MERGER & AMALGMATION COMPANIES ACT, 2013

MERGER & AMALGMATION

Introduction:

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).

On 7th November, 2016 Central Government issued a notification for enforcement of section 230-233, 235-240, 270-288 etc pertaining to proceedings relating to arbitration, compromise, arrangements and reconstruction of companies which will get enforced w.e.f. 15th December, 2016. 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.

[1]Consequent to such enforcement, cases which were dealt by the High Court, will get transferred to the Tribunal and the proceedings there under will be constituted pursuant to the NCLT Rules, 2016, which has already been notified by the MCA vide The Companies ^[2](Transfer of Pending Proceedings) Rules, 2016 vide notification dated 7th December, 2016

Effect of transfer of existing cases:

All the pending Proceedings relating to Arbitration, Compromise, Arrangements and Reconstruction shall stand transferred to the Benches of the Tribunal. At present it will be little difficult that everyone have to wait for transfer of records from High Court to NCLT. All the matter on which date of hearing was fixed will also not manage by the High Court.

The idiom [3]‘mergers and acquisitions’ (abbreviated M&A) refers to the aspect of corporate strategy, corporate finance and management dealing with the buying, selling and combining of different companies that can aid, finance, or help a growing company in a given industry grow rapidly without having to create another business entity. An ‘acquisition’ (also known as a takeover), is the buying of one company (the ‘target’) by another.

Involvement of provisions:

Section Involved:

[4]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.

Section relating to Merger & Amalgamation Section 230 & 232.

Rules Involved: [5]Rule 3-24 of The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.

Forms Involved:

NCLT-1 – Application (replacement of Judge summon)

NCLT-2 - A notice of admission

NCLT-6 - An affidavit (Affidavit supporting to application)

CAA-2 - Notice and Advertisement of notice of the meeting of creditors or members

CAA-3 - Notice to Central Government, Regulatory Authorities

CAA-4 - Report of result of meeting by Chairperson

CAA-5 - Petition to sanction compromise or arrangement

CAA-6 - Order on petition

CAA-7 - Order under section 232

CAA-8 - Statement to be filed with Registrar of Companies

Circulars/Notifications Involved:

[6]Constitution of NCLT

[7]Enforcement of section 230-233, 235-240, 270-288-

[8]The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016

[9]Transfer of Pending Proceedings

[10]Delegation of Power of CG to Regional Director

Major Changes from Old Act to New act:

 a)     If M&A includes buy- back or variation of rights then under provision of the Act, 2013 Company have to follow section 68 or 48 respectively.

b)     Any Objection on M&A shall be made only by persons holding not less than ten percent of the shareholding or having outstanding debt amounting to not less than five percent of the total outstanding debt as per the latest audited financial statement. _{Section 230(4) first proviso.}

-      Earlier there was not Limit. Even a shareholder holding single share can object.

   c)      List of Creditor should not be older than 6 month from the date of application_{. Rule 9 explanation.}

-         Earlier there was no such limit of 6 month.

d)     Dispense of Meeting of creditor Where NOC received from the creditor in form of Affidavit. _{Section 230(9).}

-         Earlier NOC in form of affidavit was not required.

e)     Company itself has to serve the notice along with scheme and other documents to SEBI, Income Tax, RBI etc.

-        Earlier as per MCA notification dated 15^th January 2013 this was the obligation of Regional Director.

f)       Notice with relevant documents should be sent to ROC, RD, and other authorities in the I^st Motion along with notice to Shareholders and Creditors.

-         Earlier the requirement of submission with ROC, RD and other authorizes was at the time of II^nd Motion.

g)     In case of increase in authorized capital due to M&A then the Company have to make payment of stamp duty (difference of duty paid at the time of increase in authorized capital of transferor Company – duty required to be paid today on that capital) .

-         Earlier there was no requirement of payment of stamp duty.

h)     The Shareholders vote in the meeting either in person or through proxy or through postal ballot or through electronic means to the adoption of the scheme of compromise and arrangement.

-         Earlier there was only option of Poll which is not extend to postal ballot, electronic voting. 

i)    Financial statement should be latest audited financial statement or if such statement is more than six months old, as per provisional financial statement not preceding the date of application by more than six months

-         Earlier there was requirement of last audited financial statement.

