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SCHEME OF AMALGAMATION
OF
SWITZER PROCESS INSTRUMENTS PRIVATE LIMITED (“SPIPL” OR “THE
TRANSFEROR COMPANY”)
WITH
WIKA INSTRUMENTS INDIA PRIVATE LIMITED (“WIIPL” OR “THE
TRANSFEREE COMPANY”)
AND
THEIR RESPECTIVE SHAREHOLDERS AND CREDITORS
UNDER SECTIONS 230 TO 232 AND OTHER APPLICABLE PROVISIONS OF
THE COMPANIES ACT, 2013
I. PREAMBLE
The Scheme of Amalgamation (“Scheme”) is presented pursuant to the
provisions of Sections 230 to 232 and other applicable provisions of the
Companies Act, 2013, for amalgamation of Switzer Process Instruments
Private Limited (hereinafter referred to as “SPIPL” or “the Transferor
Company”) with Wika Instruments India Private Limited (hereinafter referred
to as “WIIPL” or “the Transferee Company”) and their respective
Shareholders and Creditors.
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II. DESCRIPTION OF THE COMPANIES
(a) The Transferee Company is a private limited company incorporated
under the Companies Act, 1956 on 2nd September, 1997 vide CIN
U29299MH1997PTC110418, having its registered office at Plot No.
40, Gat No. 94+100, Hi-Cliff Industrial Estate, Village Kesnand, Pune
412 207, Maharashtra, India. The Transferee Company is inter alia
engaged in the business of manufacturing and marketing of
measuring instruments such as pressure gauges, temperature
gauges, pressure transmitters, chemical seals, thermometers, level
gauges, flow and force measuring instruments, temperature
transmitters, calibration test benches, gas filtering units and
components and tools for refrigeration and air conditioning systems
etc. The manufacturing activities carried on by the Transferee
Company in India relate to the assembly of components, welding of
components, calibration and final adjustment of the instruments, filling
of liquid in the casing of the instrument, leaking testing by helium leak
tester and final quality inspection of above mentioned measuring
instruments.
(b) The Transferor Company is a private limited company incorporated
under the Companies Act, 1956 on 25th March, 2014 vide CIN
U29255TN2014PTC095662, having its registered office at No.128,
SIDCO Estates, Ambattur, Chennai 600 098, Tamil Nadu, India. The
Transferor Company has manufacturing facilities in Chennai and
Ghaziabad city in India. The Transferor Company is inter alia engaged
in the business of manufacture of process control instruments like
pressure switches, draft indicators, flow switches, differential pressure
indicators, primary flow elements, etc..
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III. RATIONALE OF THE SCHEME
The Transferor Company and the Transferee Company are part of the same
shareholders group i.e. WIKA group. The Transferor Company and the
Transferee Company, both are subsidiaries of WIKA Alexander Wiegand
SE & Co. KG, Germany.
The amalgamation of the Transferor Company with the Transferee
Company would inter-alia have the following benefits:
(i) Improve the organisational capability arising from the pooling of
financial, managerial and technical resources, professional
capabilities, skills and expertise and technologies in one entity.
Further, it will eliminate multiple companies resulting in simplified
structure. This will consolidate the efforts of management and will
enable to closely monitor the activities.
(ii) Provide significant impetus to the growth in the form of enhance
scale of operations leading to optimum utilisation of various
resources and infrastructure with reduction in overheads,
administrative costs, managerial and other expenditure, provide
holistic services, appropriate channelization of synergies, direct
operational efficiencies, increased asset base and will consolidate
revenue and profitability.
(iii) Contribute in furthering and fulfilling the objectives and business
strategies of these companies thereby accelerating growth,
expansion and development of business. It will also provide the
Transferee Company a strong and focused base to undertake the
business more advantageously and thereby maximising the overall
shareholders value by strengthening its core competencies.
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(iv) Establish a diversified product offering and benefit from access to
each company’s client base. Accordingly, create revenue and cost
synergies by bundling the product offerings, leveraging distribution
networks and enhance the financial profile with higher growth and
margin expansion.
(v) The Scheme shall not in any manner be prejudicial to the interest of
the shareholders and creditors or general public at large.
IV. PARTS OF THE SCHEME
The Scheme is divided into the following parts:
Part - A – deals with Definitions and Share Capital;
Part - B – deals with the Amalgamation of the Transferor Company with the
Transferee Company; and
Part - C - deals with General Terms and Conditions applicable to this
Scheme.
