INTERIM REVISED STATUTES OF ANGUILLA 2000
COMPANIES ACT
Division 9

Merger and Consolidation

Interpretation

164.    (1) In this Division—

“consolidated company” means the new company that results from the consolidation of 2 or more constituent companies;

“consolidation” means the amalgamation of 2 or more constituent companies into a new company;

“constituent company” means an existing company that is participating in a merger or consolidation with 1 or more other existing companies;

“merger” means the amalgamation of 2 or more constituent companies into 1 of the constituent companies;

“parent company” means a company that owns at least 90% of the outstanding shares of each class and series of shares in another company;

“subsidiary company” means a company at least 90% of whose outstanding shares of each class and series of shares are owned by another company;

“surviving company” means the constituent company into which 1 or more other constituent companies are merged.

(2) For greater certainty, a consolidated company is to be treated for the purposes of this and any other Act as a company incorporated under this Act.

Merger and consolidation with Anguilla company

165.    (1) Two or more companies may merge or consolidate in accordance with this Division.

(2) If, before a merger, the company that will be the surviving company—

(a)  is a company limited by shares, the surviving company must be a company limited by shares;

(b)  is a company limited by guarantee, the surviving company must be a company limited by guarantee; or

(c)  is a company limited by both shares and guarantee, the surviving company must be a company limited by both shares and guarantee.

Plan of merger or consolidation

166.    (1) The directors of each constituent company that proposes to participate in a merger or consolidation must, by resolution, approve a written plan of merger or consolidation containing—

(a)  the name of each constituent company and the name of the surviving company or the consolidated company;

(b)  in the case of—

(i) a merger, whether the company which will be the surviving company is a company limited by shares, a company limited by guarantee or a company limited by both shares and guarantee, or

(ii) a consolidation, whether the consolidated company will be a company limited by shares, a company limited by guarantee or a company limited by both shares and guarantee;

(c)  in respect of each constituent company limited by shares or limited by shares and guarantee—

(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

(ii) a specification of each such class and series, if any, entitled to vote as a class or series;

(d)  where the surviving company or the consolidated company will be a company limited by shares or a company limited by both shares and guarantee, the matters required to be set out in the articles of incorporation of a company under sections 7(1)(e) and (f);

(e)  where the surviving or the consolidated company will be a company limited by guarantee or by both shares and guarantee, the matters required to be set out in the articles of incorporation of a company under section 7(1)(i);

(f)   the terms and conditions of the proposed merger or consolidation including, if appropriate, 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;

(g)  in respect of a merger, a statement of any amendment to the articles or by-laws of the surviving company, to be brought about by the merger; and

(h) in respect of a consolidation, all other matters required to be included in the articles of incorporation or by-laws of a company registered under this Act.

(2)  The plan of merger or consolidation may specify the date on which the amalgamation is intended to become effective.

(3)  Some or 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.

Approval of plan of merger or consolidation

167. (1) Each constituent company must give at least 21 days notice to each of its shareholders of a resolution to approve a merger or consolidation, whether or not the shareholder is entitled to vote on or consent to the resolution, and the notice must be accompanied by—

(a)  a copy of the plan of merger or consolidation;

(b)  a copy of the resolution of the directors approving the plan of merger or consolidation; and

(c)  such further information and explanation as may be necessary for a reasonable shareholder to understand the nature, and implications for the company and its shareholders, of the proposed merger or consolidation.

(2)  The plan of merger or consolidation must be approved—

(a)  by a special resolution of the shareholders of each constituent company incorporated under this Act; and

(b)  by a resolution of the shareholders of every other constituent company;

and, in respect of each constituent company, 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 articles or by-laws so provide or if the plan of merger or consolidation contains any provisions that, if contained in a proposed amendment to the articles or by-laws, would entitle the class or series to vote on the proposed amendment as a class or series.

(3)  After approval of the plan of merger or consolidation by the shareholders of each constituent company in accordance with subsection (2), articles of merger or consolidation setting out the information in prescribed form must be executed by each company.

Merger with subsidiaries

168. (1) A parent company may merge with 1 or more of its subsidiary companies in accordance with this section, if—

(a)  each of the subsidiary constituent companies is incorporated or continued under this Act; and

(b)  the parent company will be the surviving company.

(2)  The directors of the parent company and each subsidiary constituent company must approve a written plan of merger containing—

(a)  the name of each constituent company and the name of the surviving company;

(b)  in respect of each constituent company—

(i) the designation and number of outstanding shares of each class and series of shares, and

(ii) the number of shares of each class and series of shares in each subsidiary company owned by the parent company; and

(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.

(3)  The plan of merger or consolidation may specify the date on which the amalgamation is intended to become effective.

(4)  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.

