Arrangement with Members
Types of Demerger:
- Partial Demerger: Demerger is an arrangement whereby the whole or any part of the undertaking, property or liabilities of one Company is transferred to another Company which operates completely separate from the that Company.
- Complete Demerger: Demerger is an arrangement whereby
Shareholders of the transferor Company are usually given an equivalent stake of ownership in the transferee Company.
Companies Act, 2013 defines Division:
The undertaking, property (property includes assets, rights and interests of every description) and liabilities (liabilities include debts and obligations of every description) of company, is proposed to be divided among and transferred to two or more existing company(ies) or new company(ies), is defined as division under (iii) explanation of Subsection (8) of Section 232.
Transfer of whole or part of;
e.g.2: Spilt UP
Transfer of; Transfer of;
“A” undertaking “B” undertaking
A Ltd B Ltd
Resulting Company 1 Resulting Company 2
However, term “demerger” neither used nor defined under companies Act, 2013, it is defined in Income Tax Act, 1961.
Reasons of Demerger:
De-merger is undertaken basically two reasons.
- The first as an exercise in corporate restructuring and
- The second is to give effect to kind of family partitions in case of family owned enterprises.
A De-merger is also done to help each of the segment operate more smoothly as they can now focus on a more specific task.
According to Sub- Section (19AAA) of Section 2 of Income –tax Act, 1961, “De-merged Company” means the Company whose undertaking is transferred, pursuant to a De-merger, to resulting Company.
PARTIES INVOLVED IN DE-MERGER
The parties involved in a De-merger are:
- Demerged Company
- Resulting Company
- Members of both the Companies
- Creditors of both the Companies
PART A: APPLICABILITY
- Which provisions of Companies Act, 2013 are applicable in case of Demerger?
- The provisions contained in Section 230-233 of Chapter XV of the Companies Act, 2013 read with The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, are applicable in case of Demerger.
- Earlier in Companies Act, 1956 provisions of Demerger was complete- code or a single window clearance, i.e. once the scheme is approved by high court, separate approval from stakeholders and various statutory authorities not required, As the High Court has original jurisdiction in company matters as per previous companies act, whereas, has appellate jurisdiction in other acts.
At present power to sanction Compromise or arrangement is with NCLT as per companies Act, 2013 and NCLT is a quasi-judicial body formed under companies Act, 2013, now whether current provisions of Demerger are complete- code or a single window clearance remains unanswered.
- On which Companies provisions apply?
The Companies Act, 2013 does not prescribe eligibility of company to demerge, but section 230 read with section 232 provides compromise or arrangement between company and its creditors or members, and definition of company defines under section 2(20) of companies Act, 2013, “company” means a company incorporated under the Act or under any previous company law;
Thus, any company incorporated under Companies Act, 2013 or previous company law can compromise or arrangement with creditors or members.
- Applicability of provisions on Demerger between two or more small companies or between a holding company and its wholly-owned subsidiary company or such other class or classes of companies as may be prescribed,
- The provisions contained in Section 233 of Chapter XV of the Companies Act, 2013 read with rule 25 of The Companies (Compromises, Arrangements and Amalgamations) Rules, 2016, are applicable in case of Demerger of certain companies mentioned above.
- What are the approvals and sanction required under Companies Act, 2013 in case of Demerger?
- Approval and sanctions are required from:
- Separate Approval from each class of Creditors, in case of calling of creditors meeting and each class of Members – to be agreed by majority of persons representing 3/4th in value.
- Official Liquidator
- the Central Government i.e. to Regional Director power delegated vide F. No. 2/31/CAA/2013-CL-V dated 19th December, 2016.
- Sanction from National Company Law Tribunal.
The Companies Act, 2013 does not contain any provisions/ conditions for approval from employees or debtors of the transferor or transferee company.
