Section 125
of International Business Companies Order, 2000
Section 125
(1)
In accordance with subsections (2) to (6) –
(a)
two or more IBCs may merge or consolidate; and
(b)
one or more IBCs may merge or consolidate with one or more domestic companies, or foreign international companies if the surviving company or the consolidated company will satisfy the requirements for an IBC in section 6.
(2)
The directors of each constituent company which proposes to participate in a merger or consolidation must approve a written plan of merger or consolidation containing, as the case may require –
(a)
the name of each constituent company and the name of the surviving company;
(b)
in relation to each constituent company, the designation and number of outstanding shares of each class and series of shares, specifying –
(i)
which class and series is entitled to vote on the merger or consolidation; and
Incorporating amendments until S 53/2017
(Clean Vesion) NANI/zimah _ as of 11 February 2020
99
BLUV as at 20th June 2017
(ii)
which class and series, if any, is entitled to vote as a class or series;
(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 or other securities in the surviving or consolidated company or into money or other property, or a combination thereof;
(d)
in respect of a merger, a statement of any amendment to the
Memorandum or Articles of the surviving company;
(e)
in respect of a consolidation, everything required to be included in the
Memorandum and Articles for an IBC, except statements as to facts not available at the time the plan of consolidation is approved by the directors; and
(f)
in respect of each constituent company, a copy of a resolution of the directors of that company stating that, in their opinion –
(i)
the merger or consolidation is in the best interests of the company; and
(ii)
at the date of the plan, the company fulfils the solvency conditions.
(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.
(4)
The plan of merger or consolidation must be authorised by a 75 per cent resolution of the members and, for this purpose –
(a)
if the Memorandum or Articles of a constituent company so provide or if the plan of merger or consolidation contains appropriate provisions
(as defined in paragraph (b)), the outstanding shares of a class or series are entitled to vote on the resolution as a class or series;
Incorporating amendments until S 53/2017
(Clean Vesion) NANI/zimah _ as of 11 February 2020
100
BLUV as at 20th June 2017
(b)
the reference in paragraph (a) to appropriate provisions is a reference to provisions which, 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;
(c)
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 he is entitled to vote on the merger or consolidation; and
(d)
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 he is entitled to consent to the plan.
(5)
After approval of the plan of merger or consolidation by the directors and members of each constituent company, each such company shall serve a copy of the plan on each of its creditors for more than five hundred dollars and shall execute articles of merger or consolidation containing particulars of –
(a)
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 an IBC;
(b)
the date on which the Memorandum and Articles of each constituent company were registered; and
(c)
the manner in which the merger or consolidation was authorised in respect of each constituent company.
(6)
Not earlier than thirty days after the completion of the service of the copy of the plan on creditors in accordance with subsection (5), the articles of merger or consolidation shall be submitted to the Registrar accompanied by the prescribed fee and a declaration, signed by the persons who are to be the directors of the surviving company or, as the case may be, the consolidated company, that, in their opinion that company will fulfil the solvency conditions immediately after the merger or consolidation takes effect.
Incorporating amendments until S 53/2017
(Clean Vesion) NANI/zimah _ as of 11 February 2020
101
BLUV as at 20th June 2017
(7)
Unless the Registrar –
(a)
has reason to believe that there has been a failure to comply with any of the preceding provisions of this section or that the solvency conditions will not be fulfilled as stated in the declaration, or
(b)
considers that the name proposed for the surviving company or, as the case may be, the consolidated company would be in contravention of section 13, the Registrar shall retain and register the articles of merger and consolidation submitted to him under subsection (6) and, upon the registration of those articles, the Registrar shall issue a certificate under his hand and seal certifying that they have been so registered.
(8)
A certificate issued by the Registrar under subsection (7) is prima facie evidence of compliance with all the requirements of this Order in respect of the merger or consolidation to which the certificate relates.
Merger with subsidiary.