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Part XI Mergers, Take-Overs and Acquisitions
99. (1) In this Part -
"bid" means an invitation or an offer;
"court" for the purpose of this Part mean s the Federal High Court;
"despatch" means communicate in any manner,
"directors’ circular" mean s a circular referred to in section 111 of this Decree;
"invitation" means a statement, however expressed, which offers to acquire shares from a person w ho holds shares;
"offer" means a statement, however expressed, that offers to acquire shares from a person who holds shares;
"offeree company" means a company whose shares are the subject of a take-over bid;
"offeror" means a person or two or more persons jointly or in concert who make a take-over bid;
"regulations' means regulation s made by the Commission pursuant to this Part of this Decree;
"take over" means the acquisition by one company of sufficient shares in another company to give the acquiring company control over that other company;
"take-over bid" means a bid made for the purpose of a take-over as provided in section 103 of this Decree .
(2) Notwithstanding anything to the contrary contained in any other enactment, every merger, acquisition or business combination between or among companies shall be subject to the prior review and approval of the Commission.
(3) The Commission shall approve any application made under this section if and only if the Commission finds that -
(a) such acquisition, whether directly or indirectly, of the whole or any part of the equity or other share capital or of the w hole or any part of the assets of another company, is not likely to cause a substantial restraint of competition or tend to create a monopoly in any line of business enterprise; or
(b) the use of such share by voting or granting of proxies or otherwise shall not cause a substantial restraint of competition or tend to create a mono poly in any line of business enterprise.
(3) Nothing in this section shall apply to holding companies acquiring shares solely for the purpose of investment and not using same by voting or otherwise to cause or attempt to cause a substantial restraint of competition o r tend to create a monopoly in any line of business enterprise.
(4) Nothing in this section shall apply to transactions duly consummated pursuant to the authority given by any Federal Government owned agency under any statutory provision vesting such power in the agency.
(5) The Commission shall have the power to call for information from companies seeking its approval under this section in order to effectively carry out its functions under this Decree .
100. (1) Where under a scheme proposed for a compromise, arrangement or reconstruction between two or more companies or the merger of any two or more companies, the whole or any part of the undertaking or the proper y of any company concerned in the scheme (in this section referred to as "the transfer or company" ) is to be transferred to another company, the court may, on the application in summary of any of the companies to be affected, order separate meetings of the companies to be summoned in such manner as the court may direct.
(2) If a majority representing not less than three-quarter in value of the share of members being present and voting either In person or by proxy at each of the separate meetings, agree to the scheme, the scheme shall be referred to the Commission for approval.
(3) If the scheme is approved by the Commission, an application may be made to the court by one or more of the companies, and the court shall sanction the scheme, and when so sanctioned, the same shall become binding on the companies and the court may, by the order sanctioning the scheme or by any subsequent order make provision for all or any of the following matters -
(a) the transfer to the transferee company of the whole or any part of the undertaking and of the property or liabilities of any transferor company;
(b) the allotting or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company which under the compromise or arrangement are to be allotted or appropriated by that company to or for any person -.
(c) the continuation by or against the transferee company of any legal proceedings pending by or against any transferor company;
(d) the dissolution , without win ding up, of an y transferor Company-;
(e) the provision to be made for any persons who in such manner as the court ma y direct, dissent from the compromise or arrangement;
(f) such incidental, consequential and supplemental matters as are necessary to secure that the reconstruction or merger shall be fully an d effectively carried out.
(4) An order under paragraph (d) of sub section (3) of this section shall not be made un less-
(a) the whole of the undertaking and the property, assets and liabilities of the transferor company are being transferred into the transferee company; and
(b) the court is satisfied that adequate provision by way of compensation or otherwise have been made with respect to the employees of the company to be dissolved.
(5) Where an order under this section provides for the transfer of property or liabilities, that property or liabilities shall, by virtue of the order, be transferred to and become the property or liabilities of the transferee company, and in the case of any property, if the order so directs, freed from any charge which is by virtue of the compromise or arrangement to cease to have effect.
(6) Where a n order is made under this section, every company in relation to which the order is made shall cause an office copy thereof to be delivered to the Commission for registration within seven days after the making of the order and a notice of the order shall be published in the Gazette and in- at least one national newspaper and if in default shall he liable to a fine of no t less than N20,000 .
