Draft Rules
Companies (Compromises, Arrangements and Amalgamations) Rules, 2016
THE GAZETTE OF INDIA
EXTRA-ORDINARY
MINISTRY OF CORPORATE AFFAIRS
NOTIFICATION
New Delhi, ______________
G.S.R. ….(E).- In exercise of the powers conferred by section 469 read with Chapter XV, the Central Government hereby makes the following rules, namely:-
1. Short Title and Commencement - (1) These rules may be called the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016.
(2) They shall come into force on the date of their publication in the Official Gazette.
(3) The provisions of the National Company Law Tribunal Rules, 2016 shall apply to these rules, mutatis mutandis.
2. Definitions- (1) In these rules, unless the context otherwise requires.—
(a) “Act” means the Companies Act, 2013 (18 of 2013);
(b) “Annexure” means the Annexure to these rules;
(c) “Form” means a form set forth in Annexure A to these rules which shall be used for the matter to which it relates, and includes an electronic version thereof;
(d) “Section” means section of the Act.
(2) Words and expressions used in these rules but not defined and defined in the Act shall have the meaning assigned to them in the Act.
3. Application for order of a meeting
(1) An application along with a Notice of Admission supported by an affidavit in Form No. AMG.1 disclosing contents as per sub-section (2) of Section 230 may be submitted under sub-section (1) of section 230, along with such fee as provided in Schedule of Fees. Where more than one company is involved in a scheme in relation to which an application under this rule is being filed, such application may, at the discretion of such companies, be filed as a joint-application. Where the company is not the applicant, a copy of the Notice of Admission and of the affidavit shall be served on the company, or, where the company is being wound up, on its liquidator, not less than 14 days before the date fixed for the hearing of the Notice of Admission.
(2) The applicant shall also disclose to the Tribunal by way of the abovementioned affidavit, the basis on which each class of members or creditors has been identified for the purposes of approval of the scheme. The Tribunal may, at its discretion, permit the dispensation of any meetings of the creditors in terms of Section 234 (9).
(3) On hearing the application under sub-section (1) of Section 230, the Tribunal shall, unless it thinks fit for any reason to dismiss the application, give such directions as it may think necessary in respect of the following matters:-
(a) determining the class or classes of creditors and/or of members whose meeting or meetings have to be held for considering the proposed compromise or arrangement; or dispensing with the meeting or meetings for any class or classes of creditors and/or members;
(b) fixing the time and place of the meeting or meetings;
(c) appointing a chairperson(s) for the meeting or meetings to be held, as the case may be;
(d) fixing the quorum and the procedure to be followed at the meeting or meetings, including voting by proxy or postal ballot;
(e) determining the values of the creditors and/or the members, or the creditors or members of any class, as the case may be, whose meetings have to be held;
(f) notice to be given of the meeting or meetings and the advertisement of such notice;
(g) the time within which the chairperson(s) of the meeting is required to report the result of the meeting to the Tribunal; and
(h) such other matters as the Tribunal may deem necessary.
(4) The notice of the meeting under sub-section (3) of Section 230 shall be advertised in Form No. AMG 2 in at least one leading English newspaper and in at least one vernacular newspaper having wide circulation in the State in which the registered office of the company is situated, or such newspapers as may be directed by the Tribunal and shall also be placed on the website of the company (if any), not less than thirty days before the date fixed for the meeting.
4. Disclosures in application made to the Tribunal for compromise or arrangement – Creditors Responsibility Statement
For the purposes of sub-clause (i) of clause (c) of sub-section (2) of section 230, the creditor’s responsibility statement in Form No.AMG.3 shall be included in the scheme of corporate debt restructuring. For this purpose, it is clarified that a scheme of corporate debt restructuring (as referred to in clause (c) of sub-section (2) of section 230) shall mean a scheme that restructures or varies the debt obligations of a company towards its creditors.
