§ 76D — Authority for selective off‑market acquisition

76D.—(1) A company may make a purchase or acquisition of its own shares otherwise than on a securities exchange and not in accordance with an equal access scheme (called in this section a selective off‑market purchase) if the purchase or acquisition is made in accordance with an agreement authorised in advance under subsection (2).[36/2014]

(2) The terms of the agreement for a selective off‑market purchase must be authorised by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons, and subsections (3) to (13) apply with respect to that authority and to resolutions conferring it.

(3) The notice specifying the intention to propose a special resolution to authorise an agreement for a selective off‑market purchase must —(a)

specify a date on which the authority is to expire, being a date that must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier; and

(b)

specify the sources of funds to be used for the purchase or acquisition including the amount of financing and its impact on the company’s financial position.

(4) The special resolution authorising a selective off‑market purchase mentioned in subsection (2) must state the expiry date referred to in subsection (3)(a).

(4A) If the special resolution mentioned in subsection (2) is proposed to be passed by written means under section 184A —(a)

a person whose shares are proposed to be purchased or acquired or any of the person’s associated persons is not to be regarded as a member having the right to vote on the resolution at a general meeting of the company for the purposes of section 184A;

(b)

subsection (7) does not apply; but all documents referred to in this section must be given to all members having the right to vote on the resolution at a general meeting for the purposes of section 184A at or before the time —(i)

agreement to the resolution is sought in accordance with section 184C; or

(ii)

documents referred to in section 183(3A) in respect of the resolution are served on or made accessible to them in accordance with section 183(3A),

as the case may be.

(5) The authority referred to in subsection (2) may, from time to time, be varied or revoked by a special resolution with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons.

(6) For the purposes of subsections (2) and (5) —(a)

a member or any of the member’s associated persons who holds any of the shares to which the resolution relates is regarded as exercising the voting rights carried by those shares not only if the member or person votes in respect of them on a poll on the question whether the resolution should be passed, but also if the member or person votes on the resolution otherwise than on a poll;

(b)

despite anything in the company’s constitution, any member of the company may demand a poll on that question; and

(c)

a vote and a demand for a poll by a person as proxy for a member or any of the member’s associated persons are the same respectively as a vote and a demand by the member.[36/2014]

(7) The special resolution mentioned in subsection (2) is not effective for the purposes of this section unless (if the proposed agreement is in writing) a copy of the agreement or (if not) a written memorandum of its terms is available for inspection by members of the company both —(a)

at the company’s registered office for not less than 15 days ending with the date of the meeting at which the resolution is passed; and

(b)

at the meeting itself.

(8) A memorandum of terms so made available must include the names of any members holding shares to which the agreement relates and where a member holds such shares as nominee for another person, the name of that other person; and a copy of the agreement so made available must have annexed to it a written memorandum specifying any such names which do not appear in the agreement itself.

(9) A company may agree to a variation of an existing agreement so approved, but only if the variation is authorised, before it is agreed to, by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons.

(10) Subsections (3) to (7) apply to the authority for a proposed variation as they apply to the authority for a proposed agreement except that a copy of the original agreement or (as the case may require) a memorandum of its terms, together with any variations previously made, must also be available for inspection in accordance with subsection (7).

(11) The rights of a company under an agreement for a selective off‑market purchase approved under this section are not capable of being assigned except by order of the Court made pursuant to any provision of this Act or any other written law.

(12) An agreement by a company to release its rights under an agreement for a selective off‑market purchase approved under this section is void unless the terms of the release agreement are approved in advance before the agreement is entered into by a special resolution of the company with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons; and subsections (3) to (7) apply to the approval for a proposed release agreement as they apply to authority for the proposed variation of an existing agreement.

(13) A resolution to confer or vary authority for a selective off‑market purchase under this section may determine the maximum price for purchase or acquisition by —(a)

specifying a particular sum; or

(b)

providing a basis or formula for calculating the amount of the price in question without reference to any person’s discretion or opinion.

(14) In this section, “associated person”, in relation to a person, means —(a)

the person’s spouse, child or stepchild; or

(b)

a person who would, by virtue of section 7(5), be treated as an associate of the firstmentioned person.