Authorities who can give representations in case of Demerger
- Registrar of Companies
- Income Tax Authorities
- Reserve Bank of India, case specific
- Securities and Exchange Board, case specific
- Stock Exchanges where securities of companies involved in transaction listed
- Competition Commission of India
- Other Sectoral Regulators or Authorities
- Who can make an application to the NCLT for Demerger?
- An application to the NCLT can be made by any one of the following [Sec.230(1)]
- company or
- any creditor or
- member of the company, or
- in the case of a company which is being wound up, of the liquidator appointed under companies Act or under the Insolvency and Bankruptcy Code, 2016, as the case may be (In practice, Liquidator does not make application for Demerger).
PART C: CREDITORS
- What is the role of creditors in case of Demerger?
- In case of dispensation of creditors meeting, Separate approval of creditors (i.e. Secured and Unsecured Creditor) holding at least 90 percent in total value of creditors through affidavit is required in case Demerger under section 230(9) .
- If NCLT directs convening of creditors meeting for approval of Demerger, should be agreed by majority of creditors representing 3/4th in value, voting in person or by proxy or by postal ballot.
- What are the rights of the creditors in case of Demerger?
- The creditors have the right to agree to the scheme of Demerger.
- The Creditors having outstanding debt amounting to not less than five percent of the total outstanding debt as per the latest audited financial statements may object to the scheme of Demerger.
- Is it mandatory to convene meeting of creditors for approval of Demerger?
- Creditors meeting can be dispensed by NCLT, in case of Demerger between company and its members by following directions given by NCLT in this regard.
- What are the points that creditors have to keep in mind in case of Demerger?
- The creditors have to ensure that their interests are not getting adversely affected. They should go through the scheme thoroughly and understand the implication of the same on their rights and interests.
PART D: MEMBERS
- What is the role of members in case Demerger?
- Separate approval of all class of members, for example members holding equity shares/ members holding preference shares etc. is mandatory for completing the merger process. A NCLT convened meeting for approval of each class of members needs to be held. Also merger should be agreed by majority of members representing 3/4th in value, voting in person or by proxy or by postal ballot, agree to any compromise or arrangement..
- What are the rights of the members in case of Demerger?
- The members have the right to agree to the scheme of Demerger.
- The members holding not less than 10% of the shareholding may object to the scheme of Demerger. New insertion as per companies act 2013.
- Is it mandatory to convene meeting of members for approval of Demerger?
- Where individual written consents of each of the class of members for approval of Scheme is taken, it is not mandatory to convene the meeting of members. But this alternative is available only for unlisted companies. In case of listed companies, NCLT convened members’ meeting for approval of scheme is mandatory.
- What are the points that members have to keep in mind in case of Demerger?
- The members have to ensure that their interests are not getting adversely affected. They should go through the scheme thoroughly and understand the implications of the same on their rights and interests.
- They should take note of the change in their shareholding post allotment of shares in the Transferee Company.
PART E: POWERS OF THE TRIBUNAL
- Does NCLT have any power to enforce Demerger?
Section 231 of the Companies Act, provides for the power of the NCLT to enforce compromise or arrangement. The Power and role of the NCLT is clearly spelt out in this section.
- Where the Tribunal makes an order under section 230sanctioning a compromise or an arrangement in respect of a company, it shall have power to supervise the implementation of the compromise or arrangement; and may give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper implementation of the compromise or arrangement.
- If the Tribunal is satisfied that the compromise or arrangement sanctioned under section 230cannot be implemented satisfactorily with or without modifications, and the company is unable to pay its debts as per the scheme, it may make an order for winding up the company and such an order shall be deemed to be an order made under section 273.
- What are the powers vested in Tribunal in relation to sanction Demerger?
Under Section 232(3) the NCLT order for sanctioning of compromise of arrangement in relation with division of companies
The Tribunal, after satisfying itself that the procedure specified in sub-sections (1) and (2) of section 232 of the Act, 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 decides otherwise;
(b) the allotment or appropriation by the transferee company of any shares, debentures, policies or other like instruments in the company
The 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;
(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.
