MERGER & AMALGAMATION COMPANIES ACT, 2013
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MERGER & AMALGAMATION
COMPANIES ACT,
2013
|
The Companies Act, 2013 (2013 Act)
has seen the light of day and replaced the 1956 Act with some sweeping changes including
those in relation to mergers and acquisitions (M&A).
The new Act has been lauded by
corporate organizations for its business-friendly corporate regulations, enhanced
disclosure norms and providing protection to investors and minorities, among
other factors, thereby making M&A smooth and efficient. Its recognition of
interse shareholder rights takes the law one step forward to an investor-friendly
regime. The 2013 Act seeks to simplify the overall process of acquisitions,
mergers and restructuring, facilitate domestic and cross-border mergers and
acquisitions, and thereby, make Indian firms relatively more attractive to PE
investors.
The term ‘merger’ is not defined
under the Companies Act, 1956 (“CA 1956”), and under Income Tax Act, 1961
(“ITA”). However, the Companies Act, 2013 (“CA 2013”) without strictly defining
the term explains the concept. A ‘merger’ is a combination of two or more
entities into one; the desired effect being not just the accumulation of assets
and liabilities of the distinct entities, but organization of such entity into
one business.
On 7th November, 2016
Central Government issued a notification for enforcement of section 230-233,
235-240, 270-288 etc w.e.f. 15th December, 2016. But still rules
were not available till date for CAA.
MCA vide notification dated 14th
Dec, 2016 has issued rules i.e. The Companies (Compromises, Arrangements and
Amalgamations) Rules, 2016. These rules will be effective from 15th
December, 2016. Consequently, w.e.f. 15.12.2016 all the matters relating to Compromises, Arrangements, and Amalgamations (hereafter read as “CAA”) will be
dealt as per provisions of Companies Act, 2013 and The Companies (Compromises, Arrangements, and
Amalgamations) Rules, 2016.
Where a compromise or arrangement is proposed
for the purposes of or in connection with scheme for the reconstruction of any
company or companies, or for the amalgamation of any two or more companies, the
petition shall pray for appropriate orders and directions under section 230
read with section 232 of the Act.
In this article COMPROMISE
& ARRANGMENT (C&A) will be read in relation to Merger &
Amalgamation only.
In Case of application filing u/s
230 for Compromise & Arrangement in relation to reconstruction of the
Company or companies involving merger or the amalgamation of any two or more
companies should specify the purpose of the scheme.
Who can file the application for Merger & Amalgamation
propose: Section 230(1)
[1]An application for Merger &
Amalgamation can be file with Tribunal (NCLT). Both the transferor and the transferee company shall make an application in
the form of petition to the Tribunal under section 230-232 of the Companies
Act, 2013 for the puspose of sanctioning the scheme of amalgamation.
Joint Application: Rule 3(2)
Where more
than one company is involved in a scheme, such application may, at the
discretion of such companies, be filed as a joint-application.
[2]However, where the registered
office of the Companies are in different states, there will be two Tribunals
having the jurisdiction over those, companies, hence separate petition will
have to be filed.
Process
§ It must be ensure that the
companies under amalgamation should have the power in the object clause of
their Memorandum of Association to undergo amalgamation though the absence may not
be an impediment, but this will make matters smooth.
§ A draft scheme of amalgamation
shall be prepared for getting it approved in Board meeting of each company.
1.
Format
of Application
Application to the tribunal for Merger &
Amalgamation will be submitted in form no. NCLT-1 along with following documents: Rule 3(1)
a)
A notice of
admission in Form No. NCLT-2
b) An affidavit in form no. NCLT-6
c) A copy of Scheme of C&A (Merger & Amalgmation)
d)
A disclosure in form
of affidavit including following points Section 230(2)
- All material facts relating to the company,
such as
i.
the latest financial
position of the company,
ii.
the latest auditor’s
report on the accounts of the company and
iii.
the pendency of any
investigation or proceedings against the company
-
Reduction of share capital of the company, if any, included in the compromise
or arrangement
e)
Any scheme of [3]Corporate Debt Restructuring consented to by not less than
seventy five per cent. of the secured creditors in value, including
i.