(7) In this section -
(a) "property" includes property rights an d powers of every description ;
(b) "liabilities" includes rights, powers and duties of every description notwithstanding that such rights, powers and duties are of a personal character which could not generally be assigned or performed vicariously;
(c) "company" where used in this section does not include any company other than a company within the meaning of the Companies and Allied Matters Decree 1990.
101. (1) Where a scheme or contract (not being a take-over bid under this Part of this Decree) involving the transfer of share s or any class of shares in a company (in this section referred to a s "the transferor company') to another company, whether a company within the meaning of this Decree or not (in this section referred to as 'the transferee company';) has, within- four months after the making of the offer in that behalf by the transferee company be en app roved b y the holders of not less than nine -tenths in value of the shares whose transfer is involved (other than shares already held at the date of the offer by, or by a nominee for, the transferee company, or its subsidiary), the transferee comp any may at an y time within two month s after the expiration of the said four months- give notice in the prescribed manner to any dissenting shareholder that it desires to acquire h is shares.
(2) When a notice under subsection (1) of this section is given, the transferee company shall, unless on an application made by the dissenting shareholder within one month from the date on which the notice was given, unless the court thinks fit to order otherwise, be entitled and bound to acquire those shares on the terms on which, under the scheme or contract, the shares of the approving shareholders are to be transferred to the transferee company.
(3) Where shares in the transferor company of the said class or classes as the shares whose transfer is involved are already held as specified in subsection (1) of this section to a value greater than one-tenth of the aggregate of their value and that of the share (other than those already held as specified in the said subsection) whose transfer is Involved, the foregoing provisions of this section shall not apply unless-
(a) the transferee company offers the same terms to all holders of the shares (other than those already held as aforesaid) whose transfer is involved, or where those shares include shares, of different classes, of each class of them; and
(b) the holders who approve the scheme or contracts besides holding not less than nineteenths in value of the shares (other than those already held as aforesaid ) whose transfer is involved, shall not be less than three-quarters in number of the holders of those shares.
(4) Where a notice has been given by the transferee company under subsection (1) of this section and the court has not, on an application made by the dissenting shareholder, ordered to the contrary, the transferee company shall -
(a) on the expiration of one month from the date on which the notice has been given or if an application to the court by the dissenting shareholder is then pending, after that application has be en disposed of, transmit a cop y of the notice to the transferor comp any together with an instrument of transfer executed on behalf of the shareholder by any person appointed by the transferee company and on its behalf by the transferee company;
(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 section that company is entitled to acquire, and the transferor company shall thereupon register the transferee company as the holder of those shares.
(5) An y sums received b y the transferor company under this section 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 o f which the said sums or other consideration ",ere respectively received.
(6) In this section, "dissenting shareholder" includes a shareholder who has not assented to the scheme or contract and any shareholder who has failed or refused to transfer to the transferee company in accordance with the scheme or contract.
102. (1) This section shall apply where, in pursuance of any such scheme or con tract under section 98 of this Decree, share s in a company a re transferred to another company or its nominee, and those shares together with any other share s in the first- mentioned company held by, or, by a nominee for the transferee company or its subsidiary at the d ate of the transfer comprise or include nine -tenths in value of the shares in the first mentioned company or of an" class of those shares.
(2) The transferee company shall within one month from the date of the transfer (unless on a previous transfer in pursuance of the scheme or con tract it has already complied with this requirement) give notice of that fact in the prescribed manner to the holder of the remaining shares or of the remaining shares of that class, as the case may be, w ho have not assented to the scheme or contract.
(3) Any such holder may, within three months from the giving of the notice to him, require the transferee company to acquire the shares in question .
(4) If a shareholder gives notice under subsection (3) of this section with respect to any shares, the transferee company shall be entitled and bound to acquire those shares on the terms on which under the scheme or contract the shares of the approving shareholders were transferred to it, or on such other terms as may be agreed on as the court hearing the application of either the transferee company or the share holder think s fit.
103. (1) Any bid which constitutes a take-over bid shall be referred to as a bid under the take-over bid.
(2) A takeover bid shall be deemed to be dated as of the d ate on which a bid under the take-over b id is despatched or if such a bid is despatched on more than one date, on the latest d ate on which such a bid is despatched and for this purpose, a bid des patched by post shall be deemed dated as of the date on which it is posted.
