Sat. Jan 16th, 2021

Nature of Consideration in a Scheme of Arrangement

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[The following guest post is contributed by Rushab Dhandokia, who is an associate at a reputed law firm. Views are personal]BackgroundThe Bombay High Court in re Thomas Cook Insurance Services (India) Limited[1]has dealt with a very interesting question within the domain of Mergers & Acquisitions (“M&A”). The case refers to the sanction of a composite scheme of arrangement and amalgamation that was placed before the High Court with respect to one of the significant transactions of 2014, being the acquisition of Sterling Holiday (India) Resort Ltd. (“Transferor”) by Thomas Cook (India) Ltd. (“Transferee A”) and Thomas Cook Insurance Services (India) Ltd (“Transferee B”). The TransactionThe transaction per se was a complex one which, in order to achieve the desired results, was structured into many sub-parts involving a number of internal restructurings. However, for the purpose of obtaining approval in respect of the ‘entire scheme of arrangement’ from the High Court, the transaction can simply be divided into the following two parts: Part A: demergerof a part of the Transferor’s undertaking pertaining to the time share and resort business on a going concern basis from and transferring and vesting it in Transferee B and,Part B: amalgamation of the residual undertaking of the Transferor (i.e. exclusive of the demerged undertaking) with Transferee A on a going concern basis. Accordingly, it was envisaged in the composite scheme of arrangement that in lieu of acquiring the Transferor’s businesses in the manner stipulated above, the Transferees would discharge the consideration for the scheme through a swap of its shares for the shares of the Transferor in the following manner:   For Part A: allot 116 equity shares of Transferee A of Re.1/- fully paid up for every 100 equity shares of the Transferor of Rs.10/- fully paid up, and For Part B: allot 4 equity shares of Transferee A of Re. 1/- to be paid up for every 100 equity shares of the Transferor of Rs.10/-.  Please note only the shares of Transferee A are being swapped/issued in lieu for the entire transaction, whereas Transferee B which is the resulting company insofar as the demerger part (Part A of the Transaction) is concerned, is not issuing any shares/securities. Opposition to the Scheme The opposition to the above scheme came from the Regional Director Western Region, Ministry of Corporate Affairs, Mumbai (“Regional Director”). The scheme was objected on the grounds that it was in violation to the provisions of the Income Tax Act, 1961 and the Companies Act, 1956. The main reason for opposing the scheme was for the reason as noted above that Transferee B which was the resulting company in so far as the demerger part of the Transaction is concerned, did not issue any shares, and that only the shares of the parent company i.e. Transferee A herein were being issued. The Regional Director argued that the said scheme for the reason mentioned above was not in consonance of the provisions of the Companies Act, 1956. It argued that each of the parts of the transaction should separately satisfy the provisions of law; hence such mechanism as adapted was in contravention of clause (ii) of section 394(1) of the Companies Act, 1956. The said provision involves one of the directions that the Court issue for effecting the scheme. It states that the Court, if satisfied, can provide for “the allotment or appropriation by the transferee company of any shares, debentures, policies, or other like interests in that company which, under the compromise or arrangement, are to be allotted or appropriated by that company to or for any person”Since, in the present case for that part of the restructuring where the demerged undertaking of the Transferor was amalgamating into Transferee B, but the shares of Transferee A were being issued, it was contended that to this extent the scheme was in violation of the law. Question of LawThe interesting question of law that the High Court was required to adjudicate upon was given the bare provision of law, in case of an scheme of arrangement, whether any other person or entity which is not the transferee company in such a transaction issue its shares/securities as consideration for effecting the scheme?Judgment The High Court approved the present scheme without suggesting any modification and held that it was legally permissible to structure a transaction as in the present scheme, wherein the parent company i.e. Transferee A, issued its shares in lieu of the demerged entity of the Transferor which amalgamated into Transferee B. Reasoning the same, it reiterated that the provisions referred to in Clauses (i) to (vi) of sub-section (1) of Section 394, which the Court may make whilst sanctioning a scheme, are merely enabling provisions. Further it made an important observation that the Company Court, while sanctioning the scheme, may or may not make any of the directions contained in clauses (i) to (vi) thereof. It held that the provisions referred to in clauses (i) to (vi) are not in the nature of conditions for exercise of power of the company court under Section 394. Accordingly it held that such enabling provisions cannot be construed as compulsory in any sense. Moving to the clause (ii), on which the present scheme rested, the High Court held that this clause provides that if and to the extent the compromise or arrangement provides for allotment or appropriation by the transferee company of any shares, debentures, policies or other like interests in that company as part of the consideration of the scheme, then the company court while sanctioning the scheme may make appropriate provision in respect of such allotment or appropriation. Accordingly, it held that it is not a compulsion under the said clause that the consideration for transfer of an undertaking as part of a scheme of arrangement must come in the form of an allotment of shares of a transferee company or for that matter allotment of any shares. The consideration for such transfer can be any legitimate consideration, which the transferor is entitled to accept for contract of transfer. The High Court further also offered a guiding principle that the scheme may not provide for any allotment of shares at all orprovide any other appropriate consideration including allotment of shares of a holding company of the transferee company. In all, it held that as long as such consideration is not against public interest or in any other manner illegal or inappropriate, it is not for the company court to accept or reject such consideration. AnalysisThe present judgment is a welcome one for transactional lawyers and advisors. It makes interesting observations which can be used to support innovation in structuring transactions. The High Court in clear words has mentioned to say that the provisions in section 394 are enabling provision and are not in nature of conditions which are required to be applied literally. It permits for making deviation as long as the said deviation is not against the public policy and that the consideration is a valid one that the transferor company can accept. While the High Court in the present case did not only accept the proposition that it is perfectly legal for a parent company to issue its shares in lieu of its subsidiary acquiring or merging with another company, it also went ahead to say that the transferor company can accept any form of “appropriate consideration”. It shall be interesting to see how this observation of the Court would be utilized by transactional lawyers in structuring their transactions. When compared with the relevant provisions of the Companies Act, 2013, it is interesting to note that the new legislation has retained the similar provisions of the old one as far as this section is concerned. Hence, viewed from this angle, the ratio of the present case can be used even when undertaking a restructuring pursuant to the provisions of the Companies Act, 2013.  –          Rushab Dhandokia [1] Company Scheme Petition No. 99 OF 2015 with Company Summons for direction no. 892 of 2014. Judgment dated 2 July 2015 rendered by S.C. Gupte, J. The judgment can be accessed via

Source: Corporate

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