Chapter: 32 COMPANIES ORDINANCE
Schedule Num: 9 Version Date 01/04/2003
PROVISIONS RELATING TO ACQUISITION OF MINORITY SHARES AFTER SUCCESSFUL TAKE-OVER OFFER
NINTH SCHEDULE
[section 168]
PART 1-Right of company to buy out minority shareholders
1. If, in a case in which the offer does not relate to shares of different classes, the transferee company has, during the period of 4 months beginning on the date of the offer, acquired not less than nine-tenths in value of the shares for which the offer is made (by virtue of acceptances of the offer or, if the shares are listed on a recognized stock market, by virtue of acceptances of the offer or otherwise), the transferee company may give notice to the holder of any shares to which the offer relates which the transferee company has not acquired that it desires to acquire those shares. (Amended 10 of 1987 s. 11; 5 of 2002 s. 407)
2. If, in a case in which the offer relates to shares of different classes, the transferee company has, during the period of 4 months beginning on the date of the offer, acquired not less than nine-tenths in value of the shares of any class for which the offer is made (by virtue of acceptances of the offer or, if the shares are listed on a recognized stock market, by virtue of acceptances of the offer or otherwise), the transferee company may give notice to the holder of any shares of that class which the transferee company has not acquired that it desires to acquire those shares. (Amended 10 of 1987 s. 11; 5 of 2002 s. 407)
3. Any notice under this Part shall be given in the specified form and in the prescribed manner and not later than 5 months after the date of the offer; and where such a notice is given to the holder of any shares the transferee company shall, subject to paragraph 4, be entitled and bound to acquire those shares on the terms of the offer. (Amended 3 of 1997 s. 60)
4. Where a notice is given under this Part to the holder of any shares the court may, on an application made by him within 2 months from the date on which the notice was given, order that the transferee company shall not be entitled and bound to acquire the shares or specify terms of acquisition different from those of the offer.
5. Where an offer is such as to give the holder of shares a choice of terms, any notice under this Part shall give particulars of the choice and state-
(a) that the holder of the shares may within 2 months from the date of the notice exercise that choice by letter sent to the company at an address specified in the notice; and
(b) which terms are to be taken as applying in default of his exercising the choice as aforesaid, and the terms of the offer mentioned in paragraph 3 shall be determined accordingly.
6. Where an offer is such that the holder of shares in the transferor company is to receive shares or debentures of the transferee company but with an option to receive instead some other consideration to be provided by a third party-
(a) the terms of the offer mentioned in paragraph 3 shall not include that option unless the transferee company in its notice under this Part indicates that the option is to apply; and
(b) if the transferee company does not so indicate it may, if it thinks fit, offer in that notice a corresponding option to receive some other consideration to be provided by that company,
and, if the transferee company offers such a corresponding option and the holder of the shares within 2 months from the date of the notice exercises that corresponding option by a letter sent to the company at an address specified in the notice, the terms of the offer mentioned in paragraph 3 shall be determined accordingly.
For the purposes of this paragraph, consideration shall be deemed to be provided by a third party where it is made available to the transferee company on terms that it shall be used by the transferee company as consideration pursuant to the offer.
7. Where a notice has been given under this Part and the court has not, on an application made by the person to whom the notice was given, ordered to the contrary, the transferee company shall, on the expiration of 2 months from the date on which the notice has been given or, if an application to the court 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 on whom the notice was served by any person appointed by the transferee company; and
(b) pay or transfer to the transferor company the amount or other consideration representing the price payable by the transferee company for the shares which by virtue of this Part that company is entitled to acquire, and the transferor company shall thereupon register the transferee company as the holder of those shares; but no instrument of transfer shall be required for any share for which a share warrant is for the time being outstanding.
8. Any sums received by the transferor company under paragraph 7 shall be paid into a separate bank account, and any such sums and any other consideration so received shall be held by that company on trust for the several persons entitled to the shares in respect of which the said sums or other consideration were respectively received; but any such sum or other consideration shall not be paid out or delivered to any person claiming to be entitled thereto unless he produces the share certificate of such shares or other evidence of his title thereto, or a satisfactory indemnity in lieu of such certificate or other evidence.
PART 2-
Right of minority shareholders to be bought out by company
9. If the offer does not relate to shares of different classes and not later than the expiration of the period within which the offer can be accepted the transferee company is the holder of not less than nine-tenths in value of all the shares in the transferor company or, if the offer relates to a class of shares, not less than nine-tenths in value of all the shares of that class, the holder of any shares to which the offer relates who has not accepted the offer before the expiration of that period may by letter addressed to the transferee company require it to acquire those shares.
10. If the offer relates to shares of different classes and not later than the expiration of the period within which the offer can be accepted the transferee company is the holder of not less than nine-tenths in value of the shares of any class for which the offer is made, the holder of any shares of that class who has not accepted the offer before the expiration of that period may by letter addressed to the transferee company require it to acquire those shares.
11. Within 1 month of the expiration of the period within which the offer can be accepted the transferee company shall give notice in the specified form and in the prescribed manner to a person having rights under this Part calling on him to decide whether or not to exercise them, but he shall not be entitled to exercise them later than 2 months after the date on which the notice is given. (Amended 3 of 1997 s. 60)
12. Where the holder of any shares exercises his rights under this Part the transferee company shall be entitled and bound to acquire the shares on the terms of the offer or on such other terms as may be agreed or as the court, on the application of the holder of the shares or the transferee company, thinks fit to order.
13. Where an offer is such as to give the holder of shares a choice of terms and he requires the transferee company to acquire the shares under this Part without the company having given him a notice under paragraph 11, the requirement shall not have effect unless it indicates an exercise of that choice.
14. Where an offer is such as to give the holder of shares a choice of terms and the company gives him a notice under paragraph 11, the notice shall give particulars of the choice and state-
(a) that he may exercise the choice in making a requirement under this Part; and
(b) which terms are to be taken as applying if he makes such a requirement without exercising the choice,
and the terms of the offer mentioned in paragraph 12 shall be determined accordingly.
15. Where an offer is such that the holder of shares in the transferor company is to receive shares or debentures of the transferee company but with an option to receive instead some other consideration to be provided by a third party-
(a) the terms of the offer mentioned in paragraph 12 shall not include that option unless the transferee company in a notice under paragraph 11 indicates that the option is to apply; and
(b) if the transferee company does not so indicate it may, if it thinks fit, offer in such a notice a corresponding option to receive some other consideration to be provided by that company,
and, if the transferee company offers such a corresponding option and the holder of the shares exercises that corresponding option in his requirement under this Part, the terms of the offer mentioned in paragraph 12 shall be determined accordingly.
For the purposes of this paragraph, consideration shall be deemed to be provided by a third party where it is made available to the transferee company on terms that it shall be used by the transferee company as consideration pursuant to the offer.
(Ninth Schedule replaced 6 of 1984 s. 257)
