(1) OCL INDIA LIMITED CIN No.: L26942OR1949PLC000185 Regd. Office: Rajgangpur- 770 017, District Sundargarh, Odisha Tel. No. :(06624)221212, 220121 Website: www.oclindialtd.in, E-mail: [email protected]COURT CONVENED MEETING OF THE EQUITY SHAREHOLDERS AND POSTAL BALLOT & E-VOTING COURT CONVENED MEETING OF EQUITY SHAREHOLDERS Day Sunday Date November 27, 2016 Time 11 a.m. Venue OCL India Limited’s premises at Rajgangpur- 770 017, District Sundargarh, Odisha POSTAL BALLOT AND E-VOTING Start Date November 03, 2016 End Date December 02, 2016 Kindly note that votes may please be cast by shareholders at both (i) Court Convened Meeting, as also, (ii) by Postal Ballot/e-voting. It is clarified that exercising of right to vote by Postal Ballot/e-voting does not disentitle a shareholder from exercising his/her right to vote at the Court Convened Meeting also, and vice versa. INDEX SL No Content Page Number 1 Notice of Court Convened Meeting of the Equity Shareholders of OCL India Limited as per the direction of Hon’ble High Court of Orissa, at Cuttack vide its order dated October 06, 2016 in Company Petition No. 37 of 2016 2 Notice of Postal Ballot and E-Voting pursuant to Sections 108 and 110 of the Companies Act, 2013 read with Companies (Management and Administration) Rules, 2014, Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, Circular No. CIR/CFD/CMD/16/ 2015 dated November 30, 2015 issued by the Securities and Exchange Board of India and other applicable provisions 3 Explanatory Statement under Section 393 of the Companies Act, 1956 and Sections 110 and 102 of the Companies Act, 2013 and other applicable provisions 4 Scheme of Arrangement and Amalgamation amongst OCL India Limited, Dalmia Cement East Limited, Shri Rangam Securities & Holdings Limited, Dalmia Bharat Cements Holdings Limited and Odisha Cement Limited and their respective shareholders and creditors 5 Fairness Opinion dated March 28, 2016 issued by Axis Capital Limited 3–4 5–9 10–24 25–70 71–76
Transcript
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OCL INDIA LIMITEDCIN No.: L26942OR1949PLC000185
Regd. Office: Rajgangpur- 770 017, District Sundargarh, OdishaTel. No . :(06624)221212, 220121
COURT CONVENED MEETING OF THE EQUITY SHAREHOLDERSAND
POSTAL BALLOT & E-VOTING
COURT CONVENED MEETING OF EQUITY SHAREHOLDERS
Day Sunday
Date November 27, 2016
Time 11 a.m.
Venue OCL India Limited’s premises at Rajgangpur- 770 017, District Sundargarh, Odisha
POSTAL BALLOT AND E-VOTING
Start Date November 03, 2016
End Date December 02, 2016
Kindly note that votes may please be cast by shareholders at both (i) Court Convened Meeting, as also,(ii) by Postal Ballot/e-voting. It is clarified that exercising of right to vote by Postal Ballot/e-voting doesnot disentitle a shareholder from exercising his/her right to vote at the Court Convened Meeting also,and vice versa.
INDEX
SL No Content Page Number
1 Notice of Court Convened Meeting of the Equity Shareholders of OCL IndiaLimited as per the direction of Hon’ble High Court of Orissa, at Cuttack vide itsorder dated October 06, 2016 in Company Petition No. 37 of 2016
2 Notice of Postal Ballot and E-Voting pursuant to Sections 108 and 110 of theCompanies Act, 2013 read with Companies (Management and Administration)Rules, 2014, Securities and Exchange Board of India (Listing Obligations andDisclosure Requirements) Regulations, 2015, Circular No. CIR/CFD/CMD/16/2015 dated November 30, 2015 issued by the Securities and Exchange Boardof India and other applicable provisions
3 Explanatory Statement under Section 393 of the Companies Act, 1956 andSections 110 and 102 of the Companies Act, 2013 and other applicableprovisions
4 Scheme of Arrangement and Amalgamation amongst OCL India Limited, DalmiaCement East Limited, Shri Rangam Securities & Holdings Limited, DalmiaBharat Cements Holdings Limited and Odisha Cement Limited and theirrespective shareholders and creditors
5 Fairness Opinion dated March 28, 2016 issued by Axis Capital Limited
3–4
5–9
10–24
25–70
71–76
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SL No Content Page Number
6 Copy of Observation Letters issued by BSE Limited and National StockExchange of India Limited, both dated July 12, 2016
7 Complaints Report dated May 26, 2016 submitted by OCL India Limited withBSE Limited and National Stock Exchange of India Limited
8 Form of Proxy
9 Attendance Slip
10 Postal Ballot Form with instructions and Business Reply Envelope
77–81
82
83–84
85
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In the Hon’ble High Court of Orissa, CuttackOriginal Jurisdiction
Company Petition No. 37 of 2016
In the matter of Companies Act, 1956
AND
In the matter of Sections 391 to 394 of the CompaniesAct, 1956
AND
In the matter of Scheme of Arrangement andAmalgamation amongst OCL India Limited, DalmiaCement East Limited, Shri Rangam Securities &Holdings Limited, Dalmia Bharat Cements HoldingsLimited and Odisha Cement Limited and their respectiveshareholders and creditors
OCL India Limited )a company incorporated under the provisions of the )Companies Act, 1913, having its registered office at )Rajgangpur-770017, Dist. Sundargarh, Odisha )India ) …Applicant/Transferor Company No. 1
NOTICE OF COURT CONVENED MEETING OF EQUITY SHAREHOLDERS OF OCL INDIA LIMITED, THEAPPLICANT/TRANSFEROR COMPANY NO. 1
To,
The equity shareholders of OCL India Limited (the “Applicant/T ransferor Comp any No. 1” )
TAKE NOTICE that by an order made on October 06, 2016 in the above Company Petition, the Hon’ble High Courtof Orissa has directed that a meeting of the equity shareholders of OCL India Limited, the Applicant/TransferorCompany No. 1, be convened and held at the premises of the Applicant/Transferor Company No. 1 at Rajgangpur-770017, Dist. Sundargarh, Odisha on Sunday, November 27, 2016 at 11 a.m. for the purpose of considering and, ifthought fit, approving with or without modification(s), the proposed arrangement and amalgamation embodied inthe Scheme of Arrangement and Amalgamation amongst OCL India Limited, Dalmia Cement East Limited, ShriRangam Securities & Holdings Limited, Dalmia Bharat Cements Holdings Limited and Odisha Cement Limitedand their respective shareholders and creditors.
TAKE FURTHER NOTICE that in pursuance of the said order and as directed therein, a meeting of the equityshareholders of OCL India Limited, the Applicant/Transferor Company No. 1, will be convened and held at thepremises of the Applicant/Transferor Company No. 1 at Rajgangpur-770017, District Sundargarh, Odisha on Sunday,November 27, 2016 at 11 a.m., at which place, day, date and time you are requested to attend and vote.
TAKE FURTHER NOTICE that you may attend and vote at the said meeting in person or by proxy provided that aproxy in the prescribed form, duly signed by you or your authorized representative, is deposited at the premisesof the Applicant/Transferor Company No. 1 at Rajgangpur-770017, District Sundargarh, Odisha, not later than 48hours before the said meeting.
The Hon’ble High Court has appointed Mr. B. C. Mohanty, Advocate, and failing him, Mr. P. K. Dash, Advocate tobe the Chairperson of the said meeting.
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A copy of the Explanatory Statement under Section 393 of the Companies Act, 1956 read with Section 102 of theCompanies Act, 2013 and other applicable provisions, Scheme of Arrangement and Amalgamation, ObservationLetters from National Stock Exchange of India Limited and BSE Limited, Complaints Report, Fairness Opinion,Form of Proxy and Attendance Slip are enclosed herewith.
Dated this 26th day of October, 2016
B. C. MohantyChairman appointed for the meeting
Registered office:Rajgangpur-770017, Dist. SundargarhOdisha, India
Notes:
1. Only registered equity shareholders of the Applicant/Transferor Company No. 1 may attend and vote(either in person or by proxy) at the equity shareholders’ meeting. The authorized representative of a bodycorporate which is a registered equity shareholder of the Applicant/Transferor Company No. 1 may attendand vote at the equity shareholders’ meeting provided a certified true copy of the resolution of the board ofdirectors or other governing body of the body corporate is deposited at the registered office of the Applicant/Transferor Company No. 1 not later than 48 hours before the meeting, authorizing such representative toattend and vote at the equity shareholders’ meeting.
2. A member entitled to attend and vote at the equity shareholders’ meeting is entitled to appoint a proxy toattend and vote instead of himself and such proxy need not be a member of the Applicant/TransferorCompany No. 1. The Form of Proxy duly completed should, however, be deposited at the registered officeof the Applicant/Transferor Company No. 1 not less than 48 hours before the meeting.
3. All alterations made in the Form of Proxy should be initialed.
4. Foreign Portfolio Investor (FPI)/Foreign Institutional Investor (FII) who are registered equity shareholdersof the Applicant/Transferor Company No. 1 would be required to deposit certified copies of custodialresolutions/power of attorney, as the case may be, authorizing the individuals named therein, to attendand vote at the meeting on its behalf. These documents must be deposited at the registered office of theApplicant/Transferor Company No. 1 not later than 48 hours before the meeting.
5. A member or his proxy is requested to bring the copy of the notice to the meeting, the attendance slipduly completed and signed and produce them at the entrance of the meeting venue.
6. Members are informed that in case of joint holders attending the meeting, only such joint holder whosename stands first in the register of members of the Applicant/Transferor Company No. 1 in respect of suchjoint holding will be entitled to vote.
7. The Notice is being sent to the registered address of all the equity shareholders whose names appear inthe Register of Members/Beneficial Owners as per the details furnished by the Depositories as on Friday,October 14, 2016. This Notice of the Court Convened Meeting of Members of the Applicant/TransferorCompany No. 1 is also displayed / posted on the website of the Applicant/ Transferor Company No. 1www.oclindialtd.in.
Encl.: As above
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OCL INDIA LIMITEDCIN No.: L26942OR1949PLC000185
Regd. Office: Rajgangpur- 770 017, District Sundargarh, OdishaTel. No . :(06624)221212, 220121
(Notice pursuant to sections 108 and 1 10 of Comp anies Act 2013 and other applicable provisions)
To,
The equity shareholders of OCL India Limited (“Applicant/T ransferor Comp any No. 1 ”),
NOTICE is hereby given pursuant to section 108 and 110 of Companies Act 2013 read with Companies (Managementand Administration) Rules, 2014 and other applicable provisions, if any, that the resolution appended below forapproval of the Scheme of Arrangement and Amalgamation amongst OCL India Limited, Dalmia Cement EastLimited, Shri Rangam Securities & Holdings Limited, Dalmia Bharat Cements Holdings Limited (collectivelyreferred to as “Transferor Comp anies ”) and Odisha Cement Limited (“Transferee Comp any”) and their respectiveshareholders and creditors (“Scheme ” or “Scheme of Arrangement and Amalgamation ”) is proposed to bepassed by the Members of the Company through postal ballot/e-voting.
Para I.A.9(a) of Annexure I of the circular bearing no. CIR/CFD/CMD/16/2015 dated November 30, 2015 issued bySecurities and Exchange Board of India (“SEBI” and such circular hereinafter referred to as “SEBI Circular ”)requires the listed companies to ensure that the Scheme provides for voting by public shareholders through postalballot and e-voting after disclosure of all material facts in the explanatory statement sent to the shareholders inrelation to such resolution, in the cases as prescribed in the SEBI Circular, which are applicable to the presentScheme. Further, in terms of para I.A.9(b) of the SEBI Circular, the Scheme shall be acted upon only if the votescast by the public shareholders in favour of the proposal are more than the number of votes cast by the publicshareholders against it. The term ‘public’ shall carry the same meaning as defined under Rule 2 of SecuritiesContracts (Regulation) Rules, 1957. The Applicant/Transferor Company No. 1 hereby seeks the approval of itspublic equity shareholders to the Scheme of Arrangement and Amalgamation by way of postal ballot including e-voting, pursuant to Sections 110 and 108 of the Companies Act, 2013 read with the Companies (Management andAdministration) Rules, 2014, Securities and Exchange Board of India (Listing Obligations and DisclosureRequirements) Regulations, 2015 (“SEBI LODR Regulations ”) and the SEBI Circular and subject to the requirementsspecified in the Observation Letters, both dated July 12, 2016, issued by the BSE Limited and National StockExchange of India Limited pursuant to the SEBI Circular and other applicable laws.
The Audit Committee and the Board of Directors of the Applicant/Transferor Company No. 1 at their respectivemeetings held on Monday, 28th March, 2016 have approved the Scheme of Arrangement and Amalgamation,subject to approval by the requisite majority of the shareholders and secured creditors of the Applicant/TransferorCompany No. 1 as may be required, and subject to the sanction of the Jurisdictional Hon’ble High Court and ofsuch other authorities as may be necessary.
By Order passed on October 06, 2016 in Company Petition No. 37 of 2016, the Hon’ble High Court of Judicatureat Orissa, has directed, inter alia, that a meeting of the equity shareholders of the Applicant/Transferor CompanyNo. 1 (“Court Convened Shareholders’ Meeting ”) be convened and held at the premises of the Applicant/Transferor Company No. 1, at Rajgangpur-770017, District Sundargarh, Odisha on Sunday, November 27, 2016 at11 a.m., for the purpose of considering and if thought fit approving with or without modification(s), the proposedarrangement and amalgamation embodied in the Scheme. Accordingly, a separate notice is attached for thesame.
In addition to the Court Convened Shareholders’ Meeting, the Applicant/Transferor Company No. 1 also seeks theapproval of its public equity shareholders on a resolution approving the Scheme by way of postal ballot/e-voting as
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per the requirements of the SEBI Circular in accordance with the applicable provisions of the Companies Act,2013, rules thereunder, the SEBI LODR Regulations, the SEBI Circular and under relevant provisions of theapplicable laws.
The Applicant/Transferor Company No. 1 has appointed Mr. Mohan Ram Goenka, Partner of M/s MR & Associates,Company Secretaries, in practice (Membership No FCS4515, CP No. 2551) as the Scrutinizer for conducting thepostal ballot and e-voting process in a fair and transparent manner.
Further, the Applicant/Transferor Company No. 1 has engaged National Securities Depository Limited (“NSDL”) toprovide e-voting facility to its eligible equity shareholders to enable them to cast their votes electronically insteadof dispatching Postal Ballot Form. E-voting is optional. If an equity shareholder has voted on the e-voting facility,he/she is not required to send a postal ballot form to the Applicant/Transferor Company No. 1. If an equityshareholder has voted on the e-voting facility and also sends his/her postal ballot form, only the votes cast throughthe e-voting facility shall be considered by the Scrutinizer and his vote casted by post shall be treated as invalid.It is further clarified that casting of votes by postal ballot form or e-voting does not disentitle a public shareholderfrom attending and voting at the Court Convened Shareholders’ Meeting.
The voting period for postal ballot / e-voting commences on Thursday, November 03, 2016 at 9 a.m. and ends onFriday, December 02, 2016 at 5 p.m. The e-voting module shall be disabled for voting thereafter. Following is theResolution to be passed by the public equity shareholders of the Applicant/ Transferor Company No. 1 throughpostal ballot and e-voting:
Proposed Resolution
To consider, and, if thought fit, to pass, the following Resolution:
“RESOL VED THAT pursuant to the provisions of Sections 391 to 394 of the Companies Act, 1956, CompaniesAct, 2013, Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations,2015 and other applicable provisions (including any statutory modification(s) or re-enactment thereof) for the timebeing in force, the provisions of the Memorandum and Articles of Association of the Company and subject to theapproval of the Jurisdictional Hon’ble High Court and subject to such other approvals, permissions and sanctionsof regulatory and other authorities, as may be necessary, and subject to such conditions and modifications asmay be prescribed, imposed or approved by the Jurisdictional Hon’ble High Court or by any regulatory or otherauthorities, while granting such consents, approvals and permissions, which may be agreed to by the Board ofDirectors of the Company (hereinafter referred to as the “Board ”, which term shall be deemed to mean and includeone or more Committee(s) constituted/to be constituted by the Board to exercise its powers including the powersconferred by this Resolution), the Scheme of Arrangement and Amalgamation amongst OCL India Limited, DalmiaCement East Limited, Shri Rangam Securities & Holdings Limited, Dalmia Bharat Cements Holdings Limited andOdisha Cement Limited and their respective shareholders and creditors (“Scheme of Arrangement andAmalgamation ”) circulated to the shareholders of the Company along with the notice of postal ballot and e-voting, and the arrangement and amalgamation embodied therein be and are hereby approved.
RESOLVED FURTHER THAT the Board be and is hereby authorized to do all such acts, deeds, matters andthings, as may be considered requisite, desirable, appropriate or necessary to give effect to this Resolution andeffectively implement the arrangement and amalgamation as embodied in the Scheme of Arrangement andAmalgamation and to accept such modifications, amendments, limitations and/or conditions, if any, which maybe required and/or imposed by the Jurisdictional Hon’ble High Court while sanctioning the Scheme of Arrangementand Amalgamation or by any authorities under law, or as may be required for the purpose of resolving any doubtsor difficulties that may arise in giving effect to the Scheme of Arrangement and Amalgamation, as the Board maydeem fit and proper.”
NOTES:
1. Explanatory Statement for the proposed Resolution pursuant to Section 102 of the Companies Act, 2013 alongwith applicable rules thereunder and provisions of Section 393 of the Companies Act, 1956 setting out materialfacts forms part of this Notice.
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2. The Notice is being sent to the registered address of all the equity shareholders whose names appear in theRegister of Members/Beneficial Owners as per the details furnished by the Depositories as on Friday, October 14,2016. The equity shareholders who have registered their e-mail IDs for receipt of documents in electronic modewould also be sent the notice of postal ballot by e-mail.
3. Voting rights for the postal ballot/e-voting shall be reckoned on the paid up value of the shares registered in thenames of the equity shareholders as on Friday, October 14, 2016, (the “Cut-Off Date ”). A person who is not aMember as on the Cut-Off date should treat this Notice for information purposes only.
4. Equity shareholders can also download the postal ballot form from the website of the Applicant/TransferorCompany No. 1, i.e., www.oclindialtd.in or seek duplicate postal ballot form.
5. All the material documents referred to in the accompanying Notice and the Explanatory Statement shall beopen for inspection by the shareholders at the premises of the Applicant/Transferor Company No. 1 at Rajgangpur-770 017, District Sundargarh, Odisha during office hours on all working days between 11.00 a.m. and 1.00 p.m. upto the last date for receipt of the postal ballot specified in the accompanying Notice.
6. Procedure for voting through Postal Ballot
A. An equity shareholder desiring to exercise vote by postal ballot may complete the postal ballot form attachedto this Notice (no other form or photocopy thereof is permitted) and send it to the Scrutinizer using the selfaddressed Business Reply envelop provided along with this Notice. However, envelopes containing postal ballotform(s), if deposited in person or if sent by courier or registered/speed post at the expense of the shareholder willalso be accepted.
B. The postal ballot form should be signed by the equity shareholder as per specimen signature registered withthe RTA. In case, shares are jointly held, the form should be completed and signed (as per specimen signatureregistered with the Company) by the first named member and in his/her absence, by the next named member.Holders of Power of Attorney (POA) on behalf of member may vote on the postal ballot mentioning the registrationno. of the POA or enclosing an attested copy of POA. Unsigned postal ballot form will be rejected.
C. Duly completed postal ballot form should reach the Scrutinizer not later than the close of working hours i.e.,5.00 p.m. on Friday, December 02, 2016. Postal ballot forms received after that date will be strictly treated as ifreply from such member has not been received.
D. In case of shares held by companies, trusts, societies, etc., the duly completed postal ballot form should beaccompanied by a certified copy of the Board Resolution/Authority and preferably with attested specimen signature(s)of the duly authorized signatory (ies) giving requisite authority to the person voting on the postal ballot form.
E. Members are requested not to send any other paper (other than the Resolution/authority as mentioned above)along with the postal ballot form in the enclosed self-addressed postage pre-paid envelope as all such envelopeswill be sent to the Scrutinizer and if any extraneous paper is found in such envelope the same would not beconsidered and would be destroyed by the Scrutinizer.
F. The exercise of vote by postal ballot is not permitted through proxy.
G. There will be only one postal ballot form for every Registered Folio/client ID irrespective of the number ofJoint Member(s).