5. Notice of meeting.
(1) Where a meeting of any class or classes of creditors and/or members has been directed to be convened, the notice of the meeting pursuant to the order of the Tribunal to be given in the manner provided in sub-section (3) of section 230 shall be in Form No. AMG. 4, and shall be sent individually specifying therein, inter alia, the following --
(i) details of the order of the Tribunal directing the calling, convening and conducting of the meeting;
(a) Date of the Order
(b) Date, Time and Venue of the Meeting
(ii) details of the company including:
(a) CIN / GLN of the company;
(b) name of the company;
(c) date of incorporation;
(d) status of the company (whether public/private/one-person-company);
(e) registered office address and E-mail address;
(f) summary of main object(s) as per the memorandum of association and main business carried on by the company;
(g) details of change of name, registered office and objects of the company in last five years;
(h) name of the stock exchanges where securities of the company are listed, if applicable;
(i) details of the capital structure of the company including authorized, issued, subscribed and paid up share capital; and
(j) names of the promoters and directors along with their addresses.
(iii) if the scheme of compromise or arrangement relates to more than one company, the fact and details of any relationship subsisting between such companies who are parties to such scheme of compromise or arrangement, including holding, subsidiary or of associate companies.
(iv) the date of the Board meeting at which the scheme was approved by the Board of directors including the name of the directors who voted in favour of the resolution, who voted against the resolution and who did not vote/ participate on such resolution;
(v) explanatory statement disclosing details of the scheme of compromise or arrangement including:
(a) parties involved in such compromise or arrangement;
(b) in case of amalgamation or merger, appointed date, share exchange ratio (if applicable) and other considerations, if any;
(c) summary of valuation report (if applicable) including basis of valuation and fairness opinion of the registered valuer, if any;
(d) details of capital/debt restructuring, if any;
(e) rationale for the compromise or arrangement;
(f) benefits of the compromise or arrangement as perceived by the Board of directors to the company, members, creditors and others (as applicable);
(g) amount due to unsecured creditors.
(vi) disclosure of nature and extent of interest and the effect of the compromise or arrangement on such interest of:
(a) key managerial personnel;
(b) directors;
(c) promoters;
(d) non-promoter members;
(e) depositors;
(f) creditors;
(g) debenture holders;
(h) deposit and debenture trustee(s);
(i) employees of the company;
Explanation – The term ‘interest’ extends beyond an interest in the shares of the company, and is with reference to the proposed scheme of compromise or arrangement.
(vii) investigation or proceedings, if any, pending against the company under the Act.
(viii) details of the availability of the following documents for obtaining extract from or for making/obtaining copies of or for inspection by the members and creditors, namely:
(a) latest audited financial statements of the company including consolidated financial statements;
(b) copy of the order of Tribunal in pursuance of which the meeting is to be convened or has been dispensed with;
(c) copy of scheme of compromise or arrangement;
(d) contracts or agreements material to the compromise or arrangement; and
(e) such other information/documents as the Board/Management believes necessary and relevant for making decision for / against the scheme;
(ix) details of any No-objection(s), approvals or sanctions, if already received from the concerned governmental authorities for the compromise or arrangement;
(x) status of approval(s) of regulatory or any other governmental authority(ies), required, if any, for undertaking the compromise or arrangement.
(xi) the information required under sub-section (4) of section 230 of the Act.
Explanation- For the purposes of this regulation, disclosure required to be made by a company shall be made in respect of all the companies, which are a part of the compromise or arrangement.
(2) The notice shall be sent by the chairperson appointed for the meeting, or, if the Tribunal so directs, by the company (or its liquidator), or any other person as the Tribunal may direct, by registered post or speed post or by courier or by e-mail or by delivering at the most recent office address or e-mail or any other mode as directed by the Tribunal to their last known addresses at least thirty days before the date fixed for the meeting.
(3) For the purpose of sub-section (4) of section 230 voting through postal ballot shall be made within thirty days from the date of the issue of the notice. The notice shall specifically contain inter alia the date by which the consent or otherwise to the scheme of compromise or arrangement shall be given through postal ballot, to be sent by registered post or speed post or by courier service or by delivering at the registered office of the company or any other such mode as may be directed by the Tribunal, so as to ensure that the postal ballot are taken into consideration at the time of meeting, after scrutiny by the scrutinizer is complete.
(4) For the purposes of sub-section (5) of section 230, the notice of the meeting under sub-section (3) of section 230, a copy of the scheme of compromise or arrangement, the explanatory statement and the disclosures mentioned under sub-rule (1)shall be sent to (i) the Central Government, the Registrar of Companies, Income-Tax Authorities, the Official Liquidator in all cases, and (ii) the Reserve Bank of India, the Securities and Exchange Board of India, the Competition Commission of India, the stock exchanges and other sectoral regulators or authorities only if necessary, in Form No. AMG.5.