A Creditor’s Responsibilitystatement in the form No. CAA-1.
ii.
safeguards for the
protection of other secured and unsecured creditors;
iii.
report by the
auditor that the fund requirements of the company after the corporate debt
restructuring as approved shall conform to the liquidity test based upon the
estimates provided to them by the Board;
iv.
where the company
proposes to adopt the corporate debt restructuring guidelines specified by the Reserve Bank of
India, a statement to that effect; and
v.
a valuation report
in respect of the shares and the property and all assets, tangible and
intangible, movable and immovable, of the company by a registered valuer.
f) The applicant shall also disclose to the Tribunal in the
application, the basis on which each class of members or creditors has been
identified for the purposes of approval of the scheme.
2.
Calling
of Meeting by Tribunal:
Upon hearing of the application Tribunal shall,
unless it thinks fit for any reason to dismiss the application, give such
directions / order as it may think necessary in respect meeting of the
creditors or class of creditors, or of the members or class of members, as the
case may be, to be called, held and conducted in such manner as prescribed in rule
5 of CAA Rules, 2016 as follow:
i.
Fixing the time and
place of the meeting or meetings;
ii.
Appointing a
Chairperson and scrutinizer for the meeting or meetings to be held, as the case
may be and fixing the terms of his appointment including remuneration;
iii.
Fixing the quorum
and the procedure to be followed at the meeting or meetings, including voting
in person or by proxy or by postal ballot or by voting through electronic
means;
iv.
Determining the
values of the creditors or the members, or the creditors or members of any
class, as the case may be, whose meetings have to be held;
v.
Notice to be given
of the meeting or meetings and the advertisement of such notice.
vi.
Notice to be given
to sectoral regulators or authorities as required under sub-section (5) of
section 230;
vii.
The time within
which the chairperson of the meeting is required to report the result of the
meeting to the Tribunal; and
viii.
Such other matters
as the Tribunal may deem necessary.
3.
Notice
of Meeting: The Notice of the
meeting pursuant to the order of tribunal to be give in Form No. CAA-2. Rule 6
Person entitled to receive
the notice The notice shall be
sent individually to each of the Creditors or Members and the debenture-holders
at the address registered with the company. Section 230(3)
Person authorized to
send the notice:
§
Chairman of the
Company, or
§
If tribunal so
direct- by the Company or its liquidator or by any other person
Modes of Sending of notice:
§
By [4]Registered post, or by
Speed post, orby courier, or
§
By e-mail, or by
hand delivery, or by any other mode as directed by the tribunal
Documents to be send along with notice: The notice of meeting send with (i) Copy
of Scheme of C&A and (ii)
Following below mentioned details of C&A if not included in the said
scheme:
a.
Details
of the order of the Tribunal directing the calling, convening and conducting of
the meeting:-
§
Date
of the Order;
§
Date,
time and venue of the meeting.
b. Details of the company including:
§
Corporate
Identification Number (CIN) or Global Location Number (GLN) of the company;
§
Permanent
Account Number (PAN);
§
Name
of the company;
§
Date
of incorporation;
§
Type
of the company (whether public or private or one person company);
§
Registered
office address and e-mail address;
§
Summary
of main object as per the memorandum of association; and main business carried
on by the company;
§
Details
of change of name, registered office and objects of the company during the last
five years;
§
Name
of the stock exchange (s) where securities of the company are listed, if
applicable;
§
Details
of the capital structure of the company including authorised, issued,
subscribed and paid up share capital; and
§
Names
of the promoters and directors along with their addresses.
c. Relationship
in case of Combined Application: if
the scheme of compromise or arrangement relates to more than one
company, then the fact and details of any relationship subsisting between
such companies who are parties to such scheme of compromise or arrangement,
including holding, subsidiary or of associate companies.
