With increasing globalization and dispersion of technology, product life-cycles are shortening and competition is becoming intense, where there is little room for organizations to meet their growth aspirations through internal development or organic growth. In order to achieve speedy growth with limited market access, technology, finance and time, corporates worldwide have preferred to grow inorganically through the route of mergers and acquisitions (M&A)

From the beginning of the 21st century, India has witnessed a tremendous growth in M&A activities, both inbound & outbound. However, the recent economic downturn has eclipsed the M&A landscape almost halving the deals in both number and value.

Cross border M&A deal values have fallen from USD 42 billion in H1 2007 and USD 12 billion in H1 2008 to just USD 1.4 billion in H1 2009. This marks an 85% decrease from last year highlighting the lack of overseas deals.

Domestic deals have registered USD 3.5 billion in H1 2009 compared to USD 4.3 billion in H1 2008 . The buoyancy in the domestic market could be attributed in part to Indian companies looking for group consolidation, cash repatriation strategies and avenues for balance sheet restructuring all in an attempt to tide over the current crisis.

With reports of green shoots showing in some European economies there is some optimism that the economic crisis may pass by the third or fourth quarter of 2009. However the M&A space is still being treaded upon cautiously and there is not enough clarity on when volumes would get back to the highs of 2008.

However, there remains a huge potential for M&A as in spite of the economic crisis, the advantages of inorganic growth still fit in the modern corporate rationale.

This article attempts to provide a broad overview of various aspects of M&A activities.

CERTAIN IMPORTANT CONCEPTS IN M&A

Merger and Amalgamation

A merger may be regarded as the fusion or absorption of one thing or right into another. A merger has been defined as an arrangement whereby the assets, liabilities and businesses of two (or more) companies become vested in, or under the control of one company (which may or may not be the original two companies), which has as its shareholders, all or substantially all the shareholders of the two companies. In merger, one of the two existing companies merges its identity into another existing company or one or more existing companies may form a new company and merge their identities into the new company by transferring their business and undertakings including all other assets and liabilities to the new company (herein after known as the merged company).

The process of merger is also alternatively referred to as “amalgamation”. The amalgamating companies loose their identity and the shareholders of the amalgamating companies become shareholders of the amalgamated company.

The term amalgamation has not been defined in the Companies Act, 1956. However, the Income-tax Act, 1961 (‘Act’) defines amalgamation as follows:

“Amalgamation”, in relation to companies, means the merger of one or more companies with another company or the merger of two or more companies to form one company (the company or companies which so merge being referred to as the amalgamating company or companies and the company with which they merge or which is formed as a result of the merger, as the amalgamated company) in such a manner that—

• all the property of the amalgamating company or companies immediately before the amalgamation becomes the property of the amalgamated company by virtue of the amalgamation;

• all the liabilities of the amalgamating company or companies immediately before the amalgamation become the liabilities of the amalgamated company by virtue of the amalgamation;

• shareholders holding not less than three-fourths in value of the shares in the amalgamating company or companies (other than shares already held therein immediately before the amalgamation by, or by a nominee for, the amalgamated company or its subsidiary) become shareholders of the amalgamated company by virtue of the amalgamation,

and not as a result of the acquisition of the property of one company by another company pursuant to the purchase of such property by the other company or as a result of the distribution of such property to the other company after the winding up of the first-mentioned company;

Thus, the above three conditions should be satisfied for a merger to qualify as an amalgamation within the meaning of the Income-tax Act 1961.

Mergers are generally classified as follows:

1. Cogeneric mergers or mergers within same industries

2. Conglomerate mergers or mergers within different industries

Cogeneric mergers

These mergers take place between companies within the same industries. On the basis of merger motives, cogeneric mergers may further classified as:

1. Horizontal Mergers

2. Vertical Mergers

Horizontal mergers takes place between companies engaged in the same business activities for profit; i.e., manufacturing or distribution of same types of products or rendition of similar services. A classic instance of horizontal merger is the acquisition of Mobil by Exxon. Typically, horizontal mergers take place between business competitors within an industry, thereby leading to reduction in competition and increase in the scope for economies of scale and elimination of duplicate facilities. The main rationale behind horizontal mergers is achievement of economies of scale. However, horizontal mergers promote monopolistic trend in an industry by inhibiting competition.