Single window clearance:

the Bombay High Court in its decision in PMP Auto Industries Ltd. Re, (1994) 80 Com Cases 289; S.S. Miranda Ltd., Re, (1994) 80 Com Cases 289; Morarjee Goculdas Spg. & Wvg. Co. Ltd., Re, (1994) 80 Com Cases 289 considered it desirable that approval of various kinds of scheme under sections 391-395 should be granted in the manner of a "single window clearance". The court said that, excepting reduction of capital where the special procedure of reduction may have to be followed, all other formal requirements of the Companies Act, such as approval of change of objects or any other alteration of memorandum of association and all other consequential or incidental changes required for implementing the scheme, should be formalized in a single petition.

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. Hipolin Products Ltd., Re, and Hipolin Surfactants P. Ltd., Re, and Hipolin Ltd., Re, (1996) 2 Comp LJ 61 (Guj). Novopan India Ltd., Re, (1997) 88 Com Cases 596 (AP); G. V. K. Hotels Ltd., Re, (1997) 88 Com Cases 596 (AP),
2.	Change of Object	Change of Object shall be part of the scheme	PMP Auto Industries Limited; Rangkala Investments Limited., Re, (1997); Golkunda Engineering Enterprises Limited., Re, (1997)
3.	Reduction of Capital	Where the reduction of capital is a part of a scheme of arrangement, the requirements of the Companies Act as regards reduction of capital are not applicable because the Court can sanction reduction as a part of the scheme	Cooper. Cooper and Johnson Ltd., Re, (1902) WN 199; Stephon Walters & Sons Ltd., (1926) WN 236; Durairajan (T) v. Waterfall Estates Ltd., (1972) 42 Com Cases 563 (Mad) followed in Asian Investments Ltd., Re, (1992) 73 Com Cases 517, 523 (Mad).
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 Info systems Ltd.
5.
6.	Shifting of Registered office of the Company	No need to company with the provisions of shifting of registered office separately.	Indo Rama Systematic Limited
7.	Conversion of Preference Shares into Equity Shares	such preference shareholders shall be given an option to either obtain arrears of dividend in cash or accept equity shares equal to the value of the dividend payable	As per Provisions of Section 230(7) of Companies Act, 2013
Below mentioned required to follow the respective sections due to Companies Act, 2013
8.	Buy Back of Shares	Need to follow the provisions of Section 68. Buy- Back can’t be done through scheme of M&A.	[11]As per Provisions of Section 230(10) of Companies Act, 2013
9.	Variation of Shareholder Rights	Need to follow the provisions of Section 48. Variation of Share holder Rights can’t be done through scheme of M&A.	[12]As per Provisions of Section 230(7) of Companies Act, 2013

By-pass of Statutes: An amalgamation is single window clearance for the many matters as mentioned above. But an amalgamation cannot be used to by-pass other statutes. Example: [13]The transferor company in an amalgamation was the tenant of premises under an agreement which specifically prohibited subletting without the consent in writing of the landlord. Under the scheme of amalgamation, all the assets of the transferor company including the tenancy passed to the transferee company. The written consent of the landlord was not taken. The transaction was held to be a transfer of the tenancy without the sanction of the landlord and the transferee company was held to be liable to be evicted from the premises.

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.

PROCESS OF COMPROMISE & ARRANGEMENT (M&A):

 As there are two steps of process of M&A filing of 1^st Motion application (Take permission/ instruction for holding of Meetings) with NCLT and filing of 2^nd motion petition (Scheme of M&A) with NCLT. Each step includes many works and sub steps.

Who can file the application for Merger & Amalgamation Purpose?

[14]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 in whose jurisdiction registered office of the Company is situated under section 230-232 of the Companies Act, 2013 for the purpose of sanctioning the scheme of amalgamation.

[15]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.

However, where the registered office of the Companies are in different states, there would be more than one Tribunals having the jurisdiction over those, companies, hence separate petition will have to be filed.

Step-1-Preparation of Draft Scheme

Check whether the memorandum of association of the company contains the powers to amalgamate. Even if the object clause of the Company not specifically empowers Company to amalgamate the Company can amalgamate, because there is statutory power of amalgamation under the Act. (AIMCO Pesticides Limited).

        i.            Prepare the draft scheme of amalgamation as per provisions given below.

      ii.            Convene the Board Meeting to approve the draft scheme from the Board of Directors.

General process of application with NCLT:

Power of High Court regarding C&A has been transferred to NCLT. As per general process of filing of application with NCLT, Every petition or application or reference shall be filed in form as provided in Form NCLT-1 with attachment thereto accompanied by the Form NCLT-2. Every application shall be verified by an affidavit in Form No. NCLT-6.