(5) The notice to the authorities mentioned above shall be sent forthwith, after the notice is sent to the members or creditors of the company, by registered post or by speed post or by courier or by delivering at the office of the authority or by such electronic or other mode as prescribed in terms of section 20, i.e., service of documents.
(6) If the authorities as contemplated under sub-section (5) of section 230 desire to make any representation under sub-section (5) of section 230, the same shall be sent to the Tribunal within a period of thirty days from the date of receipt of such notice, failing which it shall be presumed that they have no representation to make on the proposal.
6. Copy of compromise or arrangement to be furnished by the company
Every creditor or member entitled to attend the meeting shall be furnished by the company, free of charge and within one day of a requisition being made for the same, with a copy of the proposed compromise or arrangement together with a copy of the statement required to be furnished under section 230 of Act.
7. Affidavit of service
The chairperson (or the alternate chairperson) appointed for the meeting of the company or other person directed to issue the advertisement and the notices of the meeting shall file an affidavit to the Tribunal not less than seven days before the date fixed for the meeting or the date of the first of the meeting, as the case may be, stating that the directions regarding the issue of notices and the advertisement have been duly complied with. In default thereof, the summons shall be posted before the Tribunal for such orders as he may think fit to make.
8. Shareholding and outstanding debt as under Section 230(4)
For the purposes of the proviso to sub-section (4) of Section 230 –
(a) “shareholding” shall mean the shareholding for each class of shareholders; and
(b) “outstanding debt” shall mean all debt owed by the company that remains outstanding as per the latest audited financial statement.
9. Result of the meeting to be decided by poll
(1) The decisions of the meeting or meetings held in pursuance of the order of the Tribunal and the manner as prescribed in section 230 of the Act, on all resolutions shall be ascertained only by taking a poll (by any mode), while considering the representations of such authorities as per sub-section (5) thereof and the consents adopting the arrangement or compromise as received from the eligible persons under sub-section (4) of Section 230.
(2) The report of the result of the meeting under sub - rule (1) shall be in Form No. AMG. 6 and shall state accurately the number of creditors or class of creditors or the number of members or class of members, as the case may be, who were present and who voted at the meeting either in person or by proxy or by postal ballot, their individual values and the way they voted.
10. Report of the result of the meeting
The chairperson of the meeting (or where there are separate meetings, the chairperson of each meeting) shall, within the time fixed by the Tribunal, or where no time has been fixed, within seven days after the conclusion of the meeting, report the result thereof to the Tribunal.
11. Offer of takeover of a company, other than a company whose equity shares are listed on any stock exchange, pursuant to a scheme of compromise or arrangement
(1) An acquirer may, with the consent of the board of directors of the company being acquired, make a takeover offer pursuant to sub-section (11) of section 230 at a price determined by registered valuer.
Provided that where the company, being acquired is regulated under a special Act, approval of the regulatory body constituted or established under that Act if required under such act, shall also be obtained.
Explanation.- For the purposes of this rule, ‘takeover’ means –
(a)acquisition of control of any company as defined under sub-section (27) of section 2 of the Act pursuant to a scheme of compromise or arrangement under section 230; or
(b)acquisition of fifty percent or more of the total share capital of a company pursuant to a scheme of compromise or arrangement under section 230.
(2) The person making the takeover offer shall enter into memorandum of understanding or an agreement with the company so being acquired. Such memorandum or agreement for takeover shall be annexed to the notice of the general meeting and shall, inter alia, contain-
(a) name, address and details of the person making such takeover offer;
(b) shares/ voting rights already held by such person in the company being acquired;
(c) proposed date of executing the transaction;
(d) total paid-up share capital of the company being acquired;
(e) total number and percentage of shares/ voting rights proposed to be acquired, and the minimum threshold in terms of number and percentage of shares/ voting rights to be acquired, below which the offer shall not be binding;
(f) price offered for the purchase of the shares;
(g) mode of payment of consideration (whether in cash or for consideration other than cash)
(h) objects and purpose of the acquisition of the shares;
(i) statement to the effect that the interest of the creditors, secured or unsecured, and of the employees will not be adversely affected by the takeover;
(j) other terms and conditions of the offer.