d. Disclosure about effect of M&A
on material [5]interests
of directors, Key Managerial Personnel (KMP) and debenture trustee
e. Details
of Board Meeting:
§
The
date of the board meeting at which the scheme was approved by the board of
directors
§
The
name of the directors who voted in favour of the resolution,
§
The
name of the directorswho voted against the resolution and
§
The
name of the directorswho did not vote or participate on such resolution
f. Explanatory
Statement disclosing details of the scheme of compromise or arrangement
including:
§
Parties
involved in such compromise or arrangement;
§
Appointed
date, effective date, share exchange ratio (if applicable) and other
considerations, if any;
§
Summary
of valuation report (if applicable) including basis of valuation and fairness
opinion of the registered valuer, if any, and the declaration that the
valuation report is available for inspection at the registered office of the
company;
§
Details
of capital or debt restructuring, if any;
§
Rationale
for the compromise or arrangement;
§
Benefits
of the compromise or arrangement as perceived by the Board of directors to the
company, members, creditors and others (as applicable);
§
Amount
due to unsecured creditors.
g. Disclosure
about the effect of the Merger & Amalgamation (C&A) on: Section 230(3)
§
Key
Managerial Personnel;
§
Directors;
§
Promoters;
§
Non-Promoter
Members;
§
Depositors;
§
Creditors;
§
Debenture
holders;
§
Deposit
trustee and debenture trustee;
§
Employees
of the company:
§
Share
holders of the Company
h.
A
report adopted by the directors of the merging companies explaining effect of
compromise on each class of shareholders, key managerial personnel, promoters
and non-promoter shareholders laying out in particular the share exchange
ratio, specifying any special valuation difficulties;
i.
Below Mentioned Details: Following below mentioned details
§
Investigation
or proceedings, if any, pending against the company under the Act.
§
Details
of approvals, sanctions or no-objection(s), if any, from regulatory or any
other governmental authorities required, received or pending for the proposed
scheme of compromise or arrangement
§
A
statement to the effect that the persons to whom the notice is sent may vote in
the meeting either in person or by proxies, or where applicable, by voting
through electronic means
j. Details
of avaibility of documents: Details
of the availability of the following documents for obtaining extract from or
for making or obtaining copies of or for inspection by the members and
creditors, namely
§
Latest
audited financial statements of the company including consolidated financial
statements;
§
Copy
of the order of Tribunal in pursuance of which the meeting is to be convened or
has been dispensed with;
§
copy
of scheme of Merger & Amalgamation ( C&A);
§
Contracts
or agreements material to the Merger & Amalgamation ( C&A);
§
The
certificate issued by Auditor of the company to the effect that the accounting
treatment, if any,
§
Proposed
in the scheme of Merger & Amalgamation ( C&A) is in conformity with the
Accounting Standards prescribed under Section 133 of the Companies Act, 2013;
and
§
Such
other information or documents as the Board or Management believes necessary
and relevant for making decision for or against the scheme;
k. Some
Other documents: Where
an order has been made by the Tribunal under section 232(1), merging companies or
the companies in respect of which a division is proposed, shall also be required
to circulate the following:
§
The
draft of the proposed terms of the scheme drawn up and adopted by the directors
of the merging company;
§
Confirmation
that a copy of the draft scheme has been filed with the Registrar;
§
The
report of the expert with regard to valuation, if any;
§
Supplementary
accounting statement if the last annual accounts of any of the merging company
relate to a financial year ending more than six months before the first meeting
of the company summoned for the purposes of approving the scheme
·
Such Newspaper shall be published on the website
of the company at least 30 days before the date fixed for meeting, as directed
by tribunal. Section
230(3)
·
In case of Listed Company, such notice and other documents shall
also be published on the website of SEBI and stock exchange, where securities
of the Company are listed.
5.
Notice
to Statutory Authorities: Section 230(5) and Rule 8
A notice in Form No CAA-3 along with Copy of Scheme of C&A, the explanatory
statement and Disclosures mentioned in point No.5 above, shall also be sent to
followings:
§
The
Central Government, The Registrar of Companies and The income-tax authorities, in
all cases
§
The
Reserve Bank of India, the Securities and Exchange Board of India, the
Competition Commission of India, and the stock exchanges, as may be applicable.
§
Other
Sectoral Regulators or authorities, as required by Tribunal.
Notice shall be sent to the office of the
authority after sending of notice to members or creditors of the Company by
Registered post, or by Speed post, or by courier, or by hand delivery.
Representation by authority:
·
The authority desire
to make any representation then shall sent to the tribunal within a period of
30 days from the date of receipt of such notice.
