Section 237Part 16 — Merger, Consolidation and Conversion
Merger or consolidation with overseas company
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Subject to section 239 A , one or more companies incorporated under this Act may merge or consolidate with one or more overseas companies in accordance with subsections
to (18). ( 2 ) Where the surviving or consolidated company is to be a company existing under this Act , in addition to compliance by each constituent company incorporated under this Act with section 233
to (10) the Registrar is required to be satisfied in respect of any constituent overseas company that —
the merger or consolidation is permitted or not prohibited by the constitutional documents of the constituent overseas company and by the laws of the jurisdiction in which the constituent overseas company is existing, and that those laws and any requirements of those constitutional documents have been or will be complied with;
no petition or other similar proceeding has been filed and remains outstanding, and no order has been made or resolution adopted to wind up or liquidate the con stituent overseas company in the jurisdiction in which the constituent overseas company is existing;
no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction and is acting in respect of the constituent overseas company, its affairs or its property or any part thereof;
no scheme, order, compromise or other similar arrangement has been entered into or made in any jurisdiction whereby the rights of creditors of the constituent overseas company are and continue to be suspended or restricted;
the constituent overseas company is able to pay its debts as they fall due and the merger or consolidation is bona fide and not intended to defraud unsecured creditors of the constituent overseas company;
in respect o f the transfer of any security interest granted by the constituent overseas company to the surviving or consolidated company —
consent or approval to the transfer has been obtained, released or waived;
the transfer is permitted by and has been app roved in accordance with the constitutional documents of the constituent overseas company; and
the laws of the jurisdiction of the constituent overseas company with respect to the transfer have been or will be complied with;
the constituent overs eas company will, upon the merger or consolidation becoming effective, cease to be incorporated, registered or exist under the laws of the relevant foreign jurisdiction; and
there is no other reason why it would be against the public interest to permit the merger or consolidation. ( 3 ) Subsection (2)(a) to (g) shall be satisfied by filing with the Registrar a declaration of a director of the surviving or consolidated company to the effect that, having made due enquiry, that person is of the opinion that the requirements of those paragraphs have been met; and — ( a ) the declaration shall include a statement of the assets and liabilities of the constituent overseas company made up to the latest practicable date before making the declaration; and ( b ) a direct or of the surviving or consolidated company shall be deemed to have made due enquiry for the purposes of subsection (2)(a) to (g) and this subsection if such director has obtained from a director of the constituent overseas company a declaration that the r equirements of subsection 2(a) to (g) have been met with respect to such constituent overseas company.
A person who, being a director, makes a false declaration under subsection (3) commits an offence and is liable on summary conviction to a fine of tw enty thousand dollars or to imprisonment for five years, or both.
In any proceedings for an offence under subsection (4), it shall be a defence for the person charged to prove that that person took all reasonable precautions and exercised all due dilig ence to avoid the commission of such an offence by that person or any person under that person’s control.
Where the surviving or consolidated company is to be established under this Act , upon payment of the applicable fees under this Act and upon the R egistrar being satisfied that the requirements of subsection (2) in respect of the merger or consolidation have been complied with and that the name of the consolidated company complies with section 30 , the Registrar shall register the plan of merger or consolidation including any new or amended memorandum and articles of association and issue a certificate of merger or consolidation under that person’s hand and seal of office, and in the case of a consolidation section 27 shall apply in relation to the consolidated company.
Where the surviving or consolidated company is to be an overseas company the Registrar is required to be satisfied, in addition to compliance with section 233(2) to (10) (excluding section 233(9)(g)), by each constituent company incorporated under this Act , that —
the merger or consolidation is permitted or not prohibited by the constitutional documents of the constituent overseas company and by the laws of the jurisdiction in which the constituent overseas company is existing, and that those laws and any requirements of those constitutional documents have been or will be complied with;
no petition or other similar proceeding has been filed and remains outsta nding, and no order has been made or resolution adopted to wind up or liquidate the constituent overseas company in any jurisdiction;
no receiver, trustee, administrator or other similar person has been appointed in any jurisdiction and is acting in re spect of the surviving company, its affairs or its property or any part thereof;
no scheme, order, compromise or other similar arrangement has been entered into or made in any jurisdiction whereby the rights of creditors of the surviving company are su spended or restricted; and
there are no reasons why it would be against the public interest to allow the merger or consolidation.
Subsection (7)(a) to (d) shall be satisfied by filing with the Registrar a declaration of a director of each constitue nt company incorporated under this Act to the effect that, having made due enquiry, that person is of the opinion that the requirements of those paragraphs have been met; and a director of each constituent company incorporated under this Act shall be deeme d to have made due enquiry for the purposes of subsection (7)(a) to (d) and this subsection (8) if such director has obtained from a director of the constituent overseas company a declaration that the requirements of subsection (7)(a) to (d) have been met with respect to such constituent overseas company.
A person who, being a director, makes a false declaration under subsection (8) commits an offence and is liable on conviction to a fine of twenty thousand dollars or to imprisonment for five years, or both.
Where the surviving or consolidated company is to be an overseas company, the surviving or consolidated overseas company shall file with the Registrar —
an undertaking that it will promptly pay to the dissenting members of a constituent comp any incorporated under this Act the amount, if any, to which they are entitled under section 238 ; and
such evidence of the merger or consolidation from the jurisdiction of the surviving or consolidated overseas company as the Registrar considers acceptable, such evidence to include the effective date of the merger or consolidation.
The effect of a merger or consol idation where the surviving or consolidated company is to be an overseas company under this section is the same as in the case of a merger or consolidation under this Part if the surviving or consolidated company is incorporated or established under this A ct , and all of the relevant provisions of this Part apply, except insofar as the laws of the jurisdiction of the surviving or consolidated overseas company otherwise provide.
For the purposes of this section —
any references in section 233 to the shares of any constituent company shall be deemed to include references to any other equity interests in such c onstituent company;
any references in section 233 to memoranda and articles of association shall be deemed to include references to the equivalent organisational documents of an overseas company; and
any reference in section 233 or this section to a director of a company shall be deemed to include a reference to any officer, member or other person (howsoever called) in whom the management of an overseas company is vested.
Where the surviving or consolidated co mpany is to be an overseas company, upon payment of the applicable fees under this Act and upon the Registrar being satisfied that the requirements of subsections (7) and (10) have been complied with the Registrar shall, where the overseas company is the s urviving or consolidated company, strike off constituent companies incorporated pursuant to this Act from the register and issue a certificate of strike off by way of merger or consolidation with an overseas company; and section 158 shall apply to the constituent companies so struck off.
A certificate of strike off by way of merger or consolidation with an overseas company issued by the Registrar shall be prima facie evidence of compliance with all requirements of this Act in respect of such merger or consolidation.
Subject to section 234 , a merger or consolidation shall be effective on the date the plan of merger or consolidation is registered by the Registrar.
The issuance of a certificate of merger or consolidation relating to the merger or consolidation of an overseas company registered under Part 9 shall be deemed to constitute notice to the Registrar pursuant to section 192 .
Any declaration of a director pursuant to this section may be given in the form of a declaration or an af fidavit, as the director may determine.
The Registrar shall submit a copy of the certificate of strike off by way of merger or consolidation issued under subsection (13) to the Authority.