Provided that (i) only shares voluntarily tendered pursuant to the takeover offer shall be acquired by the acquirer, and (ii) where the shares tendered do not reach the minimum threshold specified by the acquirer in the memorandum of understanding or the agreement with the company, the acquirer shall be entitled to withdraw its offer, and in such case, the scheme shall be withdrawn.
(3) The details of the offer, as are mentioned in the memorandum of understanding or agreement for takeover forthwith after sending the notice of the meeting, be:
(a) sent to all the creditors, debenture holders, trustee(s) and deposit holders of the company being acquired;
(b) published at least once in English language in a leading English newspaper and in vernacular language in one vernacular newspaper having wide circulation in the State in which the registered office of the company is situated; and
(c) placed on the website of the company, if any.
12. Application under sub-section (12) of section 230
(1) An application under sub-section (12) of section 230 shall be filed by an aggrieved party to the Tribunal in Form No. AMG.7 specifying any grievance with respect to the takeover offer of companies under sub-section (11) of section 230 shall be accompanied by a copy of the takeover agreement or memorandum of understanding and a detailed statement explaining the specific adverse effect of such agreement or memorandum of understanding on the applicant.
(2) The applicant shall at least twenty-one days before the date of hearing advertise the application in accordance with the relevant provision of the National Company Law Tribunal Rules, 2016.
(3) Where any objection of any person whose interest is likely to be affected by the proposed application has been received by the applicant, it shall serve a copy thereof to the Registrar of Companies on or before the date of hearing.
(4) Upon hearing the application or any adjourned hearing thereof, the Tribunal may pass such order, subject to such terms and conditions, as it thinks fit.
13. Petition for confirming compromise or arrangement
(1) Where the proposed compromise or arrangement is agreed to, with or without modification, as provided by section 231 and 232 in relation to section 230, the company, (or its official liquidator or company liquidator, as the case may be), shall, within seven days of the filing of the report by the chairperson, present a petition to the Tribunal for confirmation of the compromise or arrangement. The petition shall be in Form No. AMG.8.
(2) Where a compromise or arrangement is proposed for the purposes of or in connection with scheme for the reconstruction of any company or companies, or for the amalgamation of any two or more companies, the petition shall pray for appropriate orders and directions under section 230 read with 232 of the Act.
(3) Where the company fails to present the petition for confirmation of the Compromise or arrangement as aforesaid, it shall be open to any creditor or member as the case may be, with the leave of the Tribunal, to present the petition and the company shall be liable for the cost thereof.
14. Date and notice of hearing
The Tribunal shall fix a date for the hearing of the petition, and notice of the hearing shall be advertised in the same papers in which the notice of the meeting was advertised, or in such other papers as the Tribunal may direct, not less than ten days before the date fixed for the hearing. The notice of the hearing of the petition shall also be served by the Tribunal to the representative of the objectors under sub-section (4) of section 230 and to the Central Government and other authorities who have made representation under sub-section (5) of section 230.
15. Order on petition
Where the Tribunal sanctions the compromise or arrangement, the order shall include such directions in regard to any matter and such modifications in the compromise or arrangement as the Tribunal may think fit to make for the proper working of the compromise or arrangement. The order shall direct that a certified copy of the same shall be filed with the Registrar of Companies within thirty days from the date of the order, or such other time as may be fixed by the Tribunal. The order shall be in Form No. AMG. 9., with such variations as may be necessary.
16. Application for directions under section 232
Where the compromise or arrangement has been proposed for the purposes of or in connection with a scheme for the reconstruction of any company or companies or the amalgamation of any two or more companies, and the matters involved cannot be dealt with or dealt with adequately on the petition for sanction of the compromise or arrangement, an application shall be made to the Tribunal under section 232 or section 230, by a notice of admission supported by an application for directions of the Tribunal as to the proceedings to be taken. Notice of the summons in such cases shall be given in such manner and to such persons as the Tribunal may direct. Such application may be made at any time during the pendency of the scheme or after the scheme has been approved by the Tribunal.
