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AMALGAMATION
AMALGAMATION
With the increasing magnitude of the companies business and the commercial activities, there
had also been an increase in the diversities of the people who deal with them. Occasions of
clashes and conflicts frequently arise which needs to be resolved amicably. And to resolve
such conflicts the companies generally have to resort to arbitration or compromises to settle
such clashes.
Further, value creation, diversification, and for increasing the financial capacity of the
companies or for survival, one company may have to join hands with another company either
by way of amalgamation or by the takeover. So the companies act provides for the provisions
relating to various methods for the reorganization of a company. Thus is becoming vital to
discern the provisions of the Companies Act in relation to Mergers and Acquisition, and the
procedure thereof.
Before 2013, Section 391 to 394 of The Companies Act, 1956 dealt with the Mergers and
acquisitions of a company. But after 2013, due to some backdrops in the old legislation, these
provisions were amended by virtue of sections 230-240 of The Companies Act 2013. So now
these sections govern any type of arrangement or mergers and acquisitions. All of these
sections were notified on 15th December 2016 except Section 234 which was notified on
13th April 2017. These provisions were amended to bring more transparency to the laws
relating to M&A. The amendment empowered the Tribunal (NCLT) to sanction the entire
process. The provisions under the Companies Act, 2013 deal with the substantive part only,
while the procedural aspects relating to M&A are given under the Companies (Compromise,
Arrangements, and Amalgamation) Rules, 2016.
Arbitration
Prior to 1960, Section 389 of the Companies Act empowered them to enter into arbitration as
per the provisions of the Arbitration Act, 1940. But the Arbitration act did not provide for
foreign arbitrations as a result of which the Indian Companies could not enter into an
arbitration agreement with foreign companies. In order to remove this lacuna, the Companies
Amendment Act, 1960 dropped section 389 from the companies act as a result of which the
Indian companies were free to enter into arbitration agreements with foreign companies,
provided that such agreements are allowed by the Memorandum.
1. If in the normal course of business, it becomes impossible to pay all the creditors
in full.
2. Subsidiaries/Units cannot work without incurring losses.
3. Where liquidation of the company may prove harsh for the creditors or members.
Situation under which a company may enter into arrangements:
Reconstruction
Reconstruction is a situation where a new company is formed and the assets of the old one
are transferred to the newly formed company. Reconstruction is the key technique used for
changing the capital structure of a firm. There are a number of reasons due to which a
company may go for reconstruction. A few of them are:
1. Once the scheme is approved by the Tribunal, the company is bound to abide by it,
any avoidance or deviance from the same may bring legal consequences.
2. If the tribunal won’t have interfered, the majority might have suppressed the
minority’s right; so Tribunal ensures adequate representation of the minority.
3. Tribunal also has supervisory power, so at any time if NCLT is of the view that the
scheme is not in the interest of the member, it may order to modify the scheme or
may order winding-up.
The tribunal is empowered with a wide range of powers by the virtue of Section 231. The
tribunal has the sole authority either to approve or to reject the scheme of compromise or
arrangement. If the tribunal approves the compromise or arrangement, in such a case it
further has the following powers:
the 2013 act introduced the process of Fast Track Mergers. So, Section 233 of the
Companies Act covers the substantive part and Rule 25 of the Companies (Compromise,
Arrangements, and Amalgamation) Rules, 2016, covers the procedural aspect for the Fast
Tack Mergers. This rule 25 of the CAA Rules, 2016 was notified by the Ministry of
Corporate Affairs on 15th December 2016.
As per section 233 of the Companies Act, 2013, there are three classes of companies who are
not required to go through the regular merger process, but can prefer the fast track method,
those companies are:
1. Holding and Subsidiary Companies: The Holding companies are defined
under Section 2(46) of the Companies Act, and Section 2(87) of the Companies
Act, defines a subsidiary company.
2. Small Company: Small company has been defined under Section 2(85) as a
company other than a public company, having a paid-up capital not exceeding 50
Lakh Rupees or any such amount as prescribed by the government, but shall not, at
any time exceed 10 crores.
3. Other Classes: As prescribed by the Government in the CAA Rules, 2016.
This fast track merger eliminates the sanction of the NCLT and brings a more speedy process.
The steps involved in Fast track merger are mentioned below:
Since Mergers and Acquisitions affect the revenue of the Companies and ultimately the
economy of the nation, so these mergers can have both positive and negative impacts on the
economy. So at any time, if the central government feels that it is important and expedient in
the public interest to amalgamate certain companies, the government may order mergers of
such companies.
A few of the provisions relating to M&A in the public interest are as follows:
1. The central government may at any time order for the merger of a company, by
notification in the official gazette.
2. Generally there are some background checks in mergers, but when M&A is in the
public interest, then the central government may avoid such checks.
3. The government will make sure that the protection of rights of minority
shareholder.
4. If any person is aggrieved by compensation, then they can within 30 days from the
publication in the gazette appeal to the tribunal.
5. The section further inserts few more provisos that curtail the above rights under
237(5). Copy of such M&A must be laid before the parliament.
So, Section 236 introduces the concept of Squeezing out Minority Shareholder. So, this
means squeezing out the minority shareholder to free the dissenting shareholders. So how
these minority shares are purchased is provided under Section 236.
Minority Shareholders are the ones whose issued capital doesn’t exceed 10%. The majority
will offer a price to the minority that is reasonable; such an amount needs to be deposited in a
separate bank account. The amount from that separate bank account is to be transferred to
minority shareholders within 60 days.