Looking Beyond the Words Analyzing Impact Of The Companies Act, 2013 on Mergers & Acquisitions February, 2013 Cross-Border M&A 1 Merger Of Indian Company With Foreign Company F Co. Foreign Shareholders F Co. Foreign and Indian shareholders Merger of I Co. with F Co. Overseas Overseas India India Business of Indian Co Business of Indian Co to continue as branch of foreign Co What the New Act Says… What the Old Act Says… Merger of Indian company with a foreign company specifically allowed under the provisions of the New Companies Act subject to conditions: It was specifically provided that in relation to a transaction of merger / amalgamation, the transferee company should be a company registered under the Companies Act Allowed only in specified overseas jurisdictions. (No notification from the MCA on specified overseas jurisdiction) Thus, merger of an Indian company with foreign company was specifically prohibited All rights reserved I Co. Indian Shareholders Merger subject to approval from RBI GDR, cash or a combination of both could be used for discharge of consideration Impact Of CA, 2013 on Mergers & Acquisitions | 3 Merger Of Indian Company With Foreign Company (Cont…) Implications of foreign mergers Tax Considerations Taxability of assets transferred by Indian company to Foreign Co – Exemption under Section 47 (vi) of the Income Tax Act, available only if the merged company is Indian company – Availing of exemption difficult Taxability of shares transferred by Indian shareholder in lieu of GDR / cash of Foreign Co- Exemption under Section 47 (vii) of the Income Tax Act, available only if the merged company is Indian company – Availing of exemption difficult Post merger, the Indian business would be considered as branch / permanent establishment of the Foreign Company Tax rate applicable to profits of foreign Company would be 43.26% as against 33.99% for domestic companies Income of the branch to be determined in accordance with the principles of Article 7 of the relevant DTAA i.e. profits attributable to the Branch Relatively easy to repatriate profits from the branch to the parent considerations Post merger the Branch, would be considered as a foreign company and provisions of Section 592 to 602 of Companies Act would be applicable All rights reserved Regulatory Substantive compliance requirements for Indian companies under Companies Act, would not be applicable Compliance with RBI regulations, as applicable to Branch applicable Impact Of CA, 2013 on Mergers & Acquisitions | 4 Cross-border M&A – Issues For Consideration Background Overseas acquisitions by Indian companies generally through Special Purpose Vehicles(“SPV’s”) incorporated outside India Section 185 of New Act prohibits any loan/guarantee to subsidiaries ( whose board could be de-facto said to be controlled or accustomed to act on behalf of holding company) Circular dated 13 February 2014, allows provision of guarantees/ securities by holding to subsidiaries, only till section 186 (relating to loans and investment by company) of the New Act is notified The case study below presumes the position after notification of section 186 Guarantee I Co. I Co. 100% shares of Subsidiary (20 MUSD) Position under New Act 100% shares of Subsidiary (100 MUSD) India India Overseas Subsidiary Funding (100 MUSD) Overseas Bank Equity fund – 20 Loan funds - 80 Overseas Subsidiary Purchase of shares of target for 100 MUSD Target Equity fund – 100 • • Target Purchase of shares of target for 100 MUSD Entire acquisition to be funded by I Co through self funds. Leveraged buyouts likely to be affected Impact Of CA, 2013 on Mergers & Acquisitions | 5 All rights reserved Situation under Old Act Domestic Acquisition By Foreign Company Acquisition structure under old Act Background and Implications In various cases, inbound M&A deals have been structured through ‘Subsidiarization’ Foreign Investor The subsidiary structure also enabled ease of entry of foreign investor in a new entity, with desired business Overseas Structure feasible under the Old Act as section India 372A / 295 of the old Act, allowed loans between holding-subsidiary Divesting Co. X Step I Slump sale of Division B to 100% subsidiary of Co. X for a definite consideration Consideration to reflect as payable in books of New Co. Division B New Co. Step II Investment at an agreed valuation in New Co. Step III Investment proceeds to be used by New Co. to discharge its liability to Co.X for slump sale consideration Section 185 of the New Act, prohibits loan / book debts to a subsidiary by a holding Company (no exemptions). Also Section 186, as proposed, does not contain exemption for loans provided to a 100% subsidiary This means entire consideration of Slump sale, should be discharged in cash on Day 1 – Thereby making structuring of such M&A deal structures difficult Impact Of CA, 2013 on Mergers & Acquisitions | 6 All rights reserved Division A M&A provisions for Small Companies/ Holding-subsidiary 2 What's In The Bucket For Small Companies/Holding-Subsidiary ? Fast track The New Act, recognizing the need for flexibility, has provided fast track route for merger of small companies / holding or subsidiary companies mergers Merger between small companies; or Merger between holding company and its 100% subsidiary; or Merger between other class or classes of companies as may be prescribed Small Company (under the New Act) Company other than a public company Paid up capital does not exceed 50 lakh rupees or the amount prescribed (not more than INR 5 crore) Turnover as per last profit and loss – Less than INR 2 crore or the amount prescribed (not more than INR 20 crore) All rights reserved Cannot be a holding / subsidiary company Impact Of CA, 2013 on Mergers & Acquisitions | 8 Fast Track Merger Scheme – Small Companies/ Holding-Subsidiaries 1 2 Notice of the Scheme Notice of the Scheme to Registrar, OL of both the Transferee/Transferor Companies 4 Conduct general meetings of both the Transferee/Transferor Companies – Approval by shareholders having 90% of the total share capital Creditors approval Transferee/Transferor Companies to gain approval of their respective creditors representing 90% of the total value of creditors. (21 days notice for obtaining approval in writing) 5 Convening GM Filing of Scheme with the CG Transferee Company to file copy of scheme with the Central