17. Directions at hearing of application
Upon the hearing of the summons or upon any adjourned hearing thereof, the Tribunal may make such order or give such directions as it may think fit, as to the proceedings to be taken for the purpose of reconstruction or amalgamation, as the case may be, including, where necessary, an inquiry as to the creditors of the transferor company and the securing of the debts and claims of any of the dissenting creditors in such manner as to the Tribunal may think just and appropriate.
18. Order under section 232
An order made under section 232 read with section 230 shall be in Form No.AMG.10 with such variation as the circumstances may require.
19. Statement of compliance in mergers and amalgamations
For the purposes of sub-section (7) of section 232, every company in relation to which an order is made under sub-section (3) of section 232 shall until the completion of the scheme, file with the Registrar of Companies the statement in Form No. AMG. 11 along with such fee as prescribed by the Central Government within thirty days from the end of each financial year.
20. Report on working of compromise or arrangement
At any time after issuing an order sanctioning the compromise or arrangement, the Tribunal may, either on its own motion or on the application of any interested person, make an order directing the company, or, where the company is being wound-up, the liquidator, to submit to the Tribunal within such time as the Tribunal may fix, a report on the working of the said compromise or arrangement. On consideration of the report, the Tribunal may pass such orders or give such directions as it may think fit.
21. Liberty of the Tribunal
(1) At any time during the proceedings, if the Tribunal hearing a petition or application under Chapter XV is of the opinion that the petition or application or evidence or information or statement is required to be filed in the form of affidavit, the same may be ordered by the Tribunal in the manner as the Tribunal may think fit.
(2) The Tribunal may pass any direction(s) or order or dispense with any procedure prescribed by these rules in pursuance of the object of the provisions for implementation of the scheme of arrangement or compromise or restructuring or otherwise practicably except on those matters specifically provided in the Act.
22. Liberty to apply
(1) The company, or any creditor or member thereof, or in case of a company which is being wound-up, the liquidator, may, at any time after the passing of the order sanctioning the compromise or arrangement, apply to the Tribunal for the determination of any question relating to the working of the compromise or arrangement in accordance with section 231 of the Act.
(2) The application shall in the first instance be posted before the Tribunal for directions as to the notices and the advertisement, if any, to be issued, as the Tribunal may direct.
(3) The Tribunal may, on such application, pass such orders and give such directions as it may think fit in regard to the matter, and may make such modifications in the compromise or arrangement as it may consider necessary for the proper working thereof, or pass such orders as it may think fit in the circumstances of the case.
23. Applicability of Rules to the Amalgamation of Sick Company
Subject to section 262 of the Act, the Tribunal may order for amalgamation of a company with any other company on a joint petition or application made by one or more of the creditors or members or both of the companies subject to such terms and conditions as may be imposed by the Tribunal if the Tribunal is satisfied that such amalgamation is economically and strategically viable for the amalgamated company and such resultant company will remain economically sound even after such amalgamation. While ordering so, the Tribunal may approve any scheme of restructuring of the loans after securing ‘no objection’ from the respective creditors. Other rules relating to amalgamation shall also be applicable to an amalgamation under this provision.
24. Compromise or arrangement including merger of certain companies
(1) For the purposes of sub-section (1) of section 233, in addition to the schemes stated therein, a scheme of merger or amalgamation between a holding company and its wholly owned subsidiary may also be approved pursuant to the process laid down under section 233. It is further clarified that a company shall be deemed to be a "wholly owned subsidiary" if hundred per cent of its share capital is held by the holding company, except the shares held by the nominee or nominees to ensure that the number of members of subsidiary company is not reduced below the statutory limit as provided in section 187.
(2) The notice under clause (a) of sub-section (1) of section 233 shall be in Form No. AMG. 12.
(3) For the purposes of clause (c) of sub-section (1) of section 233, the declaration of solvency shall be filed by the each of the companies involved in a scheme of compromise or arrangement involving merger in Form No. AMG.13 along with such fee as provided in Schedule of Fees before convening the meeting of members and creditors for approval of the scheme.
(4) For the purposes of clause (b) and (d) of sub-section (1) of section 233, the notice of the meeting to the members and creditors shall be accompanied by -
(a) a statement, as far as applicable, referred to in sub-section (3) of section 230;
(b) the declaration of solvency made in pursuance of clause (c) of sub-section (1) of section 233;
(c) a copy of the scheme.