PART - A
DEFINITIONS AND SHARE CAPITAL
1. DEFINITIONS
In this Scheme, unless inconsistent with the subject or context, the following
expressions shall have the following meaning:
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1.1 “Act” means the Companies Act, 2013 or any modifications or re-
enactments or amendments thereof from time to time and shall include any
rules, regulations, circulars, directions or guidelines issued thereunder;
1.2 “Applicable Law” means any applicable statute, notification, bye laws,
rules, regulations, guidelines, rule of common law, policy, code, directives,
ordinances, orders or instructions having the force of law enacted or issued
by any appropriate authority, including any statutory modification or re-
enactment thereof for the time being in force;
1.3 “Appointed Date” means 1st day of April, 2019, or such other date as may
be fixed or approved by the National Company Law Tribunal, Mumbai
Bench or National Company Law Tribunal, Chennai Bench or such other
competent authorities;
1.4 “Board of Directors” or “Board” means the board of directors of the
respective the Transferor Company and/ or the Transferee Company, as
the case may be, and shall include a duly constituted committee thereof;
1.5 “Effective Date” means the last of the dates on which the certified copies
or authenticated copies of the order sanctioning this Scheme, passed by the
Tribunal(s) are filed with the Registrar of Companies, Pune by the
Transferee Company and with the Registrar of Companies, Chennai by the
Transferor Company.
References in this Scheme to the date of “coming into effect of this
Scheme” or “upon the Scheme being effective” shall mean the Effective
Date;
1.6 "Governmental Authority" means any applicable central, state or local
government, legislative body, regulatory, administrative or statutory
authority, agency or commission or any court, tribunal, board, bureau or
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instrumentality thereof or arbitration or arbitral body having jurisdiction,
exercising powers conferred by Applicable Law in India;
1.7 “Tribunal(s)” or “NCLT(s)” means the National Company Law Tribunal,
Mumbai Bench having jurisdiction over the Transferee Company and
National Company Law Tribunal, Chennai Bench having jurisdiction over
the Transferor Company as applicable;
1.8 "Scheme" or “the Scheme” or “this Scheme” means this Scheme in its
present form or with any modification(s) made under Clause 16 of this
Scheme, as approved or directed by the Tribunal(s);
1.9 “SPIPL” or “the Transferor Company” means Switzer Process
Instruments Private Limited, a company incorporated under the Companies
Act, 1956 and having its registered office at No.128, SIDCO Estates,
Ambattur, Chennai 600 098, Tamil Nadu, India;
1.10 “WIIPL” or “the Transferee Company” means Wika Instruments India
Private Limited, a company incorporated under the Companies Act, 1956
and having its registered office at Plot No. 40, Gat No. 94+100, Hi-Cliff
Industrial Estate, Village Kesnand, Pune 412 207, Maharashtra, India.
All terms and words not defined in this Scheme shall, unless repugnant or
contrary to the context or meaning thereof, have the same meaning
ascribed to them under the Act and other applicable laws, rules, regulations,
bye-laws, as the case may be or any statutory modification or re-enactment
thereof from time to time.
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2. DATE OF TAKING EFFECT AND OPERATIVE DATE
The Scheme as set out herein in its present form or with any modification(s)
and amendment(s) made under Clause 16 of the Scheme shall be effective
from the Appointed Date but shall be operative from the Effective Date.
3. SHARE CAPITAL
3.1 The share capital of the Transferor Company as on March 31, 2019 was as
under:
Particulars Amount in (Rs.)
Authorised Capital
4,00,00,000 Equity Shares of Rs.10/- each
40,00,00,000
TOTAL 40,00,00,000
Issued, Subscribed and Paid up Capital
3,69,80,454 Equity Shares of Rs.10/- each fully paid up
36,98,04,540
TOTAL 36,98,04,540
Subsequent to March 31, 2019, there has been no change in the
authorised, issued, subscribed and paid-up share capital of the Transferor
Company.
3.2 The share capital of the Transferee Company as on March 31, 2019 was as
under:
Particulars Amount in (Rs.)
Authorised Capital
32,00,000 Equity shares of Rs 100/- each
32,00,00,000
TOTAL 32,00,00,000
Issued, Subscribed and Paid up Capital
31,35,000 Equity shares of Rs 100/- each fully paid up
31,35,00,000
TOTAL 31,35,00,000
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Subsequent to March 31, 2019, there has been no change in its authorised,
issued, subscribed and paid-up share capital of the Transferee Company.
PART - B
AMALGAMATION OF THE TRANSFEROR COMPANY WITH THE
TRANSFEREE COMPANY
4. TRANSFER AND VESTING
4.1 With effect from the Appointed Date and upon the Scheme becoming effective,
the entire business and undertakings of the Transferor Company, shall, under
the provisions of Sections 230 to 232 and other applicable provisions, if any, of
the Act, and pursuant to the order of the Tribunal(s) or other appropriate
authority, if any, sanctioning the Scheme shall without any further act, deed,
matter or thing, stand transferred to and vested in and/or deemed to be
transferred to and vested in the Transferee Company so as to become the
properties and liabilities of the Transferee Company in accordance with
Sections 230 to 232 of the Act.
