| | (a) | the shareholder may indicate his choice when requiring the offeror to |
|
| | |
| | (b) | the notice given to the shareholder under section (Further provision |
|
| | about rights conferred by section (Right of minority shareholder to be |
|
| | bought out by offeror))(3)— |
|
| | (i) | must give particulars of the choice and of the rights conferred by |
|
| | |
| | (ii) | may state which consideration specified in the offer will apply if |
|
| | he does not indicate a choice. |
|
| | | The reference in subsection (2) to the terms of the offer is to be read accordingly. |
|
| | (4) | Subsection (3) applies whether or not any time-limit or other conditions |
|
| | applicable to the choice under the terms of the offer can still be complied with. |
|
| | (5) | If the consideration offered to or (as the case may be) chosen by the shareholder— |
|
| | (a) | is not cash and the offeror is no longer able to provide it, or |
|
| | (b) | was to have been provided by a third party who is no longer bound or able |
|
| | |
|