(3) For the purposes of this section of this Part, where two or more persons acting separately, or acting separately through one or more than one agent each despatching a bid at approximately the same time to shareholders of the same comp any the y shall, un less the contrary is p roved, b e deem ed to have despatched a b id in concert if those persons so acting are persons com prised in any one of the following groups, namely -
(a) a holding company and its subsidiary or subsidiaries;
(b) two or m ore subsidiaries of the same holding company;
(c) a comp any, and any associate company or companies;
(d) a group of a kind referred to in paragraph (a) or (b) of this subsection together with one or more than one company which is an associate of any company or companies in the group;
(e) a subsidiary and one or more than one associate of the holding company of the subsidiary;
(f) the pension fund of two or mo re companies in any group of a kind referred to in paragraphs (a) to (e) of this sub-section; or
(g) any combination of -
(i) officers o f one or m ore than one company in any group of a kin d referred to in paragraphs (a) to (e) of this sub section,
(ii) members of the family or families of any such officer or officers, or
(iii) any such officer o r officers an d any such member or members, an d for this purpose, the family of an officer includes a person (not being an officer) who is the husband or wife (including the reputed husband or wife, a child or the parents, of the officer.
(4) Where the shares in a company are not divided into two or more classes those shares shall, for the purposes of this Decree , be deem ed to constitute a class .
104. (1) Subject to this section, a take-over bid shall be deemed to be made by a person who, either himself or through his agent, despatches a bid; or by two or more persons jointly or in concert who either themselves, or through their agent dispatch a b id to shareholders at approximately, the same time in order to acquire -
(a) shares of any class in an offeree company which -
(i) either alone, or
(ii) if combined with share s of that class in the offeree company already, o n the date of the take- over bid, beneficially owned or controlled directly or indirectly, by that person or any of them or any company belonging to the same group as that person or, as the case ma y be, those persons or an y of them , or any company belonging to the same group as that person or, a the case may be, those persons or any of them, would exceed one-third in number of the issued shares included in that class; or
(b) sufficient shares in the offeree company to make that company the subsidiary of that person or, as the case may be, of any of those persons, or
(c) sufficient shares in the offeree company to enable that person or, as the case may be , those persons or any of them to exercise or to control the exercise of not less than one-third of the voting power at any general meeting of the offeree company.
(2) Subject to this section, a take-over bid shall he deemed to be made by a company which either by itself or through its agent, despatches a bid to its shareholders at approximately the same time in order to re-purchase the company's own shares.
(3) A take-over bid shall not be made in any ca se where a bid is despatched -
(a) to fewer than twenty shareholders or such other number as may be prescribed by regulations, in order to purchase shares b y way of separate agreements;
(b) to purchase shares in a company which has fewer than twenty or such other number as may be prescribed in the regulations; two or more persons who are joint shareholders being counted as one share holder; or
(c) in circumstances or for a purpose prescribed by regulations.
(4) A take-over bid shall not be made in any case where the shares to be acquired under a bid are shares in a private company.
105. (1) Subject to subsection (8) of this section, no person o r no two or more person s jointly or in concert, shall make a take-over b id unless an authority to proceed with the take-over b id has been granted under this section and is in force at the date of the take-over bid.
(2) An application for an authority to proceed with a take-over bid shall -
(a) be made to the Commission by or on behalf of the person or persons proposing to make the bid;
(b) give the name and other particulars of that person or those persons; and
(c) give particulars of the proposed bid and contain such information and be accompanied by documents or reports of such a kind as m ay be prescribed by regulations.
(3) The Commission may require the person or persons making an application to furnish it with such further information as it reasonably considers necessary to enable it make a decision on the application and that person or those persons shall, if it is in their power to do so, give the information to the Commission.
(4) The Commission may consult with such persons as it deems necessary in order to make a decision on an application.
(5) Except as may be necessary for the purpose of any consultation pursuant to subsection (1) of this section, the Commission shall keep confidential the contents of an application, any document or report accompanying an application and any in formation g iven pursua nt to subsection (3) pf this section.
