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75. |
In this
Part, |
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"consolidated company" means the new company that results from the
consolidation of 2 or more constituent companies; |
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"consolidation" means the uniting of 2 or more constituent companies into a
new company; |
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"constituent company" means an existing company that is participating in a
merger or consolidation with one or more other existing companies; |
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"merger"
means the merging of 2 or more constituent companies into one of the
constituent companies; |
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"parent
company" means a company that owns at least 90 per cent of the outstanding
shares of each class and series of shares in another company; |
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"subsidiary company" means a company at least 90 per cent of whose
outstanding shares of each class and series of shares are owned by another
company; |
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"surviving
company" means the constituent company into which one or more other
constituent companies are merged. |
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76. |
(1) |
Two or
more companies incorporated under this Act may merge or consolidate in
accordance with subsections (3) to (5). |
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(2) |
One or
more companies incorporated under this Act may merge or consolidate with one
or more companies incorporated under the Companies Act in accordance with
subsections (3) to (5), if the surviving company or the consolidated company
will satisfy the requirements prescribed for an International Business
Company under section 5. |
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(3) |
The
directors of each constituent company that proposes to participate in merger
or consolidation must approve a written plan of merger or consolidation
containing, as the case requires, |
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(a) |
the name
of each constituent company and the name of the surviving company or the
consolidated company; |
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(b) |
in respect
to each constituent company, |
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(i) |
the
designation and number of outstanding shares of each class and series of
shares, specifying each such class and series entitled to vote on the merger
or consolidation, and |
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(ii) |
a
specification of each such class and series, if any, entitled to vote as a
class or series; |
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(c) |
the terms
and conditions of the proposed merger or consolidation, including the manner
and basis of converting shares in each constituent company into shares, debt
obligations or other securities in the surviving company or consolidated
company, or money or other property, or a combination thereof; |
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(d) |
in respect
of a merger, a statement of any amendment to the Memorandum or Articles of
the surviving company to be brought about by the merger; and |
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(e) |
in respect
of a consolidation, everything required to be included in the Memorandum and
Articles for a company incorporated under this Act, except statements as to
facts not available at the time the plan of consolidation is approved by the
directors. |
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(4) |
Some of
all shares of the same class or series of shares in each constituent company
may be converted into a particular or mixed kind of property and other
shares of the class or series, or all shares of other classes or series of
shares, may be converted into other property. |
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(5) |
The
following apply in respect of a merger or consolidation under this section: |
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(a) |
the plan
of merger or consolidation must be authorized by a resolution of members and
the outstanding shares of a class or series of shares are entitled to vote
on the merger or consolidation as a class or series if the Memorandum or
Articles so provide or if the plan of merger or consolidation contains any
provisions that, if contained in a proposed amendment to the Memorandum or
Articles, would entitle the class or series to vote on the proposed
amendment as a class or series; |
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(b) |
if a
meeting of members is to be held, notice of the meeting, accompanied by a
copy of the plan of merger or consolidation, must be given to each member,
whether or not entitled to vote on the merger or consolidation; |
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(c) |
if it is
proposed to obtain the written consent of members, a copy of the plan of
merger or consolidation must be given to each member, whether or not
entitled to consent to the plan of merger or consolidation; |
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(d) |
after
approval of the plan of merger or consolidation by the directors and members
of each constituent company, articles of merger or consolidation must be
executed by each company and must contain |
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(i) |
the plan
of merger or consolidation and, in the case of a consolidation, any
statement required to be included in the Memorandum and Articles for a
company incorporated under this Act; |
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(ii) |
the date
on which the Memorandum and Articles of each constituent company were
registered by the Registrar; |
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(iii) |
the manner
in which the merger or consolidation was authorized with respect to each
constituent company; |
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(e) |
the
articles of merger or consolidation must be submitted to the Registrar who
must retain and register them in the Register; and |
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(f) |
Upon the
registration of the articles of merger or consolidation, the Registrar shall
issue a certificate under his hand and seal certifying that the articles of
merger or consolidation have been registered. |
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(6) |
A
certificate of merger or consolidation issued by the Registrar is prima
facie evidence of compliance with all requirements of this Act in respect of
the merger or consolidation. |
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77. |
(1) |
A parent
company incorporated under this Act may merge with one or more subsidiary
companies incorporated under this Act or under the Companies Act, without
the authorization of the members of any company, in accordance with
subsections (2) to (6), if the surviving company is a company incorporated
under this Act and will satisfy the requirements prescribed for an
International Business Company under section 5. |
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(2) |
The
directors of the parent company must approve a written plan of merger
containing |
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(a) |
the name
of each constituent company and the name of the surviving company; |
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(b) |
in respect
to each constituent company, |
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(i) |
the
designation and number of outstanding shares of each class and series of
shares, and |
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(ii) |
the number
of shares of each class and series of shares in each subsidiary company
owned by the parent company; and |
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(c) |
the terms
and conditions of the proposed merger, including the manner and basis of
converting shares in each company to be merged into shares, debt obligations
or other securities in the surviving company, or money or other property, or
a combination thereof. |
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(3) |
Some or
all shares of the same class or series of shares in each company to be
merged may be converted into property of a particular or mixed kind and
other shares of the class or series, or all shares of other classes or
series of shares, may be converted into other property; but, if the parent
company is not the surviving company, shares of each class and series of
shares in the parent company may only be converted into similar shares of
the surviving company. |
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(4) |
A copy of
the plan of merger or an outline thereof must be given to every member of
each subsidiary company to be merged unless the giving of that copy or
outline has been waived by that member. |
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(5) |
Articles
of merger must be executed by the parent company and must contain |
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(a) |
the plan
of merger; |
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(b) |
the date
on which the Memorandum and Articles of each constituent company were
registered by the Registrar; and |
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(c) |
if the
parent company does not own all shares in each subsidiary company to be
merged, the date on which a copy of the plan of merger or an outline thereof
was made available to the members of each subsidiary company. |
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(6) |
The
articles of merger must be submitted to the Registrar who must retain and
register them in the Register. |
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(7) |
Upon the
registration of the articles of merger, the Registrar shall issue a
certificate under his hand and seal certifying that the articles of merger
have been registered. |
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(8) |
A
certificate of merger issued by the Registrar is prima facie evidence of
compliance with all requirements of this Act in respect of the merger.
