Merger basically is an arrangement where 2 existing companies merge their identities to form a new identity. Companies act 2013 introduced fast track merger for small companies and for holding companies with their subsidiary companies.
Merger and acquisition are company restructuring tools that are incorporated by the company professionals for expansion and diversification of the business to achieve the objectives for which the company was formed.
There has been pragmatic reform in the company law since 1956. The company law now provides protection to the investors and minorities in a company; this initiative is a bright spot in the history of the corporate initiative as it aims to bring transparency and accountability in the corporate sector.
What is Fast Track Merger (FTM)?
Fast track Merger is a streamlined process of a merger that has been simplified and made time-bound and quick in comparison with traditional merger procedure.
Fast track merger is the first significant change in the merger and acquisition regime in India since 1956. With the change in the merger practices, the Indian Merger and amalgamation practices have come in terms with the global practices.
The simplification of the process has made it possible for entities to take up corporate restructuring in order to achieve their underlying company objective. The time and cost of completing the process have been significantly reduced as there is no more court intervention required.
Eligibility for Fast Track Merger (FTM)
The applicability of Fast Track merger is only on the following companies:
As per the companies act the companies that are classified as small companies can perform fast track merger. The companies that are considered small companies are companies whose paid-up share capital does not exceed 50 lakh rupees and the turnover as per the accounting books should not exceed 2 crore rupees.
Hence any public company cannot go through fast track merger.
Holding Companies and its Wholly-owned Subsidiary
Any holding company that wants to merge with its wholly owned subsidiary can do so through FTM. In such a case, the wholly owned subsidiary and the holding company can be a private or public company.
Steps Involved in Fast Track Merger
Initial Steps to be Taken
- The company that is involved in the fast track merger need to check that the transferor and transferee companies i.e. they need to check whether the companies AOA permits for merger or not. If in case the company AOA does not permit; the AOA needs to be altered first.
- The companies need to prepare a draft scheme for merger and evaluate the exchange ratio based on the valuation provided by at least 2 evaluators for valuation of shares.
Procedural Steps Involved in Fast Track Merger (FTM)
Merger and Demergers in foreign jurisdiction do not require the intervention of courts which was not the case with Indian traditional merger process and hence the need to change the procedure was seen necessary.
The companies that qualify to perform fast track merger can accomplish it by following these steps:
Step 1 Convene Board Meeting
The transferor and transferee company need to conduct a board meeting each to see that:
- The draft scheme is approved by the company
- To fix a date, time and place for conducting the shareholder and creditors meeting.
Step 2 Notice of Proposed Scheme
After approval from the board of directors of all the companies involved in the merger the notice of the proposed scheme should be posted so that any objection or suggestion can be provided.
If there are any suggestion or objections they should be sent to the registrar of Companies (ROC) and official liquidator wherever the registered office is situated. The objections or suggestions must be given by the respective companies in Form CAA-9 and the copy of the scheme in such case must also be given to a person that is affected by it.
Step 3 Filing Declaration of Solvency with ROC
The companies involved in the merger need to file a declaration of solvency in Form CAA-10, before convening a meeting of creditors and members for approval.
Step 4 Notice of EGM
Notice for EGM must be posted before 21 days and should be sent to all the members of the company along with the following documents:
- Declaration of solvency made in the Form CAA-10
- A statement disclosing the details of the fast track merger
- Copy of the latest financial statements of all the companies involved
- Valuation report of the company (copy)
In the EGM the approval of the majority must be taken in writing. The majority must represent 90% of the total shares.
Step 5 Creditors Approval
Written approval from the creditors is required which can be taken through conducting a creditors meeting by the companies involved. The notice for the meeting must be issued before 21 days of the meeting and the following documents must be filed along with the notice:
- Valuation report of the companies (copy)
- A statement disclosing the merger and the details of the merger
- Proposed scheme issued by the companies (copy)
Step 6 Filing of the Scheme
A draft scheme that involves a merger must be filed within 7 days of the conclusion of the companies meeting with the creditors and members. The draft scheme must accompany following info along with the draft scheme:
Report and result of every meeting along with the copy of the scheme must be filed with the Regional Director.
The scheme must also be provided to ROC in form GNL-1 and official liquidator through speed post or through registered post.
Step 7 Scheme Approval by Regional Director
If the official liquidator has no issue with the scheme that is filed he will take notice of the same and then issue a confirmation to the companies that are involved in the merger.
But, If the ROC has any objections the same will be communicated to the regional director in writing. The communication should be done within 30 days if the same is not done within 30 days it will be presumed that ROC has no objection pertaining to the scheme.
Once the tribunal receives the objections from the Regional Director in writing within 60 days will look into the matter and then record its opinion on the matter. If the tribunal is of the opinion that the scheme is as per the procedure laid down by the company law, then the reasons can be recorded and sent to the regional director or an order can be passed confirming the passing of the scheme.
If the order passed by the tribunal is acceptable to the regional director he shall issue a confirmation order of the scheme in Form CAA-12.
Step 9 Filing of confirmation order with the ROC
The confirmation order posted by Regional director must be sent to ROC within 30 days of such order in Form INC-28. The ROC shall register the scheme and issue a confirmation to the companies involved.
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