4.2 Without prejudice to the generality of the above said Clause:
4.2.1 The assets of the Transferor Company shall include all its properties
and assets (whether real or personal, in possession or reversion,
corporeal or incorporeal, movable or immovable, tangible or intangible)
of whatsoever nature including but not limited to immovable properties
(whether owned, licensed or leased), plant and machinery, furniture
and fixtures, vehicles, office equipments, other equipments, building
and structures, offices, residential and other premises, capital work in
progress, computers, air conditioners, refrigerators, investments, cash
on hand, sundry debtors, all stocks, investments of all kinds (including
shares, scrips, stocks, bonds, debenture, debenture stocks, units)
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advances, electrical installations, telephones, telex, facsimile, other
communication facilities, any trade mark, patents, know-how, service
mark, trade secrets, brand, registrations, product licenses, intangibles
and licenses (including but not limited to AX - ERP), marketing
authorisations, or other intellectual property rights, proprietary right,
permits, quotas, approvals, actionable claims, all rights / title or interest
in property(ies) by virtue of any court order / decree, contractual
arrangement, allotment, grant, subsidies, lease, possession or
otherwise, memorandum of understandings, tenancy rights, lending
contracts, permissions, incentives, registrations, contracts,
engagements, arrangements of all kinds, rights, titles, interests, all
benefits including subsidies, grants, incentives, tax credits (including
but not limited to credits in respect of CENVAT, income tax, minimum
alternate tax, goods and services tax (“GST”), value added tax, sales
tax, entry tax, service tax and all other taxes, tax refunds) and all rights,
claims and powers of whatsoever nature and wheresoever situated
belonging to or in the ownership, power or possession and in the
control of or vested in or granted in favour of or enjoyed by or
pertaining to the Transferor Company, licenses, municipal and other
statutory permissions, approvals of the Transferor Company including
but not limited to right to use and avail electricity connections, water
connections, telephone connections, facsimile connections, telexes, e-
mail, internet, leased line connections and installations, all records,
files, papers, computer programs, manuals, data, catalogues, sales
material, list of customers and suppliers, other customer information,
quotations, and all other rights, title, lease, interest, contracts, consent,
approvals or powers of every kind, nature and descriptions whatsoever,
benefits of all agreements, arrangements, deposits, loans, advances,
recoverable and receivables, whether from government, semi-
government, local authorities or any other person including customers,
contractors or other counter parties, etc., all earnest monies and/or
deposits, privileges, liberties, easements, advantages, benefits,
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exemptions and approvals of whatsoever nature shall under the
provisions of Sections 230 to 232 of the Act and pursuant to the orders
of the Tribunal(s) or any other appropriate authority sanctioning this
Scheme and without further act, instrument or deed, but subject to the
charges affecting the same as on the Effective Date be transferred
and/or deemed to be transferred to and vested in Transferee Company
so as to become the properties and assets of Transferee Company as
on Appointed Date.
4.2.2 Pursuant to the Scheme, the immovable property, shall, upon coming
into effect of this Scheme, be so transferred to the Transferee
Company without requiring any deed or instrument of conveyance and
shall upon such transfer become the property and an integral part of
the Transferee Company. Such immovable property shall be free from
all encumbrances except permitted asset encumbrances.
4.2.3 In respect of all the movable assets owned by the Transferor Company
as on the Effective Date and the assets which are otherwise capable of
transfer by physical delivery or endorsement and delivery or novation,
including cash on hand, shall be so transferred to the Transferee
Company and deemed to have been physically handed over by
physical delivery or by endorsement and delivery, as the case may be,
to the Transferee Company to the end and intent that the property and
benefit therein passes to the Transferee Company with effect from the
Appointed Date.
4.2.4 Such delivery and transfer shall be made on or after the Effective Date
as may be mutually agreed upon between the respective Board of
Directors of the Transferee Company and the Transferor Company.
4.2.5 In respect of the movable assets owned by the Transferor Company as
on the Effective Date, other than those mentioned in Clause 4.2.3
above, including all documents, deeds, agreements, mortgages,
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pledges, guarantees, actionable claims, sundry debtors, outstanding
loans, advances, whether recoverable in cash or kind or for value to be
received and deposits, if any with the local and other authorities, bodies
corporate, customers, etc, the Transferor Company shall if so required
by the Transferee Company, and the Transferee Company may, issue
notices in such form as the Transferee Company may deem fit and
proper stating that pursuant to the Tribunal(s) having sanctioned this
Scheme, the relevant debt, loan, advance or other asset, be paid or
made good or held on account of the Transferee Company, as the
person entitled thereto, to the end and intent that the right of the
Transferor Company to recover or realize the same stands transferred
to the Transferee Company and that appropriate entries should be
passed in their respective books to record the aforesaid changes.