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78. |
(1) |
A merger
or consolidation is effective on the date the articles of merger or
consolidation are registered by the Registrar or on such date subsequent
thereto, not exceeding 30 days, as is stated in the articles of merger or
consolidation. |
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(2) |
As soon as
a merger or consolidation becomes effective |
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(a) |
the
surviving company or the consolidated company in so far as is consistent
with its Memorandum and Articles, as amended or established by the articles
of merger or consolidation, has all rights, privileges, immunities, powers,
objects and purposes of each of the constituent companies; |
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(b) |
in the
case of a merger, the Memorandum and Articles of the surviving company are
automatically amended to the extent, if any, that changes in its Memorandum
and Articles are contained in the articles of merger; |
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(c) |
in the
case of a consolidation, the statements contained in the articles of
consolidation that are required or authorized to be contained in the
Memorandum and Articles of a company incorporated under this Act, are the
Memorandum and Articles of the consolidated company; |
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(d) |
property
of every description, including choses in action and the business of each of
the constituent companies, immediately vests in the surviving company or the
consolidated company; and |
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(e) |
the
surviving company or the consolidated company is liable for all claims,
debts, liabilities and obligations of each of the constituent companies. |
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(3) |
Where a
merger or consolidation occurs |
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(a) |
no
conviction, judgement, ruling, order, claim, debt, liability or obligation
due or to become due, and no cause existing, against a constituent company
or against any member, director, officer or agent thereof, is released or
impaired by the merger or consolidation; and |
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(b) |
no
proceedings, whether civil or criminal, pending at the time of a merger or
consolidation by or against a constituent company, or against any member,
director, officer or agent thereof, are abated or discontinued by the merger
or consolidation, but |
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(i) |
the
proceedings may be enforced, prosecuted, settled or compromised by or
against the surviving company or the consolidated company or against the
member, director, officer or agent thereof, as the case may be, or |
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(ii) |
the
surviving company or the consolidated company may be substituted in the
proceedings for a constituent company. |
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(4) |
The
Registrar shall strike off the Register |
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(a) |
a
constituent company that is not the surviving company in a merger; or |
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(b) |
a
constituent company that participates in a consolidation. |
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79. |
(1) |
One or
more companies incorporated under this Act may merge or consolidate with one
or more companies incorporated under the laws of jurisdictions outside the
British Virgin Islands in accordance with subsections (2) to (4), including
where one of the constituent companies is a parent company and the other
constituent companies are subsidiary companies, if the merger or
consolidation is permitted by the laws of the jurisdictions in which the
companies incorporated outside the British Virgin Islands are incorporated. |
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(2) |
The
following apply in respect of a merger or consolidation under this section: |
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(a) |
a company
incorporated under this Act shall comply with the provisions of this Act
with respect to the merger or consolidation, as the case may be, of
companies incorporated under this Act and a company incorporated under the
laws of a jurisdiction outside the British Virgin Islands shall comply with
the laws of that jurisdiction; and |
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(b) |
if the
surviving company or the consolidated company is to be incorporated under
the laws of a jurisdiction outside the British Virgin Islands, it must
submit to the Registrar |
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(i) |
an
agreement that a service of process may be effected on it in the British
Virgin Islands in respect of proceedings for the enforcement of any claim,
debt, liability or obligation of a constituent company incorporated under
this Act or in respect of proceedings for the enforcement of the rights of a
dissenting member of a constituent company incorporated under this Act
against the surviving company or the consolidated company; |
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(ii) |
an
irrevocable appointment of the Registrar as its agent to accept service of
process in proceedings referred to in subparagraph (i); |
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(iii) |
an
agreement that it will promptly pay to the dissenting members of a
constituent company incorporated under this Act the amount, if any, to which
they are entitled under this Act with respect to the rights of dissenting
members; and |
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