28.8 THE DEMAND
If the shareholders of the company have adopted the special resolution contemplated in s 164(2) and a shareholder: -
· Sent the company a notice of objection; and
· In the case of an amendment to the companies MOI he or she holds shares of a class that is materially and adversely affected by the amendment;
· And voted against that special resolution; and
· Has complied with all the procedure requirements of s 164.
the shareholder may demand that the company pay the shareholder the fair value of all the shares of the company held by that minority shareholder. The requirement that a shareholder must have sent a notice of objection to the company does not apply if the company fails to give notice of the meeting or fails to include in that notice a statement of the shareholders rights under s 164.
There cannot be a partial dissent. It’s either all the shares or no shares.
A demand contemplated in s 164 must be made by written notice which must be delivered by the minority shareholder to the company within 20 business days after receipt of the notice from the company under s 164(4) (notice to dissenting shareholders of the results of the special resolution), or if the shareholder does not receive such a notice within 20 business days, after learning that that resolutions has been adopted. Such written notice must also be delivered to the takeover regulation panel, irrespective of whether or not the company is a regulated company. The demand must state the shareholders name and address, the number and class of shares in respect of which the shareholders seeks payment, and the demand for payment or the fair value of the shares.
A shareholder who has sent a demand has no further rights in respect of those shares, other than to be paid their fair value; -
· Unless the shareholder withdraws their demand before the company makes an offer or allows an offer made to the company to lapse. See s 164 (11) and (12), or
· The company fails to make an offer in accordance with s 164(11) and the shareholder withdraws the demand;
· Or the company by any subsequent special resolution revokes the adopted special resolution that gave rise to the shareholders rights under s 164. When this happens all the shareholders rights in respect of those shares are re-instated without interruption.