·
Copy of such
representation shall simultaneously be sent to the concerned companies
·
In case of no
representation within the 30 days then presumed that authority doesn’t have any
representation
6.
Voting:
The persons to whom the notice is sent may vote
in the meeting either themselves or through [8]proxies or by postal ballot
to the adoption of the compromise or arrangement within one month from the date of receipt of such notice. Section
230(4) Rule 9
Right of Objections: Section 230(4)
Any objection to the compromise or arrangement
shall be made only by
§
Persons holding not
less than 10% (Ten Percent). of the shareholding
or
§
Having outstanding debt amounting to not less
than five per cent. of the total outstanding debt as per the latest audited
financial statement
Other Conditions for C&A:
I.
Copy
of Compromise or arrangement to be furnished by the company:
The Company on the requisition of the creditors
or members entitled to attend meeting shall furnish a copy of scheme of C&A
and copy of statement required to furnish in section 230(2)(c) with in one day
of requisition.
II.
Affidavit
of Service:
Liability to Service: The Chairperson appointed for the meeting of
the company or other person directed to issue the advertisement and the notices
of the meeting.
[9]Above mentioned shall file an affidavit before
the Tribunal at least seven days before the date fixed for the meeting or the
date of the first of the meetings, as the case may be, stating that the
directions regarding the issue of notices and the advertisement have been duly
complied with.
SECOND STEP- Result of Meeting
III.
Copy
of Merger & Amalgamation to be furnished
by the company:
Method of Voting: The voting at the meeting or meetings held in
pursuance of the directions of the Tribunal on all resolutions shall take place
by poll or by voting through electronic means.
The report of the result of the meeting shall
be in Form No. CAA.4 and shall state
accurately
·
The number of
creditors or class of creditors or
·
The number of
members or class of members, as the case may be,
§
who were present and
§
who voted at the
meeting either in person or by proxy, and
§
Where applicable,
who voted through electronic means, their individual values and the way they
voted.
IV.
Report
of the result of the meeting by Chairperson: -
[10]The Chairperson of the meeting shall, within
the time fixed by the Tribunal, or where no time has been fixed, within 3 (Three)
days after the conclusion of the meeting, submit a report to the Tribunal on
the result of the meeting in Form No. CAA.4.
V.
Binding
of approval: Section 230(6)
Where, at a meeting majority of persons representing
three-fourths in value of the creditors, or class of creditors or members or class
of members, as the case may be, voting in person or by proxy or by postal
ballot, agree to any Merger & Amalgamation AND if such Merger & Amalgamation is sanctioned by the Tribunal by an order,
The same shall be binding on the company, all
the creditors, or class of creditors or members or class of members, as the
case may be, or, in case of a company being wound up, on the liquidator and the
contributories of the company.
THIRD STEP- Order of Tribunal
After completion of the Voting and report
of result of the meeting by the chairman to the tribunal next step will be
confirmation of C&A form the Tribunal (NCLT).
VI.
Petition
for confirming Merger & Amalgamation Rule 15
The Company shall, within 7 (seven) days of the
filing of the report by the Chairperson, present a petition to the Tribunal in Form No. CAA.5 for sanction of the
scheme of compromise or arrangement. The petitioner will pray for the appropriate
orders and directions from the Tribunal.
Where a compromise or arrangement is proposed
for the purposes of or in connection with scheme for the reconstruction of any
company or companies, or for the amalgamation of any two or more companies, the
petition shall pray for appropriate orders and directions under section 230
read with section 232 of the Act.
Right of Creditor to
file the petition: Where the company
fails to present the petition for confirmation of the Merger & Amalgamation
as aforesaid, it shall be open to any creditor or member as the case may be,
with the leave of the Tribunal, to present the petition and the company shall
be liable for the cost thereof.
VII.
Order by Tribunal Rule 12;
Where the Tribunal
sanctions the Merger & Amalgamation, An order made under section 232 read
with section 230 of the Act shall be in Form No.CAA.7 with such variation as the circumstances may
require.