Vertical mergers take place between two or more companies which are functionally complementary to each other. For instance if one company specializes in manufacturing a particular product, and another company specializes in marketing or distribution of this product, a merger of these two companies will be regarded as a vertical merger. The acquiring company may expand through backward integration in the direction of production processes or forward integration in the direction of the ultimate consumer. The merger of Tea Estate Ltd. with Brooke Bond India Ltd. was a case of vertical merger. Vertical mergers too discourage competition in the industry.

Conglomerate mergers

Conglomerate mergers take place between companies from different industries. The businesses of the merging companies obviously lack commonality in their end products or services and functional economic relationships. A company may achieve inorganic growth through diversification by acquiring companies from different industries. A conglomerate merger is a complex process that requires adequate understanding of industry dynamics across diverse businesses vis-à-vis the merger motives of the merging entities.
Besides the above, mergers may be classified as:

Up stream merger, in which a subsidiary company is merged with its parent company.

Down stream merger, in which a parent company is merged with its subsidiary company.

Reverse merger, in which a company with a sound financial track record amalgamates with a loss making or less profitable company.

Takeover

Takeover is a strategy of acquiring control over the management of another company – either directly by acquiring shares carrying voting rights or by participating in the management. Where the shares of the company are closely held by a small number of persons a takeover may be effected by agreement within the shareholders. However, where the shares of a company are widely held by the general public, relevant regulatory aspects, including provisions of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations 1997 need to be borne in minds.

Takeovers may be broadly classified as follows:

• Friendly takeover: It is a takeover effected with the consent of the taken over company. In this case there is an agreement between the managements of the two companies through negotiations and the takeover bid may be with the consent of majority shareholders of the target company. It is also known as negotiated takeover.

• Hostile takeover: When an acquirer company does not offer the target company the proposal to acquire its undertaking but silently and unilaterally pursues efforts to gain control against the wishes of the existing management, such acts are considered hostile on the management and thus called hostile takeovers. The recently consummated Arcelor Mittal deal is an example of hostile takeover, where the LN Mittal group acquired management control of Arcelor against the wishes of the Arcelor management.

• Bail out takeover: Takeover of a financially weak or a sick company by a profit earning company to bail out the former is known as bail out takeover. Such takeovers normally take place in pursuance to a scheme of rehabilitation approved by the financial institution or the scheduled bank, who have lent money to the sick company. In bail out takeovers, the financial institution appraises the financially weak company, which is a sick industrial company, taking into account its financial viability, the requirement of funds for revival and draws up a rehabilitation package on the principle of protection of interests of minority shareholders, good management, effective revival and transparency. The rehabilitation scheme should provide the details of any change in the management and may provide for the acquisition of shares in the financially weak company as follows:

1. An outright purchase of shares or

2. An exchange of shares or

3. A combination of both

Joint Venture

Joint venture is a strategic business policy whereby a business enterprise for profit is formed in which two or more parties share responsibilities in an agreed manner, by providing risk capital, technology, patent/trademark/ brand names and access to the market. Joint ventures with multinational companies contribute to the expansion of production capacity, transfer of technology and penetration into the global market. In joint ventures the assets are managed jointly. Skills and knowledge flow from both the parties.

Leveraged/Management Buyout

Leveraged buyout (LBO) is defined as the acquisition of stock or assets by a small group of investors, financed largely by borrowing. The acquisition may be either of all stock or assets of a hitherto public company. The buying group forms a shell company to act as a legal entity for making the acquisition.

The LBOs differ from the ordinary acquisitions in two main ways: firstly a large fraction of the purchase price is debt financed and secondly the shares are not traded on open markets. In a typical LBO programme, the acquiring group consists of number of persons or organizations sponsored by buyout specialists.

The buyout group may not include the current management of the target company. If the group does so, the buyout may be regarded as Management Buyout (MBO). A MBO is a transaction in which the management buys out all or most of the other shareholders. The management may tie up with financial partners and organizes the entire restructuring on its own.

An MBO begins with an arrangement of finance. Thereafter an offer to purchase all or nearly all of the shares of a company (not presently held by the management) has to be made which necessitates a public offer and even delisting. Consequent upon this restructuring of the company may be affected and once targets have been achieved, the company can list its share on stock exchange again.

Demerger

Demerger is a common form of corporate restructuring. In the past we have seen a number of companies following a demerger route to unlock value in their businesses. Demerger has several advantages including the following:

• Creating a better value for shareholders by both improving profitability of businesses and changing perception of the investors as to what are the businesses of the Company and what is the future direction;

• Improving the resource raising ability of the businesses;

• Providing better focus to businesses and thereby improve overall profitability;

• Hedging risk by inviting participation from investors.

Demerger is a court approved process and requires compliance with the provisions of sections 391-394 of the Companies Act, 1956. It requires approval from the High Courts of the States in which the registered offices of the demerged and resulting companies are located. Under the Income-tax Act, 1961, “demerger”, in relation to companies, means the transfer, pursuant to a scheme of arrangement, by a demerged company of its one or more undertakings to any resulting company in such a manner that:

• all the property of the undertaking, being transferred by the demerged company, immediately before the demerger, becomes the property of the resulting company by virtue of the demerger;

• all the liabilities relatable to the undertaking, being transferred by the demerged company, immediately before the demerger, become the liabilities of the resulting company by virtue of the demerger;

• the property and the liabilities of the undertaking or undertakings being transferred by the demerged company are transferred at values appearing in its books of account immediately before the demerger;

• the resulting company issues, in consideration of the demerger, its shares to the shareholders of the demerged company on a proportionate basis;

• the shareholders holding not less than three-fourths in value of the shares in the demerged company (other than shares already held therein immediately before the demerger, or by a nominee for, the resulting company or, its subsidiary) become shareholders of the resulting company or companies by virtue of the demerger, otherwise than as a result of the acquisition of the property or assets of the demerged company or any undertaking thereof by the resulting company;

• the transfer of the undertaking is on a going concern basis;

• the demerger is in accordance with the conditions, if any, notified under sub-section (5) of section 72A by the Central Government in this behalf.

As evident from the above definition, demerger entails transfer of one or more undertakings of the demerged company to the resulting company and the resultant issue of shares by the resulting company to the shareholders of the demerged company. The satisfaction of the above conditions is necessary to ensure tax neutrality of the demerger.

In case of demerger of a listed company of its undertaking, the shares of the resulting company are listed on the stock exchange where the demerged company’s shares are traded. For instance, the largest demerger in India was in the case of Reliance Industries wherein its 4 businesses where demerged into separate companies and the resulting companies were listed on the stock exchanges.

The shareholders of Reliance Industries were allotted shares in the resulting companies based on a predetermined share swap ratio.

Slump — Sale/Hive off

The Income-tax Act, 1961 defines “slump sale” as follows:

“Slump sale” means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales.

In a slump sale, a company sells or disposes of the whole or substantially the whole of its undertaking for a lump sum predetermined consideration. In a slump sale, an acquiring company may not be interested in buying the whole company, but only one of its divisions or a running undertaking on a going concern basis. The sale is made for a lump sum price without values being assigned to individual assets and liabilities transferred. The business to be hived off is transferred from the transferor company to an exiting or a new company. A Business Transfer Agreement is drafted containing the terms and conditions of business transfer.

Legal aspects of M&A

Merger/Demerger is a court approved process which requires compliance of provisions under sections 391-394 of the Companies Act, 1956. Accordingly, a merger/demerger scheme is presented to the courts in which, the registered office of the transferor and transferee companies are situated for their approval. However in the case of listed companies such scheme before filing with the State High Court, need to the submitted to Stock Exchange where its shares are listed.

The Courts then require the transferor and transferee companies to comply with the provisions of the Companies Act relating to calling for shareholders and creditors meeting for passing a resolution of merger/ demerger and the resultant issue of shares by the transferee company. The Courts accord their approval to the scheme provided the scheme is not prejudicial to public interest and the interests of the creditors and stakeholders are not jeopardized.

The Companies Bill 2008, was introduced in the Parliament on 23rd October, 2008 based on J.J. Irani Committee's recommendation and on detailed consultations with various Ministries, Departments and Government Regulators. The Bill proposes certain changes to existing provisions with respect to M&A.

The key features of the bill as regards M&A are as follows:

• Cross border mergers (both ways) seem to be possible under the proposed Bill, with countries as may be notified by Central Government form time to time. (Clause 205 of Companies Bill, 2008) unlike prohibition in case of a “foreign transferee company” under existing provisions.

• Currently merger of a listed transferor company into an unlisted transferee company typically results in listing of shares of the unlisted company. The Bill proposes to give an option to the transferee company to continue as an unlisted company with payment of cash to shareholders of listed transferor company who decide to opt out of the unlisted company.

• The Bill proposes a valuation report to be given alongwith notice of meeting and also at the time of filing of application with the National Company Law Tribunal (“NCLT”) to the shareholders and the creditors which is not required as per the current provisions.

• The Bill proposes that in case of merger or hive off, in addition to the notice requirements for shareholders and creditors meetings, confirmation of filing of the scheme with Registrar and supplementary accounting statement where the last audited accounting statement is more than six months old before the first meeting of the Company will be required.

• In order to enable fast track and cost efficient merger of small companies, the Bill proposes a separate process for a merger and amalgamation of holding and wholly owned subsidiary companies or between two or more small companies.

• The Bill provides that fees paid by the transferor company on authorized share capital shall be available for setoff against the fees payable by the transferee company on its authorized share capital subsequent to the merger. This may enable clubbing of authorized share capital.

Economic aspects of M&A

Some of the key economic considerations in an M&A process are as follows

Shareholder wealth

An M&A transaction may enhance shareholders value in two ways — value creation and value capture.

Value creation is a long term phenomenon which results from the synergy generated from a transaction. Value creation may be achieved by way of functional skill or management skill transfers. Value capture is a one time phenomenon, wherein the shareholders of the acquiring company gain the value of the existing shareholders of the acquired company.

Synergy

Synergy from mergers and acquisitions has been characteristically connoted by 2+2=5. It signifies improvement of the performance of the acquired company by the strength of the acquiring company or vice versa. There may be operational synergies through improved economies of scale or financial synergies through reduction in cost of capital.

Realisation of synergies through consolidation — domestic and global have been one of the main aims of the worldwide M&A activities today

Market share

The co-relation between increased market share and improved profitability underlies the motive of constant increase of market share by companies. The focus on new markets and increase in product offerings, leads to higher level of production and lower unit costs. Thus this motive is closely aligned with the motive to achieve economies of scale.

Core competence

Cogeneric mergers often augment a firm’s competitiveness in an existing business domain. This urge for core competence is closely aligned with the motive of defending or fortifying a company’s business domain and warding off competition.

Diversification

The M&A route serves as an effective tool to diversify into new businesses. Increasing returns with set customer base and lower risks of operation form the rationale of such conglomerate mergers.

Increased debt capacity

Typically a merged entity would enjoy higher debt capacity because benefits of combination of two or more firms provide greater stability to the earnings level. This is an important consideration for the lenders. Moreover, a higher debt capacity if utilized, would mean greater tax advantage for the merged firm leading to higher value of the firm.

Customer pull

Increased customer consciousness about established brands have made it imperative for companies to exploit their customer pull to negotiate better deals fulfilling the twin needs of customer satisfaction and enhancement of shareholder value

Valuation aspects of M&A

Valuation is the central focus in fundamental analysis, wherein the underlying theme is that the true value of the firm can be related to its financial characteristics, viz. its growth prospects, risk profile and cash flows. In a business valuation exercise, the worth of an enterprise, which is subject to merger or acquisition or demerger (the target), is assessed for quantification of the purchase consideration or the transaction price.

Generally, the value of the target from the bidder’s point of view is the pre-bid standalone value of the target. On the other hand, the target companies may be unduly optimistic in estimating value, especially in case of hostile takeovers, as their objective is to convince the shareholders that the offer price is too low. Since valuation of the target depends on expectations of the timing of realization as well as the magnitude of anticipated benefits, the bidder is exposed to valuation risk. The degree of risk depends upon whether the target is a private or public company, whether the bid is hostile or friendly and the due-diligence performed on the target.
The main value concepts viz.

• Owner value
• Market value and
• Fair value

The owner value determines the price in negotiated deals and is often led by a promoter’s view of the value if he was deprived from the property. The basis of market value is the assumption that if comparable property has fetched a certain price, then the subject property will realize a price something near to it. The fair value concept in essence, ensures that the value is equitable to both parties to the transaction.

METHODS OF VALUATION OF TARGET

Valuation based on assets

The valuation method is based on the simple assumption that adding the value of all the assets of the company and sub-contracting the liabilities leaving a net asset valuation, can best determine the value of a business. Although the balance sheet of a company usually gives an accurate indication of the short-term assets and liabilities, this is not the case of long term ones as they may be hidden by techniques such as “off balance sheet financing”. Moreover, valuation being a forward looking exercise may not bear much relationship with the historical records of assets and liabilities in the published balance sheet.

Valuations of listed companies have to be done on a different footing as compared to an unlisted company. In case of listed companies, the real value of the assets may or may not be reflected by the market price of the shares. However, in case of unlisted companies, only the information relating to the profitability of the company as reflected in the accounts is available and there is no indication of market price.

Valuation based on earnings

The normal purpose of the contemplated purchase is to provide for the buyer the annuity for his investment outlay. The buyer would certainly expect yearly income, returns stable or fluctuating but nevertheless some return which commensurate with the price paid therefore. Valuation based on earnings, based on the rate of return on the capital employed, is a more modern method being adopted.

An alternate to this method is the use of the price earning (P/E) ratio instead of the rate of return. The P/E ratio of a listed company can be calculated by dividing the current price of the share by the earning per share (EPS). Therefore the reciprocal of the P/E ratio is called earnings-price ratio or earning yield.

Thus P/E = P/ EPS, where P is the current price of the shares. The share price can therefore be determined as P=EPS × P/E ratio.
Similarly, several other valuation methodologies (including valuation based on sales, profit after tax, earning before interest, tax, depreciation and amortization etc.) are commonly used.

TAXATION ASPECTS OF M&A

Carry forward and set off of accumulated loss and unabsorbed depreciation

Under the Income-tax Act 1961, a special provision is made which governs the provisions relating to carry forward and set off of accumulated business loss and unabsorbed depreciation allowance in certain cases of amalgamations and demergers.

It is to be noted that as unabsorbed losses of the amalgamating company are deemed to be the losses for the previous year in which the amalgamation was effected, the amalgamated company (subject to fulfillment of certain conditions) will have the right to carry forward the loss for a period of eight assessment years immediately succeeding the assessment year relevant to the previous year in which the amalgamation was effected.

If any of the conditions for allowability of right to carry forward of loss, is violated in any year, the set off of loss or allowance of depreciation made in any previous year in the hands of the amalgamated company shall be deemed to be the income of the amalgamated company chargeable to tax for the year in which the conditions are violated.

Capital gains

Capital gains tax is leviable if there arises capital gain due to transfer of capital assets. The term “transfer” is defined in the Income-tax Act in an inclusive manner.

Under the Income-tax Act, “transfer” does not include any transfer in a scheme of amalgamation of a capital asset by the amalgamating company to the amalgamated company, if the later is an Indian company.

From assessment year 1993-94, any transfer of shares of an Indian company held by a foreign company to another foreign company in a scheme of amalgamation between the two foreign companies will not be regarded as “transfer” for the purpose of levying capital gains tax, subject to fulfilment of certain conditions.

Further, the term transfer also does not include any transfer by a shareholder in a scheme of amalgamation of a capital asset being a share or the shares held by him in the amalgamating company if the transfer is made in consideration of the allotment to him of any share or the shares in the amalgamated company and the amalgamated company is an Indian company.

Similar exemptions have been provided to a ‘demerger’ under the Income-tax Act, 1961.

Expenditure of amalgamation or demerger

The Income-tax Act, 1961 provides that where an assessee being an Indian company incurs any expenditure on or after the 1st day of April, 1999, wholly and exclusively for the purposes of amalgamation or demerger of an undertaking, the assessee shall be allowed a deduction u/s of an amount equal to of one-fifth of such expenditure for each of the successive previous years beginning with the previous year in which the amalgamation or demerger takes place.

Deductibility of certain expenditure incurred by amalgamating or demerged companies

The Income-tax Act, 1961 provides for continuance of deduction of certain expenditure incurred by the amalgamating company or demerged company as the case may be in the hands of the amalgamated company or resulting company, post amalgamation or demerger viz. capital expenditure on scientific research (only in case of amalgamation), expenditure on acquisition of patents or copyrights, expenditure on know how, expenditure for obtaining license to operate telecommunication services.

Tax characterisation of sale of business/slump sale

For a sale of business to be considered as a ‘slump sale’ the following conditions need to fulfilled:

• There is a sale of an undertaking;
• The sale is for a lump sum consideration; and
• No separate values being assigned to individual assets and liabilities.

If separate values are assigned to assets, the sale will be regarded as an ‘itemised sale’.

Indian tax laws have specifically clarified that the determination of the value of an asset or liability for the sole purpose of payment of stamp duty, registration fees or other similar taxes or fees shall not be regarded as assignment of values to individual assets or liabilities

In a slump sale, the profits arising from a sale of an undertaking would be treated as a capital gain arising from a single transaction. Where the undertaking being transferred was held for at least 36 months prior to the date of the slump sale, the income from such a sale would qualify as long-term capital gains at rate of 20% (plus surcharge and cess). If the undertaking has been held for less than 36 months prior to the date of slump sale, then the income would be taxable as short-term capital gains at the rate of 30% (plus surcharge and cess).

Whereas an itemized sale of individual assets takes place, profit arising from the sale of each asset is taxed separately. Accordingly, income from the sale of assets in the form of “stock-in-trade” will be taxed as business income, and the sale of capital assets is taxable as capital gains. Significantly, the tax rates on such capital gains would depend on the period that each asset (and not the business as a whole) has been held by the seller entity prior to such sale.

Proposed tax treatment under Direct Tax Code (‘ the Code’)

It is to be noted that recently, the Finance Minister has released the new Direct Tax Code which seeks to bring about a structural change in the tax system currently governed by the Income- tax Act, 1961.

Summarized below are the key proposed provisions that are likely to have an impact on the mergers and acquisitions in India:

• Currently, the definition of ‘amalgamation’ covers only amalgamation between companies. It is now proposed to include, subject to fulfillment of certain conditions, even amalgamation amongst co-operative societies and amalgamation of sole proprietary concern and unincorporated bodies (firm, association of persons and body of individuals) into a company in this definition.

• For amalgamation of companies to be tax neutral, in addition to existing conditions the Code proposes that amalgamation should be in accordance with the provisions of the Companies Act, 1956.

• In case of demerger, resulting company can issue only equity shares (as against both equity and preference shares as per existing provisions) as consideration to the shareholders of demerged company, for the demerger to qualify as tax neutral demerger.

• Irrespective of sectors (ie manufacturing or service), the benefit of carry forward and set off of losses of predecessor in the hands of successor Company is proposed to be available to all the companies. As per existing provisions in view of definition of “industrial undertaking” certain companies were not able to utilize the benefit of losses as a result of amalgamation. Further, the Code provides for indefinite carry forward of business losses as against restrictive limit of 8 years under existing provisions.

• Profit from the slump sale of any undertaking is proposed to be taxed as a business income as against capital gains income.

• Code seeks to eliminate the distinction between long term and short term capital asset.

• Introduction of General Anti Avoidance Rule (‘GAAR’) which empowers the Commissioner of Income-tax (‘CIT’) to declare an arrangement as impermissible if the same has been entered into with the objective of obtaining tax benefit and which lacks commercial substance.

Stamp duty aspects of M&A

Stamp duty is payable on the value of immovable property transferred by the demerged/ amalgamating/ transferor company or value of shares issued/consideration paid by the resulting/ amalgamated/ transferee company. In certain States there are specific provisions for levy of stamp duty on amalgamation/ demerger order viz. Maharashtra, Gujarat, Rajasthan etc. However in other States these provisions are still to be introduced.

Thus in respect of States where there is no specific provision, there exists an ambiguity as to whether the stamp duty is payable as per the conveyance entry or the market value of immovable property. The High Court order is regarded as a conveyance deed for mutation of ownership of the transferred property. Stamp duty is payable in the States where the registered office of the transferor and transferred companies is situated. In addition to the same, stamp duty may also be payable in the States in which the immovable properties of the transferred business are situated. Normally, set off for stamp duty paid in a particular State is available against stamp duty payable in the other State. However, the same depends upon the stamp laws under the various States.
In addition to the stamp duty on transfer of business, additional stamp duty on issue of shares is also payable based on the rates prevailing in the State in which shares are issued.

COMPETITION ACT, 2002

Competition Act, 2002 has been enacted to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other markets participants in India.

Competition Act, 2002 regulates the specified combination of acquisition or merger or amalgamation based on the turnover or gross turnover. The amended provision is applicable to entities

1. in India, if the acquiring and the acquired entities jointly have assets more than Rs 1,000 crore or turnover more than Rs. 3,000 crore or the group has assets more than Rs. 4,000 crore or the turnover more than Rs. 12,000 crore, or

2. in India or outside India if the acquiring and the acquired entities jointly have assets more than $500 million assets (including > Rs. 500 crore in India) or turn over more than $ 1500 million turnover (including >1,500 crore in India) or the group has assets more than $ 2000 million (including > Rs. 500 crore in India) or turnover more than $ 6000 million (including > Rs. 1,500 crore in India).

The above-mentioned entities is required to give notice to Competition Commission of India (CCI), within 30 days of the approval of the proposal relating to the merger by board of directors of the companies or execution of any agreement/document for acquisition and no combination shall come in effect unless 210 days have passed from serving such notice to the CCI or grant of approval by CCI, whichever is earlier.

LIMITED LIABILITY PARTNERSHIPS

With a view to provide an alternative to the traditional partnership, with an unlimited liability and a statute based governance structure of limited liability company, a new corporate form namely a Limited Liability Partnership (LLP) has been established under LLP Act, 2008. (“LLP Act”)

It is felt that the new business form will not only enable professional expertise and entrepreneurial initiative to combine, organize and operate in flexible, innovative and efficient manner but will also provide a further impetus to India’s economic growth.

LLP allows its members the flexibility of organizing their internal structure as a partnership based on a mutually arrived agreement with a limited liability of its members. Accordingly enterprises are now free to form commercially efficient vehicles suited to their requirements.

An LLP can either be incorporated as such or a partnership firm, private company or an unlisted public company can be converted into a LLP. Further the LLP Act provides for compromise, arrangement or reconstruction of LLPs amongst LLPs.

On the taxation front, the income tax Act considers LLP at par with a partnership firm.

Also currently there is no clarity on the stamp duty implications or the position of FDI in case of LLP.

The recently released Code also treats a LLP as firm for taxation purposes. Further, the Code proposes to allow amalgamation of LLP with company subject to satisfaction of certain conditions.

HUMAN ASPECTS OF M&A

The period of merger is a period of great uncertainty for the employees at all levels of the merging organizations. The uncertainty relates to job security and status within the company leading to fear and hence low morale among the employees and quite naturally so. The influx of new employees into an organization also creates a sense of invasion at times and ultimately leads to resentment. Moreover, the general chaos which follows any merger results in disorientation due to ill defined roles and responsibilities. This leads to frustrations resulting into poor performance and low productivity since strategic and financial advantage is generally a motive for any merger.

The top executives involved in implementation of merger often overlook the human aspect of mergers by neglecting the culture shocks facing the merger. Understanding different cultures and where and how to integrate them properly is vital to the success of an acquisition or a merger.

Important factors to be taken note of would include the mechanism of corporate control particularly encompassing delegation of power and power of control, responsibility towards management information system, interdivisional and intra-divisional harmony and achieving optimum results through changes and motivation.

The key to a successful M&A transaction is an effective integration that is capable of achieving the benefits intended. It is at the integration stage immediately following the closing of the transaction that many well-conceived transactions fail. Although often overlooked in the rush of events that typically precede the closing of the transaction, it is at the integration stage with careful planning and execution that plays an important role which, in the end, is essential to a successful transaction.

Integration issues, to the extent possible, should be identified during the due diligence phase, which should comprise both financial and HR exercises, to help to mitigate transaction risk and increase likelihood of integration success.

In conclusion, to achieve a flawless M&A transaction lies in being able to start right, well before the combination, plan with precision, and ensure a relentless clarity of purpose and concerted action in the actual integration and post-integration stage.

Source: Economic Times dated 31 July 2009