4.2.6 With effect from the Appointed Date, all debts, liabilities (including
contingent liabilities), provisions, duties and obligations of every kind,
nature and description of the Transferor Company, shall be deemed to
have been transferred to the Transferee Company and to the extent
they are outstanding on the Effective Date shall, without any further act,
deed, matter or thing be and stand transferred to the Transferee
Company and shall become the liabilities and obligations of the
Transferee Company which undertakes to meet, discharge and satisfy
the same and it shall not be necessary to obtain the consent of any
third party or other person who is a party to any contract or
arrangement by virtue of which such debts, liabilities and obligations
have arisen in order to give effect to the provisions of this Clause.
4.2.7 Where any of the debt, liabilities (including contingent liabilities), duties
and obligations of the Transferor Company as on the Appointed Date,
deemed to be transferred to the Transferee Company have been
discharged by the Transferor Company, as the case may be, after the
Appointed Date and prior to the Effective Date, such discharge shall be
deemed to have been for and on account of the Transferee Company,
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and all loans raised and used and all liabilities and obligations incurred
by the Transferor Company after the Appointed Date and prior to the
Effective Date shall be deemed to have been raised, used or incurred
for and on behalf of the Transferee Company and to the extent they are
outstanding on the Effective Date, shall also without any further act,
deed, matter or thing shall stand transferred to the Transferee
Company and shall become the liabilities and obligations of the
Transferee Company which undertakes to meet, discharge and satisfy
the same and it shall not be necessary to obtain the consent of any
third party or other person who is a party to any contract or
arrangement by virtue of which such loans and liabilities have arisen in
order to give effect to the provisions of this Clause.
4.2.8 All the assets and properties which are acquired by the Transferor
Company, on or after the Appointed Date but prior to the Effective Date
shall be deemed to be and shall become the assets and properties of
the Transferee Company and shall under the provisions of Sections
230 to 232 and all other applicable provisions if any of the Act, without
any further act, instrument or deed, be and stand transferred to and
vested in and be deemed to have been transferred to and vested in the
Transferee Company upon the coming into effect of this Scheme
pursuant to the provisions of Sections 230 to 232 of the Act.
4.2.9 All cheques and other negotiable instruments and payments orders
received in the name of the Transferor Company after the Effective
Date shall be accepted by the bankers of the Transferee Company and
credited to the account of the Transferee Company. Similarly, the
banker of the Transferee Company shall honour cheques issued by the
Transferor Company for payment on or after the Appointed Date and
presented after the Effective Date.
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4.2.10 Loans, advances and other obligations if any, due or which may at any
time in future become due between the Transferor Company and the
Transferee Company shall stand cancelled and there shall be no
liability in that behalf on either party.
4.2.11 The transfer and vesting of the undertakings of the Transferor
Company as aforesaid shall be subject to the existing securities,
charges, liens, mortgages and other encumbrances if any, subsisting
over or in respect of the property and assets or any part thereof to the
extent such securities, charges, mortgages, encumbrances are created
to secure the liabilities forming part of the Transferor Company.
Provided always that this Scheme shall not operate to enlarge the
scope of security for any loan, deposit or facility availed of by the
Transferor Company and the Transferee Company shall not be obliged
to create or provide any further or additional security therefore after the
Effective Date or otherwise.
4.2.12 Without prejudice to the provisions of the foregoing clauses and upon
the effectiveness of this Scheme, the Transferor Company and the
Transferee Company shall execute all such instruments or documents
or do all the acts and deeds as may be required, including the filing of
necessary particulars and/or modification(s) of charge, with the relevant
Registrar of Companies to give formal effect to the above provisions, if
required.
4.2.13 Upon the Scheme being sanctioned and made effective, the Transferee
Company shall be entitled to operate all Bank Accounts related to the
Transferor Company and all cheques, drafts, pay orders, and/or
payment advices of any kind or description issued in favour of the
Transferor Company, either before or after the Appointed Date, or in
future, may be deposited with the Bank of the Transferee Company
and credit of all receipts thereunder will be given in the accounts of the
Transferee Company.
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4.3 This Scheme has been drawn up to comply with the conditions relating to
“Amalgamation” as specified under Section 2(1B) of the Income-tax Act, 1961.
If any terms or provisions of the Scheme is/are inconsistent with the provisions
of the said Section 2(1B) of the Income-tax Act, 1961, such provisions of said
Section 2(1B) of the Income-tax Act, 1961 shall prevail and the Scheme shall
stand modified to the extent necessary to comply with the said Section 2(1B)
of the Income-tax Act, 1961. Such modification will, however, not affect the
other parts of the Scheme.
