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VS ASSOCIATES

Company secretaries

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FAST TRACK MERGRER


WHAT IS A FAST TRACK MERGER?

Merger/Amalgamation is a restructuring tool which helps Companies in expansion & diversification of their business and to achieve their underlying objectives.


Merger means an arrangement whereby one or more existing companies merge their identity into another to form a new & different identity.


Section 233 of Companies Act, 2013 has introduced a new concept of fast track merger for Small Companies and merger of Holding companies with its wholly owned Subsidiary Companies. This is the first significant change to merger and amalgamations regime over the last six decades which has sub-served the need of simplification of procedure.


Fast Track Merger is a new concept which is introduced in India under the Companies Act, 2013. Moreover, fast Track Merger is a unique concept as it does not require approval from National Company Law Tribunal (NCLT) for the merger. Hence, approval by jurisdictional Regional Directors based on the reports by the Registrar of Companies (ROC) and Official Liquidator is sufficient.


PROCEDURE OF FAST TRACK MERGER:

SR. NO PROCEDURE
1

Applicability-

  • Merger between Small Companies; or
  • Merger between Holding and Wholly owned Subsidiary(ies)
2

Issue Notice and Agenda of Board Meeting by Transferor Company(ies) and Transferee Company (Applicant Companies) in compliance with the provisions of Companies Act, 2013 & SS-1 wherein the following matters will be placed for consideration and approval-

  • a) Draft Scheme of merger;
  • b) Draft Form CAA-9 i.e. Notice inviting comments or objections from respective ROC, OL and any person whose interest is likely to be affected(i.e. respective Income Tax Authorities) and appointing any particular person as authorised representative to sign such Form CAA-9 and by whom such comments or objections will be received within 30 days from its submission;
  • c) Statement of assets and liabilities, Auditor’s Report on Statement of assets and liabilities and authorising Managing Director and 2 (two) other directors of the Company to sign such Statement of assets and liabilities;
  • d) Draft Form CAA-10 i.e. Declaration of solvency and authorising Managing Director and 2 (two) other directors of the Company to sign such Form CAA-10 and file the same with respective RoC electronically in Form GNL-1;
  • e) Draft Notice for Member’s Meeting and Creditor’s Meeting and authorising any person to send notice to Member’s and Creditor’s with or without modification subject to any comments or objections received from proposed scheme; &
  • f) Authorising any director(s) to do all such acts, deeds, things etc. in connection with the proposed merger.
Note:
  • Form CAA-9 shall be accompanied with Scheme of merger.
  • Form CAA-10 shall be accompanied with Copy of board resolution, Statement of assets and liabilities and Auditor’s Report on Statement of assets and liabilities.
3 Convene Board meeting wherein aforesaid proposal(s) will be considered and approved by Directors accordingly.
4 File Form CAA-9 along with annexure(s) with concerned ROC electronically in Form GNL-1.
5 File Form CAA-9 along with annexure(s) with concerned OL & Income tax Authorities in physical copy.
6

File Form GNL-1 with respective RoC along with the following attachments-

  • Form CAA-10;
  • Copy of board resolution;
  • Statement of assets and liabilities and
  • Auditor’s Report on Statement of assets and liabilities
7

The Person designated by respective Applicant Companies in Form CAA-9 may or may not receive any comments or objections on the draft scheme within 30 days from the date of filing of same the office of ROC, OL & Income tax Authorities.

8

Where the Person designated by respective Applicant Companies receive any comments or objections on the draft scheme, such comments or objections shall be properly taken care of to the satisfaction of respective person and shall also be placed in the Members Meetings.


Note:

The Company may convene board meeting wherein comments or objections received on the draft scheme will be placed and approval will be taken-

  • To taken care of comments or objections received to the satisfaction of respective person; &
  • To make necessary modification in notice of Members Meeting
9

Issue of Notice for Member’s Meeting and Creditor’s Meeting along with Form CAA-10, Copy of draft scheme and other documents refried to in Section 230(3) of the Act.

10

Convene Member’s Meeting and Creditor’s Meeting and pass the necessary resolution with requisite majoring in number and value for the approval of Scheme of Merger thereat


Note:
  • For Member’s Meeting- Approval of members or class of members holding atleast ninety percent of the total number of shares shall be required
  • For Creditors’ Meeting- Approval of majority of Creditors or class of Creditors holding atleast nine tenths in value of creditors or class of Creditors shall be required
11 File Form MGT-14 with the respective RoC within 30 days thereof
12

Within 7 days of the conclusion of Member’s Meeting and Creditor’s Meeting, the Transferee Company shall file-

  • copy of the scheme, copy of Notice sent under Section 233(1)(a) along with result of voting with respective RD in Form No. CAA.11 through hand delivery or by registered post or speed post;
  • copy of the scheme, copy of Notice sent under Section 233(1)(a), result of voting and Form No. CAA.11 with respective OLfor their objection and suggestionthrough hand delivery or by registered post or speed post; &
  • copy of the scheme, copy of Notice sent under Section 233(1)(a), result of voting and Form No. CAA.11 with respective RoCfor their objection and suggestion in Form GNL-1.
  • copy of the scheme, copy of Notice sent under Section 233(1)(a), result of voting and Form No. CAA.11 with Income Tax departmentfor their objection and suggestionthrough hand delivery or by registered post or speed post; &

Note:
RD & ROC shall send their objection and suggestion within 30 days of the filing of necessary documents with their good office.

13 Where no objection and suggestion are received from respective OL & ROC, respective RD shall pass order the merger or amalgamation in Form CRR-12
14 Where objection and suggestion on scheme are received from respective OL & ROC, satisfy their objection and suggestion; follow up in their office for sending their report with respective RD office.
15 After resolving of all objection and suggestion raised by respective OL & ROC, respective RD shall pass order in Form CRR-12 affirming themerger or amalgamation.
16

File Form INC-28 with respective ROC along with-

  • copy of RD order affirming themerger or amalgamation; and
  • sheet containing revised authorised share capital of Transferee Company.

Notes


• We have assumed that the approval from SEBI, STXs, IRDA & CCI shall not be required.

• The above procedure may be changed based on the requirements of each regulatory authority.


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