H. Incomplete, improperly or incorrectly tick marked postal ballot forms will be rejected.
I. A shareholder need not use all the votes nor does he need to cast all the votes in the same way.
J. The Scrutinizer’s decision on the validity of a postal ballot form shall be final.
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K. The Scrutinizer shall submit his report to the Chairman or any Director of the Applicant/Transferor Company No.1 after completion of the scrutiny of the postal ballot forms including votes casted electronically. The result of thevoting on the Resolutions will be announced on Saturday, December 03, 2016 at Rajgangpur- 770 017, DistrictSundargarh, Odisha and subsequently displayed at the registered office of the Applicant/Transferor Company No.1 and also communicated to the stock exchange(s) and shall also be posted on the website of the Applicant/Transferor Company No. 1, i.e., www.oclindialtd.in.
L. The Applicant/Transferor Company No. 1 is pleased to offer e-voting facility as an alternate, for all the equityshareholders of the Applicant/Transferor Company No. 1 to enable them to cast their votes electronically insteadof dispatching postal ballot form. E-voting is optional.
M. The members can opt for only one mode of voting, i.e. either by postal ballot or e-voting. In case shareholderscast their votes through both the modes, voting done by e-voting shall prevail and votes cast through postal ballotform will be treated as invalid.
7. Procedure for voting through e-voting
A. The voting period begins on Thursday, November 03, 2016 at 9 a.m. and ends on Friday, December 02, 2016 at(5.00 p.m). During this period shareholders’ of the Applicant/Transferor Company No. 1, holding shares either inphysical form or in dematerialized form, as on the Cut-Off Date, i.e., Friday, October 14, 2016 may cast their voteelectronically. The e-voting module shall be disabled by NDSL for voting thereafter.
B. Procedure for e-voting is as follows:
In case a Member receives an e-mail from NSDL [for members whose e-mail Ids are registered with the Company/Depository Participant(s)]:-:
(i) Open e-mail and open PDF file viz; “OCL e-Voting.pdf” with your Client ID (in case shares are held in dematmode) or Folio No.(in case you are holding shares in physical mode) as default password. The said PDF filecontains your “user ID” and “password” for e-voting. Please note that the password is an initial password.
(ii) Launch internet browser by typing the following URL: https://www.evoting.nsdl.com/
(iii) Click on “Shareholder – Login”.
(iv) Insert user ID and password as initial password noted in step (i) above. Click “Login”
(v) “Password change” menu appears. Change the password with new password of your choice with minimum8 digits/ characters or combination the two. Note the new password. It is strongly recommended not toshare your password with any other person and take utmost care to keep your password confidential.
(vi) Home page of “e-Voting” opens. Click on “e-Voting: Active E-voting Cycles”.
(vii) Select “EVEN” (Electronic Voting Event Number) of OCL India Limited.
(viii) Now you are ready for e-voting as “Cast Vote” page opens.
(ix) Cast your vote by selecting appropriate option and click on “Submit” and also click on “Confirm” whenprompted.
(x) Upon confirmation, the message “Vote cast successfully” will be displayed.
(xi) Once you have voted on the resolution, you will not be allowed to modify your vote.
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(xii) For the votes to be considered valid, the corporate and institutional shareholders (companies, trusts, societies,etc.) are required to send a scanned copy (PDF/JPG format) of the relevant Board Resolution/ AppropriateAuthorization etc. together with attested specimen signature of the duly authorized signatory(ies), to theScrutinizer through e-mail at mailto:[email protected] or [email protected] with acopy marked to [email protected].
(xiii) In case of any queries, you may refer the Frequently Asked Questions (FAQs) for shareholders ande-voting user manual for shareholders available at the “Downloads” section of www.evoting.nsdl.com. Forany further grievance related to the e-voting, members may call on toll free no.: 1800222990 or contactMr. Rajiv Ranjan, Assistant Manager, National Securities Depositories Limited, Trade World, ‘A’ Wing, 4th
Floor, Kamala Mills Compound, Senapati Bapat Marg, Lower Parel, Mumbai—400 013 at the designatedemail IDs: [email protected] or [email protected] or at telephone nos. 022 24994600/022 24994738 whowill address the grievance connected with the voting by electronic means.
In case a Members receives physical copy of the postal ballot notice [for members whose email Ids are notregistered with the Company/Depository Participant(s) or requesting physical copy]:
(i) User ID and initial password is provided at the bottom of the postal ballot form.
(ii) Please follow all steps from Sr. No. (ii) to (xii) above, to cast your vote.
By Order of the Board of DirectorsFor OCL India Limited
Rachna GoriaDate: October 26, 2016 General Manger (Legal) & Company Secretary
Registered Office:
Rajgangpur, Distt. SundargarhOdisha- 770017
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In the Hon’ble High Court of Orissa, CuttackOriginal Jurisdiction
Company Petition No. 37 of 2016
In the matter of Companies Act, 1956
AND
In the matter of Sections 391 to 394 Companies Act,1956
AND
In the matter of Scheme of Arrangement andAmalgamation amongst OCL India Limited, DalmiaCement East Limited, Shri Rangam Securities &Holdings Limited, Dalmia Bharat Cements HoldingsLimited and Odisha Cement Limited and their respectiveshareholders and creditors
OCL India Limited )a company incorporated under the provisions of the )Companies Act, 1913, having its registered office at )Rajgangpur-770017, Dist. Sundargarh, )Odisha, India ) ……..Applicant/Transferor Company No. 1
EXPLANATORY STATEMENT UNDER SECTION 393 OF THE COMPANIES ACT, 1956 AND SECTIONS 110AND 102 OF THE COMPANIES ACT, 2013 AND OTHER APPLICABLE PROVISIONS FOR COURT -CONVENEDMEETING OF EQUITY SHAREHOLDERS AND POSTAL BALLOT & E-VOTING
1. Pursuant to an order dated October 06, 2016 passed by the Hon’ble High Court of Orissa at Cuttack in theCompany Petition referred to above (“Petition ”), a meeting of the equity shareholders of OCL India Limited,the Applicant/Transferor Company No. 1, is being convened and held at the premises of the Applicant/Transferor Company No. 1 at Rajgangpur-770017, Dist. Sundargarh, Odisha on Sunday, November 27,2016 at 11 a.m. for the purpose of considering and if thought fit, approving with or without modification(s),the arrangement and amalgamation embodied in the Scheme of Arrangement and Amalgamation amongstOCL India Limited (“OCL”), Dalmia Cement East Limited (“DCEL”), Shri Rangam Securities & HoldingsLimited (“SRSHL”), Dalmia Bharat Cements Holdings Limited (“DBCHL ”) and Odisha Cement Limited(“ODCL”) and their respective shareholders and creditors (“Scheme ”).
2. Additionally, in terms of Para I.A.9.of Annexure I of Securities and Exchange Board of India (“SEBI”)Circular No. CIR/CFD/CMD/16/2015 dated November 30, 2015 (“SEBI Circular ”), the said Scheme shallalso be subject to the approval of public shareholders (i.e. equity shareholders other than those formingpart of Promoter and Promoter Group) by passing a Resolution through postal ballot/e-voting, as specifiedin the notice of postal ballot & e-voting. This Statement shall also be taken for the purpose of the Noticeof postal ballot & e-voting.
In terms of SEBI Circular, the Scheme shall be acted upon only if the votes cast, by way of postal ballotand e-voting, by the public shareholders in favour of the proposal are more than the number of votes castby the public shareholders against it.
3. A copy of the Scheme setting out in detail the terms and conditions of the arrangement and amalgamationincluding, inter alia, the following:
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(a) Transfer and vesting of Power Undertakings of OCL, Rail Undertaking of OCL, and Solid WasteManagement System Undertaking of OCL (hereinafter collectively referred to as TransferredUndertakings 1 ") to ODCL by way of Slump Sale and amalgamation of OCL (post Slump Sale ofTransferred Undertakings 1) with ODCL (collectively referred to as “OCL Restructuring ”);
(b) Transfer and vesting of Rail Undertaking of DCEL and Solid Waste Management System Undertakingof DCEL (hereinafter collectively referred to as Transferred Undert akings 2 ") to ODCL by way ofSlump Sale and amalgamation of DCEL (post Slump Sale of Transferred Undertakings 2), SRSHLand DBCHL with ODCL, (collectively referred to as “DCEL DBCHL SRSHL Restructuring ”).
which has been approved by Board of Directors of the Applicant/Transferor Company No. 1 at itsmeeting held on March 28, 2016, is attached to this Explanatory Statement.
4. Definitions contained in the Scheme shall apply to this Explanatory Statement also.
5. Background of companies involved in the Scheme
5.1 OCL India Limited (“OCL” or “Applicant/T ransferor Comp any No. 1 ”):
5.1.1. OCL, having corporate identity number (CIN) L26942OR1949PLC000185, is a listed public companylimited by shares, incorporated on October 11, 1949 under the provisions of the Companies Act,1913 under the name of “Orissa Cement Limited”. On January 15, 1996, its name was changedto “OCL India Limited”.
5.1.2. The Applicant/Transferor Company No. 1 has its registered office at Rajgangpur-770017, Dist.Sundargarh, Odisha.
5.1.3. The authorised, issued, subscribed and paid-up share capital of the Applicant/Transferor CompanyNo. 1 as on March 31, 2016 is as follows:
Particulars Amount (in Rs.)
Authorized Capital
1,00,000 (One Lakh) Equity Shares of Rs. 100 (Rupees One Hundred) each 1,00,00,000
7,00,00,000 (Seven Crore) Equity Shares of Rs. 2 (Rupees Two) each 14,00,00,000
Issued Capital
6,36,31, 805 (Six Crores Thirty six Lakhs Thirty one Thousand Eight 12,72,63,610
Hundred and Five) Equity Shares of Rs. 2 (Rupees Two) each fully paid up
Subscribed and Paid-up Capital
5,69,00,220 (Five Crore Sixty nine Lakhs Two Hundred and Twenty) 11,38,50,183*
Equity Shares of Rs. 2 (Rupees Two) each fully paid up
*Including the share forfeited account amount i.e. Rs.49,743
5.1.4. An extract of the relevant main objects of the Applicant/Transferor Company No. 1 which are setout in its Memorandum of Association are as under:
III. “1.To produce, manufacture, refine, prepare, import, export, purchase, sell and generally to deal inall kinds of cement (ordinary, white, coloured, portland, alumina, blast furnace, silica, etc, etc.),cement products of any description (pipes, poles, asbestos sheets, blocks, tiles, gardenwares, etc.),lime, limestone and/or by-products thereof, and in connection therewith to take on lease or acquire,
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erect , construct, establish operate and maintain cement factories, quarries and collieries workshopsand other works.
40. To do all such other things as are incidental or conducive to the attainment of the above objects.”
5.1.5. The Applicant/Transferor Company No. 1 is engaged in the business of manufacturing and sellingcement and refractories, generating power and maintaining & operating rail systems and solid wastemanagement system, which provide services to its cement & refractory business.
5.2 Dalmia Cement East Limited (“DCEL”):
5.2.1. DCEL, having corporate identity number (CIN) U45209TN2008PLC110322, is an unlisted publiccompany limited by shares, incorporated on March 13, 2008 under the provisions of the CompaniesAct, 1956 under the name of “Bokaro Jaypee Cement Limited.” On December 30, 2014, it changed itsname to “Dalmia Cement East Limited.”
5.2.2. The registered office of DCEL has been shifted from 11th Floor, Hansalaya Building, 15, BarakhambaRoad, New Delhi-110001 to Dalmiapuram Lalgudi Taluk, Dalmiapuram-621651, Dist. Tiruchirappalli,Tamil Nadu with effect from May 11, 2016.
5.2.3. The authorised, issued, subscribed and paid-up share capital of DCEL as on March 31, 2016 isas follows:
13,36,50,000 (Thirteen Crores Thirty Six Lakh Fifty Thousand) 133,65,00,000
equity shares of Rs. 10/- (Rupees Ten) each fully paid up
5.2.4. An extract of the relevant main objects of DCEL as set out in its Memorandum of Associationare as under:
III(A) 1. “To produce, manufacture, treat, process, prepare, refine, import, export, purchase, sell,trade and generally to deal in either as principals or as agents, contractors, technical advisors,consultants, stockists, distributors, and suppliers either solely or in partnership with others, all typesand kinds of cement, including but not limited to, blast furnace slag, Portland pozzolana, ordinary,white, coloured, alumina, silica and all other varieties of cements, lime and limestone, clinker and /orby products thereof, as also cement products of any or all descriptions, such as pipes, poles, slabs,asbestos sheets, blocks, tiles, garden-wares, plaster of paris, lime, bricks, stones, potteries-earthenor china and similar goods and any substitutes thereof or building materials of any kind and all thingsused by builders and contractors and otherwise any articles, things, compounds and preparationsconnected with the aforesaid products, and in connection therewith to buy, procure, take on lease orotherwise acquire, erect, construct, establish, work, operate and maintain factories, undertakings,quarries, mines and workshops at Bokaro or any other place(s).
2. To carry on all or any of the business as manufacturers and sellers of and dealers and workers incements of all kinds, lime, plasters, whiting, clay, gravel, sand minerals, earth, coke, fuel, gypsum,jute, hessian cloth, gunny bags, paper bags, artificial stone and all builders’ requisites made out ofcement and cement products and conveniences of all kinds.
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3. To purchase, take on lease, or on royalty basis or otherwise acquire mines, mining rights, mininglicenses, mining claims and metalliferous land or any interest therein and to explore, prospect, quarry,mine, dress, reduce, draw, extract, smelt, refine, manufacture, process and otherwise acquire, buy,sell or otherwise dispose of and deal in all types, qualities and descriptions of lime, lime deposits,limestone and other ores, metal and mineral substances, to undertake any or all activities connectedwith mining of lime deposits and lime beneficiation and to carry on any other metallurgical operations.
4. To import, export, purchase, sell, repair, assemble, supervise, install, or otherwise deal in all types ofcement manufacturing and lime stone mining machineries, tools and implements, smelters, boilers,crushing machines and furnaces.”
III(B).45. To do all and everything necessary, suitable or proper for the accomplishment of any of thepurpose or the attainment of any of the objects or the furtherance of any of the powers herein beforeset forth, either alone or in association with other act or acts, thing or things incidental or appurtenantto or growing out of or connected with the aforesaid business or powers, any part or parts thereof,provided that the same is not inconsistent with the laws of the Union of India.
III(C). 37.To construct, design, execute, develop, set-up, maintain, operate, undertake, erect, establish,carry-out, improve, repair, work, own, administer or manage on commission or on ‘Build-OperateTransfer (BOT) basis’ or otherwise, power projects - Hydro- electric or Thermal, roads, highways,bridges, airports, ports, rail systems, water supply projects, irrigation projects, water treatment systems,solid waste management system or sanitary and sewerage management system or any other publicutility or facility service of all kinds and all incidental activities connected therewith in India or abroad.”
5.2.5. DCEL is engaged in the business of manufacturing & selling cement, maintaining & operating railsystems and solid waste management system, which provide services to the cement business.
5.3.1. SRSHL, having corporate identity number (CIN) U26950TN2014PLC095685, is an unlisted publiccompany limited by shares, incorporated on March 25, 2014 under the provisions of theCompanies Act, 1956.
5.3.2. The registered office of SRSHL is situated at Dalmiapuram Lalgudi Taluk, Dalmiapuram-621651,Dist. Tiruchirappalli, Tamil Nadu.
5.3.3. The authorised, issued, subscribed and paid-up share capital of SRSHL as on March 31, 2016 isfollows:
Particulars Amount (in Rs.)
Authorized Capital
10,00,00,000 (Ten Crore) equity shares of Rs 10/- (Rupees Ten) each 1,00,00,00,000
5.3.4. An extract of the relevant main objects of SRSHL which are set out in its Memorandum ofAssociation are as under:
“5.To carry on the business, in India or elsewhere in the world, of designing, developing, importing,procuring, selling, providing, dealing in, exporting, providing consultancy, licensing (whether ready orfuture delivery) and marketing (whether directly or through third parties) information technology services,e-commerce related services, desktop system management, application software services, network
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related services, site services, information kiosk services, value added network services, managedoperations, international procurement operations and to establish, maintain, conduct customer softwaretraining centre, and programming based education centres and programmes in the field of informationtechnology and related areas.”
“1.To produce, manufacture, treat, process, refine, distribute in bulk, export from and import intoIndia, set up overseas or in India, ventures with or without foreign collaboration, purchase, sell and orotherwise deal with cement and cement grades of all kinds, ready-mix concrete, lime-stone, aggregates,clinker and/or by-products thereof, manufacture and prepare porcelain clay and its adjuncts andincidental products and to act as brokers, agents, stockists, distributors and suppliers of all kinds ofcement (whether ordinary, white, coloured, portland, pozzalana, alumina, blast furnaces, silica orotherwise), cement products of any description, such as pipes, poles, slabs, asbestos, sheets,blocks, tiles, garden wares and articles, things, compounds and preparations connected with theaforesaid products and in connection there-with to take on lease or acquire, erect, construct, establish,work, operate and maintain cement factories, quarries, mines, workshops and other works and rechargeand recycle waste products from other industries and convert them into value-added products throughthe route of cement and to take over and turnaround of troubled cement companies.”
5.3.5. SRSHL is engaged in the business of, inter alia, providing management services.
5.4.1. DBCHL, having corporate identity number (CIN) U26911TN2014PLC095681, is an unlisted publiccompany limited by shares, incorporated on March 25, 2014 under the provisions of theCompanies Act, 1956.
5.4.2. The registered office of DBCHL is situated at Dalmiapuram Lalgudi Taluk, Dalmiapuram-621651, Dist. Tiruchirappalli, Tamil Nadu.
5.4.3. The authorised, issued, subscribed and paid-up share capital of DBCHL as on March 31, 2016 asfollows:
Particulars Amount (in Rs.)
Authorized Capital
10,00,00,000 (Ten Crore) equity shares of Rs 10/- (Rupees Ten) each 1,00,00,00,000
Issued, Subscribed and Paid-up Capital
8,31,60,000 (Eight Crores Thirty one Lakh Sixty Thousand)
equity shares of Rs. 10/- (Rupees Ten) each fully paid up 83,16,00,000
5.4.4. An extract of the relevant main objects of DBCHL which are set out in its Memorandum ofAssociation are as under:
“III (C) 5.To carry on the business of advisers and consultants on all matters and problems relating tothe administration, organization, management, commencement or expansion of industry and business(including construction of plants and buildings, production, purchases, sales, marketing, advertising,publicity, personal, export and import), and of institutions, concerns, bodies, associations (incorporatedor unincorporated), departments and services of the Government, public or local authorities, trusts,scientific research and development centers. To act as a service organization or bureau for providingadvice and services in various fields- general, administrative, secretarial, consultancy, commercial,financial, legal, economic, labour, industrial, public relations, scientific, technical, direct and indirecttaxation and other levies, statistical, accountancy, quality control and data processing.
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III (A) 1. To produce, manufacture, treat, process, refine, distribute in bulk, export from and importinto India, set up overseas or in India ventures with or without foreign collaboration, purchase, sell andor otherwise deal with cement and cement grades of all kinds, ready-mix concrete, lime-stone,aggregates, clinker and/or by-products thereof, manufacture and prepare porcelain clay and its adjunctsor incidental products, bricks, tiles and other articles from such adjuncts and incidental products andto act as brokers, agents, stockists, distributors and suppliers of all kinds of cement (whether ordinary,white, coloured, portland, pozzalana, alumina, blast furnaces, silica or otherwise), cement products ofany description, such as pipes, poles, slabs, asbestos, sheets, blocks, tiles, garden wares andarticles, things, compounds and preparations connected with the aforesaid products and in connectionthere-with to take on lease or acquire, erect, construct, establish, work, operate and maintain cementfactories, quarries, mines, workshops and other works and recharge and recycle waste products fromother industries and convert them into value-added products through the route of cement and to takeover and turnaround of troubled cement companies.”
5.4.5. DBCHL is engaged in the business of, inter alia, providing management services.
5.5 Odisha Cement Limited (“ODCL”):
5.5.1. ODCL, having corporate identity number (CIN) U14200TN2013PLC112346, is an unlisted publiccompany limited by shares, incorporated on July 12, 2013 under the provisions of the CompaniesAct, 1956.
5.5.2. The registered office of ODCL has been shifted from Rajgangpur-770017, Dist. Sundargarh, Odishato Dalmiapuram, Lalgudi Taluk, Dalmiapuram-621651, Dist. Tiruchirappalli, Tamil Nadu with effectfrom September 02, 2016.
5.5.3. The authorised, issued, subscribed and paid-up share capital of ODCL as on March 31, 2016 isas follows:
Particulars Amount (in Rs.)