(6) For the purpose of deciding whether or not to grant an authority to proceed with a take-over bid, the Commission shall have regard only to the likely effect of the take-over bid if successfully made -
(a) on the economy of Nigeria;
(b) on an y policy of the Federal Government with respect to manpower and development, and if the Commission is satisfied that none of the matters referred to in paragraphs (a) and (b) of this subsection would be adversely affected, it shall grant an authority to proceed with the pro posed take-over bid, but if no t so satisfied it shall refuse so to d o.
(7) An authority to proceed with a proposed take-over bid shall be -
(a) in writing sign ed by, or on behalf of the Commission ;
(b) dated and give sufficient particulars of the proposed take-over bid to enable it to be identified.
(8) An authority to proceed with a take-over bid shall remain in force -
(a) for the period of three months following the date of the authority; or
(b) for such longer period as the Commission may, on application made to it before the expiration of the period referred to in paragraph (a) of this sub section, allow.
106. (1) Subject to sub section (6) of this section, no person, or two or m ore person s jointly or in concert shall make a take-over bid unless a copy of any bid which it is proposed to despatch under the take-over bid, signed by or on behalf of that person or , as the case may b e, each o f those persons, has been registered under this section.
(2) A copy of a proposed bid required under subsection (1) of this section to 'be registered shall be lodged with the Commission and -
(a) if the Commission is satisfied that the proposed bid meets the requirements of subsection (1) or (2) of section 104 of this Decree shall, subject to subsection (6) of this section, register the copy; and
(b) if the Commission is not so satisfied, shall refuse to register the copy, and in either event, the Com mission shall inform the person , or each person who signed the copy or on whose behalf the copy was -signed, by a notice served on him, at an address provided by the person when the copy was lodged, that it has registered or, as the case may be, not registered the copy giving, in the latter case in the notice, its reasons for not doing so.
(3) Within thirty days after the service on him of a notice under subsection (2) of this section, a person may by notice in writing require the Commission to refer the fact of its refusal to register a copy of a propos ed bid to the court, and the Commission shall do so; but only one reference shall be made notwithstanding that such a notice is served on more than one person and all or an y of those persons require a reference to be made.
(4) The court may, after hearing a reference under subsection (3) of this section, either order the Commission to register the copy of the proposed bid and the Commission shall do so, or uphold the decision of the Commission in which case the copy o f the proposed bid shall not b e registered.
(5) The fact that the Commission registers a copy of a proposed bid may not he relied on in any proceedings by any person as a representation that the bid satisfies the requirements of subsection (1) or (2) of section 104 of this Decree.
(6) The Commission shall not register a copy of a proposed bid unless, where required, an authority to proceed with the take- over bid W been granted under section 105 of this Decree and is then in force.
107. (1) A bid, being an invitation, under a take-over b id shall be incorporated in a document that -
(a) states the name and address of the offeror or, where two or more persons constitute the offeror, each offeror, and in the case of an offeror that is a corporation, a statement of the date on which the approval of the director s of the corporation was given pursuant to subsection (1 ) section 108 of this Decree .
(b) specifies the maximum number and other particulars of the shares in the offeree company proposed to b e acquired now during a period specified in the invitation;
(c) specifies the term s on which those shares a re proposed to be acquired ;
(d) specifies the number and other particulars of the shares in the offeree company to which -
(i) the offeror, and
(ii) any company in the same group of companies as the offeror or any one of the offerors, is or are entitled immediately before the date of the take- over bid; (e) states, if applicable, the matter required to be stated by paragraph (c) of section 113 of this Decree or paragraph (e) of section 115 of this Decree; and
(f) specifies or sets out such other matters as may be prescribed by regulations to be included in the invitation.
(2) A bid, being an offer, under a take-over bid shall be incorporated in a document that -
(a) states or specifies the matter referred to in subsection (1)(a) and (d) of this section;
(b) specifies the number and other particulars of the shares in the offeree company proposed to be acquired during a period specified in the offer;
(c) specifies the term s of the offer in respect of those shares;
(d) sets out how and by w hat date the obligations of the offeror are to be satisfied;
(e) sets out all other particulars of the offer;
(f) states, if applicable, the matter required to be stated by paragraph (e) of section 113 of this Decree or paragraph (e) of section 115 of this Decree; and
(g) species or sets out such other matters as may be prescribed by regulations to be included in an offer.
