1.
Check the Articles of Association of the
respective companies involved in the merger, whether there is clause to merge
the business of the Companies with the other companies, if not then, first of
all, alter the AOA of the Companies.
2.
Call the Board Meeting and Prepare the Draft
Scheme of Amalgamation or Merger.
3.
Conduct Board Meeting and do the followings:
a.
Get the Draft scheme approved
b.
Authorized any director or Company Secretary or
any other person to do such acts in this regard.
c.
Prepare the Statement of Assets and Liabilities
of the Companies which reveals the current position of the Companies and
receive the Auditor’s Report on the Statement.
4.
Send a notice in Form CAA-9 of the proposed
scheme inviting objections or suggestions, if any, within 30 days of issuing
the notice from the Registrar and Official Liquidators where registered office
of the respective companies are situated or persons affected by the scheme with
the attachments are given below:
a.
Scheme of Merger or Amalgamation
b.
Pre and post Merger Shareholding of the
Transferee Company
c.
Last 3 years Audited financial statements with
Auditors report thereon filed to ROC
d.
MOA and AOA
e.
Board Resolution
Valuations report for Share Exchange ratio from
the registered Valuer, in case of WOS Company no need of Valuation report
Note: To ROC and OL, the Notice in CAA-9 shall
be submitted via hand delivery. And to Person affected by the scheme (i.e.
Income Tax Department, RBI, SEBI, Respective Stock Exchange, CCI, if necessary,
or other sectoral regulators or authorities which are likely to be affected),
the notice shall be served via post or speed post or via courier.
5.
the objection or suggestions shall be given by
ROC, OL or Person affected by the Scheme within 30 days of serving notice to
the RD and authorized representative of Transferor Company.
6.
each of the companies involved in the merger
files a declaration of solvency in the Form CAA-10 with the ROC of the place
where the registered office of the company is situated along with the fee as
provided in the Companies (Registration offices and fees) Rules, 2014 before
convening the meeting of members and Creditors for approval of the Scheme. The
attachments are:
a.
Scheme of Merger or Amalgamation
b.
Pre and post Merger Shareholding of the
Transferee Company
c.
Last 3 years Audited financial statements with
Auditors report thereon filed to ROC
d.
MOA and AOA
e.
Board Resolution
f.
Valuations report for Share Exchange ratio from
the registered Valuer, in case of
7.
After getting objections or suggestions call a
Board meeting and amend the Draft Scheme and consider the Day, Date, Time and
Place for General Meeting and Creditors Meeting. If no such objections or
suggestion received, then get the scheme approved without alteration and do the
further proceeding for the Meeting of Members and Creditors.
8.
Send the notice of the meeting to the members
and creditors shall be
accompanied by
a.statement, as far as applicable, referred to
in sub-section (3) of section 230 of the Act read with sub-rule (3) of rule 6
hereof;
b. the declaration of solvency filed in Form CAA-10
c. a copy of the scheme.
9. Conduct General Meeting and get the scheme
approved by the respective members or class of members at a general meeting
holding at least 90 per cent of the total number of shares.
(Note: The meeting should be conducted after 30
days of the sending Notice in CAA-9, so that the objections or suggestions
shall be considered)
10. Conduct Creditors Meeting by giving a notice
of 21 days along with the above attachments (point no. 6) and get the scheme
approved by majority representing nine-tenths in value of the creditors or
class of creditors of respective companies or otherwise approved in writing.
11. the Transferee company shall, within seven
days after the conclusion of the meeting of members or class of members or
creditors or class of creditors, file a copy of the scheme as agreed to by the
members and creditors, along with a report of the result of each of the
meetings in Form No. CAA.11 with the
a.
Regional Directors along with the fees as
provided under the Companies (Registration Offices and Fees) Rules, 2014. (file
shall be submitted via hand delivery along with payment challan)
b.
Copy of the scheme shall also be filed, along
with Form No. CAA. 11 with the Registrar of Companies in Form No. GNL-1 along
with fees provided under the Companies (Registration Offices and Fees) Rules,
2014; and
c.
the Official Liquidator through hand delivery or
by registered post or
speed post.
12. The objections or suggestions shall be given by ROC and OL to the RD
within 30 days of the filing the Form CAA-11.
13. Where no objection or suggestion is received
to the scheme from the Registrar of Companies and Official Liquidator or where
the objection or suggestion of Registrar and Official Liquidator is deemed to
be not sustainable and the Regional Directors is of the opinion that the scheme
is in the public interest or in the interest of creditors, the Regional
Directors shall issue a confirmation order of such scheme of merger or
amalgamation in Form No. CAA.12.
Note: If no such communication is made, it shall be presumed that he has
no objection to the scheme.
14. Where objections or suggestions are received
from the ROC and OL and the Regional Directors is of the opinion, whether on
the basis of such objections or suggestions or otherwise, that such a scheme is
not in public interest or in the interest of the creditors, it may file an
application before the Tribunal in form CAA- 13 within a period of 60 days of
the receipt of the scheme stating its objections or opinion and requesting that
the Tribunal may consider the scheme under section
232 of the Companies Act, 2013.
15. On receipt of an application from the Regional Directors or from any
person, if the Tribunal, for reasons to be recorded in writing, is of the
opinion that the scheme should be considered as per the procedure laid down in
section 232, the Tribunal may direct accordingly or it may confirm the scheme
by passing such order as it deems fit.
Note: If the Regional Directors do not have any objection to the scheme
or it does not file any application under this section before the Tribunal, it
shall be deemed that it has no objection to the scheme.
16. The confirmation order of the scheme issued
by the Regional Directors or Tribunal shall be filed, within 30 days of the
receipt of the order of confirmation, in Form INC-28 along with the fees as
provided under Companies (Registration Offices and Fees) Rules, 2014 with the
Registrar of Companies having jurisdiction over the transferee and transferor companies
respectively.
17. It is clarified that with respect to schemes
of Merger or Amalgamation falling within the purview of section 233 of the Act,
the concerned companies may, at their discretion, opt to undertake such schemes
under sections 230 to 232 of theCompanies Act, 2013, including where the
condition prescribed in clause (d) of subsection (1) of section 233 of the Act
has not been met.
Author of the Article can be contacted at +919350218303 FCS MANOJ KUMAR PURBEY