Authorized Capital
1,00,000 (One Lakh) Equity Shares of Rs. 10 (Rupees Ten) each 10,00,000
Issued, Subscribed and Paid-up
50,000 (Fifty Thousand) Equity Shares of Rs. 10 (Rupees Ten) each fully paid up 5,00,000
5.5.4. An extract of the relevant main objects of ODCL which are set out in its Memorandum of Associationare as under:
III(A) “(1)To produce, manufacture, treat, process, prepare, refine, import, export, purchase, sell andgenerally to deal in either as principals or as agents either solely or in partnership with others, all typesand kinds of cement ordinary, white coloured, Portland, pozzolana, alumina, blast furnace, silica andall other varieties of cement, lime and limestone, clinker and / or by-product thereof, as also cementproducts of any or all descriptions, such as pipes, poles, slabs, asbestos sheets, blocks, tiles,garden wares, plaster of paris, lime pipes, building materials and otherwise, and articles, things,compounds and preparations connected with the aforesaid products, and in connection therewith totake on lease or otherwise acquire, erect, construct, establish, work, operate and maintain factories,quarries, mines and workshop.
III(a) 5 To construct, design, execute, develop, set-up, maintain, operate, undertake, erect,establish, carry out, improve, repair, work, own, administer or manage on commission or on‘Build – Operate Transfer (BOT) basis’ or otherwise, power projects –based on conventional /non-conventional resources, roads, highways, bridges, airports, ports, rail systems, water supplyprojects, irrigation projects, water treatment systems, solid waste management system or sanitary
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and sewerage management system or any other public utility or facility service of all kinds and allincidental activities connected therewith in India or abroad.
III(B) 36. To do all or any of the above things and all such other things as are incidental or may bethought conducive to the attainment of the above objects or any of them, in any part of the world, andas principals, agents, contractors, trustees or otherwise, and by or through trustees, agents or otherwise,and either alone or in conjunction with others, and so that the word “company” in this Memorandumwhen applied otherwise than to this Company shall be deemed to include any authority, partnership orother body of persons, whether incorporated or not incorporated, and whether domiciled in India orelsewhere; and the intention is that the objects set forth in each of the several paragraphs of thisclause shall have the widest possible construction, and shall be no wise limited or restricted byreference to or inference from the terms of any other paragraph of this clause or the name of theCompany.
III(C) 21. To carry on the business of company established with the object of financing industrialenterprises within the meaning of Section 370 of the Companies Act, 1956, and to make loans, give,guarantees and provide securities to any other company, whether promoted by this company or not.To acquire to take over with or without consideration and/or carry on the business of as financialadvisers and management consultants by themselves or in partnership with other companies,partnerships or other persons. Generally to carry on business and financiers and to undertake andcarry out all such operations and transactions as an individual capitalist may lawfully undertake, carryout.”
5.5.5. ODCL is authorised to carry on, inter alia, the business of manufacturing and selling cement.
6. OCL, ODCL, DCEL, SRSHL and DBCHL are all part of Dalmia Bharat group. Approximately 74.7% of thepaid-up equity share capital of OCL is held by Dalmia Cement Bharat Limited (“DCBL”). ODCL is a whollyowned subsidiary of OCL. Further, DBCHL is a wholly owned subsidiary of DCBL and SRSHL and DCELare the step-down wholly owned subsidiaries of DCBL.
7. Rationale for the Scheme
The circumstances and/or reasons which justify and/or necessitate the implementation of the Scheme,are inter alia, as follows:
7.1 The arrangement and amalgamation would result in consolidation of business and operations of theDalmia Bharat group in eastern India into one entity and simplification of the group corporate structure.
7.2 The arrangement and amalgamation will provide synergistic integration of OCL and DCEL’s businessoperations thus enabling better operational management and greater focus
7.3 Synergies arising out of consolidation of alike and supporting businesses through the arrangement andamalgamation will lead to (a) reflection of fair value of OCL, DCEL, SRSHL & DBCHL in the amalgamatedODCL (as all assets, tangible and intangible, including off-balance sheet items of OCL, DCEL, SRSHL,DBCHL shall be taken over by ODCL, all assets shall be recorded at their respective fair values and crossholdings amongst companies shall be eliminated); (b) improved earnings and cash flow of amalgamatedODCL and (c) improved alignment of debt repayments with sales realisations.
7.4 The amalgamated ODCL would have better leveraging capability due to its enlarged net worth base andincreased capability for offering a wider portfolio of products and services by virtue of its diversified businessesand resource base and deeper client relationships, resulting in enhanced businesses potential and betterprospects for the group.
7.5 The arrangement and amalgamation would result in financial resources of OCL, DCEL, SRSHL, DBCHLand ODCL being efficiently pooled, leading to centralised and more efficient management of funds, greater
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economies of scale and a bigger and stronger resource base for future growth, which are presently dividedand are getting dissipated amongst multiple corporate entities within the group.
7.6 The arrangement and amalgamation will bring about simplicity in working, reduce various statutory andregulatory compliances and related costs, which presently have to be duplicated in different entities,reduction in operational and administrative expenses and overheads, better cost and operational efficienciesand it would also result in coordinated optimum utilization of resources.
7.7 The arrangement and amalgamation will result not only in consolidating and improving the internal systems,procedures and controls but will also bring greater management and operational efficiency due to integrationof various similar functions presently being carried out in each individual entity within the group such asinformation technology, human resources, finance, legal and general management, and this will lead tothe organization becoming more efficient and capable of responding swiftly to volatile and rapidly changingmarket scenarios.
7.8 The arrangement and amalgamation will streamline the decision making process, help in better utilizationof human resources and will also provide better career opportunities to employees.
7.9 The arrangement and amalgamation will facilitate consolidation and rationalisation of borrowings of OCL,DCEL, SRSHL and DBCHL in ODCL which will assist not only in better debt planning and managementbut will also improve the debt servicing abilities through improved cash flows and make the debtadministration simpler not only for the amalgamated entity but also for the lenders. This will facilitate notonly in better negotiation of terms and conditions with lenders including banks and financial institutions,etc., but in also being able to get less stringent and more favourable terms from them.
7.10 The arrangement and amalgamation is, thus, likely to result in facilitating enhancement in value for allstakeholders and seamless access to strong business relationships of the Transferor Companies and isexpected to provide other intangible benefits that OCL has built over decades, while at the same timeenhancing the scale of operations and enabling better attention and focus to be given in an integratedmanner to all the businesses so as to enable achievement of their full potential.
8. Share Exchange Ratio
8.1 The Valuation Report dated March 28, 2016 prepared by M/s. Sharp & Tannan, an independent CharteredAccountant, recommended the:
(i) Share Entitlement Ratio for OCL Restructuring as under:
“1 (one) fully paid Equity Share of face value of INR 10/- each of ODCL, for every 1 (one) fully paidEquity Share of face value of INR 2/- each held in OCL India Ltd.”
(ii) Consideration for DCEL DBCHL SRSHL Restructuring as under:
“3,43,00,000 (Three Crores Forty Three Lakhs) fully paid Optionally Convertible RedeemablePreference Share (“OCRPS”) of INR 10 each of ODCL at a premium of INR 90 per share to beissued to the shareholders of DBCHL on the following terms:● Term: upto 10 years;● Conversion option: before 18 months from the date of allotment at the then prevailing SEBI
preferential issue guidelines price. The conversion of OCRPS into equity shares shall belimited to such numbers as would enable ODCL to continue fulfilling the criteria of minimumpublic shareholding as per Rule 19(2) and Rule 19A of the Securities Contracts (Regulation)Rules, 1957. Conversion ratio of OCRPS into equity shares being presently unknown, hencepossible increase in shareholding of promoter(s) in ODCL pursuant to conversion of ORCPSis also unknown at this stage.
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● Lock in: OCRPS shall be locked in for a period of 3 years from the date of allotmentprovided the same is not converted into equity shares within the Tenure for Conversion. Inthe event, OCRPS is converted into equity shares within the Tenure for Conversion, equityshares issued upon conversion shall be locked in for the balance period so that total periodof lock in (including the period of lock in for OCRPS) would be 3 years from the date ofallotment of OCRPS.
● Coupon: 0.1% per annum;● Redemption period: after 18 months but before 10 years at the option of the holder;● Redemption premium: on a 6% p.a. yield-to-maturity basis.”
8.2 Axis Capital Limited, an independent Merchant Banker, has independently vetted the valuation and havefurnished a ‘Fairness Opinion’ on the aforementioned share entitlement ratio and considerationrecommended in the Valuation Report of M/s. Sharp & Tannan, Chartered Accountants, from a financialpoint of view.
8.3 The Scheme, alongwith the Valuation Report and the Fairness Opinion, was placed before the board ofdirectors of the Applicant/Transferor Company No. 1 at their meeting held on March 28, 2016. The boardof directors of the Applicant/Transferor Company No. 1, based on and relying upon the aforesaid ValuationReport, Fairness Opinion and based on the recommendations of the Audit Committee and also basis theirindependent evaluation and judgment, came to the conclusion that the proposed share entitlement ratioand consideration is fair and reasonable and decided to incorporate the same in the Scheme.
9. Salient Features of the Scheme
The terms and conditions of the arrangement are set out in the Scheme. The salient features of theScheme are interalia as under:
9.1 The ‘Appointed Date’ for the Scheme is January 1, 2015 or such other date as may be directed by theHigh Court(s).
9.2 ‘Effective Date 1’ means the last of the dates on which certified/authenticated copy of the order of therespective High Court(s) sanctioning the Scheme is filed with the relevant Registrar of Companies byDCEL and ODCL. References in the Scheme to ‘upon Part IV of the Scheme becoming effective’ or ‘uponPart IV of the Scheme coming into effect’ shall mean the Effective Date 1.
9.3 ‘Effective Date 2’ means the 15th day (or such other date as may be agreed upon by the Board of Directorsof DCEL, SRSHL, DBCHL and ODCL) following the last of the dates on which certified/authenticated copyof the order of the respective High Court(s) sanctioning the Scheme is filed with the relevant Registrar ofCompanies by DCEL, SRSHL, DBCHL and ODCL. References in the Scheme to ‘upon Part VI of theScheme becoming effective’ or ‘upon Part VI of the Scheme coming into effect’ shall mean the EffectiveDate 2.
9.4 ‘Effective Date 3’ means the latter of (i) the last of the dates on which certified/authenticated copy of theorder of the respective High Court(s) sanctioning the Scheme is filed with the relevant Registrar of Companiesby OCL and ODCL or (ii) date of receipt of approval of the State Government/other regulatory body fortransfer of captive mining lease from OCL to ODCL in accordance with the MMDR Amendment Act, 2016and Mineral Concession Rules, 1960 or any other applicable regulations such that the same has nofinancial or other material adverse impact on ODCL. References in the Scheme to ‘upon Part III of theScheme becoming effective’ or ‘upon Part III of the Scheme coming into effect’ or ‘upon Part V of theScheme becoming effective’ or ‘upon Part V of the Scheme coming into effect’ shall mean the EffectiveDate 3;
9.5 Upon Part III of the Scheme becoming effective, with effect from the Appointed Date, the whole of theundertaking of OCL together with its business and operations, pertaining to (i) Power Undertakings ofOCL (power plants located at Rajgangpur and at Kapilas, Odisha) (ii) Rail Undertaking of OCL (railwaylines or enterprise at Kapilas, Odisha) and (iii) Solid Waste Management System Undertaking of OCL
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(developing, operating and maintaining infrastructure facility at Kapilas in relation to collection, transportation,storage, processing & re-cycling/reprocessing of waste product into another product), along with all theassets, liabilities, contracts, agreements, consents, benefits, entitlements etc, shall stand transferred toand be vested in ODCL, as a going concern, by way of Slump Sale.
Upon Part III of the Scheme coming into effect, OCL shall record “Loan payable to ODCL” for INR 24Crores in its books as the liabilities being higher than the assets transferred to ODCL by OCL.
9.6 Upon Part IV of the Scheme becoming effective, with effect from the Appointed Date, the whole of theundertaking of DCEL together with its business and operations pertaining to (i) Rail Undertaking of DCEL(railway lines or enterprise at Topkadih in Bokaro, Jharkhand) and (ii) Solid Waste Management SystemUndertaking of DCEL (developing, operating and maintaining infrastructure facility for collection,transportation, storage, processing & re-cycling/reprocessing of waste product into another product),along with all the assets, liabilities, contracts, agreements, consents, benefits, entitlements etc, shallstand transferred to and be vested in ODCL, as a going concern, by way of Slump Sale.
Upon Part IV of the Scheme coming into effect, ODCL shall discharge the lump sum consideration of INR124 Crores payable by it to DCEL, by issue of commercial paper or such other instrument, on such termsand conditions, or in any other manner, as may be mutually agreed between the Boards of Directors ofDCEL and ODCL.
9.7 Upon Part V of the Scheme becoming effective, with effect from the Appointed Date, the business,properties and investments of whatsoever nature and kind and wheresoever situated, of AmalgamatingUndertaking 1 i.e. OCL (excluding the Transferred Undertakings 1), shall stand transferred to and vestedin ODCL, as a going concern, by way of Amalgamation.
Upon Part V of the Scheme becoming effective, all the shares of ODCL held by OCL, shall be deemed tohave been automatically cancelled and be of no effect. The reduction in the share capital of ODCL uponcancellation of Investment held by OCL in ODCL, shall be effected as an integral part of the Scheme inaccordance with provisions of applicable law.
Upon Part V of the Scheme becoming effective, ODCL shall issue and allot to the shareholders of OCL ason the Record Date 1, in accordance with their respective entitlement in the ratio of 1:1, (“Share EntitlementRatio ”) meaning thereby that upon this Scheme becoming effective, for 1 (one) fully paid equity share ofRs. 2 each held by such shareholder in OCL as on the Record Date 1, the holder thereof shall be entitledto receive 1 (one) fully paid up equity shares of ODCL of Rs. 10 each. The equity shares issued to theshareholders will be listed and admitted for trading and ODCL shall comply with the requirements ofCircular No. CIR/CFD/CMD/16/2015 dated November 30, 2015 issued by SEBI in this regard (“SEBICircular ”) and take all steps to get all the equity shares issued pursuant to the Scheme, listed on NSEand BSE on which the equity shares of OCL are listed, in accordance with relevant regulations.
9.8 Upon Part VI of the Scheme becoming effective, with effect from the Appointed Date, the respectivebusiness, properties and investments of whatsoever nature and kind and wheresoever situated, ofAmalgamating Undertaking 2 i.e. (DCEL (other than Transferred Undertakings 2), SRSHL and DBCHL),on a going concern basis, shall stand transferred to and vested in ODCL, by way of Amalgamation.
Upon Part VI of the Scheme becoming effective, all the shares of DCEL and SRSHL held by its members,shall be deemed to have been automatically cancelled and be of no effect.
Upon part VI of the Scheme becoming effective ODCL shall, issue and allot to the shareholders of DBCHL(whose name appears in the register of members as on the Record Date 2 and who are entitled to beissued shares by ODCL), in proportion to their respective shareholding in DBCHL, in aggregate, 3,43,00,0000.1% Optionally Convertible Redeemable Preference Shares of ODCL of Rs 10 each at a premium of INR90 per share.
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9.9 Upon (i) Part V of the Scheme becoming effective, the authorised share capital of OCL and (ii) Part VI ofthe Scheme becoming effective, the authorised share capital of DCEL, SRSHL and DBCHL, will getmerged with the authorised share capital of ODCL without any further act, instrument or deed or withoutpayment of any additional fees and duties as the said fees and duties have already been paid.
9.10 On Part VI of the Scheme becoming effective and with effect from Effective Date 2, DCEL, SRSHL andDBCHL and (ii) On Part V of the Scheme becoming effective and with effect from Effective Date 3, OCL,shall, without any further act, instrument or deed, stand dissolved without winding up.
9.11 Operational Sequence of the Scheme
Upon sanction of the Scheme by the respective High Courts, it shall be operative in the following sequence:
(a) From Effective Date 1, Slump Sale of Transferred Undertakings 2 of DCEL to ODCL, in terms of PartIV of the Scheme;
(b) From Effective Date 2, Amalgamation of Amalgamating Undertakings 2 with ODCL, in terms of PartVI of the Scheme;
(c) From Effective Date 3, Slump Sale of Transferred Undertakings 1 to ODCL and Amalgamation ofAmalgamating Undertaking 1 with ODCL, in terms of Part III and Part V of the Scheme, respectively.
9.12 With effect from Effective Date 3, the name of ODCL shall be deemed to have been changed from “OdishaCement Limited” to “OCL India Limited”.
9.13 Modifications to the Scheme
OCL, DCEL, SRSHL, DBCHL and ODCL (through their respective Board of Directors), in their full andabsolute discretion, jointly and as mutually agreed in writing, may:
(a) assent to any alteration(s) or modification(s) to this Scheme which the High Court(s) and/or anyother Governmental Authority may deem fit to approve or impose, and/or effect any other modificationor amendment jointly and mutually agreed in writing;
(b) give such directions (acting jointly) as they may consider necessary to settle any question ordifficulty arising under the Scheme or in regard to and of the meaning or interpretation of thisScheme or implementation hereof or in any matter whatsoever connected therewith, or to review theposition relating to the satisfaction of various conditions of this Scheme and if necessary, to any ofthose (to the extent permissible under law);
(c) modify or vary the respective parts of the Scheme prior to the Effective Date 1 , Effective Date 2 orEffective Date 3, as the case may be, in any manner at any time; or
(d) in case Part IV and Part VI of the Scheme together or Part III and Part V of the Scheme togetherare found to be unworkable for any reasons whatsoever, delete Part IV and Part VI of the Schemetogether and/or Part III and Part V of the Scheme together, as the case maybe, prior to theEffective Date 1 in case of former and Effective Date 3 in case of latter and make consequentialchanges in the Scheme wherever required, in such manner as may be necessary;
(e) determine jointly whether any asset, liability, employee, legal or other proceedings pertains toOCL, DCEL, SRSHL and DBCHL or not, on the basis of any evidence that they may deem relevantfor this purpose.
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9.14 Change of Registered office of OCL
(a) OCL is in the process of shifting its registered office from the state of Odisha to the State of TamilNadu. For the purpose of this Scheme, the application/petitions pursuant to the provisions of Sections391 to 394 of the 1956 Act and other provisions of the 1956 Act or the 2013 Act, as applicable shallbe made by or on behalf of OCL, to the High Court then having jurisdiction, where the registeredoffice of OCL will be situated.
9.15 OCL, DCEL, SRSHL, DBCHL and/or ODCL shall each be at liberty to withdraw from the Scheme in caseany condition or alteration imposed by any authority/person or otherwise is unacceptable to any of them.
9.16 Costs
(a) In the event of any of the required material sanctions and approvals enumerated in the Scheme notbeing obtained and / or the Scheme not being sanctioned by the High Court(s), the Scheme shallbecome null and void and each party shall bear and pay its respective costs, charges and expensesfor and/or in connection with the Scheme.
(b) Subject to clause 9.16(a) above, all costs, charges and expenses of/payable by OCL, DCEL,SRSHL, DBCHL and ODCL in relation to or in connection with the Scheme shall be borne and paidsolely by ODCL.
10. The Applicant/Transferor Company No. 1 has its shares listed on National Stock Exchange of IndiaLimited and BSE Limited (collectively referred to as “Stock Exchanges ”). In the terms of Regulation 37 ofSecurities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations2015, the Applicant/ Transferor Company No. 1 has obtained observation letters dated July 12, 2016 fromthe Stock Exchanges before filing the Scheme with the High Court.
11. No investigation proceedings have been instituted and/or are pending in respect of the Applicant/TransferorCompany No. 1 under Sections 235 to 251 of the Companies Act, 1956.
12. Mr. D N Davar, Mr. V P Sood and Mr. Mahendra Singhi, Directors of Applicant/Transferor Company No. 1,hold 1500 shares, 4500 shares and 5000 shares respectively, in the Applicant/Transferor Company No. 1.Mrs. Manisha Bansal, Director of DCEL, holds 1 share as representative of DCBL in DBCHL, 1 share asrepresentative of DBCHL in SRSHL and 100 shares as representative of SRSHL in DCEL. Mr. RajeshKumar Ghai and Mrs Nidhi Bisaria, Directors of SRSHL as also DBCHL, hold 1 share each as representativesof DCBL in DBCHL, 1 share each as representatives of DBCHL in SRSHL and 100 shares each asrepresentatives of SRSHL in DCEL. Mr. Amandeep, Mr. Ashwini Kumar Dalmia, Mr. Prakash Agarwal andMr. Ganesh WamanRao Jirkuntwar, Directors of ODCL, hold 1 share each jointly with OCL, in ODCL.
Mr. Amandeep is a common director in Applicant/Transferor Company No. 1, Transferor Company No. 2and Transferee Company. Mr. Ashok Kumar Jain and Mr. N Gopalaswamy are common directors inTransferor Company No. 2, Transferor Company No. 3 and Transferor Company No. 4. Mr. Rajesh KumarGhai, Mrs. Nidhi Bisaria and Mr. Krishna Swaroop are common directors in Transferor Company No. 3and Transferor Company No. 4.
Save as aforesaid, none of the directors of OCL, DCEL, SRSHL, DBCHL or ODCL have any interest in theScheme.
13. No winding up proceedings have been filed and/or pending against the Applicant/ Transferor Company No.1 under the Companies Act, 1956.