108. (1) A corporation shall not make a take-over bid, either alone or with any other person, unless the making of the take-over bid has be en approved by a resolution of the director s of the corporation.
(2) If default is made in com plying with the provisions of subsection (1) o f this section, each director in default commits an offence and is liable on conviction to a fine of not less than N100,000 or to imprisonment for a term not exceeding twelve month s or to both such fine and imprisonment.
109. A bid under a take-over bid, and any amendment of such a bid, shall be despatched by the offeror concurrently to -
(a) each director of the offeree company;
(b) each shareholder of the offeree company; and
(c) the Commission.
110. Where a bid under a take-over bid states that the consideration for the shares deposited pursuant to the bid is to be paid in money or partly in money, the offeror shall make adequate arrangements to ensure that funds are available to make the required money payment for those shares.
111. (1) Where, under section 109 of this Decree, a bid under a take-over bid is despatched to each of the directors of an offeree company, the directors shall send a directors' circular to each shareholder of the offeree company an d to the Commission at least seven days before the date on which the take-over bid, whichever is the earlier is to take effect.
(2) Unless the directors of a n offeree company send a director s' circular as required by subsection (1) of this section within ten days of the date of a take-over bid, the directors shall forthwith notify the shareholders and the Commission that a directors' circular shall be sent to them, and may recommend that no shares be tendered pursuant to the take-over b id until the directors' circular is sent.
(3) The notice required by subsection (2) of this section shall be in the form prescribed b y regulations.
(4) Where a director of an offeree company is of the opinion that a take-over-bid is not advantageous to the shareholders of the offeree company, or where a director disagrees with any statement in a directors' circular, he shall be entitled to indicate his opinion or disagreement in the directors' circular requiring his opinion or disagreement, he shall include in the circular a statement setting out the reasons for his opinion or disagreement.
(5) The directors of an offeree company shall approve a directors' circular which contains the recommendations of a majority of them, and the approval shall be evidenced by the signature of one or more than on e director.
(6) A directors' circular shall include particulars of any payment made to an officer or former officer of an offeree company by way of compensation for loss of his office, or of any office in connection with the management of the company's affairs, or of any office in connection with the management of any subsidiary of the comp any, or as consideration for or in connection with his retirement from an y office.
112. (1) A bid under a take-over bid or a director s' circular shall not include a rep ort, opinion or statement of a legal practitioner, auditor, accountant, engineer, appraiser or other expert unless that person has consented in writing to the inclusion of the rep ort, opinion or statement in the bid or circular.
(2) Up on the demand of the Commission, a person referred to in subsection (1) of this section, shall forthwith send to the Commission a copy of any report, opinion or statement referred to in that subsection which is made by that person and included in a bid o r directors' circular, tog ether with h is consent to its inclusion.
113. Where a bid under a take-over bid is for all the shares of a class in an offeree company -
(a) shares deposited pursuant to the bid, if not taken up by the offeror, may be withdrawn by or on behalf of a shareholder in the offeree company at any time after sixty days following the date of the take-over bid;
(b) the offeror shall not take up shares deposited pursuant to the bid until ten days after the date of the take-over bid; and
(c) the offeror, if he so intends, shall state in the bid that he intends to invoke the right under section 114 of this Decree to acquire the shares of shareholders-of the offeree company who do not accept the bid and that the shareholder is entitled to dissent and to demand the fair value of his shares.
114. (1) W here a bid under a take-over bid is for less than all the shares of any class in the offeree company -
(a) the offeror shall not take up shares deposited pursuant to the bid until twenty-one days after the date of the take-over bid,
(b) the period of time within which shares may be deposited pursuant to the bid, or any extension thereof, shall not exceed thirty-five days from the date of the take-over bid; and
(c) if a greater number of shares is deposited pursuant to the bid than the offeror is bound or willing to take up and pay for, the shares taken up by the offeror shall be taken up rateably, disregarding fractions, according to the number of share s deposited by e ach shareholder.
(2) Where a bid under a take-over bid for all the shares of any class in the offeree company is converted by amendment or otherwise to a bid for less than all those shares, the bid shall be deemed to be a bid to which subsection (1) of this section app lies.