Is it necessary for the NCLT to consider the report of the Regional Director prior to grant of sanction?
It is mandatory for the NCLT to consider report of Regional Director based on the report of concerned Registrar of Companies prior to sanctioning the scheme of demerger. The Regional director have to make a report to the NCLT that the affairs of the company are not being conducted in a manner, prejudicial to the interest of their member or to public interest.
Is it necessary for the NCLT to consider the report of the Official Liquidator prior to grant of sanction?
- What remedy is available in case a Scheme cannot be implemented after approval by the NCLT?
- Normally, one expects the role of the NCLT end immediately after passing of order under Sec. 232(3). However, many times it is noticed that a scheme which is already approved by the NCLT could not be implemented due to various operational and other reasons. In this event, the option left with the parties concerned is to approach the NCLT once again under Section 231 with a request to pass suitable order/ directions, so that the scheme can be made workable.
- What is the effect of dissolution without winding up of the transferor company in case of demerger?
PART E: GENERAL CLAUSES
- What is the effect of Court’s sanction of Scheme?
- The Scheme when sanctioned does not merely operate as an agreement between the parties but has a statutory force and is binding not only on the company but even on dissenting creditors or members, as the case may be.
- The scheme once sanctioned cannot be altered except with the sanction of the court even if the shareholders’ and the creditors’ acquiesced in such alteration. Section 391(2) allows the decision of the majority prescribed therein to bind the minority of creditors and members and it is for that reason that a scheme is said to have statutory operation and cannot be varied by the members and creditors unless such variation is sanctioned by the court.
- Whether the memorandum should have the power to demerge in its Memorandum of Association (MOA)?
- The Courts in various decisions have held that to demerge an undertaking is an inherent power and an express provision in the MOA is not required. Court can sanction Scheme of Demerger whether the power to demerge with another company is contained in MOA concerned company or not.
- What should be done in case registered offices of the Demerged and Resulting Company are situated in different states?
- If the Registered Offices of both the Companies are situated in jurisdiction of different High Courts, then separate applications are required to be filed by the Demerged and Resulting Company in their respective High Courts.
- If the Registered Offices of both the Companies are situated in jurisdiction of different NCLT, then separate applications are required to be filed by the Demerged and Resulting Company in their respective NCLT.
- Whether it is necessary to attach Every copy of Order to MOA?
- The existing Act provided that every order in relation to Restructuring should be attached to every copy of Memorandum of Association of the Company. The New Act has not prescribed for such a requirement.
PART G: PROCEDURE
|S.N.||Particulars||Documents Required Before Event from client||Documents to be prepared by us and to be finalised by client||Time Line|
|1.||1st Meeting of Consultant with client|
|2.||Preparation of Option Paper, if required|| B-0
|3.||Finalisation of Proposal of M & A with client|
|1.||1st Board Meeting
Agenda of Board Meeting:
· To Appoint consultants, valuers, and to authorise representative to file application and petition for demerger
§ Obtain due diligence certificate (In case of M&A between unrelated companies), if required.
1- Notice of Board Meeting along with agenda, Notes to agenda and Disclosure of Interest of Directors u/s 184(2).
2-Draft Board Resolution
3-CTC of Board Resolution
4- Attendance Register
5- Minutes of the Board Meeting
1-CTC of Board Resolution
2-Signed Minutes of the Board Meeting
|Preparation of Following Drafts:
a. Draft Swap Ratio Report/Valuation Report
b. Draft Scheme of M & A
c. Draft Fairness Report (in case of listed Company)
a. List of documents required for Valuation report
b. List of Documents required for drafting of Scheme of M & A
|2nd Board Meeting
Agenda of Board Meeting:
· to approve scheme of Demerger and incidental matters thereto.
|Certificate by the company’s auditor 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.||A-2
1- Notice of Board Meeting along with agenda, Notes to agenda and Disclosure of Interest of Directors u/s 184(2).