(5)(a) For the purposes of sub-section (2) of section 233, the transferee company shall, within seven days after the conclusion of the meeting(s) of members or class of members or creditors or class of creditors, file in Form No. AMG.14 a copy of the scheme as approved by the members and creditors, along with report of the result of each of the meetings with the Central Government, Registrar of Companies and the Official Liquidator, of the place where the registered office of the company is situated.
(b) Copy of the scheme in Form No. AMG.14 shall be filed with the Registrar of Companies along with the fee as provided by the Central Government through the MCA e-filing system.
(c) Copy of the scheme in Form No. AMG.14 shall be filed with the Central Government and Official Liquidator, by sending them through hand delivery or registered or speed post or through electronic filing system as may be approved by the Central Government.
(6) Where no objection or comment is received to the scheme from the Registrar of Companies and Official Liquidator or where even after the receipt of objections or comments of Registrar and Official Liquidator, the Central Government is of the opinion that the scheme is in the public interest or in the interest of creditors the Central Government shall issue in Form No. AMG. 15, a confirmation order of such scheme of compromise or arrangement.
(7) Where objections are received from the Registrar of Companies or Official Liquidator and the Central Government is of the opinion, whether on the basis of such objections or otherwise, that the scheme is not in the public interest, it may file an application before the Tribunal within sixty days of the receipt of the scheme stating its objections or opinion and requesting that Tribunal may consider the scheme under section 232.
(8) For the purposes of sub-section (7) of section 233, the confirmation order of the scheme issued by the Central Government or Tribunal, shall be filed in Form No. AMG.16 along with the fee as provided by the Central Government with the Registrar of Companies having jurisdiction over the transferee and transferor companies respectively.
It is clarified that with respect to schemes of arrangement or compromise falling within the purview of section 233, the concerned companies may, at their discretion, opt to undertake such schemes under sections 230 to 232, including where the condition prescribed in section 233 (1) (d) has not been met.
25. Fees to be paid on revised capital
For the purposes of sub-section (11) of section 233, to the extent that the transferee company and transferor company are not eligible for the benefit of the proviso therein, the transferee company shall pay such fees as may be specified by the Central Government on the revised capital.
26. Merger or amalgamation of a company with a foreign company
- The merger or amalgamation of a company with a foreign company, or vice versa, shall be effective upon-
- Sanction of the scheme by the Tribunal in India in accordance with the Act and these Rules; and
- Sanction of the scheme by the relevant adjudicating and regulatory authorities of the notified countries having jurisdiction over the other companies who are party to such scheme, in accordance with the law applicable to sanction of such schemes in those countries, if applicable.
- The merger or amalgamation of a company into a foreign company, or vice versa, shall comply in all respects with the Foreign Exchange Management Act, 1999 and any applicable regulations thereunder, including any amendments or clarifications thereto, and any other applicable laws (including the applicable law in the relevant jurisdiction), including with respect to the obtaining of any approvals required for the purposes of giving effect to the merger or amalgamation.
- For the purposes of this rule, a ‘company’ means a company as defined under section 2(30) of the Act and a ‘foreign company’ means a company or a body corporate as defined under section 2(42) of the Act, incorporated outside India in jurisdictions as may be notified by the Central Government from time to time for the purpose of section 234.
27. Notice to dissenting shareholders for acquiring the shares
For the purposes of sub-section (1) of section 235, the transferee company shall send a notice in Form No. AMG. 17 to the dissenting shareholder(s) of the transferor company, at the last intimated address of such shareholder, for acquiring the shares of such dissenting shareholders.
28. Determination of price for purchase of minority shareholding
For the purposes of sub-section (2) of section 236, the registered valuer shall determine the price (hereinafter called as offer price) to be paid by the acquirer, person or group of persons referred to in sub-section (1) of section 236 for purchase of equity shares of the minority shareholders of the company, in accordance with the following rules:-
(1) In the case of a listed company,
(i) the offer price shall be determined in the manner as may be specified by the Securities and Exchange Board of India under the relevant regulations framed by it, as may be applicable; and
(ii) the registered valuer shall also provide a valuation report/basis of valuation addressed to the Board of directors of the company giving justification for such valuation.