115. Where a bid under a take-over bid is for all or less than all, the shares of any class in the offeree company -
(a) shares deposited pursuant to the bid may be withdrawn by or on behalf of a shareholder in the offeree company at an y time within ten days after the date of the take-over bid;
(b) shares deposited pursuant to the bid shall, if the terms stipulated by the offeror and not subsequently waived b y him have bee n com plied with, be taken up and paid for within fourteen day s after the last day within which shares may b e deposited pursuant to the bid;
(c) the period of time which shares may be deposited pursuant to a bid shall be less than twenty-one days after the d ate of the take-over bid;
(d) if the terms of the bid are amend ed by increasing the consideration offered for the shares, the offeror shall pay the increased consideration to each shareholder whose shares are taken up pursuant to the bid, whether or not the shares have been taken up before the amendment;
(e) if the offeror intends to purchase shares in the offeree company in the market during the period of time within which shares may be deposited pursuant to the bid, the offeror shall so state in the bid; and (f) if the offeror purchases shares to which a b id related otherwise than pursuant to the bid during the period of time within which shares may be deposited pursuant to the bid -
(i) the payment otherwise than pursuant to the bid of an amount for a share that is greater than the amount offered in the bid shall be deemed to be an amendment of the bid to which paragraph (d) of this sub section applies,
(ii) the offeror shall immediately notify the shareholders in the offeree company, as provided under section 107 of this Decree as to the increased consideration being offered for the shares,
(iii) the shares acquired otherwise than pursuant to nether a the bid shall he counted to determine whether a condition as to minimum acceptance has been fulfilled, and
(iv) the shares acquired otherwise than pursuant to the bid shall not be counted among the shares taken up rateably under paragraph (c) of subsection (1) of section 114 of this Decree.
116. Where a take-over bid is made in relation to any company the Commission shall cause to be placed on the file of the offeree company -
(a) any bid or amendment received by it pursuant w section 109 of this Decree; and
(b) any directors' circular received by it pursuant to section 111 of this Decree .
117. (1) For the purposes of this section -
(a) where a take-over bid has been made, in respect of all the shares included in a class of shares (other than shares to which the offeror or, where two or more persons constitute the offeror. any of those persons, or any company belonging to the same group of companies as that person or any of those persons, is entitled), the shares in respect of which that take-over offer was made shall be "Shares subject to acquisitions;
(b) "outstanding shares' means shares subject to acquisition in respect of which a take-over bid was made but has not ban accepted; and
(c) a "dissenting offeree" means a person who is, or is entitled to be registered as a holder of outstanding shares.
(2) Where a take-over bid in respect of shares included in the class of shares referred to in paragraph (a) of subsection (1) of this section representing not less than ninety percent in number of shares subject to acquisition has been accepted, the offeror may, within one month after the date on which acceptance of the shares representing not less than that per cent is completed, give notice as prescribed to a dissenting offeree-
(a) to the effect that the take-over b id has been accepted as mentioned in this section;
(b) that the offeror is bound to take up and pay for or has taken up and paid for, shares of the offerees w ho accepted the take-over bid;
(e) informing the dissenting offeree as to the election which he is required to make under subsection (3) of this section giving particulars of that election; and
(d) informing the dissenting offeree as to the effect of sub section (4 ) of this section and as to the requirements of subsection (5) of this section, giving particulars in each case.
(3) A dissenting offeree may, within twenty days of receiving a notice under subsection (2) of this section, by notice sent to the offeror elect -
(a) to transfer his shares to the offeror on the terms on which the offeror acquired the shares of the offeree who accepted the take-over bid; or
(b) to demand payment-of the fair value of his shares in accordance with section 118 of this Decree.
(4) A dissenting Offeree to whom a notice is given under subsection (2) of this section, who does not make any election as required by subsection (3) of this section, shall be deemed to have made an election under paragraph (a) of that subsection.
(5) A dissenting offeree shall, within twenty days after receiving a notice sent under subsection (2) of this section, send to the offeree company his share certificate of the class o f shares to which the take-over bid relates.
(6) An offeror shall, within twenty days after he sends a notice under subsection (2) of this section to a dissenting offeree, pay or transfer to the offeree company the amount of money or other -consideration that the offeror would have to pay if the dissenting offeree made an election under paragraph (a) of sub section (3 ) of this section, and the offeree company-
(a) shall be deemed to hold that amount of money or consideration in trust for the dissenting offeree; and
(b) shall -
(i) pay the amount into a bank account established for the purpose, or
(ii) place the consideration in the custody of a ban k.
