Stepwise process / Checklist for Scheme of Amalgamations under Companies Act,
2013 and SEBI Regulations
Regulatory Framework
• Companies
Act, 2013 – [Sec 230-232]
•
National Company Law Tribunal Rules, 2016
• Foreign
Exchange Management Act, 1999
• Indian
Accounting Standards
• Indian
Stamp Act 1899, as applicable to relevant State
• Competition
Act, 2002
• Income
Tax Act, 1961
•
SEBI (Listing Obligations and Disclosure
Requirements) Regulations, 2015
• SEBI
(Substantial Acquisition of Shares and Takeovers) Regulations, 2011
•
SEBI Circular(s) on Scheme of Amalgamations
Approvals required
•
Board of Directors of the companies
•
SEBI / Stock exchange(s), where the companies
are listed
•
Shareholders of the companies
•
Creditors of the companies
•
National Company Law Tribunal
•
Reserve Bank of India & Competition
Commission, if required
Documents required
•
Memorandum and Articles of Association of the companies
•
Audited Financials
•
Statutory Records of transferor company(ies)
till date.
•
Minute Books transferor company(ies) till date.
•
List of Directors
•
List of Shareholders / Shareholding Pattern
Stepwise procedure
Board Approval
• Listed
Company(ies) to intimate the date of the Board Meeting in which the in-principle
proposal for amalgamation will be considered to the stock exchange(s)
•
Convene the Board Meetings of Transferor /
Transferee companies for considering the proposal of amalgamation
o
In-principle approval for amalgamation
o
Appoint Chartered Accountants for valuation
o
Registered valuer / Merchant Bankers for fairness opinion
o
Company Secretaries / Advocates for representing the matter
before the Hon’ble NCLT
o
Delegate powers to a sub-committee of the Board, if any.
• Listed
Company(ies) to disclose the outcome of the Board Meeting to the stock
exchange(s)
• Independent
Valuation and Fairness Opinion to be obtained; Draft Scheme of Amalgamation to
be ready
• Listed
Company(ies) to intimate the date of the Board Meeting in which the Scheme of
Amalgamation and Share Exchange Ratio would be considered
• Conduct
Audit Committee / Board Meetings of the Companies for considering
o Valuation
Report
o Fairness
Opinion
o Designated
Stock Exchange
• Listed
Company(ies) to disclose the outcome of the Board Meeting to the stock
exchange(s)
o
Share Exchange Ratio & other details as per continuous
disclosure requirements Reg. 30 of SEBI (LODR) Regulations, 2015 (Part A of
Schedule III)
Stock Exchange / SEBI approval
• Listed
company(ies) not to file the Scheme with NCLT without obtaining Observation
Letter / No Objection letter from the stock exchange(s)
• Application
to the Stock exchange(s) where the companies are listed under Reg.37 for
obtaining Observation Letter / No Objection letter to the proposed Scheme.
• Application
to be accompanied by the documents specified in SEBI Circular on Scheme of
Arrangements.
• Documents
submitted to the stock exchange(s) to be uploaded on the Company’s website.
• Provide
response to clarifications sought by the stock exchange(s), if any.
• Obtain
Observation Letter / No Objection letter from the stock exchange(s) to the
proposed Scheme of Amalgamation
• Upload
the Observation Letter / No Objection letter on the Company’s website within 24
hours of receipt
NCLT Approval
• Application
to NCLT seeking directions, inter alia, for dispensing / convening
shareholders’ and creditors’ meetings; publishing advertisements; appointment
of chairpersons.
• Obtain
NOC from Secured Creditors.
• Obtain
Orders from NCLT.
• If
ordered for convening the meetings, convene board meetings to seek approval of
-
o Supplementary
accounting statements, if required.
o Approval
of the Notices of the Tribunal Convened Meetings to be issued to the
shareholders and creditors
o
Notice to be issued pursuant to SEBI Circular on
Scheme of Arrangements seeking approval of Public Shareholders through e-voting
• Printing
and Dispatch of Notices to shareholders / creditors – physical and electronic
o
Notice with all documents to be sent to the
offices of ROC, Official Liquidator, Central Government (Regional Director), Income
Tax authorities, RBI, Stock exchange(s) and any other regulatory authorities,
as directed by NCLT.
• Intimate
stock exchange(s) on the dispatch of notices and also submit the notices to the
stock exchange(s).
• Upload
the complete Notice(s) on the Company’s website
• Publication
of advertisement in Newspapers about the meetings
• Upload
the newspaper advertisement the Company’s website and submit the same to the stock exchange(s)
• Convene
the meetings / e-voting
o NCLT
convened meeting Resolution(s) to be passed with Special Majority, i.e.,
majority of members present (more than 50%) and holding 3/4th
in value of voting rights. Result to be decided through Poll and also E-voting
for Listed entities.
o
SEBI requirement - Postal Ballot / e-voting - votes
cast by the public shareholders in favour are more than the number of votes
cast by the public shareholders against it – E-voting (Postal Ballot may also
be provided).
• Outcome
of Meetings / E-voting to be intimated to the stock exchange(s) within 48 hours
of conclusion of the Meeting.
• Submit
responses to any information / clarifications sought by the Official Liquidator
and Central Government (RD Office)
• Reports
of the Chairman to be submitted to the NCLT along with the attendance slips
& proxy forms in original within 7 days from the date of holding the
meeting.
• Company
Petitions seeking orders of the NCLT for amalgamation of the companies to be
filed with the NCLT within 7 days from the date of filing of the Chairman’s
report.
• Filing
of MGT-14 with ROC within 30 days of approval of the Resolutions.
• Date
of hearing to be fixed by NCLT Registry
• Obtain
NOCs from Income Tax authorities / RBI / CCI, if required.
• Publish
Notice of Hearing in the newspapers seeking objections, if any, to the Scheme.
• Upload
the newspaper advertisement the Company’s website and submit the same to the stock exchanges
• Counsel
to file the responses to the Notice with NCLT.
• Petition
to be admitted by NCLT and notices to be served on Official Liquidator and
Central Government (Regional Director).
• Submission
of reports on the Scheme by the offices of the Regional Director and the
Official Liquidator to the NCLT.
• Hearing
of the matter by the NCLT.
• NCLT
to pronounce the Orders.
Post NCLT approval
• Obtain
Certified True Copy of the Order from the NCLT.
• Payment
of Stamp Duty, as per the Stamp Act, if required.
o
Adjudication of the Court Order
o
Payment
• Inform
SEBI / Stock exchange(s) on receipt of the Order
• Post
receipt of the Certified True Copy of the Order, documents to be sent to the
Designated Stock Exchange, as per SEBI Circular on Amalgamations.
• Filing
of INC 28, along with Stamp Duty payment challan with the ROC.
• Stock
Exchange(s) to take note of NCLT Order and inform the Company.
• Board
to note the NCLT Order and fix the Record Date
• Intimate
Record Date to Stock exchange(s) (7 working days’ notice)
• Allotment
of shares
• Intimation
to the Stock Exchange(s) on Allotment
• Admit
new shares issued with the Depositories
• Listing
Application to the Stock Exchange(s)
• Submit
FC-GPR through Authorized Dealer Bank, if required.
• File
PAS-3 with the ROC within 30 days of Allotment.
• Obtain
Listing and Trading approval
• Intimations
to all other concerned offices, including statutory authorities, with Certified
copies of NCLT orders.
• Any
specific compliances stipulated in the Amalgamation Order to be adhered to.