2- Draft Board Resolution
3- CTC Board Resolution
4- Attendance Register
5- Minutes of the Board Meeting
6- Certificate by the company’s auditor under section 133. (Certificate needs to be obtained by transferee company)
|Filing of Special resolution by Public Company in E-Form MGT-14 with ROC (in case whole or substantially the whole of the undertaking is being to be transferred),||within 30 days of passing of such resolution|
|5.||Preparation of Application along with Attachments.||B-2
a. List of documents required for preparation of application
|Filing of Application for order of meeting in triplicate with NCLT in FORM NCLT-1
(i) a notice of admission in Form No. NCLT-2;
(iv) creditor’s responsibility statement in Form No. CAA.1 shall be included in the scheme of corporate debt restructuring; and (v)Memorandum of Appearance NCLT-12
List of documents for filing of application
Draft Application and annexures to the application to be filed with NCLT
|7.||List of requirements for preparation of Notice to the shareholders||B-4|
|8.||Preparation of Notice for NCLT Convene Meeting (EGM)||Prerequisite for preparation of Notice:
Order Copy of NCLT
|1st Hearing: After filing Application
Attending NCLT hearing. NCLT will give directions regarding:
a. Calling of the meeting of shareholders of the company
b. Dispensation from holding creditors meeting and directions thereof for sending notices
c. Date, time and venue, and appointing chairman and scrutinizer of the meeting
d. Appointment of Official liquidator and Auditors
e. Fixing the quorum and mode of voting at the meeting.
f. Advertisement of notice of meeting in two newspapers
g. Time period within which the chairman’s report is to be filed
|Copy of the Application along with all annexures is required at the time of hearing|
|10.||In case of Dispensation of the Creditors Meeting, Send Individual notices to the Creditors, if directed by Tribunal||A-4|
|Send individual notices along with attachments in Form No. CAA.2 by chairman appointed by Tribunal to members and creditors (if dispensation not obtained) by all companies.||B-4||A-5
-Draft notices in Form No. CAA.2 including details mentioned in Section 230(3) and Rule 6 of Compromise and arrangement rules.
-Copy of Scheme
-Proxy Form in MGT-11;
-Copy of Valuation Report
|at least 1 month before the date fixed for the meeting + 2 days additional for postage|
|12.||Send Notices to authorities (as provided in Order copy of NCLT) i.e. ROC, RD, OL, IT and other authorities as may be provided in order in Form No. CAA. 3 along with attachments, by all companies.
Obtain Acknowledged Copy of the sent Notices, for proof of sending of notices.
|Immediately after the notice is sent to the members or creditors|
|Advertisement of Notice of Meeting in Form No. CAA.2, in English and Regional language (Marathi, in Maharashtra) newspaper in the state in which the registered office of the company is situated.
-In case of listed company, Advertisement shall also be placed, not less than thirty days before the date fixed for the meeting, on the website of the company of the SEBI and the recognized stock exchange where the securities of the company are listed.
|14.||An Affidavit of Service, proving service of Notice and advertisement by the Chairman of the meeting with NCLT.||
|not less than seven days before the date fixed for meeting or date of the first of the meetings, as the case may be, as may be ordered.)
