PART VICorporate Governance (continued)
DIVISION XCompulsory Acquisitions (continued)
Marginal note:Fiduciary capacity of company
311.1 A company that is making a take-over bid to repurchase all of the shares of a class is deemed to hold in a fiduciary capacity for the dissenting shareholders the money that it would have had to pay, and the other consideration that it would have had to transfer, to a dissenting offeree if the dissenting offeree had elected to transfer their shares in accordance with paragraph 310(b). The company shall within 20 days after a notice is sent under subsection 309(1) deposit the money in a separate account in a deposit-taking financial institution in Canada and place any other consideration in the custody of a deposit-taking financial institution in Canada.
- 2005, c. 54, s. 278
Marginal note:Duty of offeree company
312 Within thirty days after an offeror sends an offeror’s notice under subsection 309(1), the offeree company shall
(a) if the payment or transfer required by subsection 311(1) is made, issue to the offeror a share certificate in respect of the shares that were held by the dissenting offerees;
(b) give to each dissenting offeree who elects to transfer shares under paragraph 310(b) and who sends the share certificates as required under paragraph 310(a) the money or other consideration to which they are entitled, disregarding fractional shares, which may be paid for in money; and
(c) if the payment or transfer required by subsection 311(1) is made and the money or other consideration is deposited as required by subsections 311(2) and (3) or by section 311.1, send to each dissenting offeree who has not sent share certificates as required under paragraph 310(a) a notice stating that
(i) their shares have been cancelled,
(ii) the offeree company or its designated person holds in a fiduciary capacity for that offeree the money or other consideration to which they are entitled as payment for or in exchange for the shares, and
(iii) the offeree company will, subject to sections 313 to 316, send that money or other consideration to that offeree without delay after receiving the share certificates.
- 1991, c. 47, s. 312
- 2005, c. 54, s. 279
Marginal note:Court may fix fair value
313 (1) If a dissenting offeree has elected to demand payment of the fair value of their shares under paragraph 310(b), the offeror may, within 20 days after it has paid the money or transferred the other consideration under subsection 311(1), apply to a court to fix the fair value of the shares of that dissenting offeree.
(2) If an offeror fails to apply to a court under subsection (1), a dissenting offeree may apply to a court for the same purpose within a further period of twenty days.
(3) An application under subsection (1) or (2) shall be made to a court having jurisdiction in the place at which the head office of the company is situated or in the province in which the dissenting offeree resides if the company carries on business in that province.
Marginal note:No security for costs
(4) A dissenting offeree is not required to give security for costs in an application made under subsection (1) or (2).
- 1991, c. 47, s. 313
- 2005, c. 54, s. 280
Marginal note:Parties and notice
314 On an application under subsection 313(1) or (2),
(a) all dissenting offerees who have made elections to demand payment under paragraph 310(b) and whose shares have not been acquired by the offeror shall be joined as parties and are bound by the decision of the court; and
(b) the offeror shall notify each affected dissenting offeree of the date, place and consequences of the application and of the dissenting offeree’s right to appear and be heard in person or by counsel at the hearing of the application.
- 1991, c. 47, s. 314
- 2005, c. 54, s. 281
Marginal note:Powers of court
315 (1) On an application to a court under subsection 313(1) or (2), the court may determine whether any other person is a dissenting offeree who should be joined as a party, and the court shall then fix a fair value for the shares of all dissenting offerees.
(2) A court may in its discretion appoint one or more appraisers to assist the court in fixing a fair value for the shares of a dissenting offeree.
Marginal note:Final order
(3) The final order of a court shall be made against the offeror in favour of each dissenting offeree and for the amount for each dissenting offeree’s shares as fixed by the court.
Marginal note:Additional powers of court
(4) In connection with proceedings under subsection 313(1) or (2), a court may make any order it thinks fit and, without limiting the generality of the foregoing, may
(a) fix the amount of money or other consideration that is deemed to be held in a fiduciary capacity under subsection 311(2) or section 311.1;
(b) order that the money or other consideration is to be held in trust by a person other than the offeree company;
(c) allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date the dissenting offeree sends the share certificates required under section 310 until the date of payment; or
(d) order that any money payable to a shareholder who cannot be found be paid to the Receiver General.
(5) If at any time a person establishes an entitlement to any moneys paid to the Receiver General under this section, the Receiver General shall pay an equivalent amount to that person out of the Consolidated Revenue Fund.
- 1991, c. 47, s. 315
- 2005, c. 54, s. 282
Marginal note:Status of dissenter
316 Where no application is made to a court under subsection 313(2) within the period set out in that subsection, a dissenting offeree is deemed to have elected to transfer the dissenting offeree’s shares to the offeror on the same terms on which the offeror acquired the shares from the offerees who accepted the take-over bid.
Marginal note:Obligation to acquire shares
Marginal note:Acquisition on same terms
(2) If the shareholder requires the offeror to acquire shares, the offeror shall acquire them on the same terms as those on which the offeror acquires shares from offerees who accept the take-over bid.
- 2005, c. 54, s. 283
DIVISION XITrust Indentures
317 In this Division,
- event of default
event of default means, in relation to a trust indenture, an event specified in the trust indenture on the occurrence of which the principal, interest and other moneys payable thereunder become or may be declared to be payable before maturity, but the event is not an event of default until all the conditions set out in the trust indenture in connection with the giving of notice of the event have been satisfied or the period of time for giving the notice has elapsed; (cas de défaut)
issuer means a company that has issued, is about to issue or is in the process of issuing subordinated indebtedness; (émetteur)
trustee means any person appointed as trustee under the terms of a trust indenture to which a company is a party, and includes any successor trustee; (fiduciaire)
- trust indenture
trust indenture means any deed, indenture or other instrument, including any supplement or amendment thereto, made by a company under which the company issues subordinated indebtedness and in which a person is appointed as trustee for the holders of the subordinated indebtedness issued thereunder. (acte de fiducie)
318 This Division applies in respect of a trust indenture if the subordinated indebtedness issued or to be issued under the trust indenture is part of a distribution to the public.
319 The Superintendent may, in writing, exempt a trust indenture from the application of this Division if, in the Superintendent’s opinion, the trust indenture and the subordinated indebtedness are subject to a law of a province or other jurisdiction, other than Canada, that is substantially equivalent to the provisions of this Act relating to trust indentures.
- Date modified: