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TMI Blog2020 (9) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Composite Scheme of Amalgamation and Plan of Merger (Scheme) between Reliance Holding USA Inc, (Non-Petitioner/ Transferor Company-1), Reliance Energy Generation and Distribution Limited (Petitioner Company-1/Transferee Company-1/Transferor Company-2) and Reliance Industries Limited (Petitioner Company-2/ Transferee Company-2) and their respective shareholders. 4. The Petitioner Companies have approved the said Scheme by passing respectiveBoard Resolutionsand thereafter have approached this Tribunal by the captioned Petition for sanction of the Scheme. 5. The First Petitioner Company is inter aliaengaged in the business of wholesale trading of goods and investments in shares and securities.Second Petitioner Company is inter alia engaged in the business of hydrocarbon exploration and production, petroleum refining and marketing, petrochemicals, retail and digital services. 6. Learned Senior Counsel for the Petitioner Companies submits that the rationale of the Scheme is as under: (a) The Transferor Companies are indirect/direct wholly-owned subsidiaries of the Transferee Company-2 and hold investments in shale gas assets in the United States of America. It is desirous t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re listed on Luxembourg Stock Exchange and are traded on the International Order Book (London Stock Exchange) and amongst qualified institutional investors on the over-the-counter market in the United States of America. The International Bonds/Debt instruments issued in international markets of the Second Petitioner Company are listed on Stock Exchanges and its bonds are listed on Singapore Stock Exchange, Taipei Exchange and Luxembourg Stock Exchange. 10. The Regional Director, Ministry of Corporate Affairs, Mumbai, has filed its Report dated 24th July 2020 (Report),inter alia praying that the Tribunal may pass such orders as it thinks fitafter considering the observations in paragraphs IV(a) to (k). In paragraphs IV (a) to (k) of the said Report, the Regional Director has stated that: - (a) In addition to compliance of AS-14 (Ind AS-103), the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5(Ind AS-8) etc. (b) As per Part-I-Definitions Clause-1 of the Scheme, "Appointed Date" means opening hours of 1 March 2020 or such other date as may be agreed by the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply the provisions of the section. (g) Reliance Holding USA, Inc., (Transferor Company-1) is foreign company corporation incorporated pursuant to and in accordance with the General Corporation Law of the State of Delaware (as amended from time to time) having Employer Identification Number: 27-2270026 and having its principal office at 2000, West Sam Houston Park Way S., Suite 700, Houston, TX77042 in the United States of America; and does not fall within the jurisdiction of this Tribunal. Accordingly, similar approvals be obtained by the above said Transferor Company-1 in accordance with the laws of United States of America; (h) Since Reliance Holding USA, Inc (Transferor Company-1) is situated in the State of Delaware, United State of America, the FEMA Regulations/RBI Guidelines if any applicable is to be complied with by the transferor/transferee company. (i) It is stated that the equity shares of Reliance Industries Limited, the Transferee Company-2 are listed on the Stock Exchanges (BSE Limited and National Stock Exchange of India Limited). The global depository receipts of the Transferee Company-2 are listed on Luxembourg Stock Exchange and are traded on the Internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date as per section 232(6) of the Companies Act, 2013.The Petitioner Companies also stated that the Scheme is in compliance with the requirements stated in Circular No.7/12/2019/CL-1 dated 21st August 2019 issued by the Ministry of Corporate Affairs, as applicable. (c) As far as the observation made in paragraph IV (c) of the Report of the Regional Director is concerned, the Petitioner Companies stated that, the meeting of the shareholders and creditors of the First Petitioner Company were not required to be convened in lieu of requisite consent affidavits,approving the Scheme,which were provided by the respective parties. The Second Petitioner Company stated that the facts of the present case are similar to the judgement passed by this Tribunal in case of Housing Development Finance Corporation Limited (CSA No.243/2017), hence the meetings of the shareholders and creditors of the Second Petitioner Company were not required to be convened.The Petitioner Companies stated that they have complied with the directions of the order of this Tribunal dated 1st May 2020 under section 230(1) of the Companies Act 2013and the necessary compliance reports have been duly filed by the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Petitioner Company(a wholly owned subsidiary of the Second Petitioner Company)with the Second Petitioner Company. The Petitioner Companies further stated that,in view of Paragraph 7 of the SEBI Circular dated March 10, 2017, bearing reference number CFD/DIL3/CIR/2017/21, the Schemeis not required to be approved by BSE Limited and the National Stock Exchange of India Limited. However, in compliance with Regulation 37(6) of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 and aforesaid SEBI Circular, the Second Petitioner Company has filed a copy of the Scheme along with copy of its board resolution approving the Scheme with BSE Limited and the National Stock Exchange of India Limited respectively. The Second Petitioner Company further stated that,as per the prevalent laws,the Scheme is not required to be approved by any overseas stock exchange andthe Second Petitioner Company will comply with necessary filings related to the proposed amalgamation as required under necessary rules, regulations and bye-laws,as applicable,of the respective overseas stock exchanges. (j) As far as the observations of the Registrar of Companies mentioned in paragraph IV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentsrequired under the Companies Act, 2013 and the rules made thereunder, whichever is applicable. The undertakings given by the Petitioner Companies are accepted. 13. The Official Liquidator, High Court, Bombay, has filed his report dated 14th July 2020 with the Tribunal, inter alia submitting that the affairs of the First Petitioner Company have been conducted in a proper manner. No objections have been raised with respect to the Scheme. 14. From the material on record, the Schemeannexed as Exhibit A-1 to CP (CAA) No.931/MB.II/2020appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to public policy. 15. Since all the requisite statutory compliances have been fulfilled, the Scheme annexed as Exhibit A-1 to CP (CAA) No.931/MB.II/2020 is sanctioned and CP (CAA) No.931/MB.II/2020 is made absolute in terms of the prayer clauses5(a) to 5(g)in the said Company Petition. 16. The Petitioner Companiesare directed to file a copy of this Order along with a copy of the Scheme with the concerned Registrar of Companies, electronically in E-Form INC-28 within thirty days from the date of issue of the certified copy of the Order by the Registry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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