5. CONSIDERATION
5.1 Upon this Scheme becoming effective and in consideration of amalgamation of
the Transferor company with the Transferee Company, the Transferee
Company shall without any further application or deed, issue and allot to all the
equity shareholders of the Transferor Company, holding fully paid up equity
shares in the Transferor Company and whose names appear in the Register of
Members of the Transferor Company as on the Effective Date or to their
respective his/ her/its heirs, executors, administrators, legal representative or
the successors-in-title, as may be recognized by the Board of Directors of the
Transferee Company, fully paid-up equity shares of the Transferee Company
in the following ratio:
‘100 (One Hundred) fully paid up Equity Shares of Rs. 100 /- (Rupees One
Hundred) each of the Transferee Company shall be issued and allotted for
every 1553 (One Thousand Five Hundred and Fifty Three) fully paid up
Equity Shares of Rs. 10/- (Rupees Ten) each held in the Transferor
Company.’
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5.2 The Equity Shares in the Transferee Company to be issued to the equity
shareholders of the Transferor Company pursuant to Clause 5.1 above shall
be subject to the Memorandum of Association and Articles of Association of
the Transferee Company and shall rank in pari-passu in all respects with the
existing Equity Shares of the Transferee Company as on the Effective Date
including in respect of dividend, if any, that may be declared by the Transferee
Company on or after the Effective Date.
5.3 The fractional entitlement, if any, to which the equity shareholder of the
Transferor Company may become entitled to upon issuance of Equity Shares
pursuant to Clause 5.1 above would be rounded off by the Transferee
Company to the nearest integer. A fraction of less than half shall be rounded
down to the nearest lower integer and a fraction of half or more shall be
rounded up to the nearest higher integer.
5.4 The issue and allotment of Equity Shares by the Transferee Company, to the
shareholders of the Transferor Company as provided in this Scheme is an
integral part thereof and shall be deemed to have been carried out as if the
procedure laid down under Section 62 of the Act and any other applicable
provisions of the Act were duly complied with. It is clarified that the approval to
the Scheme by the shareholders of the Transferee Company shall be deemed
to be due compliance of the provisions of Sections 42 and 62 and other
relevant provisions of the Act and all applicable law for issuance and allotment
of the Equity Shares by the Transferee Company under this Scheme Further,
Board of Directors of the Transferee Company shall take necessary steps
required for issue of Equity Shares and shall take necessary action or steps, if
required, for any compliance under the direction of regulatory bodies.
5.5 The Transferee Company shall take necessary steps to increase or alter, to
the extent required, its Authorized Share Capital suitably to enable it to issue
and allot the Equity Shares pursuant to this Scheme.
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6. ACCOUNTING TREATMENT
6.1 The provisions of the Accounting Standard (AS) 14, Accounting for
Amalgamations, or such other accounting standard as applicable from time to
time will be complied with to the extent applicable to this Scheme.
6.2 The amalgamation of Transferor Company with the Transferee Company shall
be accounted for in accordance with the “Pooling of Interest Method” of
accounting as per Accounting Standard 14 as notified under the Companies
Act, 2013 read with applicable rules thereunder.
6.3 Upon the Scheme coming into effect and with effect from the Appointed Date,
the Transferee Company shall account for the amalgamation in its books as
under:
a) All the assets, liabilities and reserves (excluding Equity Share
Capital) as on the Appointed Date recorded in the books of the
Transferor Company, shall stand transferred to and vested in the
Transferee Company pursuant to this Scheme and shall be recorded
by the Transferee Company at their existing carrying amounts and in
the same form as appearing in the financial statements of the
Transferor Company at the end of the day immediately preceding
the Appointed Date;
b) The inter-company transactions, deposits / loans and advances or
any other balances outstanding in the books of account, between the
Transferee Company and the Transferor Company will stand
cancelled and there shall be no further rights or obligation in that
behalf;
c) The Transferee Company shall credit to the Equity Share Capital
Account in its books of account, the aggregate face value of the
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Equity Shares issued and allotted under the Scheme by it to the
equity shareholders of the Transferor Company pursuant to this
Scheme;
d) The difference between the amount recorded as Equity Share
Capital issued and allotted by the Transferee Company pursuant to
this Scheme and the existing amount of Equity Share Capital of the
Transferor Company shall be adjusted in the reserves (i.e. Surplus/
(Deficit) in Statement of Profit and Loss) of the Transferee Company;
e) If considered appropriate, for the purpose of application of uniform
accounting policies between the Transferor Company and the
Transferee Company, the Transferee Company may make suitable
adjustments in respect of conflicting accounting policies, if any, and
shall report the effects on the financial statements of any changes in
accounting policies of the Transferee Company in accordance with
the Accounting Standard (AS) 5, Net Profit or Loss for the Period,
Prior Period Items and Changes in Accounting Policies, notified
under the Companies Act, 2013 read with applicable rules
thereunder.
7. COMBINATION OF AUTHORISED SHARE CAPITAL
7.1.1 Upon this Scheme becoming effective, the authorised share capital of the
Transferee Company shall automatically stand increased and reclassified
without any further act, instrument or deed on the part of the Transferee
Company including payment of stamp duty and fees payable to Registrar of
Companies, by the authorised share capital of the Transferor Company
aggregating to Rs. 40,00,00,000/- (Rupees Forty Crores only).