(5)  A copy of the plan of merger or an outline of it must be given to every shareholder of each subsidiary company to be merged unless the giving of that copy or outline has been waived by that shareholder.

(6)  Articles of merger or consolidation setting out the information and in prescribed form must be executed by each company.

Registration of articles of merger or consolidation

169.    (1) Subject to subsection (2), if he is satisfied that the provisions of this Act in respect of merger or consolidation have been complied with, the Registrar shall, upon receipt of articles of merger or consolidation executed by each constituent company in a merger or consolidation, register the articles and issue a certificate of merger or consolidation, as appropriate, stating that the merger or consolidation is effective from the date of the certificate.

(2)  If the plan of merger or consolidation specifies a date upon which the merger or consolidation is to become effective, and that date is later than the date of registration of articles of merger or consolidation by the Registrar, the certificate must be expressed to take effect on the date specified in the plan.

(3)  A certification of merger or consolidation issued by the Registrar is prima facie evidence of compliance with the requirements of this Act in respect of the merger or consolidation.

Effect of merger or consolidation

170.    (1) A merger or consolidation is effective on the date shown in the certificate of merger or consolidation.

(2) As soon as a merger or consolidation becomes effective—

(a)  the surviving company or the consolidated company in so far as is consistent with its articles and by-laws, 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;

(b)  in the case of a merger, the articles and by-laws of the surviving company are deemed to be amended to the extent, if any, that changes in its articles and by-laws are contained in the articles of merger;

(c)  in the case of a consolidation, the statements contained in the articles of consolidation that are required or authorised to be contained in the articles and by-laws of a company incorporated under this Act, are the articles and by-laws of the consolidated company;

(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

(e) the surviving company or the consolidated company is liable for all claims, debts, liabilities and obligations of each of the constituent companies.

(3)  Where a merger or consolidation occurs—

(a)  no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing against a constituent company or against any shareholder, director, officer or agent thereof, is released or impaired by the merger or consolidation; and

(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 shareholder, director, officer or agent thereof, are abated or discontinued by the merger or consolidation, but—

(i) the proceedings may be enforced, prosecuted, settled or compromised by or against the surviving company or the consolidated company or against the shareholder, director, officer or agent thereof, as the case may be, or

(ii) the surviving company or the consolidated company may be substituted in the proceedings for a constituent company.

(4)  The Registrar shall strike off the Register—

(a)  a constituent company that is not the surviving company in a merger; or

(b)  a constituent company that participates in a consolidation.

Merger or consolidation with foreign company

171. (1) One or more companies may merge or consolidate with one or more companies incorporated under the laws of jurisdictions outside Anguilla 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 Anguilla are incorporated.

(2) The following apply in respect of a merger or consolidation under this section—

(a)  a company shall comply with the provisions of this Act with respect to the merger or consolidation, as the case may be, of such companies and companies incorporated under the laws of a jurisdiction outside Anguilla shall comply with the laws of that jurisdiction; and

(b)  if the surviving company or the consolidated company is to be incorporated or continued under the laws of a jurisdiction outside Anguilla, it must file with the Registrar—

(i) an agreement that a service of process may be effected on it in Anguilla in respect of proceedings for the enforcement of any claim, debt, liability or obligation of a constituent company or in respect of proceedings for the enforcement of the rights of a dissenting shareholder of a constituent company against the surviving company or the consolidated company,

(ii) an irrevocable appointment of the Registrar as its agent to accept service of process in proceedings referred to in subparagraph (i),

(iii) an agreement that it will promptly pay to the dissenting shareholders of a constituent company the amount, if any, to which they are entitled under this Act with respect to the rights of dissenting shareholders, and

(iv) a certificate of merger or consolidation issued by the appropriate authority of the foreign jurisdiction where it is incorporated or, if no certificate of merger is issued by the appropriate authority of the foreign jurisdiction, such evidence of the merger or consolidation as the Registrar considers acceptable.

(3)  The effect under this section of a merger or consolidation is the same as in the case of a merger or consolidation under section 165 if the surviving company or the consolidated company is incorporated under this Act, but if the surviving company or the consolidated company is incorporated under the laws of a jurisdiction outside Anguilla, the effect of the merger or consolidation is the same as in the case of a merger or consolidation under section 165 except in so far as the laws of the other jurisdiction otherwise provide.

(4)  If the surviving company or the consolidated company is incorporated under this Act, the merger or consolidation is effective on the date the articles of merger or consolidation are registered by the Registrar or on such later date, not exceeding 30 days, as is stated in the articles of merger or consolidation but, if the surviving company or the consolidated company is incorporated under the laws of a jurisdiction outside Anguilla, the merger or consolidation is effective as provided by the laws of that other jurisdiction.

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