|15.||Filing of proof of dispatch of notices.||A-7a||Before filing of Petition|
|16.||Filing of Scheme of amalgamation along with all attachments with ROC in Form GNL-1||Attachments of form:
1-Application along with Complete Annexures
2-Acknowldged Copy of Notice sent to ROC
3- Copy of Both Board Resolutions
4-Scheme of Amalgamation and Arrangement
5-Notice of NCLT convened meeting along with Explanatory statement
6-Order of NCLT calling meeting
7- Valuation report
|17.||-Conduct the NCLT convened Shareholders meeting, and Creditors Meeting, if required and pass the resolutions approving the Scheme of Amalgamation by Poll
1- Proxy Register
2- Attendance Register
3- MGT 12 polling paper
4- MGT 13 Scrutinisers Report
5- Minutes of NCLT Convened Meeting
6- CTC of Resolution with Explanatory Statement
1- MGT 12 polling paper
2- MGT 13 Scrutinisers Report
3- Minutes of NCLT Convened Meeting
4- CTC of Resolution with Explanatory Statement
|18.||File the Shareholders resolution passed with requisite majority with ROC in MGT 14|| CTC of Resolution with Explanatory Statement
Needs to be attached with form
|within 30 days of passing of such resolution|
|19.||Drafting and Filing of Chairperson report in form CAA. 4 and the results of the meeting in Form CAA.4 with NCLT|| A-9
|within the time fixed by the tribunal, or where no time has been fixed, within three days after the conclusion of the meeting|
|20.||Draft Petition after receiving required details from client in Form CAA.5 and|| B-5
Along with its annexures
|within 7 days of the filing of the report by the chairperson|
|21.||Filing of petition with the NCLT along with requisite duly signed documents (the petition shall pray for appropriate orders and directions under section 230 read with section 232 of the Act)|| B-5
|22.||2nd hearing: Attending hearing of petition at NCLT|
|23.||Publication of notice of final hearing, it 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.||not less than 10 days before the date fixed for the hearing|
|24.||Fixing Final Date of Hearing|
|25.|| List of requirements for Submission to the Auditors
|26.||Follow up with ROC for obtaining their report to be submitted to RD to enable him to submit his NOC in NCLT
ROC Final report
|27.||Obtaining information requirement list from RD
Follow up with RD for obtaining their NOC
Regional Director Report
Information requirement list from RD
|28.||Follow up with OL for obtaining their NOC|
|29.||Attending final hearing at NCLT|
|30.||A Demerger order (i.e. order made under section 232 read with section 230 of the act) shall be in Form No CAA.7.|
|31.||Payment to regional director and official liquidators.||
|32.||Obtain Certified Copy of Tribunal order.|
|33.||Holding the Board Meeting for taking note on NCLT order.|
|34.|| Filing of Certified Copy of tribunal order with ROC in E-Form INC-28 (subsequent submission of hard copies the original copy of Scheme of Arrangement and Order with the concerned ROC).
Application for obtaining NCLT Order
|Draft Statement of Altered Share Capital in case of transferee company
Pay Adjudication fees to be paid by transferee company on behalf of both the company
Attachments of Form in case of -ee Co.:
1- Cost of Petition to RD
2- Copy of NCLT order
3- Statement of Altered Share Capital
4- Adjudication Fees
5- SRN of -or co. form
Attachments of Form in case of
1- Cost of Petition to RD
2- Cost of Petition to OL
3- Copy of NCLT order
4- Adjudication Fees
|within 30 days from the date of the receipt of copy of the order, or such other time as maybe fixed by the tribunal.|
|35.||Filing of Hard Copy of NCLT Order with ROC along with acknowledgement due letter|
|36.||Follow Procedure to Increase Authorized Share Capital of transferee Company, If required, and the same is not mentioned in the scheme itself, File E-Form SH-7 with ROC along with stamp duty and ROC fees.|| Altered Copy of MOA
Latest List of Shareholders of all companies along with their shareholding
CTC of SR along with Explanatory Statement
Notice Calling EOGM
Altered Copy of MOA
|After Approval of INC-28|
|37.||Intimation about effectiveness of Scheme to all statutory authorities (Income Tax, Excise, Sales Tax, Custom, FIPB, RBI, Banks, MIDC, MSEB,etc.) and follow up with them for any further compliance|
|38.||Intimation about effectiveness of Scheme to suppliers, customers, employee, etc.|
|39.||Board Meeting of transferee for allotment of Shares|
|40.||Filing of PAS3 for allotment of Shares|| Address of Shareholders
Occupation of Shareholders
Attachments of Form:
NCLT Order Copy
List of Allottees
CTC of Board Resolution
|41.||Printing of Final Share Certificate with New name, share certificate No and Distinctive Number|
|42.||Coordinating with Stamp Authority for obtaining Stamped copy of NCLT order|
|43.||Coordinating with Registrar to transfer the properties to be transferred pursuant to amalgamation|
PART E: GENERAL CLAUSES
- What is the effect of NCLT’s sanction of Scheme?
