3 Mr P.K. Vijay Corporate Professional

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10/25/2013

FAST TRACK MERGERS UNDER

COMPANIES ACT, 2013

A BOON FOR SIMPLIFIED INTERNAL

RESTRUCTURING

New Delhi

October 24, 2013

TYPES OF MERGER (INCLUDES DEMERGER)

Scheme of Arrangement ( Section 230 )

Merger / Demerger of Companies ( Section 232 )

Fast Track Merger - Merger of Small Companies

and Merger between Holding and Wholly - owned

Subsidiary Company (Section 233)

Cross Border Merger – Merger between Indian

Company and Foreign Company (Section 234)

Merger in public Interest by Central Government

(Section 237)

HIGHLIGHTS OF M&A UNDER COMPANIES ACT 2013

HIGHLIGHTS OF THE M&A UNDER COMPANIES ACT, 2013

NCLT to assume jurisdiction of the High Court

Both Inward & Outward Merger / Demerger between Indian

Company and Foreign Company is enabled;

Voting through meeting or Postal Ballot as may be directed

Minimum Shareholding / Debt Ownership limit prescribed for

objecting scheme

Treasury Stock Prohibited

Exit opportunity to Dissenting Shareholders

Disclosures Convening meeting increased

Yearly statement to be submitted for implementation of

scheme

FAST TRACK MERGER & DEMERGER U/S 233

FAST TRACK MERGER & DEMERGER U/S -233

Section 233 provides permits fast track Merger/

Amalgamation between:

Two Small Companies (Only Small Companies no

exemption to Small Public Companies)

A Holding Company and a wholly owned Subsidiary

Companies (All Types of Companies)

Such other classes of companies as may be prescribed.

(Yet not p rescr ibed by MCA)

DEFINITIONS

Small Company –

Sectio n 2(85)

Private Company

Paid Up Cap < Rs. 50 Lakhs

> 5 crore

Turnover < Rs. 2

Crores > 20 Crores

Excludes

Holding co Subsidiary Co Not for Profit Co.

Definitions

Subsidiary –

Sectio n 2(87)

Holding Co

Control the composition

of Board

Ownership of

more than 50%

of share Capital

On its own Or together with

one or more of

its subsidiary

Share Capital –

Sect ion 43

Share Capital

Equity Share Capital Preference Share Capital

Definitions

Declaration Of Solvency

Declaration of Solvency

is a written declaration

stating that the directors have made an inquiry into the affairs of the

company

and have formed the opinion that the company is solvent

and will be able to pay its entire liability.

STEPS INVOLVED IN FAST TRACK MERGER

Approval of Board of all the CompaniesInvolved

A notice of proposed Scheme inviting

Objections or Suggestions, if any,

•From the ROC

•Official Liquidators (OL)

•persons affected by the scheme

•within Thirty Days of Approval is issued by

the transferor company and the transferee

company;

Transferor & Transferee Companies will give General

Meeting Notice to

• Members

• For approval and considering any objection and

suggestion received from ROC / OL.

• Members holding at least 90 Percents of Total

Share Capital of the Company will approve the

scheme and ;

• Creditors

• Creditors h av in g majo rit y r ep res en tin g n in e-

t en th s i n val ue will approved the scheme;

Transferor & Transferee Company has to File

Declaration of Solvency in Form No. 15.12 with

ROC before the meetings of Members & Credit ors;

The Transferee Company shall, w ith in s ev en d ay s after the conclusion of the

meeting(s) ;

• File in Form No. 15.13 a copy of the approved scheme

• along with report of the result of each of the meetings

• with the Central Government / ROC / Official Liquidator (OL)

S S O S C G

ROC / Official Liquidator (OL) will communicate objection and suggestions inwriting to the Central Government within a period of Thirty Days;

No objection of

ROC/OL/CG then CG

shall issue in Form No.

15.14, a confirmation

If there is any objection by ROC/OL

then confirmation order issued by C.G

or Tribunal, shall be filed by Transferor

and Transferee Companies in Form

No. 15.15 with the ROC.

If it is not approved by

C.G. the same shall bereferred to NCLT

Submission of Information through Forms

S b i i f I f ti th h F

DECLARATION OF SOLVENCY

Form No 15.12

Details about Company

ATTACHMENTS :

Copy of Board Resolution

Statements of Assets and Liabilities

Auditors Report on the statement of assets and liabilities Annexure of Assets and Liabilities with Book Value and estimated

Realisable value

NOTICE OF APPROVAL OF THE SCHEME OFMERGER

Form No 15.13

Details about Transferor & Transferee Company

Details about the approval of the scheme from members / creditors of

Transferee & Transferor Company

ATTACHMENTS :

Copy of the scheme approved by both creditors and members

Notice as per 233(1)(a)

CONFIRMATION ORDER

Form No 15.14

The Central Govt. shall issue this after approval.

CONFIRMATION ORDER FOR SCHEME OFMERGER

Form No 15.15

Details about Transferor / Transferee Company

ATTACHMENTS :

Certified Copy of the confirmation order along with the approve scheme.

RELAXATION NORM & BENEFIT FOR FAST TRACK MERGER

No need to file Notice to other statutory authority

like RBI, Income Tax etc.

Less time Consuming

Give boost to internal Restructuring

ISSUES INVOLVED

There is no clarity whether Fast Track Merger will be effective prior to NCLT

become operational or not.

If CG transfer the Scheme to NCLT then, it will fall under Normal merger and

once again entire processes have to be followed as per NCLT order.

Scheme is to be approved by shareholders holding 9/10th value of shares

capital .

Scheme is to be approved by creditors having majority in no. and holding

90% value.

THANK YOU

Pavan Kumar Vijay

(Chairman, ASSOCHAM National Council on M&A)

Mob. +91 9810032568

Landline. 011 40622202

E-Mail: pkvijay@indiacp.com

3 Mr P.K. Vijay Corporate Professional

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