(7) An offeror shall -
(a) send to the offeree company a copy of every notice sent under sub section (3 ) of this section to a dissenting offeree, and
(b) notify the offeree company of the election made by a dissenting offeree under subsection (3) of this section or deemed to have been made under subsection (4) by a dissenting offeree.
(8) An offeror shall send to the Commission a copy of every notice sent under subsection (2) of this section, to a dissenting offeree not later than one month after the date on which it is so sent.
118. This section shall apply where a dissenting offeree makes an election under paragraph (b) of subsection (3) of section 117 of " Decree .
(2) The offeror may, within twenty days after he had paid the money or transferred the other consideration under sub section (6) of this section apply to the court to fix the fair value of the shares of the dissenting offeree.
(3) If an offeror fails to apply to the court under subsection (2) of this section , a dissenting offeree may apply to the court for the same purpose within a further period o f twenty days.
(4) A dissenting offeree shall not be required to give security for costs in an application made under subsection (2) or (3) of this section.
(5) Where a n application is made under subsection (2) or (3) of this section -
(a) all dissenting offerees who made an election under paragraph (b) of subsection (3) of section 1 17 of this Decree shall b e joined as parties and bound by the decision of the court: and
(b) the offeror shall notify each affected dissenting offeree of the date and place of the application an d of his right to app ear and b e heard in person or by counsel.
(6) Upon an application to the court under subsection (2) or (3) of " section, the court shall fix a fair value for the shares of all dissenting offerees who made an election under paragraph (b) of subsection (3) of section 117 of this Decree .
(7) The court may, in its discretion, appoint one or more than one valuer to assist the court in fixing a fair value for the shares o f a dissenting offeree.
(8) The final order of the court shall be made against the offeror in favour of each dissenting offeree who made an election under paragraph (b) of sub section (3 ) of section 117 o f this Decree an d for the amount for his shares a s fixed by the court.
(9) The court may, in connection with proceedings under this section, make an order it thinks fit and, without limiting the generality of the foregoing may -
(a) by order, fix the amount of money or other consideration that is required to be held in trust under sub section (6) of section 117 of this Decree;
(b) order that money or other consideration be held in trust by a person other than the offeree company; or
(c) allow interest at the current bank rate on the amount payable to each dissenting offeree from the date he sends to the offeree company his share certificates under subsection (5) of section 117 of this Decree until the date of payment.
(10) Where the amount of money or other consideration fixed by the court under paragraph (a) of subsection (9) of this section exceeds that held on trust pursuant to any payment or transfer already made under subsection (6) of section 117 of this Decree b y the offeror, the offeror shall -
(a) make to the offeree company any payment or transfer necessary to comply with the order, and sub section (6 ) of section 117 o f this Decree shall apply in relation to the amount so p aid or transferred, or
(b) if the court made an order under paragraph (b) of subsection (9) of this section, make that payment or transfer to the other person by whom the money or consideration is to be held in trust.
(11) Where the court makes an order under paragraph (b) of subsection (9) of this section-
(a) the order of the court shall operate to divest the offeree company of the money or other consideration subject to the trust and to vest it in the person named in the order on the like trust; and
(b) subsection (6) of section 117 of this Decree shall apply to money or other consideration paid or transferred pursuant to paragraph (b) of sub section (1) of this section to that person .
119. (1) W here an offeree company is satisfied -
(a) in the case of the dissenting offeree who makes an election under paragraph (a) of subsection (3) of section 117 of this Decree or is deemed to have made such an election, that the offerer has made the payment or transfer required by subsection (6) of section 11 7 of this Decree; and
(b) in the case of a dissenting offeree who made an election under paragraph (b) of subsection (3) of section 117 of this Decree, that the offeror has, in addition to making that payment or transfer, made any payment or transfer required under subsection (1) of section 118 of " Decree to be made by the offeror, the offeree company shall issue to the offeror a share certificate in respect of the shares that were held by the dissenting offeree.