—(1) A company may make a purchase or acquisition of its own shares otherwise than on a securities exchange and not in accordance with an equal access scheme (called in this section a selective off‑market purchase) if the purchase or acquisition is made in accordance with an agreement authorised in advance under subsection (2).[36/2014]

(2) The terms of the agreement for a selective off‑market purchase must be authorised by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons, and subsections (3) to (13) apply with respect to that authority and to resolutions conferring it.

(3) The notice specifying the intention to propose a special resolution to authorise an agreement for a selective off‑market purchase must —(a)

specify a date on which the authority is to expire, being a date that must not be later than the date on which the next annual general meeting of the company is or is required by law to be held, whichever is the earlier; and

(b)

specify the sources of funds to be used for the purchase or acquisition including the amount of financing and its impact on the company’s financial position.

(4) The special resolution authorising a selective off‑market purchase mentioned in subsection (2) must state the expiry date referred to in subsection (3)(a).

(4A) If the special resolution mentioned in subsection (2) is proposed to be passed by written means under section 184A —(a)

a person whose shares are proposed to be purchased or acquired or any of the person’s associated persons is not to be regarded as a member having the right to vote on the resolution at a general meeting of the company for the purposes of section 184A;

(b)

subsection (7) does not apply; but all documents referred to in this section must be given to all members having the right to vote on the resolution at a general meeting for the purposes of section 184A at or before the time —(i)

agreement to the resolution is sought in accordance with section 184C; or

(ii)

documents referred to in section 183(3A) in respect of the resolution are served on or made accessible to them in accordance with section 183(3A),

as the case may be.

(5) The authority referred to in subsection (2) may, from time to time, be varied or revoked by a special resolution with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons.

(6) For the purposes of subsections (2) and (5) —(a)

a member or any of the member’s associated persons who holds any of the shares to which the resolution relates is regarded as exercising the voting rights carried by those shares not only if the member or person votes in respect of them on a poll on the question whether the resolution should be passed, but also if the member or person votes on the resolution otherwise than on a poll;

(b)

despite anything in the company’s constitution, any member of the company may demand a poll on that question; and

(c)

a vote and a demand for a poll by a person as proxy for a member or any of the member’s associated persons are the same respectively as a vote and a demand by the member.[36/2014]

(7) The special resolution mentioned in subsection (2) is not effective for the purposes of this section unless (if the proposed agreement is in writing) a copy of the agreement or (if not) a written memorandum of its terms is available for inspection by members of the company both —(a)

at the company’s registered office for not less than 15 days ending with the date of the meeting at which the resolution is passed; and

(b)

at the meeting itself.

(8) A memorandum of terms so made available must include the names of any members holding shares to which the agreement relates and where a member holds such shares as nominee for another person, the name of that other person; and a copy of the agreement so made available must have annexed to it a written memorandum specifying any such names which do not appear in the agreement itself.

(9) A company may agree to a variation of an existing agreement so approved, but only if the variation is authorised, before it is agreed to, by a special resolution of the company, with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons.

(10) Subsections (3) to (7) apply to the authority for a proposed variation as they apply to the authority for a proposed agreement except that a copy of the original agreement or (as the case may require) a memorandum of its terms, together with any variations previously made, must also be available for inspection in accordance with subsection (7).

(11) The rights of a company under an agreement for a selective off‑market purchase approved under this section are not capable of being assigned except by order of the Court made pursuant to any provision of this Act or any other written law.

(12) An agreement by a company to release its rights under an agreement for a selective off‑market purchase approved under this section is void unless the terms of the release agreement are approved in advance before the agreement is entered into by a special resolution of the company with no votes being cast by any person whose shares are proposed to be purchased or acquired or by the person’s associated persons; and subsections (3) to (7) apply to the approval for a proposed release agreement as they apply to authority for the proposed variation of an existing agreement.

(13) A resolution to confer or vary authority for a selective off‑market purchase under this section may determine the maximum price for purchase or acquisition by —(a)

specifying a particular sum; or

(b)

providing a basis or formula for calculating the amount of the price in question without reference to any person’s discretion or opinion.

(14) In this section, “associated person”, in relation to a person, means —(a)

the person’s spouse, child or stepchild; or

(b)

a person who would, by virtue of section 7(5), be treated as an associate of the firstmentioned person.