1st Motion Application

     I.            Application to the NCLT for direction to convene Meetings (Members & Creditors):

Company shall prepare an application in form NCLT-1 mentioning the details about applicant, jurisdiction, limitation, relief sought, the basis on which each class of members or creditors has been identified for the purposes of approval of the scheme etc. Company will submit the application along with following documents: _{Rule 3}

     i.            A notice of admission in Form No. NCLT-2

   ii.            An affidavit in form no. NCLT-6 (mention that whatever mention in petition are true of my knowledge, information etc). Affidavit should be on stamp paper and duly notarized.

 iii.            A copy of Scheme of Compromise & Arrangement (M & A)

 iv.            An affidavit verifying the following information & documents. _{Section 230(2) and Rule 3(iii)}

a)     All material facts relating to the company, such as details of the pendency of any investigation or proceedings against the company, Financial Position of Company.

b)     Details of Reduction of share capital of the company, if any, included in the compromise or   arrangement

c)      Verifying the information of point No. v to vii below.

   v.            The copy latest financial Statement of the Company

 vi.            The copy latest auditor’s report on the accounts of the company 

vii.            If application include any CDR than, submit any scheme of [16]Corporate Debt Restructuring consented to by not less than seventy five per cent. of the secured creditors in value, including followings; (this is required only in case of variation in the debt obligation of the Company towards creditors)

a)     A Creditor’s Responsibility statement in the form No. CAA-1.

b)     safeguards for the protection of other secured and unsecured creditors;

c)      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;

d)     where the company proposes to adopt the corporate debt restructuring  guidelines specified by the Reserve Bank of India, a statement to that effect; and

e)     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.

 II.        Submission of copy application with NCLT:

Company would file the application in NCLT-1 to the tribunal in whose jurisdiction registered office of the Company is situated along with above mentioned 7 documents along with the fee of Rs. 5.000/-.

III.        Direction by NCLT for to convene Meetings (Members & Creditors):

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. _{rule 5 of CAA Rules, 2016 as follow.}

After considering the application in NCLT-1 tribunal can give the following instructions regarding holding and concluding of Meeting. Fixing the time and place of the meeting or meetings, Appointing a Chairperson the procedure to be followed at the meeting, including voting in person or by proxy or by postal ballot or by voting through electronic means, The time within which the chairperson of the meeting is required to report the result of the meeting to the Tribunal; and  Such other matters as the Tribunal may deem necessary.

Class of Creditors or Shareholders:

It is always a moot question what constitutes a class. It has observed that it is a formidable difficulty to say what constitutes a "class" of creditors. The creditors composing the different classes must have different interest. When one finds a different state of fact existing among different creditors which may differently, affect their minds and their judgment, they must be divided into different classes. “class" must be confined to those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to their common interest (vide Sovereign Life Assurance Co. v. Dodd), Speaking very generally, in order to constitute a class, members belonging to the class must form a homogenous group with communality of interest. If people with heterogenous interests are combined in a class, naturally, the majority having common interest may ride rough shod over the minority representing a distinct interest. Below given are some examples of class:

·         Creditors with competing rights should be treated as different classes- Hawk Insurance Co. Lid. Re, Lawtel, 24 March, 2000

·         where subordinated creditors have an interest in the company which could be affected in a way which is different from the effect upon other creditors, then they would constitute a separate class. Re. British & Commonwealth Holdings p1c. (No. 3), (1992) BCLC 322 per VINELOTT J.

·         the holders of partly paid shares form a different class from holders of fully paid shares. See Hellonic & General Trust Ltd., In re, (1975) All ER 382

·         A wholly owned subsidiary is a separate class. Hellenic & General Trust Ltd., Re, (1975) 3 All ER 382.

·         Creditors who have secured a decree were regarded not as a separate class from other creditors of the same category. Jalpaiguri Banking and Trading Co. Ltd., Re, (1935) 5 Com Cases 335;

There may be many questions relating to the class i.e. whether debenture holders are unsecured creditors or not? Whether all class will get the same shares. Creditor with different periods etc. There can be many questions relating to class of creditors or shareholders and their treatment.

III.I           Dispense of Meeting of Creditors:

The Tribunal may dispense with calling of a meeting of creditor or class of creditors where such creditors or class of creditors, having at least ninety per cent. value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement.