7.2 Consequently, the Memorandum of Association and Articles of Association of
the Transferee Company (relating to the authorised share capital) shall,
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without any further act, instrument or deed, be and stand altered, modified and
amended, and the consent of the shareholders to the Scheme, whether at a
meeting or otherwise, shall be deemed to be sufficient for the purposes of
effecting this amendment, and no further resolution(s) under Sections 13, 14
and 61 of the Companies Act, 2013 and other applicable provisions of the Act
would be required to be separately passed, as the case may be and for this
purpose the stamp duties and fees paid on the authorised share capital of the
Transferor Company shall be utilized and applied to the increase and
reclassification of authorised share capital of the Transferee Company and
there would be no requirement for any further payment of stamp duty and/or
fee by the Transferee Company for increase in the authorised share capital to
that extent.
7.3 Pursuant to the Scheme becoming effective and consequent amalgamation of
the Transferor Company with the Transferee Company, the authorised share
capital of the Transferee Company would be increased and reclassified as
under:
Particulars Amount in (Rs.)
Authorised Capital
72,00,000 Equity Shares of Rs.100/- each
72,00,00,000
TOTAL 72,00,00,000
7.4 It is clarified that the approval of the members of the Transferee Company to
the Scheme, whether at a meeting or otherwise, shall be deemed to be their
consent/approval also to the amendment of the Memorandum of Association
and Articles of Association of the Transferee Company as may be required
under the Act.
7.5 The Clause IV (a) of the Memorandum of Association of the Transferee
Company shall stand substituted by virtue of the Scheme to read as follows:
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“a. The authorised share capital of the Company is Rs. 72,00,00,000/-
(Rupees Seventy two crores only) divided into 72,00,000 (Seventy two
lakhs) Equity Shares of Rs.100/- (One hundred) each with rights, privileges
and conditions attached thereto as per the relevant provision contained in
behalf of the Articles of Association of the Company.”
8. LEGAL PROCEEDINGS
8.1 If any suit, appeal or other proceeding of whatever nature by or against the
Transferor Company is pending, the same shall not abate or be discontinued
or in any way be prejudicially affected by reason of the amalgamation or by
anything contained in this Scheme, but the said suit, appeal or other legal
proceedings may be continued, prosecuted and enforced by or against the
Transferee Company, as the case may be, in the same manner and to the
same extent as it would or might have been continued, prosecuted and
enforced by or against the Transferor Company as if this Scheme had not
been made.
8.2 In case of any litigation, suits, recovery proceedings which are to be initiated or
may be initiated by or against the Transferor Company, the Transferee
Company shall be substituted and deemed to be party thereto and any
payment and expenses made thereto shall be the liability of the Transferee
Company.
9. TAXATION MATTERS
9.1 All taxes (including, without limitation, income tax, wealth tax, sales tax,
custom duty, service tax, value added tax, entry tax, central sales tax, GST,
etc.) paid or payable by the Transferor Company in respect of the operations
or profits and assets of the Transferor Company before the Appointed Date,
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shall be on account of the Transferee Company and, in so far as it relates to
any tax payment (including, without limitation, income tax, dividend distribution
tax, minimum alternate tax, wealth tax, sales tax, custom duty, service tax,
value added tax, entry tax, central sales tax, GST, etc.) whether by way of
deduction at source, advance tax or otherwise, howsoever, by the Transferor
Company in respect of its profits or activities or operations or assets with effect
from the Appointed date, shall be deemed to be the corresponding item paid
by the Transferee Company and shall in all proceedings be dealt with
accordingly.
9.2 Any refund under the tax laws due to the Transferor Company consequent to
the assessment made on the Transferor Company and for which no credit is
taken in accounts as on the date immediately preceding the Appointed Date
shall also belong to and be received by the Transferee Company.
9.3 The Transferee Company shall be entitled to revise and file income tax
returns, sales tax / value added tax return, service tax returns, GST returns
and any other returns, and to claim refunds / credits, pursuant to the provisions
of this Scheme. The Transferee Company shall be entitled to such tax
benefits, including but not limited to, minimum alternate tax paid under Section
115JA/115JB of the Income-tax Act, 1961, including the benefit of brought
forward losses or depreciation as admissible under the provisions of the
Income-tax Act, 1961 to the extent applicable, of the Transferor Company from
the taxable profits of the Transferee Company with effect from the Appointed
Date. Further, all existing and future benefits / claim / relief / under the
provisions of the Income-tax Act, 1961 shall be available otherwise to the
Transferor Company upon fulfilment of the prescribed conditions. The
Transferee Company shall continue to enjoy the tax benefits and concessions
provided to the Transferor Company by the concerned authorities.