14. Post arrangement and amalgamation in terms of the Scheme, OCL shall merge with ODCL and shallcease to exist.
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The shareholding pattern of OCL as on September 30, 2016 (pre amalgamation), is given below:
No. of Equity In %Shares
Promoter & Promoter Group
Dalmia Cement (Bharat) Limited 42479273
Gautam Dalmia (c/o Sumana Trust) 20708
Gautam Dalmia (HUF) 110541
4,26,10,522 74.89
Public 1,42,89,698 25.11
Non Promoter - Non Public - -
Shares underlying DRs - -
Shares held by Employees T rust s - -
TOTAL 5,69,00,220 100
The shareholding pattern of DCEL as on September 30, 2016 (pre amalgamation), is given below:
2 Nidhi Bisaria(holding shares as nominee of DCBL ) 1 0.000001
3 Narendra Mantri(holding shares as nominee of DCBL ) 1 0.000001
4 Manisha Bansal(holding shares as nominee of DCBL ) 1 0.000001
5 K.V.Mohan (holding shares as nominee of DCBL ) 1 0.000001
6 Bhabagrahi Pradhan(holding shares as nominee of DCBL ) 1 0.000001
7 Rajesh Kumar Ghai(holding shares as nominee of DCBL ) 1 0.000001
Total 83160000 100
The shareholding pattern of ODCL as on September 30, 2016 (pre amalgamation), is given below:
S.No. Name No. of Shares % of share
1 OCL India Limited (OCL) 49,994 99.988
2 Amandeep Jointly with OCL India Ltd. 1 0.002
3 Prakash AgarwalJointly with OCL India Ltd. 1 0.002
4 Ganesh W JirkuntwarJointly with OCL India Ltd. 1 0.002
5 Ashwini Kumar DalmiaJointly with OCL India Ltd. 1 0.002
6 Vivek Dalmia Jointly with OCL India Ltd. 1 0.002
7 Rajib Mohanty,Jointly with OCL India Ltd. 1 0.002
Total 50,000 100
The shareholding pattern of ODCL (post amalgamation), is given below:
No. of Equity Shares In %Promoter & Prom oter Group
Dalmia Cement (Bharat) Limited 42479273
Gautam Dalmia (c/o Sumana Trust) 20708
Gautam Dalmia (HUF) 110541
4,26,10,522 74.89
Public 1,42,89,698 25.11
Non Promoter - Non Public - -
Shares underlying DRs - -
Shares held by Employees T rust s - -
TOTAL 5,69,00,220 100
15. The rights, entitlements or security of the unsecured Creditors of OCL will not be prejudicially affected orvaried in any manner by the Scheme.
16. In accordance with the Circular No. CIR/CFD/CMD/16/2015 issued by the Securities and ExchangeBoard of India (“SEBI”) on November 30, 2015 read with SEBI (Listing Obligations and DisclosureRequirements) Regulations, 2015, the Audit Committee of the board of directors of OCL had on March 28,2016 recommended the draft Scheme for approval of the board.
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17. The draft Scheme was approved by the board of directors of OCL at the meeting held on March 28, 2016,after considering the recommendations of the Audit Committee.
18. The following documents may be inspected by the equity shareholders of the Applicant/Transferor CompanyNo. 1, at the registered office of the Applicant/Transferor Company No. 1, up to one day prior to the dateof the meeting between 10 am and 6 pm on all working days (except Saturdays, Sundays and publicholidays):
18.1 Copy of the order dated October 06, 2016 of the High Court of Orissa passed in Company PetitionNo. 37 of 2016 directing, inter alia, the convening of a meeting of the equity shareholders of theApplicant/Transferor Company No. 1;
18.2 Scheme of arrangement and amalgamation (The draft Scheme has also been uploaded on thewebsite of OCL i.e. www.oclindialtd.in);
18.3 Memorandum and Articles of Association of the Applicant/Transferor Company No. 1, DCEL,SRSHL, DBCHL and ODCL;
18.4 Annual report, including the Audited Financial Statements, of the Applicant/TransferorCompany No. 1, DCEL, SRSHL, DBCHL and ODCL for last three financial years ended March31, 2016, March 31, 2015 and March 31,2014;
18.5 The Statement of Unaudited Financial results of the Applicant/Transferor Company No. 1 forthe quarter ended September 30, 2016;
18.6 Valuation Report of M/s. Sharp & Tannan, Chartered Accountants, on share entitlement ratioand consideration (The Valuation Report has also been uploaded on the website of OCL i.e.www.oclindialtd.in);
18.7 Fairness opinion issued by Axis Capital Limited, an independent Merchant Banker (TheFairness opinion has also been uploaded on the website of OCL i.e. www.oclindialtd.in);and
18.8 Copy of Observation letters to the Scheme received from the Stock Exchanges, both datedJuly 12, 2016. (The Observation letters have also been uploaded on the website of OCL i.e.www.oclindialtd.in)
18.9 Copy of Complaint Report dated May 29, 2016 filed with the Stock Exchanges. (The ComplaintReports have also been uploaded on the website of OCL i.e. www.oclindialtd.in)
This statement may be treated as an Explanatory Statement under Section 393 of the Companies Act, 1956 andSections 110 read with 108 and 102 of the Companies Act, 2013 and other applicable provisions. A copy of theScheme, Explanatory Statement and Form of Proxy may be obtained from the registered office of the Applicant/Transferor Company No. 1 and/or at the office of its Advocates, Mr. S. P. Sarangi at 31B, Bima Vihar, Sector 6,Markat Nagar Cuttack – 753014
Dated this 26th day of October, 2016
B. C. MohantyChairman appointed for the meeting
Registered office:Rajgangpur-770017, Dist. Sundargarh,Odisha, India
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SCHEME OF ARRANGEMENT AND AMALGAMA TION
(UNDER SECTIONS 391 TO 394 AND OTHER APPLICABLE PROVISIONS OF THE
COMPANIES ACT, 1956 AND THE COMPANIES ACT, 2013)
AMONGST
OCL INDIA LIMITED
AND
DALMIA CEMENT EAST LIMITED
AND
SHRI RANGAM SECURITIES & HOLDINGS LIMITED
AND
DALMIA BHARAT CEMENTS HOLDINGS LIMITED
AND
ODISHA CEMENT LIMITED
AND
THEIR RESPECTIVE SHAREHOLDERS AND CREDITORS
-———————————————-----------———————————————————————————————————————DESCRIPTION OF COMPANIES
A. OCL India Limited (CIN: L26942OR1949PLC000185) is a listed public company limited by shares, incorporated on 11th October,1949 under the provisions of the Companies Act, 1913 and is having its registered office at Rajgangpur-770017, Dist. Sundargarh,Odisha, (“OCL” or “T ransferor Comp any 1 ”).
Approximately 74.9% of the paid-up equity share capital of OCL is held by DCBL & other promoters and promoter group entitiesand the remaining 25.1% (approx.) is held by public. The equity shares of OCL are listed on the National Stock Exchange of IndiaLimited (“NSE”) and on the BSE Limited (“BSE”).
OCL is engaged in the business of manufacturing and selling cement and refractories, generating power and maintaining &operating rail systems and solid waste management system, which provide services to its cement & refractory business.
B. Dalmia Cement East Limited (CIN: U45209DL2008PLC175321) is an unlisted public company limited by shares, incorporated on13th March,2008 under the provisions of the Companies Act, 1956 and is having its registered office at 11th Floor, HansalayaBuilding, 15, Barakhamba Road, New Delhi-110001 (“DCEL” or “Transferor Comp any 2” ).
Shri Rangam Securities & Holdings Limited, along with its nominees, holds the entire paid-up equity share capital of DCEL.
DCEL is engaged in the business of manufacturing and selling cement, maintaining & operating rail systems and solid wastemanagement system, which provide services to its cement business.
C. Shri Rangam Securities & Holdings Limited(CIN: U26950TN2014PLC095685) is an unlisted public company limited by shares,incorporated on 25th March,2014 under the provisions of the Companies Act, 1956 and is having its registered office atDalmiapuram Lalgudi Taluk, Dalmiapuram-621651, Dist. Tiruchirappalli, Tamil Nadu (“SRSHL” or “Transferor Comp any 3” ).
Dalmia Bharat Cements Holdings Limited, along with its nominees, holds the entire paid-up equity share capital of SRSHL.
SRSHL is engaged in the business of, inter alia, providing management services.
D. Dalmia Bharat Cements Holdings Limited(CIN: U26911TN2014PLC095681) is an unlisted public company limited by shares,incorporated on 25th March, 2014 under the provisions of the Companies Act, 1956 and is having its registered office atDalmiapuram Lalgudi Taluk, Dalmiapuram-621651, Dist. Tiruchirappalli, Tamil Nadu (“DBCHL ” or “Transferor Comp any 4” ).
Dalmia Cement (Bharat) Limited, along with its nominees, holds the entire paid-up equity share capital of DBCHL.
DBCHL is engaged in the business of, inter alia, providing management services.
E. Odisha Cement Limited (CIN: U14200OR2013PLC017132) is an unlisted public company limited by shares incorporated on 12th
July, 2013 under the provisions of the Companies Act, 1956, having its registered office at Rajgangpur-770017, Dist. Sundargarh,Odisha (“ODCL” or “Transferee Comp any” ).
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OCL, along with its nominees, holds the entire paid-up equity share capital of ODCL.
ODCL is authorised to carry on, inter alia, the business of manufacturing and selling cement.
RATIONALE
A. This Scheme of Arrangement and Amalgamation is expected to enable better realisation of potential of the businesses of OCL,DCEL, SRSHL, DBCHL and ODCL in the form of amalgamated ODCL which will yield beneficial results and enhanced valuecreation for their respective shareholders and better security and protection for their lenders and employees. The rationale forthe Scheme is set out below:
(i) The arrangement and amalgamation would result in consolidation of business and operations of the Dalmia Bharat group
in Eastern India into one entity and simplification of the group corporate structure.
(ii) The arrangement and amalgamation will provide synergistic integration of OCL and DCEL’s business operations thus
enabling better operational management and greater focus.
(iii) Synergies arising out of consolidation of alike and supporting businesses through the arrangement and amalgamation
will lead to (a) reflection of fair value of OCL, DCEL, SRSHL & DBCHL in the amalgamated ODCL (as all assets, tangible
and intangible, including off-balance sheet items of OCL, DCEL, SRSHL, DBCHL shall be taken over by ODCL, all assets
shall be recorded at their respective fair values and cross holdings amongst companies shall be eliminated); (b)
improved earnings and cash flow of amalgamated ODCL and (c) improved alignment of debt repayments with sales
realisations.
(iv) The amalgamated ODCL would have better leveraging capability due to its enlarged net worth base and increased
capability for offering a wider portfolio of products and services by virtue of its diversified businesses and resource
base and deeper client relationships, resulting in enhanced businesses potential and better prospects for the group.
(v) The arrangement and amalgamation would result in financial resources of OCL, DCEL, SRSHL, DBCHL and ODCL being
efficiently pooled, leading to centralised and more efficient management of funds, greater economies of scale and a
bigger and stronger resource base for future growth, which are presently divided and are getting dissipated amongst
multiple corporate entities within the group.
(vi) The arrangement and amalgamation will bring about simplicity in working, reduce various statutory and regulatory
compliances and related costs, which presently have to be duplicated in different entities, reduction in operational and
administrative expenses and overheads, better cost and operational efficiencies and it would also result in coordinated
optimum utilization of resources.
(vii) The arrangement and amalgamation will result not only in consolidating and improving the internal systems, procedures
and controls but will also bring greater management and operational efficiency due to integration of various similar
functions presently being carried out in each individual entity within the group such as information technology, human
resources, finance, legal and general management, and this will lead to the organization becoming more efficient and
capable of responding swiftly to volatile and rapidly changing market scenarios.
(viii) The arrangement and amalgamation will streamline the decision making process, help in better utilization of human
resources and will also provide better career opportunities to employees.
(ix) The arrangement and amalgamation will facilitate consolidation and rationalisation of borrowings of OCL, DCEL, SRSHL
and DBCHL in ODCL which will assist not only in better debt planning and management but will also improve the debt
servicing abilities through improved cash flows and make the debt administration simpler not only for the amalgamated
entity but also for the lenders. This will facilitate not only in better negotiation of terms and conditions with lenders
including banks and financial institutions, etc., but in also being able to get less stringent and more favourable terms from
them.
(x) The arrangement and amalgamation is, thus, likely to result in facilitating enhancement in value for all stakeholders and
seamless access to strong business relationships of the Transferor Companies and is expected to provide other
intangible benefits that OCL has built over decades, while at the same time enhancing the scale of operations and
enabling better attention and focus to be given in an integrated manner to all the businesses so as to enable achievement
of their full potential.
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B. The respective Board of Directors (as hereinafter defined) of OCL, DCEL, SRSHL, DBCHL and ODCL after a detailed deliberationand consideration, have propounded this Scheme of Arrangement and Amalgamation, incorporating therein the proposed SlumpSale (as hereinafter defined) and consequent Amalgamation (as hereinafter defined) (collectively referred to as “Arrangementand Amalgamation” herein), as an integral and indivisible part of the Scheme.
C. The Arrangement and Amalgamation pursuant to this Scheme, depending on the relevant circumstances, shall take effect fromthe Appointed Date(as hereinafter defined), as provided herein after.
GENERAL
This Scheme is divided into the following parts:
(i) Part I , contains definitions and interpretations used in this Scheme;
(ii) Part II , contains particulars of share capital of OCL, DCEL, SRSHL, DBCHL & ODCL;
(iii) Part III , contains provisions relating to transfer and vesting of Power Undertakings of OCL (as hereinafter defined), RailUndertaking of OCL (as hereinafter defined) and Solid Waste Management System Undertaking of OCL (as hereinafterdefined), to ODCL by way of Slump Sale, consideration, accounting treatment and date of coming into effect of suchslump sales;
(iv) Part IV , contains provisions for transfer and vesting of Rail Undertaking of DCEL (as hereinafter defined), and SolidWaste Management System Undertaking of DCEL (as hereinafter defined) to ODCL by way of Slump Sale, consideration,accounting treatment and date of coming into effect of such slump sales;
(v) Part V , contains provisions relating to amalgamation of OCL (post Slump Sale of Transferred Undertakings 1 (ashereinafter defined) with ODCL, reduction of share capital of ODCL, consideration, accounting treatment and date ofcoming into effect of the said amalgamation;
(vi) Part VI , contains provisions relating to amalgamation of DCEL (post Slump Sale of Transferred Undertakings 2 (ashereinafter defined), SRSHL and DBCHL with ODCL, cancellation of shares, consideration, accounting treatment anddate of coming into effect of the said amalgamation;
(vii) Part VII, contains the general terms and conditions applicable to this Scheme.
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PART I- DEFINITIONS AND INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 In the Scheme, unless repugnant to the meaning or context thereof, the following terms and expressions shall have themeaning given against them:
“1956 Act” means the Companies Act, 1956 and the rules and regulations made thereunder, and includes any alterations,modifications, amendments made there to and/or any re-enactment thereof;
“2013 Act” means the Companies Act, 2013 and the rules and regulations made thereunder, and includes any alterations,modifications, amendments made thereto and/or any re-enactment thereof;
“Amalgamation” means the respective amalgamation of (i) OCL (post Slump Sale of Transferred Undertakings 1 in termsof Part III of the Scheme) with ODCL in terms of Part V of the Scheme; and (ii)DCEL (post Slump Sale of TransferredUndertakings 2 in terms of Part IV of the Scheme), SRSHL and DBCHL with ODCL in terms of Part VI of the Scheme, both theseamalgamations being in terms of Section 2(1B) of the Income Tax Act, 1961 and to be implemented in terms of Part V and VIof the Scheme, respectively;
“Amalgamating Undertaking 1 ”, referred to in Part V of this Scheme, shall mean and include all the business, propertiesand investments of whatsoever nature and kind and wheresoever situated, of OCL (excluding the Transferred Undertakings1) on a going concern basis, together with all its assets, liabilities and employees, including but not limited to the following:
(a) all the movable and immovable properties (including property being more specifically described in Schedule I to theScheme) including plant and machinery, equipments, furniture, fixtures, vehicles, stocks and inventory, packingmaterial, all rights, title, interest and claims in leasehold properties, including the mining leases and the prospectinglicences (including in each case, any applications made thereof) and other properties, whether real or personal,corporeal or incorporeal, in possession or otherwise, present, actual or contingent, tangible or intangible of whatsoevernature, assets including cash in hand, amounts lying in the banks to the credit of OCL (other than TransferredUndertakings 1), investments, claims, powers, authorities, allotments, approvals, consents, letters of intent, registrations,contracts, engagements, arrangements, rights, credits, titles, interests, benefits, club memberships, advantages,leasehold rights, memorandum of understandings, brands, sub-letting tenancy rights, with or without the consent ofthe landlord as may be required by law, goodwill, other intangible items (whether or not recorded in the books of OCL),industrial and other licenses, permits, authorisations, trademarks, trade names, patents, patent rights, copyrights,designs, logo, pre qualification rights, and other industrial and intellectual properties and rights of any nature whatsoeverincluding know-how, domain names, or any applications for the above, assignments and grants in respect thereof,import quotas and other quota rights, right to use and avail of telephones, telex, facsimile and other communicationfacilities, connections, installations and equipment, utilities, electricity and electronic and all other services of everykind, nature and description whatsoever, provisions, funds, and benefits of all agreements, arrangements, deposits,advances, recoverable and receivables, whether from Government, semi-Government, local authorities or any otherperson including customers, contractors or other counter parties, etc., all earnest monies and/or deposits, privileges,liberties, easements, advantages, benefits, exemptions, licenses, and approvals of whatsoever nature (including butnot limited to benefits of tax exemptions/incentives, rebate entitlements, all tax holiday, tax relief including thoseavailable under the Income Tax Act such as credit for advance tax, taxes deducted at source, taxes collected atsource, Minimum Alternate Tax credit, credit for Service Tax, CENVAT credit, input tax credit, etc.) and wheresoeversituated, belonging to or in the ownership, power or possession or control of or vested in or granted in favour of orenjoyed by OCL (other than Transferred Undertakings 1) as on the Appointed Date;
(b) All the debts, loans, liabilities, duties and obligations including contingent liabilities of OCL (other than TransferredUndertakings 1) as on the Appointed Date; and
(c) All books, records, files, papers, engineering and process information, records of standard operating procedures,computer programs along with their licenses, drawings, manuals, data, catalogues, quotations, sales and advertisingmaterials, lists of present and former customers and suppliers, customer credit information, customer pricing informationand other records whether in physical or electronic form, in connection with or relating to OCL (other than TransferredUndertakings 1).
“Amalgamating Undertakings 2 ”, referred to in Part VI of this Scheme, shall mean and include all the business, propertiesand investments of whatsoever nature and kind and wheresoever situated, of DCEL (other than Transferred Undertakings2), SRSHL and DBCHL respectively, on a going concern basis, together with all its assets, liabilities and employees andincluding but not limited to following:
(a) all the movable and immovable properties (including property being more specifically described in Schedule II to theScheme) including plant and machinery, equipments, furniture, fixtures, vehicles, stocks and inventory, packingmaterial, leasehold assets and other properties, whether real or personal, corporeal or incorporeal, in possession orotherwise, present, actual or contingent, whether tangible or intangible of whatsoever nature, assets including cashin hand, amounts lying in the banks to the credit of DCEL (other than Transferred Undertakings 2), SRSHL and DBCHLrespectively, investments, claims, powers, authorities, allotments, approvals, consents, letters of intent, registrations,contracts, engagements, arrangements, rights, credits, titles, interests, benefits, club memberships, advantages,
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leasehold rights, memorandum of understandings, brands, sub-letting tenancy rights, with or without the consent ofthe landlord as may be required by law, goodwill, other intangible items (whether or not recorded in the books ofDCEL, SRSHL and DBCHL), industrial and other licenses, permits, authorisations, trademarks, trade names, patents,patent rights, copyrights, designs, logo, pre qualification rights, and other industrial and intellectual properties andrights of any nature whatsoever including know-how, domain names, or any applications for the above, assignmentsand grants in respect thereof, import quotas and other quota rights, right to use and avail of telephones, telex,facsimile and other communication facilities, connections, installations and equipment, utilities, electricity and electronicand all other services of every kind, nature and description whatsoever, provisions, funds, and benefits of allagreements, arrangements, deposits, advances, recoverable and receivables, whether from Government, semi-Government, local authorities or any other person including customers, contractors or other counter parties, etc., allearnest monies and/or deposits, privileges, liberties, easements, advantages, benefits, exemptions, licenses andapprovals of whatsoever nature (including but not limited to benefits of tax exemptions/incentives rebate entitlements,all tax holiday, tax relief including those available under the Income Tax Act such as credit for advance tax, taxesdeducted at source, taxes collected at source, Minimum Alternate Tax credit), credit for Service Tax, CENVAT credit,input tax credit, etc.) and wheresoever situated, belonging to or in the ownership, power or possession or control ofor vested in or granted in favour of or enjoyed by DCEL (other than Transferred Undertakings 2), SRSHL and DBCHLrespectively, as on the Appointed Date;
(b) All the debts, loans, liabilities, duties and obligations including contingent liabilities of DCEL (other than TransferredUndertakings 2), SRSHL and DBCHL respectively, as on the Appointed Date; and
(c) All books, records, files, papers, engineering and process information, records of standard operating procedures,computer programs along with their licenses, drawings, manuals, data, catalogues, quotations, sales and advertisingmaterials, lists of present and former customers and suppliers, customer credit information, customer pricing informationand other records whether in physical or electronic form, in connection with or relating to DCEL (other than TransferredUndertakings 2), SRSHL and DBCHL respectively.
