Introduction: Navigating the intricate landscape of amalgamation and merger procedures under the Companies Act, 2013 is essential for businesses undergoing transformative changes. This comprehensive guide presents a systematic tabular overview, delineating critical sections, procedural specifics, required forms, necessary attachments, and essential timelines. Vital for compliance and facilitating a seamless transition, the guide ensures businesses adhere to legal frameworks. Offering clarity amidst complexity, this introduction underscores the guide’s role in empowering companies to execute mergers and amalgamations with precision, minimizing hurdles and maximizing success within the regulatory framework of the Companies Act, 2013.
|
Sl. |
Section | Particulars | Form | Attachments | Timeline |
| 1 | MOA | Check whether MOA contains the provision of merger, if not then amend MOA | |||
| 2 | Sec 173 | Notice of Board Meeting to all Directors atleast 7 days prior to the Board Meeting | Atleast 7 days prior to Board Meeting | ||
| 3 | Hold Board Meeting and pass Board Resolution for approval of Board to amalgamate with another Company | ||||
| 4 | Sec 230 + Rule 3, 4 of Companies (CAA) Rules, 2016 | Company will file 1st Petition to NCLT for calling the meeting. The application is made for sanctioning the compromise/ arrangement between company and such persons in Form NCLT-1.
The application can be made by: * company * members * creditors * liquidator (in case of winding up) |
Form NCLT-1 | ||
| NCLT-2 | Notice of admission in Form No. NCLT-2 | ||||
| NCLT-6 | Affidavit in Form No. NCLT -6 | ||||
| Scheme of Merger/ Amalgamation | |||||
| All Material facts relating to:
1. Financial Position 2. Auditor Report 3. Pending Litigation 4. Pending investigation |
|||||
| Detail of Reduction of Capital, if any | |||||
| Form CAA-1 | If Compromise/ Arrangement is with Creditors, (Additional Attachments)
1. 75% consent of secured creditors 2. Creditors Responsibility Statement in Form CAA-1 3. Safeguards for Dissenting creditors 4. Auditors Report that conform Liquidity Test 5. C/A with creditors shall be as per RBI directions 6. Valuation Report in respect of Assets/ Liabilities |
||||
| 5 | Sec 230 + Rule 5 of Companies (CAA) Rules, 2016 | NCLT shall give following orders for calling the meeting as it may think necessary:
1. Members, Creditors or classes of the same to whom notice shall be sent 2. Fix day, date, time and venue of meeting 3. Elect Chairperson of the meeting 4. Mode of Voting |
–
|
6 |
Sec 230 + Rule 7, 8 of Companies CAA) Rules, 2016 | A. Notice of the meeting shall be sent to following in Form CAA-2
1. Members 2. Creditors 3. Debentureholders 4. Upload on Company’s Website 5. Notice in Newspaper, one English and one in vernacular newspaper B. Notice shall be sent in Form CAA-3 for inviting Objections, if any 6. SEBI and Stock Exchange and on their website (in case of Listed Company) 7. CCI (if due to M/A, competition is affected) 8. CG, ROC and Income Tax Authority 9. RBI (If M/A is in between Banking Company) 10. Any other regulators |
Form CAA-2
Form CAA-3 |
Atleast one month before date fixed for the meeting
Notice shall be placed on websites or sent to various authority for not less than 30 days before date fixed for meeting |
|
| 7 | Rule 12 of Companies (CAA) Rules, 2016 | The Chairperson shall file the affidavit to NCLT that all directions given by NCLT are complied atleast 7 days before meeting | atleast 7 days before meeting | ||
| 8 | Convene meeting of Members, Creditors, their class to accord sanction to Scheme and pass Resolution with Majority of person and holding 3/4 value of shares or voting rights | ||||
| 9 | Rule 13, 14 of Companies (CAA) Rules, 2016 | The Chairperson shall give report of the meeting to NCLT in Form CAA-4 within 3 days from the conclusion of meeting Voting shall be done by poll or through electronic means | Form CAA-4 | within 3 days from the conclusion of meeting | |
| 10 | Rule 15 of Companies (CAA) Rules, 2016 | Company shall make 2nd petition to NCLT for taking approval of Compromise/ Arrangement scheme in Form CAA-5 within
7 days of filing of the report by Chairperson |
Form CAA-5 | within 7 days of filing of the report by Chairperson | |
| 11 | Rule 16 of Companies (CAA) Rules, 2016 | NCLT shall fix the date of hearing and such date shall be
1. Published in Newspaper in which notice was advertised and; 2. Send to Objectors (Regulators who have raised objection) not less than 10 days before the date fixed for the hearing |
not less than 10 days before the date fixed for the hearing | ||
| 12 | Sec 232 (3) of Companies Act, 2013 | NCLT, after satisfying that procedure of Compromise/ Arrangements has been complied may order or make provision for following matters: | Form CAA-6 |
–
| a) | NCLT may order transfer of Undertaking, liability or assets of transferor company to transferee company | ||||
| b) | NCLT may order transferee company to allot share/debenture/policies to transferor company | ||||
| c) | NCLT may order pending case of the transferor company to continue against transferee company | ||||
| d) | NCLT may order for dissolution of transferor company without winding up | ||||
| e) | NCLT may order to make provision for dissenting shareholders/ creditors | ||||
| f) | NCLT may order to make provision for Non Resident Shareholders regarding FEMA | ||||
| g) | NCLT may order to make provision for the employee of the transferor company to be the employee of transferee company | ||||
| h) | NCLT may order the unlisted transferee company who is merging with listed transferor company, to pay off shareholder or get itself listed | ||||
| i) | NCLT may order to set off the fees paid by transferor company with the fees payable by transferee company in relation to Authorized share capital | ||||
| j) | Any other order incidental as NCLT thinks fit | ||||
| 13 | Sec 232 (5) of Companies Act, 2013 | The certified copy of the order shall br filed by the company with Registrar in Form INC-28 within 30 days of the receipt of the order | Form INC-28 | within 30 days of the receipt of the order | |
| 14 | Sec 232 (7) of Companies Act, 2013 and Rule 21 of Companies (CAA) Rules, 2016 | Every Company shall file a statement of compliance in merger and amalgamation duly certified by CA/CS/CMA in practice in Form CAA-8 within 210 days from the end of each financial year | Form CAA-8 | within 210 days from the end of each financial year | |
Conclusion: The tabular presentation offers a comprehensive roadmap for companies navigating amalgamation and merger proceedings as per the Companies Act, 2013. Adhering to each step, form, and timeline specified ensures legal compliance and a successful transition. For a seamless and lawful restructuring, businesses can use this guide to navigate the complexities of the amalgamation and merger process effectively.
Author Bio