- The Scheme when sanctioned does not merely operate as an agreement between the parties but also binding on the company , every class of member and every class of creditor and even on dissenting creditors or members, and on liquidator and contributories in case of a company being wound up.
The scheme once sanctioned cannot be altered except with the sanction of the NCLT even if the shareholders’ and the creditors’ acquiesced in such alteration.
- Whether the memorandum should have the power to demerge in its object clause?
- What should be done in case registered offices of the Transferor and Transferee Companies are situated in different states?
- Option-1: If the Registered Offices of all the Companies are situated in jurisdiction of different Tribunals, then separate applications are required to be filed by the transferor and transferee Companies in their respective NCLT, Bench.
- Option-2: Any Company can shift its registered office from one state to the state in which registered office of other company situated and file application in that NCLT, Bench.
What if 100% Board of Directors not approve scheme of Demerger?
This does not invalidate the scheme itself, unless articles provide for unanimous Board resolution in case of Demerger, Application for directions calling meeting and other consequential matters can still be filed with NCLT, however reason for non-approval of Board of Directors should be mentioned in the Minutes of the Board Meeting, and NCLT may ask justification thereof.
What are Modes of Sending Notice of NCLT Convened Meeting?
Notices to be sent by registered post or by speed post or by courier or by hand delivery or through e-mail at registered or last known addresses or E-mail addresses of shareholders or creditors, as the case may be, as per records of the company.
What will be the Method of Voting at NCLT Convened Meeting?
voting at the meeting of shareholders can be done either in person or by proxy by poll and the shareholders can also vote by postal ballot or by voting through electronics, in case of listed company.
Is Resolution passed in the NCLT meeting of shareholders Special Resolution?
Resolution passed in the NCLT convened meeting is Resolution with requisite majority, as it is to be passed by majority in number and 3/4th in value.
Can Joint Application for Merger or Amalgamation be made with NCLT?
An application of Mergers or Amalgamation and Demerger may, at the discretion of companies involved in transaction, be filed as joint-application.
Can Joint Petition for Merger or Amalgamation be made with NCLT?
Can Joint Advertisement be published in Newspaper for NCLT Convened Meeting?
Joint advertisement may be given of meetings, where separate meetings of classes of creditors or members are to be held.
Can a Scheme be Modified after filing of Application with NCLT?
Yes, Scheme can be modified after filing the Application with NCLT, in case any modification is proposed by any class of member in the NCLT meeting, Company can do so in that case modified scheme needs to be filed along with petition with NCLT for sanction.
Can a Scheme be Modified after NCLT convened meeting?
Yes, if modification in the scheme is proposed by any statutory authority, company can do so without obtaining approval from any class of member, and file modified scheme along with petition.
And if any modification is suggested by board of directors of the company after NCLT Convened meeting, approval of members or creditors require to be obtains.
Is valuation of shares of all companies mandatory?
Yes. For determining the consideration for merger valuation of business of transferor and transferee company is very much required, as based on valuation arrived at by a registered valuer share exchange ratio is fixed. However, Valuation report is legally requited in case of listed Company and in case of debt restructuring.
Can a Foreign Company Demerge with Indian Company and Vice Versa?
Can a Company demerge its undertaking to LLP or Firm?
What will happen to the Employees of Transferor company(ies)?
What will happen to Common IPRS i.e. using by multiple business?
Which liabilities to be transferred including Creditors to be Transferred other than trade liabilities or creditors?