(2) In the case of an unlisted company and a private company,
(i) the offer price shall be determined after taking into account the following factors:-
(a) the highest price paid by the acquirer, person or group of persons for acquisition during last twelve months;
(b) the fair price of shares of the company to be determined by the registered valuer after taking into account valuation parameters including return on net worth, book value of shares, earning per share, price earning multiple vis-à-vis the industry average, and such other parameters as are customary for valuation of shares of such companies; and
(ii) the registered valuer shall also provide a valuation report/basis of valuation addressed to the Board of directors of the company giving justification for such valuation.
29. Circular containing scheme of amalgamation or merger
For the purposes of clause (a) of sub-section (1) of section 238, every circular containing the offer of scheme or contract involving transfer of shares or any class of shares and recommendation to the members of the transferor company by its directors to accept such offer, shall be accompanied by such information as set out in Form No. AMG.18.
30. Appeal under sub-section (1) of section 238
Any aggrieved party may file an appeal against the order of the Registrar of Companies refusing to register any circular under sub-section (1) of section 238. The said appeal shall be in the form as prescribed under National Company Law Tribunal Rules, 2016 supported with an affidavit.
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Annexure A
Forms
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FORM NO. AMG. 1 Affidavit [Pursuant to section 230(1) & rule 3] Before the National Company Law Tribunal at __________ Bench
Company Application No……..of 20…. In the matter of Companies Act, 2013 And In the matter of XY Ltd (Give the name of the Company)
Affidavit
I, … son/daughter of…, aged……residing at….., do solemnly affirm and say as follows:-
Solemnly affirmed, etc. Sd/- VERIFICATION
Sd/- |
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FORM NO. AMG. 2
[Pursuant to Section 230 (3) &Rule 3(4)]
Company Petition No ...... of 20..... ………………….Applicant(s)
Advertisement of notice of the meeting of creditors or members
Notice is hereby given that by an order dated the ...... 20 ... the Tribunal has directed a meeting (or separate meetings) to be held of [here mention 'debenture holders'. or 'first debenture holders' or' second debenture holders' or 'unsecured creditors' or 'secured creditors' or 'preference shareholders' or 'equity shareholders' as the case may be whose meeting or meetings have to be held] of the said company for the purpose of considering, and if thought fit, approving with or without modification, the compromise or arrangement proposed to be made between the said company and (here mention the class of creditors or members with whom the compromise or arrangement is to be made) of the company aforesaid.
In pursuance of the said order and as directed therein further notice is hereby given that a meeting of (here set out the class of creditors or members whose meeting has to be held) of the said company will be held at….on....day…the…day of................ 20...at........ o'clock in the noon at which time and place the said (here mention the class of creditors or members) are requested to attend [Where separate meetings of classes of creditors or members are to be held, set them out separately with the place, date and time of the meeting in each case.]
Copies of the said compromise or arrangement, and of the statement under section 230 can be obtained free of charge at the registered office of the company or at the office of its authorized representative Shri.... at.......Persons entitled to attend and vote at the meeting (or respective meetings), may vote in person or by proxy, provided that all proxies in the prescribed form are deposited at the registered office of the company at... .... not later than 48 hours before the meeting.
Forms of proxy can be had at the registered office of the Company.
The Tribunal has appointed Shri................................ .and failing him, Shri….as chairman of the said meeting (or several meetings). The abovementioned compromise or arrangement, if approved by the meeting, will be subject to the subsequent approval of the tribunal.
Dated this ....day of...... .20.....
Chairman appointed for the meeting (or as the case may be )
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FORM NO. AMG.3 [Pursuant to section 230(2)(c)(i) & rule 4] Creditor’s Responsibility Statement
I/ We, …………………, the creditors of M/s…………… for an amount of Rs. ……………. as on ……………… do hereby declare that I / we have read and understood the proposed corporate debt restructuring scheme and am / are of the view that it is in my/our best interest to concur with the scheme.
I/ We further declare that the debt is owed to me / us by the company or the liability was created by the company in my/ our favor in good faith and in the ordinary course of business of the company;
I/We believe that the scheme does not give me/us any fraudulent preference at the cost of any secured/unsecured Creditors.
Signature of creditor/s Date: Place: |