(2) W here an offeree company is satisfied a s provide d in paragraph (a) or (b ) of subsection (1) of this section , it shall -
(a) in the case of a dissenting offeree who has complied with subsection (5) of section 117 of this Decree, give to the dissenting offeree the money or other consideration to which he is entitled on application being made by him for that purpose or, if an order is made under paragraph (b) of subsection (9) of section 118 of this Decree, notify the other person holding the money or the property in trust that the dissenting offeree has complied with subsection (5) of section 117 of this Decree; or
(b) in the case of a dissenting offeree who has not complied with subsection (5) of section 117 of this Decree, send to the dissenting offeree a notice stating that -
(i) his shares have been cancelled;
(ii) a payment or transfer has been made under subsection (6 ) of section 117 of this Decree or as the case may be, under subsection (6) of section 118 of this Decree and subsection (10) thereof, giving particulars; and
(iii) the offeree company shall give or, as the case may be, authorise any person holding money or property in trust pursuant to an order made under paragraph (b) of subsection (9) of section 118 of " Decree to give to the dissenting offeree the money or other consideration, to which he is entitled, when he complies with subsection (6 ) of section 117 of this Decree .
(3) A person holding money or property in trust pursuant to an order made under paragraph (b) of subsection (9) of section 119 of this Decree shall, when he has been notified as provided in paragraph (a) of subsection (2) of this section or given authority as provided in subsection (2)(b)(iii) of this section, give to a dissenting offeree the money o r other consideration to which he is entitled on application being mad e by him for that purpose.
120. (1) In this section, 'trustee' means - a n offeree company or an y person who heads money or property in trust pursuant to an order made under paragraph (b) of subsection (9) of section 118 of this Decree.
(2) A trustee shall not be required to give money or other consideration to a person applying for it under section 119 of this Decree unless h e is satisfied that person is entitled to it.
(3) The court ma y -
(a) on the application of any person, direct that the person is or is not a person entitled under section 119 of this Decree to any money or other consideration; or
(b) on the application of a trustee, direct that any money or other consideration held by the trustee an d in respect of which no application has bee n mad e under section 1 19 of Decree in the period of three years after the nomination of the take-over concerned, be paid or transferred to, and held by the Commission; and in that event a claim by a person claiming to be entitled to the money or consideration shall be made to the Com mission.
121. (1) The following subsection s shall have effect when the aggregate n umber o f -
(a) shares included in a class of shares in an offeree company to which the offeror or, where two or m ore persons constitute the offeror, any of those persons become entitled in consequence of a take-over bid; and
(b) any other shares included in that class to which the offeror or, where two or more persons constitute the offeror, any of those persons, or any company belonging to the same -group of companies as that person or any of those persons, was entitled before -any bid under the take- over b id was despatched, is not less than ninety per cent o f the issued share s included in that class.
(2) The offeror s hall, within two month s after the d ate on which the aggregate number of shares referred to in paragraphs (a) an d (b) of subsection (1) of this section becomes not less than ninety per cent of the shares last mentioned in that subsection, give notice of that fact to the holders of the remaining shares included in that class who when the notice is given had not been given notice under subsection (2) of section 117 of this Decree.
(3) A holder of the remaining shares referred to in subsection (2) of this section may, within two months after the giving of notice to him under that subsection, require the offeror to acquire shares included in that class of which he is the holder.
(4) Where a shareholder gives notice under subsection (3) of this section with respect to his shares, the offeror shall be entitled and bound to acquire those shares -
(a) on the terms on which shares were acquired under the take-over bid; or
(b) on such terms as are agreed or as the court, on the application of the offeror or the shareholder, thinks fit to order.
(5) In determining, for the purposes of paragraph (a) of subsection (4) of this section, the terms on which shares are acquired under a take -over bid, the terms on which the shares of any dissenting offeree we re acquired shall be ignored.
122. (1) W here a person or two or m ore persons make s or make a take-over bid -
(a) to which section 105 of this Decree applies and no authority to proceed with the takeover bid granted under that section is in force on the date of the take-over bid, or
(b) to which section 106 of this Decree applies-an d a copy of a bid under the take-over bid has not bee n registered under that section, that person or each of those persons commits an offence and is liable on conviction to a fine of not less than N100,00 0 or to imprisonment for a term no t exceeding twelve months or to both such fine and imprisonment.
(2) W here a person o r more than on e person make s or make a take -over b id and a bid under the take-over b id |