“Applicable Law” shall mean any statute, notification, bye laws, rules, regulations, guidelines, rule of common law, policy,code, directives, ordinance, orders or instructions having the force of law enacted or issued by any Appropriate Authorityincluding any statutory modification or re-enactment thereof for the time being in force;
“Appointed Date” means January 1, 2015 or such other date as may be directed by the High Court(s), being the date witheffect from which the Scheme shall, upon sanction of the same by the High Court(s), be deemed to be operative;
“Appropriate Authority ” means any Governmental, statutory, departmental or public body or authority, including NationalCompany Law Tribunal, the jurisdictional High Court(s), as may be relevant in the context;
“Board of Directors ” or “Board ” in relation to OCL, DCEL, SRSHL, DBCHL and ODCL, as the case may be, means the boardof directors of such company, and shall include a committee duly constituted and authorised for the purposes of variousmatters pertaining to the Arrangement and Amalgamation, this Scheme and any other related or connected matters;
“DBCHL ” or “Transferor Comp any 4” means Dalmia Bharat Cements Holdings Limited, an unlisted public company limited byshares, incorporated on 25th March, 2014 under the provisions of the Companies Act, 1956 and having its registered officeat Dalmiapuram Lalgudi Taluk, Dalmiapuram-621651,Dist. Tiruchirappalli, Tamil Nadu;
“DCEL” or “Transferor Comp any 2” means Dalmia Cement East Limited, an unlisted public company limited by shares,incorporated on 13th March,2008 under the provisions of the Companies Act, 1956 and having its registered office at 11thFloor, Hansalaya Building, 15, Barakhamba Road, New Delhi-110001;
“Effective Date 1 ” means the last of the dates on which certified/authenticated copy of the order of the respective HighCourt(s) sanctioning the Scheme is filed with the relevant Registrar of Companies by DCEL and ODCL. References in thisScheme to ‘upon Part IV of the Scheme becoming effective’ or ‘upon Part IV of the Scheme coming into effect’ shall mean theEffective Date 1;
“Effective Date 2 ” means the 15th day (or such other date as may be agreed upon by the Board of Directors of DCEL, SRSHL,DBCHL and ODCL) following the last of the dates on which certified/authenticated copy of the order of the respective HighCourt(s) sanctioning the Scheme is filed with the relevant Registrar of Companies by DCEL, SRSHL, DBCHL and ODCL.References in this Scheme to ‘upon Part VI of the Scheme becoming effective’ or ‘upon Part VI of the Scheme coming intoeffect’ shall mean the Effective Date 2;
“Effective Date 3 ” means the latter of (i) the last of the dates on which certified/authenticated copy of the order of therespective High Court(s) sanctioning the Scheme is filed with the relevant Registrar of Companies by OCL and ODCL or (ii)date of receipt of approval of the State Government/other regulatory body for transfer of captive mining lease from OCL toODCL in accordance with the MMDR Amendment Act, 2016 and Mineral Concession Rules, 1960 or any other applicableregulations such that the same has no financial or other material adverse impact on ODCL. References in this Scheme to‘upon Part III of the Scheme becoming effective’ or ‘upon Part III of the Scheme coming into effect’ or ‘upon Part V of theScheme becoming effective’ or ‘upon Part V of the Scheme coming into effect’ shall mean the Effective Date 3;
“Encumbrance ” means any options, pledge, mortgage, lien, security, interest, claim, charge, pre-emptive right, easement,limitation, attachment, restraint or any other encumbrance of any kind or nature whatsoever, and the term “Encumbered ”shall be construed accordingly;
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“Government al Authority ” means any applicable central, state or local government, legislative body, regulatory oradministrative authority, agency or commission or any court, tribunal, board, bureau, instrumentality, judicial or arbitral body,statutory body or stock exchange, including but not limited to the Reserve Bank of India (“RBI”) and the Securities andExchange Board of India (“SEBI”) or any other organization to the extent that the rules, regulations and standards, requirements,procedures or orders of such authority, body or other organization have the force of law;
“High Court(s) ” means the concerned High Court having jurisdiction over the Transferor Companies and the TransfereeCompany and shall include the National Company Law Tribunal or such other forum or authority as may be vested with anyof the powers of a High Court under the 1956 Act or the 2013 Act, as applicable;
“Income T ax Act ” means the Income Tax Act, 1961, including any amendments made therein or statutory modifications or re-enactments thereof for the time being in force;
“Liabilities ” means all debts and liabilities, both present and future, of the Amalgamating Undertaking 1 and AmalgamatingUndertakings 2, whether or not reflected in their respective books of accounts or disclosed in their respective balancesheets, and shall include all secured and unsecured debts, liabilities (including deferred tax liabilities, contingent liabilities),duties and obligations (including under any licenses or permits or schemes), of every kind, nature and description whatsoeverand howsoever arising, raised or incurred or utilised for their respective business activities and operations along with anycharge, Encumbrance and/or security interest;
“OCL” or “T ransferor Comp any 1 ”means OCL India Limited, a listed public company limited by shares, incorporated on 11th
Oct,1949 under the provisions of the Companies Act, 1913 and having its registered office at Rajgangpur-770017, Dist.Sundargarh, Odisha.
“ODCL” or “T ransferee Comp any ” means Odisha Cement Limited, an unlisted public company limited by shares, incorporatedon 12th July, 2013 under the provisions of the Companies Act, 1956 and having its registered office at Rajgangpur-770017,Dist. Sundargarh, Odisha.
“Power Undertakings of OCL” shall mean the whole of the undertaking of OCL together with its business and operations,pertaining to its power plants located at Rajgangpur and at Kapilas, Odisha respectively, on a going concern basis, andcomprising of, inter alia, all the assets and liabilities which relate thereto, or are necessary therefore (“Power Business ”)including but not limited to the following:
(a) All assets and properties (including properties being more specifically described in Schedule III to the Scheme),whether real, personal or mixed, tangible or intangible, present or future, actual or contingent, exclusively used orheld, by OCL in, or otherwise identified for use in relation to Power Business, including but not limited to all land(including freehold, leasehold, leave and licensed land), buildings, any tenancies in relation to land and buildings,parking rights, title, rights, interests and benefits and documents of title, rights or interest and easements in relationthereto and all plant and machineries constructed on or embedded or attached to any such land and all other rightsincluding rights arising under contracts in connection with such immovable properties, equipments, fixed assets,capital work in progress, furniture, fixtures, office equipment, appliances, accessories, vehicles, advances anddeposits with any Governmental Authority or others, loans, outstanding loans and advances recoverable in cash orin kind (including accrued interest), receivables, all types of stocks including work-in-process, cash, balances withbanks, cheques, bills of exchange and other negotiable instruments, benefits of any bank guarantees, performanceguarantees, corporate guarantees, letters of credit, financial assets and instruments, investments and other fundsalong with accrued interest thereon and benefits attached thereto, pertaining to Power Business.
(b) All debts, liabilities, loans, guarantees, forward contract liability, assurances, commitments, duties and obligations ofany nature or description, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or howeverarising, (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability),pertaining to Power Business;
(c) All contracts, agreements, leases, linkages, memoranda of understanding, memoranda of agreements, memoranda ofagreed points, letters of agreed points, agreed term sheets, arrangements, undertakings, whether written or otherwise,deeds, bonds, schemes, arrangements, sales orders, purchase orders, job orders or other instruments of whatsoevernature, to which OCL is a party, exclusively relating to Power Business or otherwise identified to be for the benefitof the same;
(d) All intellectual property rights including registrations, trademarks, trade names, service marks, copyrights, patents,designs, domain names and applications relating thereto, goodwill, technical knowhow, trade secrets, exclusivelyused by or held for use by OCL in relation to Power Business, whether or not registered, owned or licensed, includingany form of intellectual property which is in progress;
(e) All permits, licenses, consents, approvals, authorizations, quotas, rights, entitlements, claims, registrations, allotments,concessions, exemptions, liberties, advantages, no-objection certificates, certifications, easements, tenancies includingtenancy rights in relation to offices and residential properties, permissions, if any, privileges and similar rights, andany waivers of the foregoing, issued by any legislative, executive or judicial unit of any Governmental or semi-Governmental entity or any department, commission, board, agency, bureau, official or other statutory, regulatory,local, administrative or judicial authority including but not limited to the relevant licenses, electricity, water supply and
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environment related approvals and connections, telephone, broadband, wireless and other communication systemsand equipments related approvals and connections including for data/image/graphics storage, reproduction,transmission and transfers, and all other rights, permits, consents, no-objections and approvals, pending applicationsfor consents, renewals or extension that exclusively relates to, issued or held for use by OCL pertaining to PowerBusiness;
(f) all benefits, entitlements, incentives and concessions under incentive schemes and policies including under customs,excise, service tax, VAT, sales tax and entry tax and income tax laws, subsidy receivables from Government, grantsfrom any Governmental Authority, all other direct tax benefit/ exemptions/ deductions, sales tax deferrals, to theextent statutorily available to OCL pertaining to Power Business, along with associated obligations;
(g) all employees of OCL, whether permanent or temporary, including employees/personnel engaged on contract basisand contract labourers, apprentices, interns/ trainees, both on-shore and offshore, as are primarily engaged in or inrelation to Power Business, at its respective offices, branches etc., and any other employees/personnel and contractlabourers, apprentices, interns/trainees hired by OCL after the date hereof who are primarily engaged in or in relationto Power Business and contributions, if any, made towards any provident fund, employees state insurance, gratuityfund, staff welfare scheme or any other special schemes, funds or benefits, existing for the benefit of suchemployees of OCL, together with such of the investments made by these funds, which are referable to suchemployees of OCL;
(h) all legal (whether civil or criminal), taxation or other proceedings or investigations of whatsoever nature (includingthose before any Governmental Authority) initiated by or against OCL or proceedings or investigations to which OCLis party to, that pertain to Power Business, whether pending/ongoing as on the Appointed Date or which may beinstituted any time in the future;
(i) all incentives, benefits, exemptions, payment deferrals, subsidies, concessions, grants, taxes, duties, cess, leviesetc., that are allocable, referable or related to Power Business, including all or any refunds, interest due thereon,credits and claims relating thereto, including service tax, input credits, CENVAT credits, value added tax, sales tax,entry tax credits or set-offs and any other tax benefits, exemptions and refunds etc.; and
(j) all books, records, files, papers, engineering and process information, databases, catalogues, quotations, advertisingmaterials, lists of present and former credit, whether in physical or electronic form, pertaining to Power Business;
“Rail Undertaking of DCEL ” shall mean the whole of the undertaking of DCEL together with its business and operationspertaining to its railway lines or enterprise at Topkadih in Bokaro, Jharkhand, on a going concern basis, and comprising of,inter alia, all the assets and liabilities which relate thereto, or are necessary therefore (“Rail Business ”) including but notlimited to the following:
(a) All assets and properties (including properties being more specifically described in Schedule IV to the Scheme)wherever located, whether real, personal or mixed, tangible or intangible, present or future, actual or contingent,exclusively used or held, by DCEL in, or otherwise identified for use in relation to Rail Business, including but notlimited to all land (including freehold, leasehold, leave and licensed land), buildings, any tenancies in relation to landand buildings, parking rights, title, rights, interests and benefits and documents of title, rights or interest and easementsin relation thereto and all plant and machineries constructed on or embedded or attached to any such land and all otherrights including rights arising under contracts in connection with such immovable properties, equipments, fixedassets, railway lines, wagon tipplers, works buildings, engines, rolling stock and other movable or immovableproperty as on Appointed Date forming part of or pertaining to the South Eastern Railway system and all engines androlling stock (whether belonging to the South Eastern Railway system or not) passing over such system, capital workin progress, furniture, fixtures, office equipment, appliances, accessories, vehicles, advances and deposits withany Governmental Authority or others, loans, outstanding loans and advances recoverable in cash or in kind (includingaccrued interest), receivables, all types of stocks including work-in-process, cash, balances with banks, cheques,bills of exchange and other negotiable instruments, benefits of any bank guarantees, performance guarantees,corporate guarantees, letters of credit, financial assets and instruments, investments and other funds along withaccrued interest thereon and benefits attached thereto, pertaining to Rail Business.
(b) All debts, liabilities, loans, guarantees, forward contract liability, assurances, commitments, duties and obligations ofany nature or description, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or howeverarising, (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability),pertaining to Rail Business;
(c) All contracts, agreements, leases, linkages, memoranda of understanding, memoranda of agreements, memoranda ofagreed points, letters of agreed points, agreed term sheets, arrangements, undertakings, whether written or otherwise,deeds, bonds, schemes, arrangements, sales orders, purchase orders, job orders or other instruments of whatsoevernature to which DCEL is a party, exclusively relating to Rail Business or otherwise identified to be for the benefit ofthe same;
(d) All intellectual property rights including registrations, trademarks, trade names, service marks, copyrights, patents,designs, domain names and applications relating thereto, goodwill, technical knowhow, trade secrets, exclusivelyused by or held for use by DCEL in relation to Rail Business, whether or not registered, owned or licensed, includingany form of intellectual property which is in progress;
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(e) All permits, licenses, consents, approvals, authorizations, quotas, rights, entitlements, claims, registrations, allotments,concessions, exemptions, liberties, advantages, no-objection certificates, certifications, easements, tenancies includingtenancy rights in relation to offices and residential properties, permissions, if any, privileges and similar rights, andany waivers of the foregoing, issued by any legislative, executive or judicial unit of any Governmental or semi-Governmental Authority or any department, commission, board, agency, bureau, official or other statutory, regulatory,local, administrative or judicial authority including but not limited to the relevant licenses, electricity, water supply andenvironment related approvals and connections, telephone, broadband, wireless and other communication systemsand equipments related approvals and connections including for data/image/graphics storage, reproduction,transmission and transfers, and all other rights, permits, consents, no-objections and approvals, pending applicationsfor consents, renewals or extension that exclusively relates to, issued or held for use by DCEL pertaining to RailBusiness;
(f) all benefits, entitlements, incentives and concessions under incentive schemes and policies including under customs,excise, service tax, VAT, sales tax and entry tax and income tax laws, subsidy receivables from Government, grantsfrom any Governmental Authority, all other direct tax benefit/ exemptions/ deductions, sales tax deferrals, to theextent statutorily available to DCEL pertaining to Rail Business, along with associated obligations;
(g) all employees of DCEL, whether permanent or temporary, including employees/personnel engaged on contract basisand contract labourers, apprentices, interns/ trainees, both on-shore and offshore, as are primarily engaged in or inrelation to Rail Business, at its respective offices, branches etc., and any other employees/personnel and contractlabourers, apprentices, interns/trainees hired by DCEL after the date hereof who are primarily engaged in or inrelation to Rail Business and contributions, if any, made towards any provident fund, employees state insurance,gratuity fund, staff welfare scheme or any other special schemes, funds or benefits, existing for the benefit of suchemployees of DCEL, together with such of the investments made by these funds, which are referable to suchemployees of DCEL;
(h) all legal (whether civil or criminal), taxation or other proceedings or investigations of whatsoever nature (includingthose before any Governmental Authority) initiated by or against DCEL or proceedings or investigations to whichDCEL is party to, that pertain to Rail Business, whether pending/ongoing as on the Appointed Date or which may beinstituted any time in the future;
(i) all incentives, benefits, exemptions, payment deferrals, subsidies, concessions, grants, taxes, duties, cess, leviesetc., that are allocable, referable or related to Rail Business, including all or any refunds, interest due thereon, creditsand claims relating thereto, including service tax, input credits, CENVAT credits, value added tax, sales tax, entry taxcredits or set-offs and any other tax benefits, exemptions and refunds etc.; and
(j) all books, records, files, papers, engineering and process information, databases, catalogues, quotations, advertisingmaterials, lists of present and former credit, whether in physical or electronic form, pertaining to Rail Business.
“Rail Undertaking of OCL ” shall mean the whole of the undertaking of OCL together with its business and operationspertaining to its railway lines or enterprise at Kapilas, Odisha on a going concern basis, and comprising of, inter alia, all theassets and liabilities which relate thereto, or are necessary therefore (“Rail Business ”) including but not limited to thefollowing:
(a) All assets and properties (including properties being more specifically described in Schedule V to the Scheme)wherever located, whether real, personal or mixed, tangible or intangible, present or future, actual or contingent,exclusively used or held, by OCL in, or otherwise identified for use in relation to Rail Business, including but not limitedto all land (including freehold, leasehold, leave and licensed land), buildings, any tenancies in relation to land andbuildings, parking rights, title, rights, interests and benefits and documents of title, rights or interest and easements inrelation thereto and all plant and machineries constructed on or embedded or attached to any such land and all otherrights including rights arising under contracts in connection with such immovable properties, equipments, fixedassets, railway lines, wagon tipplers, works buildings, engines, rolling stock and other movable or immovableproperty as on Appointed Date forming part of or pertaining to the East Coast Railway system and all engines androlling stock (whether belonging to the East Coast Railway system or not) passing over such system, capital work inprogress, furniture, fixtures, office equipment, appliances, accessories, vehicles, advances and deposits with anyGovernmental Authority or others, loans, outstanding loans and advances recoverable in cash or in kind (includingaccrued interest), receivables, all types of stocks including work-in-process, cash, balances with banks, cheques,bills of exchange and other negotiable instruments, benefits of any bank guarantees, performance guarantees,corporate guarantees, letters of credit, financial assets and instruments, investments and other funds along withaccrued interest thereon and benefits attached thereto, pertaining to Rail Business.
(b) All debts, liabilities, loans, guarantees, forward contract liability, assurances, commitments, duties and obligations ofany nature or description, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or howeverarising, (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability),pertaining to Rail Business;
(c) All contracts, agreements, leases, linkages, memoranda of understanding, memoranda of agreements, memoranda ofagreed points, letters of agreed points, agreed term sheets, arrangements, undertakings, whether written or otherwise,deeds, bonds, schemes, arrangements, sales orders, purchase orders, job orders or other instruments of whatsoevernature to which OCL is a party, exclusively relating to Rail Business or otherwise identified to be for the benefit of thesame,;
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(d) All intellectual property rights including registrations, trademarks, trade names, service marks, copyrights, patents,designs, domain names and applications relating thereto, goodwill, technical knowhow, trade secrets exclusivelyused by or held for use by OCL in relation to Rail Business, whether or not registered, owned or licensed, includingany form of intellectual property which is in progress;
(e) All permits, licenses, consents, approvals, authorizations, quotas, rights, entitlements, claims, registrations, allotments,concessions, exemptions, liberties, advantages, no-objection certificates, certifications, easements, tenancies includingtenancy rights in relation to offices and residential properties, permissions, if any, privileges and similar rights, andany waivers of the foregoing, issued by any legislative, executive or judicial unit of any Governmental or semi-Governmental Authority or any department, commission, board, agency, bureau, official or other statutory, regulatory,local, administrative or judicial authority including but not limited to the relevant licenses, electricity, water supply andenvironment related approvals and connections, telephone, broadband, wireless and other communication systemsand equipments related approvals and connections including for data/image/graphics storage, reproduction,transmission and transfers, and all other rights, permits, consents, no-objections and approvals, pending applicationsfor consents, renewals or extension that exclusively relates to, issued or held for use by OCL pertaining to RailBusiness;
(f) all benefits, entitlements, incentives and concessions under incentive schemes and policies including under customs,excise, service tax, VAT, sales tax and entry tax and income tax laws, subsidy receivables from Government, grantsfrom any Governmental Authority, all other direct tax benefit/ exemptions/ deductions, sales tax deferrals, to theextent statutorily available to OCL pertaining to Rail Business, along with associated obligations;
(g) all employees of OCL, whether permanent or temporary, including employees/personnel engaged on contract basisand contract labourers, apprentices, interns/ trainees, both on-shore and offshore, as are primarily engaged in or inrelation to Rail Business, at its respective offices, branches etc., and any other employees/personnel and contractlabourers, apprentices, interns/trainees hired by OCL after the date hereof who are primarily engaged in or in relationto Rail Business and contributions, if any, made towards any provident fund, employees state insurance, gratuityfund, staff welfare scheme or any other special schemes, funds or benefits, existing for the benefit of suchemployees of OCL, together with such of the investments made by these funds, which are referable to suchemployees of OCL;
(h) all legal (whether civil or criminal), taxation or other proceedings or investigations of whatsoever nature (includingthose before any Governmental Authority) initiated by or against OCL or proceedings or investigations to which OCLis party to, that pertain to Rail Business, whether pending/ongoing as on the Appointed Date or which may beinstituted any time in the future;
(i) all incentives, benefits, exemptions, payment deferrals, subsidies, concessions, grants, taxes, duties, cess, leviesetc., that are allocable, referable or related to Rail Business, including all or any refunds, interest due thereon, creditsand claims relating thereto, including service tax, input credits, CENVAT credits, value added tax, sales tax, entry taxcredits or set-offs and any other tax benefits, exemptions and refunds etc. ; and
(j) all books, records, files, papers, engineering and process information, databases, catalogues, quotations, advertisingmaterials, lists of present and former credit, whether in physical or electronic form, pertaining to Rail Business.