List of Creditor should not be older than 6 month from the date of application_{. Rule 9 explanation}

Clarity: It has been cleared in the Act, 2013 that for despension of meeting of creditors there is need to take consent of 90% of value of creditors in the form of duly notarized affidavit. By reading of the provisions of Act, 2013 it seems that dispense of meeting of members are not allowed in this Act. As specific provisions are given for the dispense of creditors but no provisions are prescribed for dispense of meeting of share holders.[17]

IV.        Convene of Meeting/ Issue of Notice:

A.    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 [18]Registered post, or by Speed post, or by 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 details as mentioned in Annexure- A of C&A if not included in the said scheme: (It is advisable to include the below mention information in the scheme itself)

B.  [19]Advertisement of Notice of Meeting: The Notice of the meeting shall be advertised in Form No. CAA-2 at lease in one English Newspaper and in at least one vernacular language newspaper. it shall indicate the time within which copies of the compromise or arrangement shall be made available to the concerned persons free of charge from the registered office of the company

·         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.

C.      Notice to Statutory Authorities: _{Section 230(5) and Rule 8}

This is the major change in process of M&A from the Companies Act, 2013. Earlier the requirement of filing of notice with statutory authorities was with the 2^nd Motion application. But under Act, 2013 this requirement is clubbed with 1^st motion application. Second as per MCA notification dated 15th January 2013 this was the obligation of Regional Director to send the notice to RBI, Income Tax authorities, CCI etc.

A notice in Form No CAA-3 along with Copy of Scheme of C&A, the explanatory statement and Disclosures mentioned in Annexure A, 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.

D.    Voting:

The persons to whom the notice is sent may vote in the meeting either themselves or through [20]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

§  Person having outstanding debt amounting to not less than 5% (five percent) of the total outstanding debt as per the latest audited financial statement

E.    Holding of Meeting:

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.

 F.    Filing of Affidavit with Tribunal:

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.

[21]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.

G.    Result of Meeting:

 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.

H.    Report of the result of the meeting by Chairperson: - [22]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.

2nd Motion Application

V.    Petition for confirming Merger & Amalgamation _{Rule 15}

[23]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.

VI.      Notice of Hearing by Tribunal _{Rule 16;} The Tribunal shall fix a date for the hearing of the petition.

Legal Responsibility of the Tribunal: The notice of the hearing of the petition shall also be served by the Tribunal ;

§  To the Objectors or

§  To Their Representatives under sub-section (4) of section 230 of the Act and

§  To the Central Government and

§  Other Authorities who have made representation under rule 8 and have desired to be heard in their representation.

Publication of the Notice:

The notice of the hearing shall be advertised in the same newspaper in which the notice of the meeting was advertised or in such other newspaper as the Tribunal may direct, at least 10 (ten) days before the date fixed for the hearing.

[24]Elements of satisfactory scheme.- It is the duty of the tribunal to go through the matter carefully and find out whether all provisions of law and directions of the tribunal as the conduct of the meetings have been complied with and whether the scheme is in the interest of the company as well as in that of its creditors and should be given effect to.  The tribunal has to satisfy itself that:

§   the meeting was duly held and conducted;

§  that the compromise was a real compromise;

§  that it was accepted by a competent majority;

§  that the majority was acting in good faith and for common advantage of the whole class;

§  that what they did was reasonable, prudent and proper;

"Keeping in mind the above principles, the role which the tribunal have to play in this country is more vital and potent; it is not only an inquisitorial and supervisory role but also a pragmatic role which requires the forming of an independent and informal judgment as regards the feasibility or proper working of the scheme and making suitable modifications in the scheme and issuing appropriate directions with that end in view." Tata Oil Mills Co. Ltd., Re, (1994) 3 Comp LJ 46 at 55; Hindustan Lever Ltd., Re, (1994) 81 Com Cases 754 (Bom). On appeal before the Supreme Court Hindustan Lever Employees' Union v. Hindustan Lever Ltd., (1995) 83 Com Cases 30: AIR 1995 SC 470.

In considering any scheme proposed, the Court will also consider its effects on the workers or employees and see that, as far as possible, it works as little hardship as it can to them. In Re, River Steam Navigation Co. Ltd., (1967) 2 Comp LJ 106 (Cal) and affirmed on appeal (1968) 38 Com Cases 99 (Cal-DB).

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.6 & CAA 7 with such variation as the circumstances may require.

   Effect of order of court: 

An order of the court sanctioning the scheme becomes binding on all the creditors, including Government creditors and the liquidator and the contributories and the dissenting creditors or members so that whether it is valid or not, a shareholder cannot afterwards question it. Gupta (SX) v. K.P. Jain, (1979) 49 Com Cases 342, 350 (SC). See also Craigs Claim, Re, (1895) 1 Ch-267; S.B. Mathur v. India Porcelain Ltd., (1956) 26 Com Cases 161 (Punj).