Fourth STEP- Provisions by the Tribunal
The Tribunal, after satisfying itself
that the procedure specified in sub-sections (1) and (2) has
been complied with, may, by order, sanction the compromise or arrangement or by
a subsequent order, make provision for the following matters, namely:—
(a) the transfer to the transferee
company of the whole or any part of the undertaking, property or
liabilities of the transferor company from a date to be determined by the
parties unless the Tribunal, for reasons to be recorded by it in writing,
decides otherwise;
(b)[11] the allotment or
appropriation by the transferee company of any shares, debentures,
policies or other like instruments in the company which, under
the compromise or arrangement, are to be allotted or appropriated by that
company to or for any person:
(c) the continuation by or against
the transferee company of any legal proceedings pending by or against any
transferor company on the date of transfer;
(d) dissolution, without
winding-up, of any transferor company;
(e) the provision to be made for
any persons who, within such time and in such manner as the Tribunal
directs, dissent from the compromise or arrangement;
(f) where share capital is held by
any non-resident shareholder under the foreign direct investment norms or
guidelines specified by the Central Government or in accordance with any law
for the time being in force, the allotment of shares of the transferee company
to such shareholder shall be in the manner specified in the order;
(g) the transfer of the employees
of the transferor company to the transferee company;
(h) where the transferor company
is a listed company and the transferee company is an unlisted company,—
(A) the transferee company shall
remain an unlisted company until it becomes a listed company;
(B) if shareholders of the
transferor company decide to opt out of the transferee company, provision
shall be made for payment of the value of shares held by them and other
benefits in accordance with a pre-determined price formula or after a valuation
is made, and the arrangements under this provision may be made by the Tribunal:
Provided
that the amount of payment or valuation under this clause for any share
shall not be less than what has been specified by the Securities and Exchange
Board under any regulations framed by it;
(i) where the transferor company
is dissolved, the fee, if any, paid by the transferor company on its
authorised capital shall be set-off against any fees payable by the transferee
company on its authorised capital subsequent to the amalgamation; and
(j) such incidental, consequential
and supplemental matters as are deemed necessary to secure that the merger
or amalgamation is fully and effectively carried out:
Provided
that no compromise or arrangement shall be sanctioned by the Tribunal unless a
certificate by the company’s auditor has been filed with the Tribunal to the
effect that the accounting treatment, if any, proposed in the scheme of
compromise or arrangement is in conformity with the accounting standards
prescribed under section 133.
Fifth STEP- Effect of Order of Tribunal
Transfer of Property: Section
232(4)
Where an order under
this section provides for the transfer of any property or liabilities,
then, by virtue of the order, that property shall be transferred to the
transferee company and the liabilities shall be transferred to and become
the liabilities of the transferee company and any property may, if the order so
directs, be freed from any charge which shall by virtue of the compromise or
arrangement, cease to have effect.
Appointed Date: Section
232(6)
The scheme under
this section shall clearly indicate an appointed date from which it shall
be effective and the scheme shall be deemed to be effective from such date and
not at a date subsequent to the appointed date.
Filing of Order of
Tribunal: Section 232(5)
The order of the Tribunal shall be filed with
the Registrar by the company within a period of thirty days of the receipt of
the copy of order, or such other time as may be fixed by the Tribunal.
Sixth STEP- Compliances after obtaining of order of
Tribunal
Compliance until
completion of scheme: Every company in
relation to which the order is made shall, until the completion of the
scheme, file a statement in Form No. CAA.8
and within two hundred and ten days from
the end of each financial year with the Registrar every year duly
certified by a chartered accountant or a cost accountant or a company secretary
in practice indicating whether the scheme is being complied with in accordance
with the orders of the Tribunal or not.
Power of Tribunal
Report on working of
compromise or arrangement: At any time after
issuing an order sanctioning the compromise or arrangement, the Tribunal may,
either on its own motion or on the application of any interested person, make
an order directing the company or where the company is being wound-up, its
liquidator, to submit to the Tribunal within such time as the Tribunal may fix,
a report on the working of the said compromise or arrangement and on consideration
of the report, the Tribunal may pass such orders or give such directions as it
may think fit.
