CORPORATE

RESTRUCTURING
Regulatory framework for Listed Companies
&
Strategies

CS CHANDRA AGARWAL
GOVERNING PROVISION

SECTION 391-394 of Companies Act, 1956

Most liberal sections in the entire

Companies Act, 1956.
By way of SCHEME you can
propose & achieve whatever you want
TYPES OF RESTRUCTURING

MERGER
MERGER

DEMERGER

REDUCTION
OF CAPITAL
 RESTRUCTURING

Approving
Approving Authorities
Authorities

High Court BIFR

 MERGER

MERGER REVERSE MERGER

“Combining of two or “As a commercial term, it

more commercial means when a Healthy
organizations into one in Company (in terms of size,
order to increase capital or listing status)is
efficiency and sometimes merging in a Weak Company
to avoid competition”. (in terms of size, or
unlisted)”.

SECTION 391-394 of Companies Act, 1956

 DEMERGER
“Division of a Company with two or more
identifiable business units into two or more
separate companies ”

SECTION – 2(19AA) of Income Tax Act, 1961.

 REDUCTION OF CAPITAL

“Extinguishing or Reducing the paid-up

capital, Securities Premium Account or
liability of members with respect to
their unpaid calls”

-AN EFFECTIVE WAY OF INTERNAL

RESTRUCTURING

SECTION100
SECTION – 100
to –105
105ofofCompanies
CompaniesAct,
Act,1956
1956
 A FEW VARIETY OF MERGER

 Unlisted with Listed

 Listed with Unlisted
 Merger of Subsidiary with Holding Company
 Merger with Group Company
 Healthy Company with Weak Company
Merger through BIFR
STOCK EXCHANGE’S ROLE

REQUIREMENTS

Listing Agreement Compliances

Stock Exchange Internal Norms

Compliance of Securities laws

Compliance of Companies Act

PERSPECTIVE

Observations
 Listing Agreement Compliances

Clause 24(f)
“The Company agrees that it shall file any
scheme/petition proposed to be filed before any
Court or Tribunal under Sections 391, 394 and 101
of the Companies Act, 1956, with the stock
exchange, for approval, at least a month before it
is presented to the Court or Tribunal.”
 Listing Agreement Compliances.. contd

Clause 24(a)

“Company to obtain ‘in-principle’ approval for

listing from the exchanges having nationwide
trading terminals where it is listed, before
issuing shares or other securities to the
shareholders of Transferor Company.”
 Listing Agreement Compliances..contd

Clause 40A

“Company to comply with Continuous Listing

requirements while framing a scheme of
merger/demerger.”
 Stock Exchange’s Norms

Presently, Stock Exchange(s) are laying various

other norms before giving approval to the
Companies
for
‘Merger’, ‘Demerger’ ‘Reduction of Capital’
 Stock Exchange Norms..contd

MINIMUM CAPITAL REQUIREMENTS

1. Issued & paid up Equity Capital – Rs 10 crores

(if there is a change in management/control)
OR

Issued & paid up Equity Capital – Rs 3 crores

(If there is no change in management/control)
AND

2. Minimum Net Worth – 20 crores

(Post amalgamation)

*BSE Stipulations
 Stock Exchange Norms..contd

CONTINUOUS LISTING NORMS

(Transferee Co is Listed Co. & Transferor Co is Unlisted Co.)

 Non- Promoter Holding – 25% of Post -merger Capital

* (The entire holding of the shareholders of the transferor company be
excluded)

 If Non- Promoter Holding – Falls below 25% of Post

merger capital, then the Promoters have to dilute
excess portion.

*BSE Stipulations
 Stock Exchange Norms..contd

LOCK IN REQUIRMENTS

“25% of the newly issued capital pursuant to the scheme

of amalgamation should be kept under lock in for 3 yrs
from the date of listing”

“The lock in period are varied by the stock exchange on

case to case basis”

*BSE Stipulations
 Compliance of Other Laws

“The Stock Exchange(s) alongside considers

the compliance of Securities laws,
regulations, rules etc. applicable on the
Company and Companies Act also”
 Compliance of Other laws..contd

SEBI (SAST)REGULATIONS ,1997

Regulation 3(1)(j)(ii) provides an exemption for acquisition of
shares:
“Nothing contained in regulations 10, 11 and 12 of these
regulations shall apply to shares acquired
Pursuant to a scheme :
(ii) of arrangement or reconstruction including
amalgamation or merger or demerger under any law or
regulation, Indian or foreign;”
•Valuations Analysis
•No undue benefit to Promoters /
Particular group
•Investors interest not to be affected
•Back door Entry for listing
•Change in Management/Control
 ISSUES

 Whether application under Clause 24(f) of

the Listing Agreements is an approval or
information?