Government, Registrar and OL 3 Declaration of solvency Transferee/Transferor Companies to file declaration of solvency with their respective Registrars If no objection, CG to register the Scheme Objection by Registrar, OL, to be filed with CG within 30 days else deemed ‘no objection’ CG to decide to approve scheme or file objections with Tribunal (time limit to CG for raising objections is within 60 days of receipt of the Scheme), else deemed ‘no objection’ Issues All rights reserved Tribunal, upon receipt of objections from the CG, shall pass order approving the scheme, otherwise normal procedure laid down under section 230 to be complied with (i) Whether Demerger covered under the provisions of section 233 (ii) Can small companies/ holding-subsidiaries apply for normal course under a scheme of arrangement ? Impact Of CA, 2013 on Mergers & Acquisitions | 9 Fast Track Merger Scheme – Small Companies/ Holding-Subsidiaries Specifically provided that provision of Section 233 shall apply Whether the Fast track merger scheme applicable for mutatis mutandis to other types of Schemes referred in Section Demerger of small/holding-subsidiaries ? 230 or 232 (i.e. demerger, spin offs etc) Thus, Demerger of small companies can be undertaken using the Fast track process Specific provision under section 233 allows a small Can small companies/ holding-subsidiaries apply for normal route under acompany/holding-subsidiary scheme of arrangement ? to apply for normal route for merger / demerger Issue for consideration : Whether merger of a small company with a foreign company permissible under the fast track merger All rights reserved process? Impact Of CA, 2013 on Mergers & Acquisitions | 10 Other Important Aspects 3 Merger Of Listed Company With Unlisted Company Shareholders of Co. A Shareholders of Co. A & Co. B Shareholders of Co. B Overseas Overseas India India Co. A (Listed) Co. B (Unlisted) Shareholder of the transferor company have an option to exit at a fair price if the merged entity remains unlisted, by payment of cash consideration Merged C o. (A+B) (Unlisted) Co. A to merge with Co. B What the New Act Says… What the Old Act Says… The New Act specifically provides that on merger of a listed company into an unlisted company, the transferee company shall remain unlisted unless it goes through the process of a listing through a public offering. No specific provisions under the old Act. The listing of the merged entity was practically possible subject to compliance with the SEBI laws Historically, in certain cases companies have remain unlisted post merger/ demerger transactions involving listed entities Impact Of CA, 2013 on Mergers & Acquisitions All rights reserved An exit opportunity is also being provided to the shareholders of the merged listed company at a fair price | 12 Other Important Aspects Implications of buy-back, issue of differential voting rights etc Under old Act, 365 day time gap was required between board approved buybacks (i.e. buy-backs upto 10%) Buy-Back Under new Act, buyback possible after 3 years from which specified defaults (repayment of deposits / interest etc,) ceased to subsist Minimum 1 year gap required between two buybacks (whether shareholder approved or board approved), even if buyback is within 25% limit. Permits issue of shares with differential voting and dividend rights subject to restrictions / rules – Section 43 Voting Rights (“DVR”) Layered structures No exemption / relaxation to private limited companies, which was available earlier Onerous conditions laid in Rules for issue of DVR shares, which inter-alia includes authorization in AOA and special resolution, track record of at least 10% dividend payout during past 3 financial years, no default in repayment of Investor or creditors dues and that the company has not been convicted of offence under RBI Act, SEBI Act, SCRA or other Special Acts Under new Act, investment not permitted through more than two layers of ‘Investment Companies’ – Section 186. This Restriction shall not apply to: Company acquiring another company incorporated overseas having more than two layers, as per laws of that country Subsidiary having investment subsidiaries for meeting any statutory requirements Treasury Stock Prohibition on companies from holding shares through trusts, either on its behalf or on behalf of any subsidiaries/ associate companies on corporate restructuring / compromise / arrangement - Section 232 Impact Of CA, 2013 on Mergers & Acquisitions | 13 All rights reserved Differential Other Important Aspects (cont..) Implications on Scheme Accounting, Objections, Notice etc Earlier Act provided for flexibility in the manner of recording the transaction of merger / demergers – thereby facilitating financial restructuring (set off of losses etc) Scheme Accounting Specific provision in new law stipulates that the accounting must conform and comply with the accounting standards. (presently compliance with accounting standards is only mandatory for listed companies) The new provision in the Companies Act, 2013 would even require an unlisted company to comply with the accounting standard norms The auditor’s certificate stating that the scheme has been drawn in compliance with Accounting standards is now mandatory for all companies. Objections to Scheme Under old Act, objections to scheme could be raised by any shareholder / creditor, without any threshold limit Under New Act, objections can be raised only by persons holding not less than 10% of the shareholding or having outstanding debt amounting to not less than 5% of the total outstanding debt. This has been done to prevent shareholders with very nominal shares to delay the procedures. Scheme Under New Act, the notice of the scheme of the arrangement must be notified to all the regulatory authorities concerned like SEBI, Income Tax Department, RBI, Competition Commission of India (CCI), stock exchanges(as applicable) in addition to the provision of the Companies Act, 2013, NCLT, shareholders, creditors, etc. Impact : Increased scrutiny of schemes by regulatory authorities. Impact Of CA, 2013 on Mergers & Acquisitions | 14 All rights reserved Notice of Under old Act, the notice of scheme would be served to the Central Government, the Registrar of Companies and the Official Liquidator as per the directions of the High Court. 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