“Registrar of Companies ” means the Registrar of Companies, at Odisha and/or at Chennai, as relevant in the context;
“Scheme ”, “the Scheme ”, “this Scheme ” means this Scheme of Arrangement and Amalgamation in its present formsubmitted to the High Court(s) or any other Appropriate Authority in the relevant jurisdictions, with any modification(s) theretoas the High Court(s) or any other Appropriate Authority may require, direct or approve.
“Slump Sale ” means the transfer and vesting of Transferred Undertakings 1 (as hereinafter defined) of OCL and TransferredUndertakings 2 (as hereinafter defined) of DCEL to ODCL on a going concern and “as-is-where-is” basis for a lump sumconsideration, without values being assigned to the individual assets and liabilities, in terms of Section 2(42C) of the IncomeTax Act and to be implemented in terms of Part III and Part IV of the Scheme respectively.
“Solid Waste Management System Undertaking of DCEL ” shall mean the whole of the undertaking of DCEL togetherwith its business and operations pertaining to developing, operating and maintaining infrastructure facility for collection,transportation, storage, processing & re-cycling/reprocessing of waste product into another product, on a going concernbasis, and comprising of, inter alia, all the assets and liabilities which relate thereto, or are necessary therefore (“WasteManagement Business ”)including but not limited to the following:
(a) All assets and properties (including properties being more specifically described in Schedule VI to the Scheme)wherever located, whether real, personal or mixed, tangible or intangible, present or future, actual or contingent,exclusively used or held, by DCEL in, or otherwise identified for use in relation to Waste Management Business,including but not limited to all land (including freehold, leasehold, leave and licensed land), buildings, any tenancies inrelation to land and buildings, parking rights, title, rights, interests and benefits and documents of title, rights or interestand easements in relation thereto and all plant and machineries constructed on or embedded or attached to any suchland and all other rights including rights arising under contracts in connection with such immovable properties,equipments, fixed assets, raw material storage yard, coal crusher, slag and gypsum tunnel, fluidised bed combustor,hot air generator, slag route, conveyor belt and hopper, capital work in progress, furniture, fixtures, office equipment,
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appliances, accessories, vehicles, advances and deposits with any Governmental Authority or others, loans,outstanding loans and advances recoverable in cash or in kind (including accrued interest),receivables, all types ofstocks including work-in-process, cash, balances with banks, cheques, bills of exchange and other negotiableinstruments, benefits of any bank guarantees, performance guarantees, corporate guarantees, letters of credit,financial assets and instruments, investments and other funds along with accrued interest thereon and benefitsattached thereto, pertaining to Waste Management Business.
(b) All debts, liabilities, loans, guarantees, forward contract liability, assurances, commitments, duties and obligations ofany nature or description, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or howeverarising, (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability),pertaining to Waste Management Business;
(c) All contracts, agreements, leases, linkages, memoranda of understanding, memoranda of agreements, memoranda ofagreed points, letters of agreed points, agreed term sheets, arrangements, undertakings, whether written or otherwise,deeds, bonds, schemes, arrangements, sales orders, purchase orders, job orders or other instruments of whatsoevernature to which DCEL is a party, exclusively relating to Waste Management Business or otherwise identified to be forthe benefit of the same;
(d) All intellectual property rights including registrations, trademarks, trade names, service marks, copyrights, patents,designs, domain names and applications relating thereto, goodwill, technical knowhow, trade secrets exclusivelyused by or held for use by DCEL in relation to Waste Management Business, whether or not registered, owned orlicensed, including any form of intellectual property which is in progress;
(e) All permits, licenses, consents, approvals, authorizations, quotas, rights, entitlements, claims, registrations, allotments,concessions, exemptions, liberties, advantages, no-objection certificates, certifications, easements, tenancies includingtenancy rights in relation to offices and residential properties, permissions, if any, privileges and similar rights, andany waivers of the foregoing, issued by any legislative, executive or judicial unit of any Governmental or semi-Governmental entity or any department, commission, board, agency, bureau, official or other statutory, regulatory,local, administrative or judicial authority including but not limited to the relevant licenses, electricity, water supply andenvironment related approvals and connections, telephone, broadband, wireless and other communication systemsand equipments related approvals and connections including for data/image/graphics storage, reproduction,transmission and transfers, and all other rights, permits, consents, no-objections and approvals, pending applicationsfor consents, renewals or extension that exclusively relates to, issued or held for use by DCEL pertaining to WasteManagement Business;
(f) all benefits, entitlements, incentives and concessions under incentive schemes and policies including under customs,excise, service tax, VAT, sales tax and entry tax and income tax laws, subsidy receivables from Government, grantsfrom any Governmental Authority, all other direct tax benefit/ exemptions/ deductions, sales tax deferrals, to theextent statutorily available to DCEL pertaining to Waste Management Business, along with associated obligations;
(g) all employees of DCEL, whether permanent or temporary, including employees/personnel engaged on contract basisand contract labourers, apprentices, interns/ trainees, both on-shore and offshore, as are primarily engaged in or inrelation to Waste Management Business, at its respective offices, branches etc., and any other employees/personneland contract labourers, apprentices, interns/trainees hired by DCEL after the date hereof who are primarily engagedin or in relation to Waste Management Business and contributions, if any, made towards any provident fund, employeesstate insurance, gratuity fund, staff welfare scheme or any other special schemes, funds or benefits, existing for thebenefit of such employees of DCEL, together with such of the investments made by these funds, which are referableto such employees of DCEL;
(h) all legal (whether civil or criminal), taxation or other proceedings or investigations of whatsoever nature (includingthose before any Governmental Authority) initiated by or against DCEL or proceedings or investigations to whichDCEL is party to, that pertain to Waste Management Business, whether pending/ongoing as on the Appointed Date orwhich may be instituted any time in the future; and
(i) all incentives, benefits, exemptions and refunds and other benefits, exemptions, payment deferrals, subsidies,concessions, grants, taxes, duties, cess, levies etc., that are allocable, referable or related to Waste ManagementBusiness, including all or any refunds, interest due thereon, credits and claims relating thereto, including service tax,input credits, CENVAT credits, value added tax, sales tax, entry tax credits or set-offs and any other tax etc.;
(j) all books, records, files, papers, engineering and process information, databases, catalogues, quotations, advertisingmaterials, lists of present and former credit, whether in physical or electronic form, pertaining to Waste ManagementBusiness.
“Solid Waste Management System Undertaking of OCL ” shall mean the whole of the undertaking of OCL together withits business and operations pertaining to developing, operating and maintaining infrastructure facility at Kapilas in relation tocollection, transportation, storage, processing & re-cycling/reprocessing of waste product into another product, on a goingconcern basis, and comprising of, inter alia, all the assets and liabilities which relate thereto, or are necessary for WasteManagement Business, including but not limited to the following:
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(a) All assets and properties (including properties being more specifically described in Schedule VII to the Scheme)wherever located, whether real, personal or mixed, tangible or intangible, present or future, actual or contingent,exclusively used or held, by OCL in, or otherwise identified for use in relation to Waste Management Business,including all land (including freehold, leasehold, leave and licensed land), buildings, any tenancies in relation to l, andbuildings, parking rights, title, rights, interests and benefits and documents of title, rights or interest and easements inrelation thereto and all plant and machineries constructed on or embedded or attached to any such land and all otherrights including rights arising under contracts in connection with such immovable properties, equipments, fixedassets, raw material storage yard, coal crusher, stacker & reclaimer, hot air generator, multi compartment silo andconveyor belt, capital work in progress, furniture, fixtures, office equipment, appliances, accessories, vehicles,advances and deposits with any Governmental Authority or others, loans, outstanding loans and advances recoverablein cash or in kind (including accrued interest),receivables, all types of stocks including work-in-process, cash,balances with banks, cheques, bills of exchange and other negotiable instruments, benefits of any bank guarantees,performance guarantees, corporate guarantees, letters of credit, financial assets and instruments, investments andother funds along with accrued interest thereon and benefits attached thereto, pertaining to Waste ManagementBusiness.
(b) All debts, liabilities, loans, guarantees, forward contract liability, assurances, commitments, duties and obligations ofany nature or description, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or howeverarising, (including, without limitation, whether arising out of any contract or tort based on negligence or strict liability),pertaining to Waste Management Business;
(c) All contracts, agreements, leases, linkages, memoranda of understanding, memoranda of agreements, memoranda ofagreed points, letters of agreed points, agreed term sheets, arrangements, undertakings, whether written or otherwise,deeds, bonds, schemes, arrangements, sales orders, purchase orders, job orders or other instruments of whatsoevernature to which OCL is a party, exclusively relating to Waste Management Business or otherwise identified to be forthe benefit of the same;
(d) All intellectual property rights including registrations, trademarks, trade names, service marks, copyrights, patents,designs, domain names and applications relating thereto, goodwill, technical knowhow, trade secrets, exclusivelyused by or held for use by OCL in relation to Waste Management Business, whether or not registered, owned orlicensed, including any form of intellectual property which is in progress;
(e) All permits, licenses, consents, approvals, authorizations, quotas, rights, entitlements, claims, registrations, allotments,concessions, exemptions, liberties, advantages, no-objection certificates, certifications, easements, tenancies includingtenancy rights in relation to offices and residential properties, permissions, if any, privileges and similar rights, andany waivers of the foregoing, issued by any legislative, executive or judicial unit of any Governmental or semi-Governmental entity or any department, commission, board, agency, bureau, official or other statutory, regulatory,local, administrative or judicial authority including but not limited to the relevant licenses, electricity, water supply andenvironment related approvals and connections, telephone, broadband, wireless and other communication systemsand equipments related approvals and connections including for data/image/graphics storage, reproduction,transmission and transfers, and all other rights, permits, consents, no-objections and approvals, pending applicationsfor consents, renewals or extension that exclusively relates to, issued or held for use by OCL pertaining to WasteManagement Business;
(f) all benefits, entitlements, incentives and concessions under incentive schemes and policies including under customs,excise, service tax, VAT, sales tax and entry tax and income tax laws, subsidy receivables from Government, grantsfrom any Governmental Authority, all other direct tax benefit/ exemptions/ deductions, sales tax deferrals, to theextent statutorily available to OCL pertaining to Waste Management Business, along with associated obligations;
(g) all employees of OCL, whether permanent or temporary, including employees/personnel engaged on contract basisand contract labourers, apprentices, interns/ trainees, both on-shore and offshore, as are primarily engaged in or inrelation to Waste Management Business, at its respective offices, branches etc., and any other employees/personneland contract labourers, apprentices, interns/trainees hired by OCL after the date hereof who are primarily engagedin or in relation to Waste Management Business and contributions, if any, made towards any provident fund, employeesstate insurance, gratuity fund, staff welfare scheme or any other special schemes, funds or benefits, existing for thebenefit of such employees of OCL, together with such of the investments made by these funds, which are referableto such employees of OCL;
(h) all legal (whether civil or criminal), taxation or other proceedings or investigations of whatsoever nature (includingthose before any Governmental Authority) initiated by or against OCL or proceedings or investigations to which OCLis party to, that pertain to Waste Management Business, whether pending/ongoing as on the Appointed Date or whichmay be instituted any time in the future; and
(i) all incentives, benefits, exemptions and refunds and other benefits, exemptions, payment deferrals, subsidies,concessions, grants, taxes, duties, cess, levies etc., that are allocable, referable or related to Waste ManagementBusiness, including all or any refunds, interest due thereon, credits and claims relating thereto, including service tax,input credits, CENVAT credits, value added tax, sales tax, entry tax credits or set-offs and any other taxes etc.;
(j) all books, records, files, papers, engineering and process information, databases, catalogues, quotations, advertisingmaterials, lists of present and former credit, whether in physical or electronic form, pertaining to Waste ManagementBusiness.
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“SRSHL” or “Transferor Comp any 3” means Shri Rangam Securities & Holdings Limited, an unlisted public company limitedby shares, incorporated on 25th March,2014 under the provisions of the Companies Act, 1956 and having its registered officeat Dalmiapuram Lalgudi Taluk, Dalmiapuram - 621651, Dist. Tiruchirappalli, Tamil Nadu.
“Transferred Undert akings 1 ” means ‘Power Undertakings of OCL’, ‘Rail Undertaking of OCL’ and ‘Solid Waste ManagementSystem Undertaking of OCL’ taken together, which shall be transferred to ODCL by OCL upon Slump Sale in terms of Part IIIof this Scheme.
“Transferred Undert akings 2 ” means ‘Rail Undertaking of DCEL’ and ‘Solid Waste Management System Undertaking ofDCEL’ taken together, which shall be transferred to ODCL by DCEL upon Slump Sale in terms of Part IV of this Scheme.
“Transferor Comp anies ” means OCL, DCEL, DBCHL and SRSHL taken together.
1.2 All terms and words used in this Scheme shall, unless repugnant or contrary to the subject or context or meaning thereof,have the same meaning ascribed to them under the 1956 Act or the 2013 Act, as applicable, the Income Tax Act, theDepositories Act, 1996 and other applicable laws, rules, regulations, bye-laws, as the case may be or any statutorymodification or re-enactment thereof for the time being in force.
1.3 In this Scheme, unless the context otherwise requires:
(a) words denoting singular shall include plural and vice versa;
(b) headings and bold typeface are only for convenience and shall be ignored for the purposes of interpretation;
(c) references to the word “include” or “including” shall be construed without limitation;
(d) a reference to an article, clause, section, paragraph or schedule is, unless indicated to the contrary, a reference toan article, clause, section, paragraph or schedule of this Scheme;
(e) unless otherwise defined, the reference to the word “days” shall mean calendar days;
(f) references to dates and times shall be construed to be references to Indian dates and times;
(g) reference to a document includes an amendment or supplement to, or replacement or novation of, that document; and
(h) references to a person include any individual, firm, body corporate (whether incorporated or not), Government, stateor agency of a state or any joint venture, association, partnership, works councillor employee representatives body(whether or not having separate legal personality).
(i) references to any of the terms taxes, duty, levy, cess in the Scheme shall be construed as reference to all of themwhether jointly or severally.
(j) word(s) and expression(s) elsewhere defined in the Scheme will have the meaning(s) respectively ascribed to them.
(k) any reference to any statute or statutory provision shall include:
(i) all subordinate legislations made from time to time under that provision (whether or not amended, modified,re-enacted or consolidated from time to time) and any retrospective amendment; and
(ii) such provision as from time to time amended, modified, re-enacted or consolidated (whether before orafter the filing of this Scheme) to the extent such amendment, modification, re-enactment or consolidationapplies or is capable of applying to the matters contemplated under this Scheme and (to the extent liabilitythere under may exist or can arise) shall include any past statutory provision (as amended, modified, re-enacted or consolidated from time to time) which the provision referred to has directly or indirectlyreplaced.
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PART II –SHARE CAPITAL
1. SHARE CAPITAL
(a) OCL
The share capital of OCL as on 15th March, 2016 is as under:
Authorised Share Capital Amount (Rs.)
1,00,000 Equity Shares of Rs. 100 each 1,00,00,000
7,00,00,000 Equity Shares of Rs. 2 each 14,00,00,000
Tot al 15,00,00,000
Issued, Subscribed and Fully Paid Up Share Capital Amount (Rs.)
5,69,00,220 Equity Shares of Rs.2 each 11,38,50,183
Tot al 11,38,50,183
After the date stated above there has been no change in authorised, issued, subscribed and paid up share capital of OCL.
(b) DCEL
The share capital of DCEL as on 15th March, 2016 is as under:
Authorised Share Capital Amount (Rs.)
13,50,00,000 Equity Shares of Rs. 10 each 135,00,00,000
Tot al 135,00,00,000
Issued, Subscribed and Fully Paid Up Share Capital Amount (Rs.)
13,36,50,000 Equity Shares of Rs. 10 each 133,65,00,000
Tot al 133,65,00,000
After the date stated above there has been no change in authorised, issued, subscribed and paid up share capital of DCEL.
(c) SRSHL
The share capital of SRSHL as on 15th March, 2016 is as under:
Authorised Share Capital Amount (Rs.)
10,00,00,000 Equity Shares of Rs. 10 each 100,00,00,000
Tot al 100,00,00,000
Issued, Subscribed and Fully Paid Up Share Capital Amount (Rs.)
9,08,50,000 Equity Shares of Rs. 10 each 90,85,00,000
Tot al 90,85,00,000
After the date stated above, there has been no change in authorised, issued, subscribed and paid up share capital of SRSHL.
(d) DBCHL
The share capital of DBCHL as on 15th March, 2016 is as under:
Authorised Share Capital Amount (Rs.)
10,00,00,000 Equity Shares of Rs. 10 each 100,00,00,000
Tot al 100,00,00,000
Issued, Subscribed and Fully Paid Up Share Capital Amount (Rs.)
8,31,60,000 Equity Shares of Rs. 10 each 83,16,00,000
Tot al 83,16,00,000
After the date stated above there has been no change in authorised, issued, subscribed and paid up share capital of DBCHL.
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(e) ODCL
The share capital of ODCL as on 15th March, 2016 is as under:
Authorised Share CapitalAmount (Rs.)
1,00,000 Equity Shares of Rs. 10 each 10,00,000
Tot al 10,00,000
Issued, Subscribed and Fully Paid Up Share Capital Amount (Rs.)
50,000 Equity Shares of Rs. 10 each 5,00,000
Tot al 5,00,000
After the date stated above there has been no change in authorised, issued, subscribed and paid up share capital of ODCL.
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PART IIITRANSFER OF POWER UNDERTAKINGS, RAIL UNDERTAKING AND SOLID WASTE MANAGEMENT SYSTEM UNDERTAKING OF
OCL TO ODCL BY WAY OF SLUMP SALE
Transfer and V esting of T ransferred Undert akings 1 i.e., Power Undert akings, Rail Undert aking and Solid W asteManagement System Undertaking of OCL by way of Slump Sale
3. Upon Part III of the Scheme becoming effective, pursuant to the order(s) of the High Court(s) sanctioning the Scheme andpursuant to the provisions of Sections 391 to 394 and other applicable provisions of the 1956 Act or the correspondingprovisions of 2013 Act, as applicable, with effect from the Appointed Date, the Transferred Undertakings 1 shall standtransferred to and be vested in and/or be deemed to have been transferred to and vested in ODCL, as a going concern, byway of Slump Sale, so as to become, from the Appointed Date, the undertaking of ODCL, without any further act, instrumentor deed, as per the provisions and in the manner provided herein, subject to existing charges or lis pendens, if any, thereon,in the manner as provided hereinafter in this Part III of the Scheme.
4. Without prejudice to the generality of the foregoing in clause 3 above and to the extent applicable, unless otherwise statedherein, upon Part III of the Scheme becoming effective, with effect from the Appointed Date, the entire Transferred Undertakings1 shall be transferred by OCL to ODCL as a going concern and on “as-is-where-is” basis, for a lump sum consideration, asmentioned in clause 10 herein below, without assigning value to individual assets and liabilities, and in the following manner:
(a) All assets pertaining to the Transferred Undertakings 1 that are movable in nature or are incorporeal property or areotherwise capable of transfer by physical or constructive delivery and/or by endorsement and delivery or byoperation of law, pursuant to the vesting orders of the High Court(s) sanctioning the Scheme and on Part III of theScheme becoming effective, shall stand vested in ODCL and shall be deemed to have become and be the propertyof ODCL as its integral part by operation of law. Such vesting pursuant to this clause shall be deemed to haveoccurred by manual/constructive delivery and/or by endorsement and delivery, as appropriate in relation to theproperty and, title to the property shall be deemed to have got transferred accordingly, without requiring executionof any deed or instrument of conveyance for the same.
(b) All assets pertaining to the Transferred Undertakings 1 that are movable in nature, other than those in sub-clause(a) above, outstanding loans and advances, if any, recoverable in cash or in kind or for value to be received, bankbalances and deposits, if any, with Government, semi-Government, local and other authorities and bodies, customersand other persons, shall without any further act, instrument or deed, pursuant to the vesting orders and byoperation of law, become the property of ODCL, and the title thereof together with all rights, interests or obligationsshall be deemed to have been mutated and recorded as that of ODCL. Any document of title pertaining to the assetsof the Transferred Undertakings 1 shall also be deemed to have been mutated and recorded as titles of ODCL to thesame extent and manner as originally held by OCL to the end and intent that all the ownership, right, title and interestso vesting in ODCL will be such as if ODCL was originally OCL. ODCL shall, subsequent to the vesting orders, beentitled to the delivery and possession of all documents of title including all related documents of such movableproperty in this regard.
(c) All immovable properties (including properties being more specifically described in Schedule I, Schedule III andSchedule V to the Scheme) of OCL pertaining to the Transferred Undertakings 1 (i.e., land together with thebuildings and structures standing thereon or under construction) whether freehold, leasehold, leave and licensedor otherwise including any tenancies in relation to warehouses, office space, guest houses and residentialpremises including those provided to/occupied by the employees of Transferred Undertakings 1 of OCL, all plantand machineries constructed on or embedded or attached to any such immovable properties, all rights, covenants,continuing rights, title and interest in connection with the said immovable properties and all documents of title, rightsand easements in relation thereto, shall upon Part III of the Scheme becoming effective, stand transferred to and bevested in and be deemed to have been transferred to and vested in ODCL, without any further act or deed beingdone/executed or being required to be done/executed by OCL or ODCL or both. ODCL shall be entitled to exerciseand enjoy all rights and privileges attached to such immovable properties and shall be liable to pay the ground rentand taxes and fulfill all obligations and be entitled to all rights in relation to or as applicable to such immovableproperties.
(d) All liabilities pertaining to the Transferred Undertakings 1 including debts, liabilities, duties and obligations, whethercontingent or otherwise, secured or unsecured, whether provided for or not in the books of account or disclosedor not in the balance sheet of OCL, which are subsisting immediately before Part III of the Scheme becomingeffective, shall stand vested in and be assumed by ODCL by operation of law pursuant to the vesting orders of theHigh Court(s) sanctioning the Scheme and shall upon Part III of the Scheme becoming effective be deemed to be thedebts, liabilities, duties and obligations of ODCL, and ODCL shall undertake to meet, discharge and satisfy the samein terms of their respective terms and conditions, if any. ODCL alone shall be liable to meet, discharge and satisfysuch liabilities as the borrower/creditor in respect thereof.
The liabilities, if any, due or which may at any time in the future become due in relation to the Transferred Undertakings1, inter-se OCL and ODCL, shall stand discharged /cancelled or shall be deemed to have been discharged/cancelledand consequently, no liability or obligation of any nature subsist in that behalf on either company and correspondingeffect shall be given in the books of account and records of ODCL.
It is hereby clarified that it shall not be necessary to obtain the consent of any third party or other person who is aparty to any contract or arrangement by virtue of which such debts, liabilities, duties and obligations have arisen inorder to give effect to the provisions of this clause.
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(e) All contracts including contracts, deeds, bonds, agreements, schemes, arrangements and other instruments,permits, rights, entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatorybodies) for the purpose of carrying on the business of Transferred Undertakings 1, and in relation thereto, andthose relating to tenancies, privileges, powers, facilities of every kind and description of whatsoever nature inrelation to the Transferred Undertakings 1, or to the benefit of which, Transferred Undertakings 1 may be eligibleand which are subsisting or having effect immediately before Part III of the Scheme coming into effect, shall byendorsement, delivery or record or by operation of law pursuant to the vesting orders of the High Court(s)sanctioning the Scheme, and on Part III of the Scheme becoming effective, be deemed to be contracts, deeds,bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements, licenses (includingthe licenses granted by any Governmental, statutory or regulatory bodies) of ODCL. Such properties and rightsdescribed hereinabove shall stand transferred to and vested in ODCL and shall be deemed to have become and bethe property of ODCL as its integral part by operation of law. Such contracts and properties described above shallcontinue to be in full force and continue to be as effective as hitherto fore in favor of or against ODCL and shall bethe legal and enforceable rights and interests of ODCL, which can be enforced and acted upon as fully andeffectually as if, it were OCL, as ODCL is its affiliate and shall be deemed to be its successor in interest. Upon PartIII of the Scheme becoming effective, the rights, duties, obligations, interests flowing from such contracts andproperties, shall be deemed to have been entered in and novated to ODCL by operation of law and ODCL shall bedeemed to be OCL’s substituted party or beneficiary or obligor thereto. In relation to the same, any proceduralrequirements required to be fulfilled solely by OCL (and not by any of its successors), shall be fulfilled by ODCL asif it were the duly constituted attorney of OCL. Upon Part III of the Scheme becoming effective, with effect from theAppointed Date, any contract of OCL relating to or benefiting at present OCL and the Transferred Undertakings 1,shall be deemed to constitute separate contracts, thereby relating to and/or benefiting OCL and ODCL, respectively.
Any inter-se contracts in relation to the Transferred Undertakings 1 between OCL and ODCL shall stand cancelledand cease to operate and be of no effect upon Part III of the Scheme becoming effective.
All guarantees provided by any bank in relation to the Transferred Undertakings 1 in favour of OCL outstanding ason the Effective Date 3, shall stand substituted in favour of and vest in ODCL and shall enure to the benefit of ODCLand, all guarantees issued by the bankers of OCL in relation to the Transferred Undertakings 1at the request of OCLfavouring any third party shall be deemed to have been issued at the request of ODCL and continue to remain in fullforce on their original terms of issue in favour of such third party till its maturity or earlier termination.
(f) Any suits, appeals or other proceedings of whatsoever nature and pending in any court, tribunal or any otherforum, relating to the Transferred Undertakings 1, whether by or against OCL, shall not abate or determine or bediscontinued or in any way be prejudicially affected by reason of the transfer and vesting of the TransferredUndertakings 1 into ODCL or of any order of or direction passed or issued or anything contained in this Scheme, butby virtue of the vesting and sanction order, such legal proceedings shall continue and any prosecution shall beenforced by or against ODCL in the same manner and to the same extent as would or might have been continued,prosecuted and/or enforced by or against OCL, as if Part III of the Scheme had not been implemented.
(g) All the employees as on Effective Date 3, pertaining to the Transferred Undertakings 1, shall become employees ofand be engaged by ODCL pursuant to the vesting orders and by operation of law, with effect from Part III of theScheme coming into effect, on same terms and conditions, which, as a result, shall be no less favorable than thoseon which they are currently engaged by OCL, without any interruption of service as a result of transfer and vestingof Transferred Undertakings 1 and without any further act, deed or instrument on the part of OCL or ODCL. Allcontributions made by OCL on behalf of its employees and all contributions made by the employees including theinterests arising thereon, to the funds and standing to the credit of such employees’ account with such funds, shall,upon Part III of the Scheme becoming effective, be transferred to ODCL along with such of the investments made bysuch funds which are referable and allocable to the employees of the Transferred Undertakings 1 of OCL and ODCLshall stand substituted for OCL with regard to the obligation to make the said contributions.
With regard to provident fund, gratuity fund, superannuation fund, leave encashment and any other special schemeor benefits created or existing for the benefit of employees pertaining to the Transferred Undertakings 1, upon PartIII of the Scheme becoming effective, shall be continued on the same terms and conditions by ODCL and ODCL shallstand substituted for OCL for all purposes and intents, whatsoever, relating to the administration or operations ofsuch schemes or funds or in relation to the obligation to make contributions to the said funds, in accordance with theprovisions of applicable laws or otherwise. Further, the employees of OCL entitled to the benefit of superannuationand gratuity fund from OCL shall continue to be entitled to the same from ODCL. It is the intent that all the rights,duties, powers and obligations of OCL in relation to such fund or funds shall become those of ODCL without needof any fresh approval from any statutory authority. It is hereby clarified that upon Part III of the Scheme becomingeffective, the aforesaid benefits or schemes shall continue to be provided to such employees by ODCL and theservices of all such employees of OCL for such purpose shall be treated as having been continuous.
ODCL agrees that the services of all employees of OCL, pertaining to the Transferred Undertakings 1 prior to thetransfer, shall be taken into account for the purposes of all benefits to which such employees may be eligible,including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminalbenefits, gratuity plans, provident plans and other retirement benefits and accordingly, such benefits shall bereckoned from the date of their respective appointment in OCL. ODCL undertakes to pay the same, as and whenpayable under applicable laws.
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The contributions made by OCL under applicable law in connection with the employees of the Transferred Undertakings1 of OCL, to the funds, for the period after the Appointed Date shall be deemed to be contributions made by ODCL.
(h) All intellectual property including registrations, licenses, trademarks, logos, service marks, copyrights, domainnames, trade names, and applications relating thereto, goodwill, know how, trade secrets, pertaining to theTransferred Undertakings 1, if any, shall stand vested in ODCL without any further act, instrument or deed (unlessfiled only for statistical record with any appropriate authority or Registrar), upon Part III of the Scheme becomingeffective. The other intellectual property rights presently held by OCL, that relate to or benefit at present OCL or theTransferred Undertakings 1, shall be deemed to constitute separate intellectual property rights of OCL or ODCL, asthe case be, by the relevant authorities pursuant to the sanction of the Scheme by the High Court(s).
(i) All taxes (including but not limited to advance tax, tax deducted at source, tax collected at source, minimum alternatetax credits, securities transaction tax, input credit, CENVAT, value added tax, sales tax, entry tax, goods andservice tax, as applicable, taxes withheld/paid in a foreign country, etc.) payable by or refundable to the TransferredUndertakings 1, including all or any refunds or claims shall be treated as the tax liability or refunds/claims, as thecase may be, of ODCL, and any tax incentives, advantages, privileges, exemptions, rebates, benefits, credits, taxholidays u/s 80-IA of Income Tax Act, remissions, reductions, etc., as would have been available to TransferredUndertakings 1, shall pursuant to Part III of the Scheme becoming effective, be available to ODCL.
(j) All lease and/or licenses including approvals, consents, sanctions, exemptions, registrations, no-objectioncertificates, permits, quotas, rights, entitlements, licenses (including the licenses granted by any Governmental,statutory or regulatory bodies for the purpose of carrying on its business or in connection therewith), and certificatesof every kind and description whatsoever in relation to the Transferred Undertakings 1, or to the benefit of whichthe Transferred Undertakings 1 may be eligible/entitled, and which are subsisting or having effect immediatelybefore the Scheme coming into effect, shall by endorsement, delivery or recordal or by operation of law pursuantto the vesting orders of the High Court(s) sanctioning the Scheme, and on Part III of the Scheme becoming effective,be deemed to be approvals, consents, sanctions, exemptions, registrations, no-objection certificates, permits,quotas, rights, entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatorybodies for the purpose of carrying on its business or in connection therewith), and certificates of every kind anddescription of whatsoever nature, of ODCL, and shall be in full force and effect in favor of ODCL and may beenforced as fully and effectually as if, instead of OCL, ODCL had been a party or beneficiary or obligor thereto.Such of the other permits, licenses, consents, sanctions, approvals, authorizations, quotas, rights, entitlements,allotments, concessions, exemptions, rebates, liberties, advantages, no-objection certificates, certifications,easements, tenancies, privileges and similar rights, and any waiver of the foregoing, as are held at present by OCL,but relate to or benefitting at present Amalgamating Undertaking 1 and the Transferred Undertakings 1, shall bedeemed to constitute separate permits, licenses, consents, sanctions, approvals, authorizations, quotas, rights,entitlements, allotments, concessions, exemptions, rebates, liberties, advantages, no-objection certificates,certifications, easements, tenancies, privileges and similar rights, and any waiver of the foregoing, and the necessarysubstitution/endorsement shall be made and duly recorded in the name of OCL and ODCL, respectively, by therelevant authorities pursuant to the sanction of Part III of the Scheme by the High Court(s). It is hereby clarified thatif the consent of any third party or authority is required to give effect to the provisions of this clause, the said thirdparty or authority shall take on record the orders of the High Court(s) sanctioning the Scheme on its file and makeand duly record the necessary substitution or endorsement in the name of ODCL as successor in interest, pursuantto the sanction of Part III of the Scheme by the High Court(s), and upon Part III of Scheme becoming effective inaccordance with the terms hereof. For this purpose, ODCL shall file certified copies of such sanction orders, andif required file appropriate applications, forms or documents with relevant authorities concerned for statistical,information and record purposes only, and there shall be no break in the validity and enforceability of approvals,consents, sanctions, exemptions, rebates, registrations, no-objection certificates, permits, quotas, rights,entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatory bodies for thepurpose of carrying on its business or in connection therewith), and certificates of every kind and description ofwhatsoever nature.
(k) all intangible assets including various business or commercial rights, etc. pertaining to Transferred Undertakings 1belonging to but not recorded in books of OCL shall be transferred to and vested with ODCL and shall be recordedat their respective fair values. The consideration agreed under the Scheme shall be deemed to include paymenttowards these intangible assets at their respective fair values. Such intangible assets shall, for all purposes, beregarded as intangible assets in terms of Explanation 3(b) to Section 32(1) of Income Tax Act and shall be eligiblefor depreciation there under at the prescribed rates.
(l) All benefits, entitlements, incentives and concessions under incentive schemes and policies, pertaining to theTransferred Undertakings 1 that OCL is entitled to, including under customs, excise, service tax, VAT, sales tax andentry tax and income tax laws, subsidy receivables from government, direct tax benefit/ exemptions/ deductions,shall, to the extent statutorily available and along with associated obligations, stand transferred to and be availableto ODCL upon Part III of the Scheme becoming effective as if ODCL was originally entitled to all such benefits,entitlements, incentives and concessions.
All benefits of any and all corporate approvals as may have already been taken by OCL with respect to theTransferred Undertakings 1, whether being in the nature of compliances or otherwise, shall stand vested in ODCLand the said corporate approvals and compliances shall, upon Part III of the Scheme becoming effective, be deemedto have been taken/complied with by ODCL.
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(m) All estates, assets, rights, title, interests and authorities accrued to and/or acquired by OCL in relation to theTransferred Undertakings 1 shall be deemed to have been accrued to and/or acquired for and on behalf of ODCLand shall, upon Part III of the Scheme coming into effect, pursuant to the provisions of Section 394(2) and otherapplicable provisions of the 1956 Act and 2013 Act, without any further act, instrument or deed be and shall standvested in or be deemed to have been vested in ODCL to that extent and shall become the estates, assets, right, title,interests and authorities of ODCL.
(n) All books, records, files, papers, engineering and process information, catalogues, quotations, advertising materials,if any, lists of present and former clients , whether in physical or electronic form, pertaining to the TransferredUndertakings 1 of OCL, to the extent possible and permitted under applicable laws, be handed over by them toODCL.
5. Upon Part III of the Scheme becoming effective, the secured creditors of OCL that relate to the Transferred Undertakings 1,if any, and/or other security holders over the properties of the Transferred Undertakings 1 shall be entitled to security onlyin respect of the properties, assets, rights, benefits and interest of Transferred Undertakings 1, as existing immediately priorto transfer and vesting of the Transferred Undertakings 1 into ODCL and the secured creditors of ODCL and/or other securityholders over the properties of ODCL shall be entitled to security only in respect of the properties, assets, rights, benefits andinterest of ODCL, as existing immediately prior to Part III of the Scheme becoming effective. It is hereby clarified that pursuantto the transfer and vesting of the Transferred Undertakings 1 into ODCL, in terms of Part III of the Scheme, the securedcreditors of OCL related to the Transferred Undertakings 1 and/or other security holders over the properties of the TransferredUndertakings 1 shall not be entitled to any additional security over the properties, assets, rights, benefits and interest ofODCL and vice versa, and hence such assets of OCL related to the Transferred Undertakings 1 and that of ODCL, as thecase may be, which are not currently encumbered shall remain free and available for creation of any security thereon infuture in relation to any current or future indebtedness of ODCL.
6. OCL and/or ODCL, as the case may be, shall, at any time after Part III of the Scheme becoming effective, in accordance withthe provisions hereof, if so required under any law or otherwise, execute appropriate deeds and/or documents of confirmationor other writings or arrangements with any party to any contract or arrangement in relation to which OCL has been a party,including any filings with the regulatory authorities, in order to give formal effect to the above provisions. ODCL shall for thispurpose, under the provisions hereof, be deemed to have been authorized to execute any such deeds, documents andwritings for and on behalf of OCL and to carry out or perform all such formalities or compliances referred to above orotherwise required to be carried out or performed on the part of OCL.
7. OCL and/or ODCL, as the case may be, shall, at any time after Part III of the Scheme becoming effective in accordance withthe provisions hereof, if so required under any law or otherwise, do all such acts or things as may be necessary for transfer/vesting of the approvals, sanctions, consents, exemptions, rebates, registrations, no-objection certificates, permits, quotas,rights, entitlements, licenses and certificates which were held or enjoyed by OCL in relation to the Transferred Undertakings1 including their respective business and operations, into ODCL. It is hereby clarified that if the consent of any third party orauthority is required to give effect to the provisions of this clause, the said third party or authority shall make and duly recordthe necessary substitution/ endorsement in the name of ODCL pursuant to the sanction of Part III of the Scheme by the HighCourt(s), and upon Part III of the Scheme becoming effective in accordance with the terms hereof. For this purpose, ODCLshall, if and as required, file appropriate applications/documents etc. with relevant authorities concerned for information andrecord purposes. ODCL shall, under the provisions of Part III of the Scheme, be deemed to be authorized to execute any suchapplications/documents etc. for and on behalf of OCL and to carry out or perform all such acts, formalities or compliancesreferred to above as may be required in this regard.
8. Any question that may arise as to whether a specified asset or liability pertains or does not pertain to the TransferredUndertakings 1 or whether it arises or does not arise out of the activities, business or operations of the TransferredUndertakings 1 shall be decided by mutual agreement between the respective Boards of Directors of OCL and ODCL.
9. Conduct of business till this Part III of the Scheme coming into effect
With effect from the Appointed Date and up to and including the date of Part III of the Scheme coming into effect:
(a) OCL shall carry on and shall be deemed to have carried on all its business activities pertaining to the TransferredUndertakings 1 and shall hold and stand possessed and shall be deemed to have held and stood possessed of allthe said assets, rights, title, interests, authorities, contracts, investments and decisions, benefits for and onaccount of and in trust for ODCL;
(b) All obligations, liabilities, duties and commitments attached, related or pertaining to the Transferred Undertakings 1of OCL shall be undertaken and shall be deemed to have been undertaken for and on account of and in trust forODCL;
(c) All profits or income arising or accruing in favor of OCL in relation to the Transferred Undertakings 1 and all taxespaid thereon (including but not limited to advance tax, tax deducted at source, minimum alternate tax credit,securities transaction tax, taxes withheld/paid in a foreign country, etc.) or losses arising or incurred by OCL inrelation to the Transferred Undertakings 1 shall, for all intent and purposes, be treated as and be deemed to be theprofits or income, taxes or losses, as the case may be, of ODCL;
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(d) OCL shall carry on the activities in relation to the Transferred Undertakings 1 with reasonable diligence andbusiness prudence and in the same manner as it had been doing hitherto, and shall not alter the TransferredUndertakings 1, undertake any additional financial commitments of any nature whatsoever, borrow any amounts orincur any other liabilities or expenditure, issue any additional guarantees, indemnities, letters of comfort or commitmenteither for themselves or on behalf of its respective affiliates or associates or any third party, in relation to theTransferred Undertakings 1; or sell, transfer, alienate, charge, mortgage or encumber or deal in any of its properties/assets of the Transferred Undertakings 1, except:
(i) when the same is expressly provided in Part III of the Scheme; or
(ii) when the same is in the ordinary course of business of the Transferred Undertakings 1 as carried on byOCL, as on the date of filing of this Scheme in the High Court(s); or
(iii) when written consent of ODCL has been obtained in this regard.
10. Consideration for Slump Sale of T ransferred Undert akings 1 into ODCL
Upon Part III of the Scheme coming into effect and upon transfer and vesting of the Transferred Undertakings 1 of OCL intoODCL pursuant to the Slump Sale as stated herein, OCL shall record “Loan payable to ODCL” for INR 24 Crores in its booksas the liabilities being higher than the assets transferred to ODCL by OCL.
11. Accounting T reatment in the books of ODCL
ODCL shall, upon Part III of the Scheme becoming effective, with effect from the Appointed Date, record assets and liabilitiesof Transferred Undertakings 1 (as appearing in the books of accounts of OCL at the close of business on the day precedingthe Appointed Date), as vested in it, pursuant to Slump Sale in terms of Part III, in accordance with the allocation report to beprepared in accordance with Accounting Standard -10 notified under the 1956 Act read with General Circular 15/2013 dated13th September, 2013 of the Ministry of Corporate Affairs in respect of section 133 of 2013 Act.