 Whether no communication from Stock

Exchange within 1 month amounts to
approval?
 ISSUES

 Whether Merger without approval under

Clause 24(f) of the Listing Agreement is valid
considering that the High Court approved the
same?

 Whether varied lock in period stipulations

imposed by Stock exchange are valid?
 ISSUES

 What are the repercussions in case the

promoter’s shareholding goes beyond 75% of
the post amalgamation capital?

 Whether a Suspended Company is eligible to

obtain in principle approval from stock
exchange?
 ISSUES

 Whether Shares placed to QIB's in an Unlisted

Company prior to merger will be counted in
the post merger non -promoter shareholding
of a Listed Company?
 MERGER THROUGH BIFR

AN EFFECTIVE
WAY
TO
REVIVE
YOUR
SICK COMPANY
 MERGER THROUGH BIFR

EXEMPTION FROM TAKEOVER CODE

Regulation 3(1)(j) of SAST Regulations, 1997 provides that:

Nothing contained in Regulation 10, 11 & 12 shall applies to acquisition:

j) Pursuant to a scheme :
(i) framed under section 18 of the Sick Industrial Companies
(Special Provisions) Act, 1985 (1 of 1986);
ja) Exemption to restructuring under Securitization law
(Change in mgt by the secured creditors)
 MERGER THROUGH BIFR

EXEMPTION FROM CL40A OF LISTING AGREEMENT

Clause 40A as amended on 13th April, 2006 gives

exemption to BIFR referred companies:
The Non-Promoters’ shareholding can be below 25% of the
total capital of the company pursuant to BIFR Order in
any rehabilitation scheme.
 DEMERGER

Reliance Capital Reliance Natural

Ventures Ltd Resources Ltd
 TYPES OF DEMERGER

 Listed Company demerging into two

companies (both could be listed).

 Listed Company is demerged into two

companies and another unlisted entity is
merging with the one of the demerged entity.

 Distribution of shareholding in a Wholly

owned Subsidiary among shareholders
 CONDITION FOR LISTING
(Rule 19 (2) (b) of SCR Rules)
1. At least 10 per cent of securities issued by a company was
offered to the public through advertisement & following
conditions were fulfilled:

(a) minimum 20 lakh securities was offered to the public;

(b) the size of the offer to the public ≤ Rs. 100 crores ;
and

(c) the issue was made only through book building with
allocation of 60 % of the issue size to QIBs
Or
2. It shall offer at least 25 % of each class to the public
through Advertisement & Shares applied in
pursuance of such offer were allotted
LISTING UNDER CL. 8.3.5.1 OF
SEBI (DIP) GUIDELINES

EXEMPTION FROM CONDITION OF

RULE 19 (2) (b)

 Listed Company merging with Unlisted

Company.

 Demerger of a Listed Company, the

Resultant Company to get the benefit of
listing.
 Listing under Cl. 8.3.5.1 of DIP Guidelines
Cont….

CONDITIONS FOR AVAILING EXEMPTION

 Shares have been allotted by the unlisted company (transferee-
company) to the holders of securities of a listed company
(transferor-company) pursuant to a scheme of reconstruction or
amalgamation under the provision of the Companies Act, 1956, and
such scheme has been sanctioned by the High Court/s of
Judicature.

At least 25% of the paid-up share capital, post scheme, of the
unlisted transferee-company seeking listing comprises shares
allotted to the public holders of shares in the listed transferor-
Company.
 Listing under Cl. 8.3.5.1 of DIP Guidelines
Cont….

The unlisted company has not issued/reissued any

shares, not covered under the scheme.

There are no outstanding warrants /instruments/

agreements which gives to any person to take the
shares in the unlisted transferee company at any
future date.

That the shares of the transferee-company issued in

lieu of the locked-in-shares of the transferor-company
are subjected to the lock-in for the remaining period.
 Listing under Cl. 8.3.5.1 of DIP Guidelines
Cont….

 Promoters’ shares shall be locked-in to the

extent of 20% of the post merger paid-up
capital of the unlisted company, for a period
of 3 years from the date of listing of the
shares of the unlisted company.

 The balance of the entire pre-merger capital

of the unlisted company shall also be locked-
in for a period of 3 years from the date of
listing of the shares of the unlisted company.
 ISSUES……

 Whether Demerger & Merger are possible in one

scheme?
 One of the pre - condition of Inter-se transfer
is transferor & transferee should be holding
shares for three years. What is the status of
shares held in the Resultant Company? Whether
the three years condition will be deemed to be
fulfilled in case the transferee & transferor are
holding shares since last 3 years in the
demerged company?
 Reliance Industries Limited
- A Unique Scheme of Arrangement-

PRE –ARRANGEMENT SCENARIO

Reliance Industries Limited was
engaged in various businesses:
(i) Coal based power business;
FACTS (ii) Gas based power business;
(iii) Financial services business;
(iv) Tele-Communication business
 RIL… demerger

