The Companies (Reporting Requirements in Mergers and Divisions) Regulations 2011

PART 4 AMENDMENTS TO COMPANIES (CROSS-BORDER MERGERS) REGULATIONS 2007

Amendment to Companies (Cross-Border Mergers) Regulations 2007

32.  The Companies (Cross-Border Mergers) Regulations 2007(1) are amended as follows.

33.  In regulation 6 (court approval of pre-merger requirements), after paragraph (2) add—

“(3) In a case falling within regulation 9A (circumstances in which independent expert’s report not required), the court may determine, or make provision for the determination of, the consideration to be given for securities acquired under that regulation.”.

34.  In regulation 9 (independent expert’s report), for paragraph (1)(b) substitute—

“(b) the conditions in regulation 9A are met; or”.

35.  After regulation 9 insert—

“9A    Circumstances in which independent expert’s report not required

(1) The requirement to draw up a report in accordance with regulation 9 does not apply if the conditions in paragraphs (2) to (4) are met.

(2) The first condition is that the cross-border merger is a merger by absorption where 90% or more (but not all) of the relevant securities of the transferor company (or, if there is more than one transferor company, of each of them) are held by or on behalf of the transferee company.

(3) The second condition is that the draft terms of merger provide that every other holder of relevant securities has the right to require the transferee company to acquire those securities.

(4)   The third condition is that, if a holder of securities exercises that right, the consideration to be given for those securities is fair and reasonable.

(5)   In this regulation—

“other holder” means a person who holds securities of the transferor company otherwise than on behalf of the transferee company (and does not include the transferee company itself);

“relevant securities”, in relation to a company, means shares or other securities carrying the right to vote at general meetings of the company.”.

36.  In regulation 12 (public notice of receipt of registered documents), after paragraph (6) add—

“(7)   The requirements in paragraphs (1) to (4), so far as they relate to the draft terms of the merger, are subject to regulation 12A.”.

37.  After regulation 12 insert—

“12A    Publication of draft terms of merger on company website

(1) The following requirements of regulation 12 do not apply where the conditions in paragraphs (2) to (6) are met—

(a) the requirement in paragraph (1)(b) (directors to deliver copy of draft terms of merger to registrar), and

(b) the requirement in paragraph (3), so far as it relates to the draft terms of merger (registrar to publish notice of receipt in the Gazette etc).

(2) The first condition is that the draft terms of merger are made available on a website which—

(a) is maintained by or on behalf of the UK merging company, and

(b) identifies the company.

(3) The second condition is that neither access to the draft terms of merger on the website nor the supply of a hard copy of them from the website is conditional on payment of a fee or otherwise restricted.

(4) The third condition is that the directors of the company deliver to the registrar a notice giving details of the website.

(5) The fourth condition is that the registrar publishes the notice in the Gazette at least one month before the date of the first meeting of the members, or any class of members, of the company (see regulation 13).

(6) The fifth condition is that the draft terms of merger remain available on the website throughout the period beginning one month before, and ending on, the date of any such meeting.

(7) A failure to make the draft terms available on the website throughout the period specified in paragraph (6) is to be disregarded if—

(a) they are made available on the website for part of that period, and

(b) the failure to make them available throughout that period is wholly attributable to circumstances that it would not be reasonable to have expected the company to prevent or avoid.”.

38.—(1) Regulation 13 (approval of members in meeting) is amended as follows.

(2) In paragraph (4)(a), after “regulation 12 (public notice of receipt of registered documents)” insert “or 12A (public notice of draft terms of merger on company website)”.

(3) For paragraph (4)(b) substitute—

“(b) paragraph (5) or (6) is satisfied for each of the documents listed in regulation 10(3) (inspection of documents) in relation to all the merging companies; and”.

(4) After paragraph (4) add—

“(5) This paragraph is satisfied for a document if the members of the transferee company were able during the period beginning one month before, and ending on, the date of the first meeting of members of the transferor companies—

(a) to inspect at the registered office of the transferee company a copy of the document and

(b) to obtain copies of it or any part of it on request.

(6) This paragraph is satisfied for a document if—

(a) the document is made available on a website which is maintained by or on behalf of the transferee company and identifies the company,

(b) access to it on the website is not conditional on the payment of a fee or otherwise restricted,

(c) it remains available on the website throughout the period beginning one month before, and ending on, the date of the first meeting of members of the transferor company, and

(d) members of the transferee company were able, during that period, to obtain copies of it or any part of it on request.

(7) A failure to make a document available on the website throughout the period specified in paragraph (6)(c) is to be disregarded if—

(a) the document is made available on the website for part of that period, and

(b) the failure to make it available throughout that period is wholly attributable to circumstances that it would not be reasonable to have expected the company to prevent or avoid.”.

(1)

S.I. 2007/2974, to which there are amendments not relevant to these Regulations.