Some other Clauses
When the scheme envisages various incidental
proposals as an integral part of the scheme, the procedures prescribed under
the Companies Act, 2013 need not to be separately undertaken:
|
S. No.
|
Purpose
|
Effect
|
Case Law
|
|
1.
|
Change of Name
|
Change of name can be carried out as a
part of the Scheme.
|
Jaypee Cement Ltd.
|
|
2.
|
Change of Object
|
Change of Object shall be part of the
scheme
|
PMP Auto Industries Limited
|
|
3.
|
Reduction of Capital
|
If reduction of capital is a part of
scheme of amalgamation. The provisions of section 66 need not to be complied
separately.
|
Re. Maneckchowk and Ahmedabad Mfg. Co.
Ltd.
|
|
4.
|
Sell & Lease of Company Property
|
No need to comply with the provisions
of section 180(1)(a) for sale, lease, etc. of the Company’s property
|
HCL Infosystems Ltd.
|
|
SCHEDULE OF FEES
|
||||
|
S. No.
|
Sections of the Companies Act, 2013
|
Rule Number
|
Nature of application or petition
|
Fees
|
|
1.
|
Sub-section (1) of Section 230
|
3 (1)
|
Application for compromise arrangement
and amalgamation.
|
Rs. 5,000/-
|
|
2.
|
Sub-section
(2) of Section
235
|
|
Application by dissenting shareholders
|
Rs. 1,000/-
|
|
3.
|
Sub-section (2) of Section
238
|
29
|
Appeal against order of Registrar
refusing to register
any circular.
|
Rs. 2,000/-
|
|
(Author
– CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in
Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)
Disclaimer: The entire
contents of this document have been prepared on the basis of relevant
provisions and as per the information existing at the time of the
preparation. Although care has been taken to ensure the accuracy,
completeness and reliability of the information provided, I assume no
responsibility therefore. Users of this information are expected to refer
to the relevant existing provisions of applicable Laws. The user of the
information agrees that the information is not a professional advice and is
subject to change without notice. I assume no responsibility for the
consequences of use of such information. IN NO EVENT SHALL I SHALL BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR INCIDENTAL DAMAGE RESULTING
FROM, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE INFORMATION.
This is only a knowledge sharing initiative and author
does not intend to solicit any business or profession.
|
[1]
In the case of Kirloskar Electricals Co. Ltd., the Court held that
various clauses of Section 394(1) of the Companies Act suggest that both the
transferor and the transfer company shall make an application to the Court and
under section 391-394 of the Companies Act, 1956 for sanction of the scheme of
Compromise or arrangement involving amalgamation of the Companies.
[2]
In the case of Mohan Exports Ltd. V/s Tarun Overseas Pvt. Ltd., it was
held that if both the Companies are under the jurisdiction of the same High
Court, Joint petition may be made.
[3]
Scheme of Corporate Debt restructuring as referred in section 230(2)(c) means
“a scheme that restructures or varies the debt obligation of a company toward
its creditors”.
[4]
It
is hereby clarified that the service of notice of meeting shall be deemed to
have been effected in case ofdelivery by post, at the expiration of forty eight
hours after the letter containing the same is posted
[5]Explanation
– For the purposes of these rules it is clarified that-
(a) the term ‘interest’ extends beyond an interest in
the shares of the company, and is with reference to the proposed scheme of
compromise or arrangement.
(b) the valuation report shall be made by a registered
valuer, and till the registration of persons as valuers is prescribed under
section 247 of the Act, the valuation report shall be made by an independent
merchant banker who is registered with the Securities and Exchange Board or an
independent chartered accountant in practice having a minimum experience of ten
years.
[6]
the valuation report shall be made by a registered valuer, and till the
registration of persons as valuers is prescribed under section 247 of the Act,
the valuation report shall be made by an independent merchant banker who is
registered with the Securities and Exchange Board or an independent chartered
accountant in practice having a minimum experience of ten years
[7]
Where separate meeting of classes of creditors or members are to be held, a
joint advertisement for such meetings may be given.
[8]
Guidelines for proxy given in rule no 10.
[9]
In case of
default under this provision, the application along with copy of the last order
issued shall be posted before the Tribunal for such orders as it may think fit to
make
[10] Where there are separate
meetings, the Chairperson of each meeting.
[11]
Provided that a
transferee company shall not, as a result of the compromise
or arrangement, hold any shares in its own name or in the name of any
trust whether on its behalf or on behalf of any of its subsidiary or associate
companies and any such shares shall be cancelled or extinguished;
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