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Mergers and Amalgamations an Executive Summary of Proceedings

Written by: Written By : Vineet K. Sharma (Company Secretary)
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The procedure for the amalgamation of two companies has to be viewed from the Transferor and Transferee Company. Therefore, the procedure has been divided into two parts i.e. procedure to followed by the transferor company and the transferee company respectively.

Steps To Be Followed By Transferee Company

1. Memorandum Of Association (M/A)

The Memorandum of Association must provide the power to amalgamate in its objects clause. It M/A is silent, amendment in M/A must take place.

2. Board Meeting

A Board Meeting shall be convened to consider and pass the following requisite resolutions:
- approve the draft scheme of amalgamation;
- to authorise filing of application to the court for directions to convene a general meeting;
- to file a petition for confirmation of scheme by the High Court.

3. Application To The Court

An application shall be made to the court for directions to convene a general meeting by way of Judge's summons supported by an affidavit. The proposed scheme of amalgamation must be attached to such affidavit.

Summons - Form No. 33
Affidavit - Form No. 34

The summons should be accompained by:
" A certified copy of the M&A of both companies
" A certified true copy of the latest audited B/S and P&L A/c of transferee company

4. Copy To Regional Director

A copy of application made to concerned H.C. shall also be sent to the R.D. of the region. Although, such notice is supposed to be sent by the H.C., usually the company sends it without waiting for the H.C. to send it.

5. Order Of High Court

On hearing of the summons, the H.C. shall pass the necessary orders which shall include:

" Time and place of the meeting
" Chairman of the meeting
" Fixing the quorum
" Procedure to be followed in the meeting for voting by the proxy
" Advertisement of notice of the meeting
" Time limit for the chairman to submit the report to the court regarding the result of the meeting

Orders in - Form No. 35

6. Notice Of The Meeting

The notice of the meeting shall be sent to the creditors and/or the shareholders individually by the chairman so appointed by registered post enclosing:

" A statement setting forth the following:
- Terms of amalgamation and its effects
- Any material interests of the director, MDs or Manager, in any capacity
- Effect of the arrangement on those interests.

" A copy of the proposed scheme of amalgamation
" A form of proxy
" Attendance slip
" Notice of the resolution for authorizing issue of shares to persons other than existing shareholders

Notice in - Form No. 36

Proxy in - Form No. 37

7. Advertisement Of Notice Of Meeting

The notice of the meeting shall be advertised in an English and Hindi N/P as the court may direct.
Advertisement in - Form No. 38
8. Notice To Stock Exchange
In case of the listed company, 3 copies of the notice of the general meeting alongwith enclosures shall be sent to the Stock Exchange where the company is listed.

9. Filing Of Affidavit For The Compliance

An affidavit not les than 7 days before the meeting shall be filed by the Chairman of the meeting with the Court showing that the directions regarding the issue of notices and advt. Have been duly complied with.

10. General Meeting

The General Meeting shall be held to pass the following resolutions:
" Approving the scheme of amalgamation by ¾th majority
" Special Resolution authorizing allotment of shares to persons other than existing shareholders or an ordinary resolution be passed subject to getting Central Government's approval for the allotment as per the provisions of Section 81(1A) of the Companies Act, 1956.
" The resolution to empower directors to dispose of the shares not taken up by the dissenting shareholders at their discretion.
" An ordinary/special resolution shall be passed to increase the Authorised share capital, if the proposed issue of shares exceeds the present authorised capital.
The decision of the meeting shall be ascertained only by taking a poll on resolutions.

11. Reporting of Result of the Meeting

The Chairman of the meeting shall report the result of the meeting to the court within the time fixed by the judge or within 7 days, as the case may be. A copy of proceedings of the meeting shall also be sent to the concerned Stock Exchange.

Report in - Form No. 39

12. Formalities With Roc

The following documents shall be filed with ROC alongwith the requisite filing fees:

" Form No. 23 of Companies General Rules & Forms + copy of Special Resolution
" Resolution approving the scheme of amalgamation
" Special resolution passed for the issue of shares to persons other than existing shareholders

13. Petition

For approval of the scheme of amalgamation, a petition shall be made to the H.C. within 7 days of the filing of report by the chairman.
Petition in - Form No. 40

" If the Regd. Offices of the companies are in same state - then both the companies may move jointly to the High Court.
" If the Regd. Offices of the companies are in different states - then each company shall move the petition in respective High Court for directions

14. Sanction of The Scheme

The Court shall sanction the scheme on being satisfied that:
" The whole scheme is annexed to the notice for convening meeting. This provision is mandatory in nature
" The scheme should have been approved by the company by means of ¾th majority of the members present.
" The scheme should be genuine and bona fide and should not be against the interests of the creditors, the company and the public interest.
After satisfying itself, the court shall pass orders in the requisite form

Orders in - Form No. 41

15. Stamp Duty

A scheme sanctioned by the court is an instrument liable to stamp duty.

16. Filing With Roc

The following documents shall be filed with ROC within 30 days of order:
" A certified true copy of Court's Order
" Form No. 21 of Companies General Rules & Forms

17. Copy of Order To Be Annexed

A copy of court's order shall be annexed to every copy of the Memorandum of Association issued after the certified copy of the order has been filed with as aforesaid.

18. Allotment of Shares

A Board Resolution shall be passed for the allotment of shares to the shareholders in exchange of shares held in the transferor-company and to fix the record date for this purpose.
Steps To Be Followed By Transferor Company
The procedure as given above shall be followed by the transferor company.
The only exception is that - there is no need for the transferor company to pass a special resolution for offering shares to the persons other than the existing shareholders and to file Form No. 23 of the Companies General Rules and Forms with the Registrar of Companies.

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