9.4 Any refund / credit / claim / benefits / incentives under any tax laws due to the
Transferor Company (including but not limited to advance tax self-assessment
tax, regular assessment tax, service tax, CENVAT, minimum alternate tax,
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value added tax, entry tax, central sales tax, GST, etc.) shall belong to and be
received by the Transferee Company. Without prejudice to the generality of
the aforesaid provision, all benefits under the various incentive schemes and
policies that the Transferor Company is entitled to, in relation to its operations,
shall upon the Scheme becoming effective and with effect from the Appointed
Date be transferred to and vested in the Transferee Company and all the
benefits, entitlements and incentives of any nature whatsoever, shall be
claimed by the Transferee Company.
10. CONTRACTS, DEEDS AND OTHER INSTRUMENTS
10.1 Subject to the other provisions of this Scheme, all contracts, deeds, bonds,
insurance, registrations, licenses, permissions, approvals, consents, letters of
Intent, undertakings, entitlements, permit benefits, arrangements, policies,
agreements, services, guarantees, collaterals and securities and other
instruments, if any, of whatsoever nature pertaining to the Transferor
Company to which the Transferor Company is party and subsisting or having
effect on the Effective Date, shall be in full force and effect against or in favour
of the Transferee Company, as the case may be, and may be enforced by or
against the Transferee Company as fully and effectually as if, instead of the
Transferor Company, the Transferee Company had been a party thereto.
10.2 The Transferee Company shall enter into and/or issue and/or execute deeds,
writings or confirmations or enter into any tripartite arrangements,
confirmations or novations, to which the Transferor Company will, if necessary,
also be party in order to give formal effect to the provisions of this Scheme, if
so required or becomes necessary. The Transferee Company shall be
deemed to be authorised to execute any such deeds, writings or confirmations
on behalf of the Transferor Company and to implement or carry out all
formalities required on the part of the Transferor Company to give effect to the
provisions of this Scheme.
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10.3 Upon the coming into effect of the Scheme, the resolutions, if any, of the
Transferor Company, which are valid and subsisting on the Effective Date,
shall continue to be valid and subsisting and be considered as resolutions of
the Transferee Company and if any such resolutions have any monetary limits
approved under the provisions of the Act, or any other applicable statutory
provisions, then the said limits shall be added to the limits, if any, under like
resolutions passed by the Transferee Company and shall constitute the
aggregate of the said limits in the Transferee Company.
11. TREATMENT OF STAFF, WORKMEN AND EMPLOYEES
11.1 On the Scheme becoming operative, all employees of the Transferor Company
in service on the Effective Date shall be deemed to have become employees
of the Transferee Company without any break in their service and on the basis
of continuity of service and the terms and conditions of their employment with
the Transferee Company shall not be less favourable than those applicable to
them in the Transferor Company.
11.2 The Transferee Company agrees that the services of all such employees with
the Transferor Company up to the Effective Date shall be taken into account
for purposes of all retirement benefits to which they may be eligible in the
Transferor Company on the Effective Date.
11.3 It is expressly provided that, on the Scheme becoming effective, the Provident
Fund, Gratuity Fund, Superannuation Fund or any other Special Fund or
Trusts created or existing for the benefit of the staff, workmen and employees
of the Transferor Company shall become the Trusts/ Funds of the Transferee
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Company for all purposes whatsoever in relation to the administration or
operation of such Fund or Funds or in relation to the obligation to make
contributions to the said Fund or Funds in accordance with the provisions
thereof as per the terms provided in the respective Trust Deeds, if any, to the
end and intent that all rights, duties, powers and obligations of the Transferor
Company in relation to such Fund or Funds shall become those of the
Transferee Company. It is clarified that the services of the staff, workmen and
employees of the Transferor Company will be treated as having been
continuous for the purpose of the said Fund or Funds.
12. CONDUCT OF BUSINESSES UNTIL EFFECTIVE DATE
With effect from the Appointed Date and upto and including the Effective
Date:
12.1 The Transferor Company shall carry on and be deemed to have been carrying
on their business and activities and shall stand possessed of and hold all of
their properties and assets for and on account of and in trust for the
Transferee Company. The Transferor Company hereby undertake to hold the
said assets with utmost prudence until the Effective Date.
12.2 The Transferor Company shall carry on their business and activities with
reasonable diligence, business prudence and shall not without the prior written
consent of the Transferee Company, alienate, charge, mortgage, encumber or
otherwise deal with or dispose of their undertakings or any part thereof.
12.3 All the profits or income accruing or arising to the Transferor Company or
expenditure or losses incurred by the Transferor Company shall for all
purposes be treated and deemed to be profits or income or expenditure or
losses (as the case may be) of the Transferee Company.
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12.4 The Transferor Company shall not vary the terms and conditions of
employment of any of the employees except in the ordinary course of business
or without the prior consent of the Transferee Company or pursuant to any
pre-existing obligation undertaken by the Transferor Company as the case
may be, prior to the Appointed Date.