The family arrangement aims at

Segregation between the two Ambani Brothers
Provision for Specified Investors was made:
 Holdings of RIL and other companies in the control
of Mr. Mukesh Ambani were transferred to a wholly
owned subsidiary, Reliance Industrial Investments
and Holdings Limited (RIIHL) along with a Private
Trust (Petroleum Trust).
 RIIHL and Petroleum Trust were described as
“Specified Investors” which renounced their rights
in the scheme itself.
 RIL… demerger

As a result of demerger the shareholders of Reliance

Industries Ltd. other than “Specified Investors” got one
share each in the following four resulting companies for
each share held in RIL as on the record date:
 Reliance Energy Venture Ltd. (REVL)
 Reliance Communication Venture Ltd. (RCOVL)
 Reliance Capital Venture Ltd. (RCVL)
 Reliance Natural Resources Limited (RNRL)

The shares of all these resulting companies got listed on

the stock exchanges under the provisions of Cl 8.5.3.1
of the SEBI (DIP) Guidelines.
 Benefits achieved……..

Particulars Amount Amount

(Rs.) (Rs.)
24th March 2006 20th December,
2007
Value of the shares held 100 shares @928
by a shareholder as on
record date (25th 92800
Jan,2006) (A)
Shares in RIL 100 (@708) 70800 (@2700) 270000

Shares in REL 100 (@38) 3800 (@1900) 90000

Shares in RCOL 100 (@290) 29000 (@706) 70600

Shares in RCL 100 (@24) 2400 (@2376) 237600

Shares in RNRL 100 (@23) 2300 (@163) 16300

Total 108300 684500

Net benefit 15500 576200

REDUCTION OF CAPITAL
Types of Reduction of Capital

Writing off Losses & Fictitious Assets

Correction of Over- Capitalization

Distinguishment of the Liability in respect of

unpaid portion of face value.

Distribution of accumulated profits by

Payment to shareholders a part of share
capital.
Reduction of Capital- A Strategic Step

To Clean-up the Balance Sheet

To rationalize the capital base

Revival of Sick Company

RESTRUCTURING STRATEGIES

What's
Your
Move??
FEW STRATEGIC MOVES

Strategy I Strategy II
LISTING RAISING
(Without PROMOTERS’
offer to
HOLDING
Public)
(Beyond 55%)
 FEW STRATEGIC MOVES..contd

Strategy III Strategy IV

ACQUISITION
INCREASEING
OF LISTED
THE
CO.
RESOURCES
(Exemption from
(Without raising
Takeover Code)
Capital)
Strategy I LISTING

Direct listing is costly & complicated

But Listing of Company provides for…..
 Unlocking value of business
 Brings liquidity
 Attract investors for further growth
 LISTING THROUGH MERGER
Strategy IA

 Small/loss making listed companies are selected by

unlisted strong companies

 Unlisted company is merged with listed company with

maximum possible shares to promoters of unlisted
Company
 Promoters of Unlisted Company get shares in a listed
entity
 LISTING THROUGH MERGER
Strategy IB

Merger
Mergerofof
Acquisition
Acquisitionof financially
of financiallysound
sound
Regional
RegionalListed unlisted
Listed unlistedco
cowith
with
Company(RSE) listed
Company(RSE) listedco
co

INDONEXT
INDONEXTLISTING
LISTING

Now
Nowyour
yourCompany
Company
isisready
readyfor
forListing
Listing
DIRECT
DIRECT LISTING
LISTING
 RAISING PROMOTERS’ HOLDING
Strategy
StrategyIIII

Revised provisions of SEBI Takeover Code does not allow

promoters to acquire even a single share beyond 55%

Specific exemption to Merger/Demerger

 An Unlisted company is created by Promoters

This entity is merged with listed company

 Promoters’ holding is raised up to 75%

 ACQUISITION OF LISTED COMPANY
Strategy
StrategyIIIIII

SEBI Takeover Code does not allow acquisition of shares

of a listed company beyond 15% or Change in Control by
any outsider without a PA
Specific exemption to Merger/Demerger

 An Unlisted company is created by Acquirer

This company is merged with listed company

 Acquirers’ holding may go up to 75% of increased

capital base

The Management may also change.

 INCREASING THE RESOURCES
Strategy
StrategyIV
IV

Basic purpose of merger is to Synergy of Resources, but

the it also increases the capital base
High capital base make servicing of capital difficult

 Proposed transferee company acquires shares in

transferor company

Companies are merged

 Crossholdings get cancelled

Resources got clubbed, capital base remain low.

Effectively , increases EPS.
 To sum up……
Restructuring offers tremendous opportunities
for companies to grow & add value to the
shareholders

It unlocks the true potential of the company

It is a Strategy for Growth & Expansion

It also helps in Cleaning up &

create Synergy of Resources
Thanks a lot…

Pavan Kumar Vijay