214 SECRETARIAL PRACTICE

Dissentients.

difficulty: one is a clause enabling the liquidator, with the
sanction of an extraordinary resolution, in making any
distribution of assets amongst the shareholders, to make it
otherwise than in accordance with their rights; the other is
a clause enabling a majority of a particular class of share-
holders to bind the minority in modifying the rights or
privileges of the class. And if the articles contain no such
provision, it is open to the company, as a first step towards
the desired reconstruction, to alter them by special resolution
in the ordinary way, so as to introduce the necessary pro-
visions. No article can of course deprive dissentients of their
statutory rights [Irrigation Co. of France, 6 Ch. App. 176].

If, however, the rights of classes of shareholders are un-
alterably fixed by the memorandum, it appears to be possible,
when a distribution of assets otherwise than in accordance
with those rights is desired, to proceed by means of a scheme
of arrangement under s. 153. That section does not include
any provision for dissentients, but having regard to the
provisions of s. 234 the Court would probably require that
provision be made for the treatment of dissentients in the
same way as they must be treated in a reconstruction under
5. 234 [see Sandwell Park Colliery Co. (1914), 1 Ch. 589;
General Motor Cab Co. (1913), I Ch. 377].

In a reconstruction under s. 234 the matter of dissentients
is important. The number of dissentients might be more
than a quarter of the shareholders, since the meeting at which
the special resolution was passed might not be representative.
However, where there is likely to be any considerable amount
of dissent, the precaution will, in general, be taken of circularis-
ing the shareholders in advance to ascertain their views on
the proposed reconstruction, and, if there appears to be a
preponderance of dissent, the scheme will, of course, be
abandoned. The position of a shareholder in the old com-
pany is this: he may either (1) assent to the reconstruction and
claim the shares to which he is entitled; or (2) dissent as
provided by the section; or (3) he may do neither. To entitle
him to dissent he must not have voted in favour of the resolu-
tion at the meeting, and within seven days after the passing of
the resolution he must leave at the registered office of the
company a written notice expressing his dissent and requiring
the liquidator either to abstain from carrying the resolution
into effects or to purchase his interest as provided by the Act.
Two decisions as to the notice of dissent should be observed.
One is to the effect that the liquidator may waive a failure of a
dissentient to comply with a condition of the section which
was inserted solely for the benefit of the dissentient: thus, a