Part 8 — Compulsory Acquisition
156 Right to acquire
take-over bid is accepted by the holders of not less than 90% of the
shares of any class of shares to which the bid relates, other than
shares held at the date of the take-over bid by or on behalf of the
offeror or an affiliate or associate of the offeror, the offeror is
entitled, on complying with this section, to acquire the shares held
by the dissenting offerees.
(2) An offeror may acquire shares held by a dissenting offeree by
sending, by confirmed delivery service within 60 days after the
date of termination of the take-over bid or within 180 days after the
date of the take-over bid, a notice to each dissenting offeree stating
that
(a) the offerees holding not l ess than 90% of the shares to
which the take-over bid relates accepted the bid,
(b) the offeror is bound to take up and pay for or has taken u p
and paid for the shares of the offerees who accepted the
take-over bid,
(c) a dissenting offer ee is required to elect
(i) to transfer the dissenting offeree's shares to the offeror
on the terms on which the offeror acquired the shares of
the offerees who accepted the take-over bid, or
(ii) to demand payment of the fair value of the dissenting
offeree's shares in accordance with subsections (9) to
(17) by notifying the offeror within 20 days after the
offeree receives the notice,
(d) a dissenting offeree who does not notify the offeror as
described in clause (c)(ii) is deemed to have elected to
transfer the shares to the offeror on the same terms on which
the offeror acquired the shares from the offerees who
accepted the take-over bid, and
(e) a dissenting offeree must send the shares to which the
take-over bid relates to the offeree cooperative within 20
days after the offeree receives the offeror's notice.
(3) Concurrently with sending the notice under subsection (2), the
offeror must send to the offeree cooperative a notice of adverse
claim in accordance with section 221 with respect to each share
held by a dissenting offeree.
(4) A dissenting offeree to whom a notice is sent under subsection
(2) must, within 20 days after receiving the notice,
(a) send the share certificates o f the class of shares to which the
take-over bid relates to the offeree cooperative, and
(b) elect
(i) to transfer the shares to the offeror on the terms on
which the offeror acquired the shares of the offerees who
accepted the take-over bid, or
(ii) to demand payment of the fair value of the shares in
accordance with subsections (9) to (17) by notifying the
offeror.
(5) A dissenting offeree who does not notify the offeror in
accordance with subsection (4)(b)(ii) is deemed to have elected to
transfer the shares to the offeror on the same terms on which the
offeror acquired the shares from the offerees who accepted the
take-over bid.
(6) Within 20 days after the offeror sends a notice under
subsection (2), the offeror must pay or transfer to the offeree
cooperative the amount that the offeror would have had to pay to
dissenting offerees if all the dissenting offerees had elected to
accept the take-over bid under subsection (4)(b)(i).
(7) The offeree cooperative is deemed to hold in trust for the
dissenting offerees the amounts it receives under subsection (6),
and the offeree cooperative must deposit the amounts in a separate
account in a corporation any of whose deposits are insured by the
Canada Deposit Insurance Corporation or guaranteed by the
Quebec Deposit Insurance Board or by any other similar entity
created by the law of a province, and must place anything received
in lieu of money in the custody of such a corporation.
(8) Within 30 days after the offeror sends a notice under
subsection (2), the offeree cooperative must
(a) if the payments required by subsection (6) have been made
and the money or things have been deposited as required by
subsection (7), issue to the offeror a share certificate in
respect of the shares that were held by dissenting offerees,
(b) if the payments required by subsection (6) have been made
and the money or things have been deposited as required by
subsection (7), give to each dissenting offeree who elects to
accept the take-over bid terms under subsection (4)(b)(i) and
who sends share certificates as required by subsection (4)(a)
the money or thing to which the offeree is entitled,
disregarding fractional shares, which may be paid for in
money, and
(c) if the payments required by subsection (6) have been made
and the money or things have been deposited as required by
subsection (7), send to each dissenting offeree who has not
sent share certificates as required by subsection (4)(a) a
notice stating that
(i) the dissenting offeree's shares have been cancelled,
(ii) the offeree cooperative or some designated person holds
in trust for the dissenting offeree the money or other
consideration to which that offeree is entitled as payment
for or in exchange for the shares, and
(iii) the offeree cooperative will, subject to subsections (9) to
(17), send that money or thing to that offeree without
delay after receiving the share certificates.
(9) If a dissenting offeree has elected to demand payment of the
fair value of the shares under subsection (4)(b)(ii), the offeror may,
within 20 days after it has paid the money or transferred the things
under subsection (6), apply to the Court to fix the fair value of the
shares of that dissenting offeree.
(10) If an offeror fails to apply to the Court under subsection (9), a
dissenting offeree may apply to the Court for the same purpose
within a further period of 20 days.
(11) If no application is made to the Court under subsection (10)
within the period set out in that subsection, a dissenting offeree is
deemed to have elected to transfer shares to the offeror on the same
terms on which the offeror acquired the shares from the offerees
who accepted the take-over bid.
(12) A dissenting offeree is not required to give security for costs
in an application made under subsection (9) or (10).
(13) On an application under subsection (9) or (10),
(a) all dissenting offerees w ho made an election under
subsection (4)(b)(ii) whose shares have not been acquired
by the offeror must be joined as parties and are bound by the
decision of the Court, and
(b) the offeror must notify each affected dissenting offeree o f
the date, time, place and consequences of the application
and of the right to appear and be heard personally or by
counsel.
(14) On an application to the Court under subsection (9) or (10),
the Court may determine whether any other person is a dissenting
offeree who should be joined as a party, and the Court must then
fix a fair value for the shares of all dissenting offerees.
(15) The 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.
(16) The final order of the Court must be made against the offeror
in favour of each dissenting offeree for the amount for shares as
fixed by the Court.
(17) In connection with proceedings under this section, the Court
may make any order it thinks fit, including an order to
(a) fix the amount of money or things that are required to be
held in trust under subsection (7),
(b) order that the money or things be held in trust by a perso n
other than the offeree cooperative,
(c) allow a reasonable rate of i nterest on the amount payable to
each dissenting offeree from the date the offeree sends or
delivers the share certificates under subsection (4) until the
date of payment, and
(d) order that any money payable to an investment shareholder
who cannot be found be paid to the President of Treasury
Board and Minister of Finance, in which case section 328
applies.
(18) If a cooperative makes an offer to its investment shareholders
to repurchase all of the shares of any class of its shares, the offer is
deemed to be a take-over bid and the cooperative must
(a) comply with this section, except subsections (3) and (6), and
(b) in accordance with subsection (7), within 20 days after it
sends an offeror's notice under subsection (2), deposit the
amount the cooperative would have had to pay to dissenting
offerees if all the dissenting offerees had elected to accept
the take-over bid under subsection (4)(b)(i).
(19) If, pursuant to an offer under subsection (18), the cooperative
is prohibited by section 129
(a) from depositing or placing the consideration for the share s
pursuant to subsection (7), or
(b) from paying the amount for the shares fixed by the Court
pursuant to subsection (14),
the cooperative
(c) must re-issue to the dissenting offerees the shares for wh ich
the cooperative is not allowed to pay, and
(d) is entitled to use for its own benefit any money or
consideration deposited or placed under subsection (7),
and the dissenting offerees are reinstated to the full rights of
investment shareholders.
2001 cC-28.1 s156;2013 c10 s32;2022 c16 s3(33)