  

Modification of scheme

Once a scheme has been sanctioned by the court, it has no power to modify it subsequently without the consent of those who agreed to the original scheme. Mymensingh Loan Office Ltd., Re, AIR 1937 Cal 667.

Compliance after approval/ order of Merger & Amalgamation

VIII.    Filing of Order of Tribunal with ROC: _{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.

IX.      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.

 Annexure- A:

 INFORMATION REQUIRED TO CIRCULATE ALONG WITH NOTICE

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 [25]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

§  A copy of the [26]valuation report, if any _{Section 230(3)}

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

Explanation- For the purposes of above disclosure required to be made by a company shall be made in respect of all the companies, which are part of the compromise or arrangement.

(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] List of Matter transferred to NCLT given in the following link: http://www.csdiveshgoyal.info/2016/12/list-of-matters-transfer-to-nclt-wef.html

[2] notification no. gsr 1119 (e) dated 7^th december, 2016

[3] Amalgamation was defined by the Supreme Court of India in the case of Saraswati Industrial Syndicate Ltd. v. CIT 3 The Honorable Court opined that in an amalgamation two or more companies are fused into one by merger or one taking over the other.

[4] Comparative Section of Companies Act, 1956 is Section 391- 394A

[5] Earlier Company Court Rules, 1956   (Rule 68-84)

[6] http://www.mca.gov.in/Ministry/pdf/Notification_02062016_II.pdf

[7] http://www.mca.gov.in/Ministry/pdf/commencementnotif_08122016.pdf

[8] http://www.mca.gov.in/Ministry/pdf/compromisesrules2016_15122016.pdf

[9] http://www.mca.gov.in/Ministry/pdf/CompaniesTransferofPending_08122016.pdf

[10] http://www.mca.gov.in/Ministry/pdf/Notification_PowerRD_20122016.pdf

[11] No compromise or arrangement in respect of any buy-back of securities under this section shall be sanctioned by the Tribunal unless such buy-back is in accordance with the provisions of section 68

[12] if the compromise or arrangement results in the variation of the shareholders rights, it shall be given effect to under the provisions of section 48

[13] General Radio & Appliances Co. Ltd. v. M.A. Khader, (Decd.) (1986) 60 Com Cases 1013 : AIR 1986 SC 1218

[14] 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.

[15] In Mohan Exports (India) Ltd. v. Tarun Overseas P. Ltd., (1999) 95 Com Cas 53: (1994) 3 Comp LJ 193 (Del) BAHRI J followed the decision in W.A. Beardsell & Co. (P.) Ltd. and Mettur Industries Ltd., Re, (1968) 38 Com Cases 197 (Mad) and concluded as follows: "A joint petition by transferor and transferee companies for seeking court's approval to a scheme of compromise or arrangement under section 394 of the Companies Act, 1956, is competent. if both the Companies are under the jurisdiction of the same High Court, Joint petition may be made.

[16] 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”.

[17] Re; Feedback Reach Consultancy Services (p) Limited in this care it instruct that “where the written consent to the proposed scheme is granted by all the members and secured and unsecured creditors, separate meeting of members and secured and unsecured creditors can be dispensed with”.

[18] It is hereby clarified that the service of notice of meeting shall be deemed to have been effected in case of delivery by post, at the expiration of forty eight hours after the letter containing the same is posted.

[19] Where separate meeting of classes of creditors or members are to be held, a joint advertisement for such meetings may be given.

[20] Guidelines for proxy given in rule no 10.

[21] 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

[22] Where there are separate meetings, the Chairperson of each meeting.

[23] Rejection of Petition: After the meetings have, been held, a petition is presented to the court to sanction the scheme. The petition should be moved within 7 days of the filing of the report by the chairman of the meeting (Rule 79). A delayed petition is liable to be rejected. Bhagwan Singh & Sons Pvt. Ltd. v. Kalawati, (1986) 60 Com Cases 94, 97 (Del). The petition need not state that the company is carrying on business. Great Universal Stores Ltd., Re, (1960) 1 WLR 78.

[24] The court is not justified in going into the reasons which led the creditors in their meeting to give up a part of their debts. Lakshmi Commercial Bank Ltd., Re, (1948) 18 Com Cases 265, 266, 267 : AIR 1948 EP 38.

[25]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.

[26] 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