Companies Act Section 236 — Purchase of minority shareholding
CHAPTER XV COMPROMISES, ARRANGEMENTS AND AMALGAMATIONS
Commercial / Corporate
Summary
Sub-section (1) covers the situation where a person, or a group acting together, becomes the registered holder of 90% or more of a company's issued equity share capital. It also covers the situation where any person or group becomes a 90% majority holder through an amalgamation, share exchange, conversion of securities, or any other reason. In either case, that acquirer, person, or group must notify the company of their intention to buy the remaining equity shares.
Sub-section (2) requires the acquirer, person, or group mentioned in sub-section (1) to offer to buy the equity shares held by the minority shareholders. The price for these shares must be determined based on a valuation done by a registered valuer, following the rules that may be prescribed.
Sub-section (3) states that, without affecting the provisions of sub-sections (1) and (2), the minority shareholders may offer to sell their minority equity shareholding to the majority shareholders. The price for this purchase is to be determined according to the same rules prescribed under sub-section (2).
Sub-section (4) requires the majority shareholders to deposit an amount equal to the value of the shares to be acquired under sub-section (2) or sub-section (3) into a separate bank account. This account is to be operated by the company whose shares are being transferred, for at least one year, for the purpose of payment to the minority shareholders. The amount must be disbursed to the entitled shareholders within sixty days. However, the disbursement must continue to be made to entitled shareholders for a period of one year, including for those who, for any reason, did not receive disbursement within the sixty-day period, or who failed to receive or claim payment even if disbursement was made within that period.
Sub-section (5) provides that, in the event of a purchase under this section, the company whose shares are being transferred will act as a transfer agent. Its role is to receive and pay the price to the minority shareholders, take delivery of the shares, and deliver those shares to the majority shareholders.
Sub-section (6) deals with the situation where shareholders do not physically deliver their shares within the time specified by the company. In that case, the share certificates are deemed to be cancelled. The company whose shares are being transferred is then authorised to issue new shares in place of the cancelled ones, complete the transfer in accordance with law, and make payment of the price out of the deposit made under sub-section (4) by the majority in advance to the minority by dispatching such payment.
Sub-section (7) addresses the situation where a majority shareholder or shareholders require a full purchase and make payment of the price by depositing it with the company, for shareholders who have died or ceased to exist, or whose heirs, successors, administrators, or assignees have not been brought on record by transmission. In such cases, the right of those shareholders to make an offer for sale of their minority equity shareholding continues and remains available for a period of three years from the date of majority acquisition or majority shareholding.
Sub-section (8) covers a scenario where the shares of minority shareholders have been acquired under this section, and on or before the date of transfer following such acquisition, the shareholders holding seventy-five percent or more of the minority equity shareholding negotiate or reach an understanding on a higher price for any transfer of their shares, without disclosing the fact or likelihood of the transfer taking place based on such negotiation, understanding, or agreement. In that case, the majority shareholders must share the additional compensation they receive with the minority shareholders on a pro rata basis. The Explanation clarifies that for this section, the expressions "acquirer" and "person acting in concert" have the meanings assigned to them in clause (b) and clause (e) of sub-regulation (1) of regulation 2 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
Sub-section (9) states that when a shareholder or the majority equity shareholder fails to acquire full purchase of the shares of the minority equity shareholders, the provisions of this section continue to apply to the residual minority equity shareholders. This applies even though the shares of the company of the residual minority equity shareholder had been delisted, and even though the period of one year or the period specified in the regulations made by the Securities and Exchange Board under the Securities and Exchange Board of India Act, 1992, had elapsed.
Official Text
(1) In the event of an acquirer, or a person acting in concert with such acquirer, becoming registered holder of ninety per cent. or more of the issued equity share capital of a company, or in the event of any person or group of persons becoming ninety per cent. majority or holding ninety per cent. of the issued equity share capital of a company, by virtue of an amalgamation, share exchange, conversion of securities or for any other reason, such acquirer, person or group of persons, as the case may be, shall notify the company of their intention to buy the remaining equity shares.
(2) The acquirer, person or group of persons under sub-section (1) shall offer to the minority shareholders of the company for buying the equity shares held by such shareholders at a price determined on the basis of valuation by a registered valuer in accordance with such rules as may be prescribed.
(3) Without prejudice to the provisions of sub-sections
(1) and (2), the minority shareholders of the company may offer to the majority shareholders to purchase the minority equity shareholding of the company at the price determined in accordance with such rules as may be prescribed under sub-section (2).
(4) The majority shareholders shall deposit an amount equal to the value of shares to be acquired by them under sub-section (2) or sub-section (3), as the case may be, in a separate bank account to be operated by the 1[company whose shares are being transferred] for at least one year for payment to the minority shareholders and such amount shall be disbursed to the entitled shareholders within sixty days:
Provided that such disbursement shall continue to be made to the entitled shareholders for a period of one year, who for any reason had not been made disbursement within the said period of sixty days or if the disbursement have been made within the aforesaid period of sixty days, fail to receive or claim payment arising out of such disbursement.
(5) In the event of a purchase under this section, the 2[company whose shares are being transferred] shall act as a transfer agent for receiving and paying the price to the minority shareholders and for taking delivery of the shares and delivering such shares to the majority, as the case may be.
(6) In the absence of a physical delivery of shares by the shareholders within the time specified by the company, the share certificates shall be deemed to be cancelled, and the 1[company whose shares are being transferred] shall be authorised to issue shares in lieu of the cancelled shares and complete the transfer in accordance with law and make payment of the price out of deposit made under sub-section (4) by the majority in advance to the minority by dispatch of such payment.
(7) In the event of a majority shareholder or shareholders requiring a full purchase and making payment of price by deposit with the company for any shareholder or shareholders who have died or ceased to exist, or whose heirs, successors, administrators or assignees have not been brought on record by transmission, the right of such shareholders to make an offer for sale of minority equity shareholding shall continue and be available for a period of three years from the date of majority acquisition or majority shareholding.
(8) Where the shares of minority shareholders have been acquired in pursuance of this section and as on or prior to the date of transfer following such acquisition, the shareholders holding seventy-five per cent. or more minority equity shareholding negotiate or reach an understanding on a higher price for any transfer, proposed or agreed upon, of the shares held by them without disclosing the fact or likelihood of transfer taking place on the basis of such negotiation, understanding or agreement, the majority shareholders shall share the additional compensation so received by them with such minority shareholders on a pro rata basis.
Explanation.—For the purposes of this section, the expressions “acquirer” and “person acting in concert” shall have the meanings respectively assigned to them in clause (b) and clause (e) of sub-regulation
(1) of regulation 2 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
(9) When a shareholder or the majority equity shareholder fails to acquire full purchase of the shares of the minority equity shareholders, then, the provisions of this section shall continue to apply to the residual minority equity shareholders, even though,—
(a) the shares of the company of the residual minority equity shareholder had been delisted; and
(b) the period of one year or the period specified in the regulations made by the Securities and Exchange Board under the Securities and Exchange Board of India Act, 1992 (15 of 1992), had elapsed.