CS Final :: Corporate restructing-law & Practice : December 2005

You are the Company Secretary of Strong Base Ltd., which has just now taken over Weak Links Ltd. pursuant to a scheme confirmed by the court. The court order has been received. Briefly mention the various steps required to be taken to give effect to the merger. Also mention the various authorities with whom you will file the order of merger to ensure that the records are updated properly in their offices.

Amar Ltd. proposed a scheme of arrangement with its shareholders for the purpose of buying-back the small lot of shares held in physical form. The scheme was approved by majority of shareholders. However, the Registrar of Companies, representing the Central Government, raised an objection that the purpose of the scheme is to buy-back the shares and as such the company ought to have followed the provisions of Section 77A. Discuss in the light of judicial pronouncements

Allen Ltd., a listed company, is in the process of acquiring the entire paid-up share capital of Ben Ltd. The Board meeting of Allen Ltd. is to be convened for approving the issue of offer document. You are required to list out the documents to be placed before the Board meeting for its consideration.

Draft a petition to the court for sanctioning the scheme of amalgamation covering in brief all the relevant points mentioned under Section 394(1)

In the context of corporate restructuring, briefly mention the provisions of Section 395 relating to powers and duties to acquire shares of shareholders dissenting from scheme or contract approved by majority shareholders.

Explain the concepts of 'financial restructuring' in the cases of under-capitalised and over-capitalised companies.

Prudent Ltd. has agreed to acquire 51% of the holding of Volatile Co. Ltd. for Rs. 100 crore in cash and by issuing 10% non-convertible debentures of Rs. 100 each for Rs. 150 crore. As one of the promoters of Volatile Co. Ltd. demanded payment in cash instead of debentures, Prudent Ltd. decided to make cash payment in place of non-convertible debentures at a discount of 10%. The company does not have necessary cash to meet the obligation. How can the company raise necessary cash to make the payment? Suggest the ways the company can moblise funds for meeting the cash requirement with their respective implications.

335

State whether the following statements are true or false and mention briefly the relevant provisions of law:

(i)	Appeal can be made to a superior court against orders under Sections 391/394.
(ii)	SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 is applicable even if the acquirer is a person resident outside India.
(iii)	A company can buy-back more than 25% of its paid-up capital in a single year.
(iv)	Section 396 contemplates a situation where a merger can take place without the court's intervention.

Desi Textiles Ltd. was incorporated in 1920. Ramchandra Rao, promoter of the company, was follower of the ‘Swadesi Movement’ and started this company with the objectives of — (i) generating employment for Indians; (ii) giving good price to the cotton growers; and (iii) giving quality cloth to the end users at affordable prices. Motto of the company was ‘for Indians, by Indians and of Indians’.

The company was being run like a trust with nominal profits. The company did well till 1980s and was well managed by the second and third generation of promoters.
Due to changing business environment and problems like adverse government policies, advancement in technologies, fierce competition from foreign companies, opening-up of economy, the company's health deteriorated. At present, the factory is working at 60% of its capacity. There are statutory defaults and it is a capital starved company, hence, cannot replace old machinery. Fourth generation promoters do not have the capacity to raise capital themselves. However, looking at the intangibles of Desi Textiles Ltd., like brand equity, loyal staff, and tangibles like — land and building, one of the foreign investors contacted by Desi Textile Ltd. through some intermediary is willing to infuse required funds in preferred capital on the condition that 50% of the Board members (6 out of 12 directors) would be nominated by them and the managing director would also be of their own choice.

335

The intermediary also brought in for discussion another foreign company, engaged as International Trading House. This foreign company, after proper scrutiny, expressed willingness to invest required funds on the condition that it will have 33% share in the equity of Desi Textiles Ltd. against which it will supply machinery matching the requirements of modern day fashion world to replace old and unusable machinery and it should be the sole marketing agent of the products of Desi Textiles Ltd. in Europe. It also demanded 6 positions of directors including the position of the managing director.

Prakash, the great-grandson of Ramchandra Rao, is in a dilemma because such infusion of foreign capital and changing composition of the Board with foreign nominees would hit at the very objective/purpose of its incorporation as a part of Swadesi Movement.

One more option was explored when Prakash approached an Indian industrialist who agreed to infuse the required capital on the condition of getting 74% stake in the equity share capital and 7 nominees on the Board out of 12 directors and also the position of the managing director. This proposal was not acceptable to Prakash because he was losing the control on the affairs of the company without corresponding consideration to him.
If he refuses to accept any of the above proposals, the company has no chance of survival. Advise Prakash.

A listed company is controlled by three separate groups, out of which two groups are having family relations as per the definition of 'relative' and one group is absolutely outsider. In the light of regulation 11 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, whether all the three groups shall be treated as 'person acting in concert' to each other?

"Valuation of shares is more an art than science." Do you agree? Also explain various aspects of valuation of shares.

Calculate the 'minimum offer price' under the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 in the following case:

—	Negotiated price in three tranches Rs. 100, Rs. 125 and Rs. 75;
—	Average weekly high-low of 26 weeks prior to public announcements Rs. 110-56;
—	Average high-low of two weeks prior to public announcement Rs. 110-75; and
—	Latest traded price Rs. 200.

335

Advise on the following with supporting judicial decisions, if any:

In a scheme of reconstruction by a multinational company listed in India, the company wanted the minority shareholders to get out of the company by selling their shares back to the promoters at a price determined by the promoters. The minority shareholders were not given a choice whether they wanted to tender their shares or not. In the meeting, there were six non-promoter shareholders who voted against the scheme, but the chairman declared that the motion was carried with an overwhelming majority of more than 90% of shareholding. However, the minority shareholders contended that they had a right to reject the offer. Will they succeed?

Vivek Ltd. proposed to merge with Bidur Ltd. The motions in the respective court convened meetings were carried out with 99% of shareholders agreeing for the same. The scheme of merger provided for retention of all the employees, with terms of employment not adverse to the present terms. However, there was no assurance about retrenchment in future. The employees' union of Vivek Ltd. opposed it on the ground that it was against the interests of the employees and the merger should not be sanctioned, as it could lead to retrenchment of workers. Advise the employees' union.

You are the Company Secretary of Grow Fast Ltd. which has just merged Agile Co. Ltd. with itself. The State government has sent a notice for payment of stamp duty on the court order. However, the financial controller of your company is of the opinion that as this is a court order, there is no liability to pay stamp duty. Advise the company.

Is it correct to say that the term 'arrangement' has wider scope than 'compromise' under Section 390(b)? Give your considered views.

Write notes on the following:

(i) (ii) (iii) (iv)

Cross cultural alliances Franchising Operational synergy Bail-out takeovers.