12.5 The Transferee Company shall be entitled to apply, intimate, obtain and file, as
the case may be wherever required, to the Central/State Government,
regulatory authorities and all other agencies, departments and authorities
concerned as are necessary under any law, rules, regulations or circulars for
such information/notification/consents, approvals and sanctions, which the
Transferee Company may require pursuant to this Scheme reflecting its
position without any change in its management or control.
13. SAVING OF CONCLUDED TRANSACTIONS
The transfer and vesting of businesses under Clause 4 above and the
continuance of proceedings by or against the Transferor Company above
shall not affect any transaction or proceedings already concluded by the
Transferor Company before Effective Date, to the end and intent that the
Transferee Company accepts and adopts all acts, deeds and things done
and executed by the Transferor Company in respect thereto as done and
executed on behalf of itself.
14. DISSOLUTION OF THE TRANSFEROR COMPANY
On the Scheme becoming effective the Transferor Company shall be
dissolved without being wound up.
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PART C – GENERAL TERMS & CONDITIONS APPLICABLE TO THIS
SCHEME
15. APPLICATION TO THE TRIBUNAL(S)
The Transferor Company and the Transferee Company, shall, with all
reasonable dispatch, make applications to the respective Tribunal(s) or such
other appropriate authority under Sections 230 to 232 of the Act, seeking
orders for dispensing with or convening, holding and conducting of the
meetings of the respective classes of the members and creditors of each of
the Transferor Company and the Transferee Company as may be directed
by the respective Tribunal(s) or such other appropriate authority.
16. MODIFICATION / AMENDMENT TO THE SCHEME
Subject to approval of the Tribunal(s), the Board of Directors or such other
person or persons, as the respective Board of Directors may authorize,
including any committee or sub-committee thereof of the Transferor
Company and Transferee Company, may consent to any modifications or
amendments of the Scheme or to any conditions or limitations that the
Tribunal(s) or any other Governmental Authority may deem fit to direct or
impose or which may otherwise be considered necessary, desirable or
appropriate by them (i.e. the Board of Directors) and solve all difficulties that
may arise for carrying out the Scheme and do all acts, deeds and things
necessary for putting the Scheme into effect. For the purpose of giving
effect to this Scheme or to any modification thereof, the Board of Directors
or such other person or persons, as the respective Board of Directors may
authorize, including any committee or sub-committee thereof of the
Transferor Company and the Transferee Company to give such directions
and to take all such steps as may be necessary, desirable or proper to give
effect to this Scheme and to resolve any doubt, difficulties whether by
reason of any direction or orders of any other authorities or otherwise
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howsoever arising out of or under or by virtue of this Scheme and/or any
matters concerning or connected therewith. It is clarified that any
modification or amendment to the Scheme, after the sanction of the
Tribunal(s) shall only be made with the prior consent of the Tribunal(s).
17. CONDITIONALITY OF THE SCHEME
The Scheme is and shall be conditional upon and subject to the following:
17.1 The Scheme being approved / consented to by requisite majorities in number
and value of such classes of persons including the respective members and/or
creditors of the Transferor Company and the Transferee Company as may be
directed by the Tribunal(s).
17.2 The requisite consent, approval or permission of the Central Government or
any other statutory or regulatory authority, which by law may be necessary for
the implementation of this Scheme
17.3 The sanction of this Scheme by the Tribunal(s) or any other appropriate
authority, under Sections 230 to 232 of the Act and other applicable
provisions, being obtained by the Transferor Company and the Transferee
Company from their respective Tribunal(s) .
17.4 The certified or authenticated copies of the order of Tribunal(s) under Sections
230 and 232 of the Act sanctioning the Scheme being filed with the relevant
Registrar of Companies by the Transferor Company and the Transferee
Company.
18. EFFECT OF NON-RECEIPT OF APPROVALS/SANCTIONS
In the event of any of the said sanctions and approvals/ consents referred to
in the preceding Clause not being obtained and/ or the Scheme not being
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sanctioned by the Tribunal(s) or such other competent authority and / or the
Order not being passed as aforesaid within such period or periods as may
be agreed upon between the Transferor Company and the Transferee
Company by their Boards of Directors (and which the Boards of Directors of
the Companies are hereby empowered and authorised to agree to and
extend the Scheme from time to time without any limitation) failing which
this Scheme shall stand revoked, cancelled and be of no effect, save and
except in respect of any act or deed done prior thereto as is contemplated
herein or as to any rights and/ or liabilities which might have arisen or
accrued pursuant thereto and which shall be governed and be preserved or
worked out as is specifically provided in the Scheme or as may otherwise
arise in law.
19. COSTS, CHARGES & EXPENSES
All costs, charges, taxes including duties, levies and all other expenses, if
any (save as expressly otherwise agreed), incurred in carrying out and
implementing this Scheme and matters incidentals thereto, shall be borne
by the Transferee Company.
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