12. Accounting T reatment in the books of OCL
OCL shall, upon Part III of the Scheme becoming effective, with effect from the Appointed Date, account for Part III of theScheme as under:
(a) The accounts representing the assets and liabilities pertaining to the Transferred Undertakings 1 shall standreduced by book value of assets & liabilities transferred.
(b) Any difference between consideration recorded as per clause 10 above and the items mentioned in clause 12(a)above shall be recognized in profit & loss account.
13. Date of effectiveness of Part III of the Scheme
This Part III of the Scheme shall come into effect from Effective Date 3.
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PART IVTRANSFER OF RAIL UNDERTAKINGAND SOLID W ASTE MANAGEMENT SYSTEM UNDERTAKING OF DCEL TO ODCL
BY WAY OF SLUMP SALE
Transfer and V esting of T ransferred Undert akings 2 i.e., Rail Undert aking and Solid W aste Management SystemUndertaking of DCEL by way of Slump Sale
14. Upon Part IV of the Scheme becoming effective, pursuant to the order(s) of the High Court(s) sanctioning the Scheme andpursuant to the provisions of Sections 391 to 394 and other applicable provisions of the 1956 Act or the correspondingprovisions of 2013 Act, as applicable, with effect from the Appointed Date, the Transferred Undertakings 2 shall standtransferred to and be vested in and/or be deemed to have been transferred to and vested in ODCL, as a going concern, byway of Slump Sale, so as to become, as from the Appointed Date, the undertaking of ODCL, without any further act,instrument or deed, as per the provisions and in the manner provided herein subject to existing charges or lis pendens, if any,thereon, in the manner as provided hereinafter in this part IV of the Scheme.
15. Without prejudice to the generality of the foregoing in clause 14 above and to the extent applicable, unless otherwise statedherein, upon Part IV of the Scheme becoming effective, with effect from the Appointed Date, the entire Transferred Undertakings2 shall be transferred by DCEL to ODCL as a going concern and on “as-is-where-is” basis, for a lump sum consideration, asmentioned in clause 21 herein below, without assigning value to individual assets and liabilities, and in the following manner:
(a) All assets pertaining to the Transferred Undertakings 2 that are movable in nature or are incorporeal property or areotherwise capable of transfer by physical or constructive delivery and/or by endorsement and delivery or byoperation of law or pursuant to the vesting orders of the High Court(s) sanctioning the Scheme and on Part IV of theScheme becoming effective, shall stand vested in ODCL and shall be deemed to have become and be the propertyof ODCL as its integral part by operation of law. Such vesting pursuant to this clause shall be deemed to haveoccurred by manual/constructive delivery and/or by endorsement and delivery, as appropriate in relation to theproperty and title to the property shall be deemed to have got transferred accordingly, without requiring executionof any deed or instrument of conveyance for the same.
(b) All assets pertaining to the Transferred Undertakings 2 that are movable in nature, other than those in sub-clause(a) above, outstanding loans and advances, if any, recoverable in cash or in kind or for value to be received, bankbalances and deposits, if any, with Government, semi-Government, local and other authorities and bodies, customersand other persons, shall without any further act, instrument or deed, pursuant to the vesting orders and byoperation of law become the property of ODCL, and the title thereof together with all rights, interests or obligationsshall be deemed to have been mutated and recorded as that of ODCL. Any document of title pertaining to the assetsof the Transferred Undertakings 2 shall also be deemed to have been mutated and recorded as titles of ODCL to thesame extent and manner as originally held by DCEL to the end and intent that all the ownership, right, title andinterest so vesting in ODCL will be such as if ODCL was originally DCEL. ODCL shall, subsequent to the vestingorders, be entitled to the delivery and possession of all documents of title including all related documents of suchmovable property in this regard.
(c) All immovable properties (including properties being more specifically described in Schedule IV and Schedule VI tothe Scheme) of DCEL pertaining to the Transferred Undertakings 2 (i.e. land together with the buildings andstructures standing thereon or under construction), whether freehold, leasehold, leave and licensed or otherwiseincluding any tenancies in relation to warehouses, office space, guest houses and residential premises includingthose provided to/occupied by the employees of Transferred Undertakings 2 of DCEL, all plant and machineriesconstructed on or embedded or attached to any such immovable properties, all rights, covenants, continuing rights,title and interest in connection with the said immovable properties, and all documents of title, rights and easementsin relation thereto, shall upon Part IV of the Scheme becoming effective, stand transferred to and be vested in andbe deemed to have been transferred to and vested in ODCL, without any further act or deed being done/executedor being required to be done/executed by DCEL or ODCL or both. ODCL shall be entitled to exercise and enjoy allrights and privileges attached to such immovable properties and shall be liable to pay the ground rent and taxes andfulfill all obligations and be entitled to all rights in relation to or as applicable to such immovable properties.
(d) All liabilities pertaining to the Transferred Undertakings 2 including debts, liabilities, duties and obligations, whethercontingent or otherwise, secured or unsecured, whether provided for or not in the books of account or disclosedin the balance sheet of DCEL which are subsisting immediately before Part IV of the Scheme becoming effective,shall stand vested in and be assumed by ODCL by operation of law pursuant to the vesting orders of the HighCourt(s) sanctioning the Scheme and shall upon Part IV of the Scheme becoming effective be deemed to be thedebts, liabilities, duties and obligations of ODCL, and ODCL shall undertake to meet, discharge and satisfy the samein terms of their respective terms and conditions, if any. ODCL alone shall be liable to meet, discharge and satisfysuch liabilities as the borrower/creditor in respect thereof.
The liabilities, if any, due or which may at any time in the future become due in relation to the TransferredUndertakings 2, inter-se DCEL and ODCL, shall stand discharged/cancelled or shall be deemed to have beendischarged/cancelled and consequently, no liability or obligation of any nature subsist in that behalf on eithercompany and corresponding effect shall be given in the books of account and records of ODCL.
It is hereby clarified that it shall not be necessary to obtain the consent of any third party or other person who is aparty to any contract or arrangement by virtue of which such debts, liabilities, duties and obligations have arisen inorder to give effect to the provisions of this clause.
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(e) All contracts including contracts, deeds, bonds, agreements, schemes, arrangements and other instruments,permits, rights, entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatorybodies) for the purpose of carrying on the business of Transferred Undertakings 2, and in relation thereto, andthose relating to tenancies, privileges, powers, facilities of every kind and description of whatsoever nature inrelation to the Transferred Undertakings 2, or to the benefit of which, Transferred Undertakings 2 may be eligibleand which are subsisting or having effect immediately before Part IV of the Scheme coming into effect, shall byendorsement, delivery or record or by operation of law pursuant to the vesting orders of the High Court(s)sanctioning the Scheme, and on Part IV of the Scheme becoming effective, be deemed to be contracts, deeds,bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements, licenses (includingthe licenses granted by any Governmental, statutory or regulatory bodies) of ODCL. Such properties and rightsdescribed hereinabove shall stand transferred to and vested in ODCL and shall be deemed to have become and theproperty of ODCL as its integral part by operation of law. Such contracts and properties described above shallcontinue to be in full force and continue to be as effective as hitherto before in favor of or against ODCL and shallbe the legal and enforceable rights and interests of ODCL, which can be enforced and acted upon as fully andeffectually as if, it were DCEL, as ODCL is its affiliate and shall be deemed to be its successor in interest. Upon PartIV of the Scheme becoming effective, the rights, duties, obligations, interests flowing from such contracts andproperties, shall be deemed to have been entered in and novated to ODCL by operation of law and ODCL shall bedeemed to be DCEL’s substituted party or beneficiary or obligor thereto. In relation to the same any proceduralrequirements required to be fulfilled solely by DCEL (and not by any of its successors), shall be fulfilled by ODCLas if it were the duly constituted attorney of DCEL. Upon Part IV of the Scheme becoming effective, with effect fromthe Appointed Date, any contract of DCEL relating to or benefiting at present DCEL and the Transferred Undertakings2, shall be deemed to constitute separate contracts, thereby relating to and/or benefiting DCEL and ODCL, respectively.
Any inter-se contracts in relation to the Transferred Undertakings 2 between DCEL and ODCL shall stand cancelledand cease to operate and be of no effect upon Part IV of the Scheme becoming effective.
All guarantees provided by any bank in relation to the Transferred Undertakings 2 in favour of DCEL outstanding ason the Effective Date 1, shall stand substituted in favour of and vest in ODCL and shall enure to the benefit of ODCLand all guarantees issued by the bankers of DCEL in relation to the Transferred Undertakings 2 at the request ofDCEL favouring any third party shall be deemed to have been issued at the request of ODCL and continue to remainin full force on their original terms of issue in favour of such third party till its maturity or earlier termination.
(f) Any suits, appeals or other proceedings of whatsoever nature and pending in any court, tribunal or any otherforum, relating to the Transferred Undertakings 2, whether by or against DCEL, shall not abate or determine or bediscontinued or in any way prejudicially affected by reason of the transfer and vesting of the Transferred Undertakings2 into ODCL or of any order of or direction passed or issued or anything contained in this Scheme, but by virtue ofthe vesting and sanction order, such legal proceedings shall continue and any prosecution shall be enforced by oragainst ODCL in the same manner and to the same extent as would or might have been continued, prosecuted and/or enforced by or against DCEL, as if this Scheme had not been implemented.
(g) All the employees as on Effective Date 1, pertaining to the Transferred Undertakings 2, shall become employees ofand be engaged by ODCL pursuant to the vesting orders and by operation of law, with effect from Part IV of theScheme coming into effect, on same terms and conditions, which, as a result, shall be no less favourable thanthose on which they are currently engaged by DCEL, without any interruption of service as a result of transfer andvesting of Transferred Undertakings 2 and without any further act, deed or instrument on the part of DCEL or ODCL.
All contributions made by DCEL on behalf of its employees and all contributions made by the employees including theinterests arising thereon, to the funds and standing to the credit of such employees’ account with such funds, shall,upon Part IV of the Scheme becoming effective, be transferred to ODCL along with such of the investments madeby such funds which are referable and allocable to the employees of the Transferred Undertakings 2 of DCEL andODCL shall stand substituted for DCEL with regard to obligation to make the said contributions.
With regard to provident fund, gratuity fund, superannuation fund, leave encashment and any other special schemeor benefits created or existing for the benefit of such employees, upon Part IV of the Scheme becoming effective,shall be continued on the same terms and conditions by ODCL and ODCL shall stand substituted for DCEL for allpurposes and intents, whatsoever, relating to the administration or operations of such schemes or funds or inrelation to the obligation to make contributions to the said funds, in accordance with the provisions of applicablelaws or otherwise. It is the intent that all the rights, duties, powers and obligations of DCEL, DBCHL and SRSHL inrelation to such fund or funds shall become those of ODCL without need of any fresh approval from any statutoryauthority. It is hereby clarified that upon Part IV of the Scheme becoming effective, the aforesaid benefits orschemes shall continue to be provided to such employees and the services of all such employees of DCEL for suchpurpose shall be treated as having been continuous.
ODCL agrees that the services of all employees of DCEL, pertaining to the Transferred Undertakings 2,prior to thetransfer, shall be taken into account for the purposes of all benefits to which such employees may be eligible,including in relation to the level of remuneration and contractual and statutory benefits, incentive plans, terminalbenefits, gratuity plans, provident plans and other retirement benefits and accordingly, such benefits shall bereckoned from the date of their respective appointment in DCEL. ODCL undertakes to pay the same, as and whenpayable under applicable laws.
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The contributions made by DCEL under applicable law in connection with the employees of the TransferredUndertakings 2 of DCEL, to the funds, for the period after the Appointed Date shall be deemed to be contributionsmade by ODCL.
(h) All intellectual property including registrations, licenses, trademarks, logos, service marks, copyrights, domainnames, trade names, and applications relating thereto, goodwill, knowhow, trade secrets, pertaining to the TransferredUndertakings 2, if any, shall stand vested in ODCL without any further act, instrument or deed (unless filed only forstatistical record with any appropriate authority or Registrar), upon Part IV of the Scheme becoming effective. Theother intellectual property rights presently held by DCEL, that relate to or benefit at present DCEL or the TransferredUndertakings 2, shall be deemed to constitute separate intellectual property rights of DCEL or ODCL, as the casemay be, respectively, by the relevant authorities pursuant to the sanction of Part IV of the Scheme by the HighCourt(s).
(i) All taxes (including but not limited to advance tax, tax deducted at source, minimum alternate tax credits, securitiestransaction tax, input credit, CENVAT, value added tax, sales tax, entry tax, goods and service tax, as applicable,taxes withheld/paid in a foreign country, etc.) payable by or refundable to the Transferred Undertakings 2, includingall or any refunds or claims shall be treated as the tax liability or refunds/claims, as the case may be, of ODCL, andany tax incentives, advantages, privileges, exemptions, rebates, benefits, credits, tax holidays u/s 80-IA of IncomeTax Act, remissions, reductions, etc, as would have been available to Transferred Undertakings 2, shall pursuantto Part IV of the Scheme becoming effective, be available to ODCL.
(j) All lease and/or licenses including approvals, consents, sanctions, exemptions, registrations, no-objectioncertificates, permits, quotas, rights, entitlements, licenses (including the licenses granted by any Governmental,statutory or regulatory bodies for the purpose of carrying on its business or in connection therewith), and certificatesof every kind and description whatsoever in relation to the Transferred Undertakings 2, or to the benefit of whichthe Transferred Undertakings 2 may be eligible/entitled, and which are subsisting or having effect immediatelybefore Part IV coming into effect, shall by endorsement, delivery or recordal or by operation of law pursuant to thevesting orders of the High Court(s) sanctioning the Scheme, and on Part IV of the Scheme becoming effective, bedeemed to be approvals, consents, sanctions, exemptions, registrations, no-objection certificates, permits, quotas,rights, entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatory bodiesfor the purpose of carrying on its business or in connection therewith), and certificates of every kind and descriptionof whatsoever nature, of ODCL, and shall be in full force and effect in favour of ODCL and may be enforced as fullyand effectually as if, instead of DCEL, ODCL had been a party or beneficiary or obligor thereto. Such of the otherpermits, licenses, consents, sanctions, approvals, authorizations, quotas, rights, entitlements, allotments,concessions, exemptions, rebates, liberties, advantages, no-objection certificates, certifications, easements,tenancies, privileges and similar rights, and any waiver of the foregoing, as are held at present by DCEL, but relateto or benefitting at present Amalgamating Undertaking 2 and the Transferred Undertakings 2, shall be deemed toconstitute separate permits, licenses, consents, sanctions, approvals, authorizations, quotas, rights, entitlements,allotments, concessions, exemptions, rebates, liberties, advantages, no-objection certificates, certifications,easements, tenancies, privileges and similar rights, and any waiver of the foregoing, and the necessary substitution/endorsement shall be made and duly recorded in the name of DCEL and ODCL, respectively, by the relevantauthorities pursuant to the sanction of Part IV of the Scheme by the High Court(s). It is hereby clarified that if theconsent of any third party or authority is required to give effect to the provisions of this clause, the said third partyor authority shall take on record the orders of the High Court(s) sanctioning the Scheme on its file and make and dulyrecord the necessary substitution or endorsement in the name of ODCL as successor in interest, pursuant to thesanction of Part IV of the Scheme by the High Court(s), and upon Part IV of the Scheme becoming effective inaccordance with the terms hereof. For this purpose, ODCL shall file certified copies of such sanction orders, andif required file appropriate applications, forms or documents with relevant authorities concerned for statistical,information and record purposes only, and there shall be no break in the validity and enforceability of approvals,consents, sanctions, exemptions, rebates, registrations, no-objection certificates, permits, quotas, rights,entitlements, licenses (including the licenses granted by any Governmental, statutory or regulatory bodies for thepurpose of carrying on its business or in connection therewith), and certificates of every kind and description ofwhatsoever nature.
(k) all intangible assets including various business or commercial rights, etc., pertaining to Transferred Undertakings2, belonging to but not recorded in books of DCEL shall be transferred to and vested with ODCL and shall berecorded at their respective fair values. The consideration agreed under the Scheme shall be deemed to includepayment towards these intangible assets at their respective fair values. Such intangible assets shall, for allpurposes, be regarded as intangible assets in terms of Explanation 3(b) to Section 32(1) of Income Tax Act and shallbe eligible for depreciation there under at the prescribed rates.
(l) All benefits, entitlements, incentives and concessions under incentive schemes and policies, pertaining to theTransferred Undertakings 2, that DCEL is entitled to, including under customs, excise, service tax, VAT, sales taxand entry tax and income tax laws, subsidy receivables from government, direct tax benefit/ exemptions/ deductions,shall, to the extent statutorily available and along with associated obligations, stand transferred to and be availableto ODCL upon Part IV of the Scheme becoming effective as if ODCL was originally entitled to all such benefits,entitlements, incentives and concessions.
All benefits of any and all corporate approvals as may have already been taken by DCEL with respect to theTransferred Undertakings 2, whether being in the nature of compliances or otherwise, shall stand vested in ODCLand the said corporate approvals and compliances shall, upon Part IV of the Scheme becoming effective, bedeemed to have been taken/complied with by ODCL.
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(m) All estates, assets, rights, title, interests and authorities accrued to and/or acquired by DCEL in relation to theTransferred Undertakings 2 shall be deemed to have been accrued to and/or acquired for and on behalf of ODCLand shall, upon Part IV of the Scheme coming into effect, pursuant to the provisions of Section 394(2) and otherapplicable provisions of the 1956 Act and 2013 Act, without any further act, instrument or deed be and shall standvested in or be deemed to have been vested in ODCL to that extent and shall become the estates, assets, right, title,interests and authorities of ODCL.
(n) All books, records, files, papers, engineering and process information, catalogues, quotations, advertising materials,if any, lists of present and former clients, whether in physical or electronic form, pertaining to the TransferredUndertakings 2 of DCEL, to the extent possible and permitted under applicable laws, be handed over by them toODCL.
16. Upon Part IV of the Scheme becoming effective, the secured creditors of DCEL that relate to the Transferred Undertakings2, if any, and/or other security holders over the properties of the Transferred Undertakings 2 shall be entitled to security onlyin respect of the properties, assets, rights, benefits and interest of Transferred Undertakings 2, as existing immediately priorto transfer and vesting of the Transferred Undertakings 2 into ODCL and the secured creditors of ODCL and/or other securityholders over the properties of ODCL shall be entitled to security only in respect of the properties, assets, rights, benefits andinterest of ODCL, as existing immediately prior to Part IV of the Scheme becoming effective. It is hereby clarified that pursuantto the transfer and vesting of the Transferred Undertakings 2 into ODCL in terms of Part IV of the Scheme, the securedcreditors of DCEL related to the Transferred Undertakings 2 and/or other security holders over the properties of theTransferred Undertakings 2 shall not be entitled to any additional security over the properties, assets, rights, benefits andinterest of ODCL and vice versa, and hence such assets of DCEL related to the Transferred Undertakings 2 and that of ODCL,as the case may be, which are not currently encumbered shall remain free and available for creation of any security thereonin future in relation to any current or future indebtedness of ODCL.
17. DCEL and/or ODCL, as the case may be, shall, at any time after Part IV of the Scheme becoming effective, in accordance withthe provisions hereof, if so required under any law or otherwise, execute appropriate deeds and/or documents of confirmationor other writings or arrangements with any party to any contract or arrangement in relation to which DCEL has been a party,including any filings with the regulatory authorities, in order to give formal effect to the above provisions. ODCL shall for thispurpose, under the provisions hereof, be deemed to have been authorized to execute any such deeds, documents andwritings for and on behalf of DCEL and to carry out or perform all such formalities or compliances referred to above orotherwise required to be carried out or performed on the part of DCEL.
18. DCEL and/or ODCL, as the case may be, shall, at any time after Part IV of the Scheme becoming effective in accordance withthe provisions hereof, if so required under any law or otherwise, do all such acts or things as may be necessary for transfer/vesting of the approvals, sanctions, consents, exemptions, rebates, registrations, no-objection certificates, permits, quotas,rights, entitlements, licenses and certificates which were held or enjoyed by DCEL in relation to the Transferred Undertakings2 including their respective business and operations, into ODCL. It is hereby clarified that if the consent of any third party orauthority is required to give effect to the provisions of this clause, the said third party or authority shall make and duly recordthe necessary substitution/ endorsement in the name of ODCL pursuant to the sanction of Part IV of the Scheme by the HighCourt(s), and upon Part IV of the Scheme becoming effective in accordance with the terms hereof. For this purpose, ODCLshall, if and as required, file appropriate applications/documents etc. with relevant authorities concerned for information andrecord purposes. ODCL shall, under the provisions of Part IV of this Scheme, be deemed to be authorized to execute anysuch applications/documents etc. for and on behalf of DCEL and to carry out or perform all such acts, formalities orcompliances referred to above as may be required in this regard.
19. Any question that may arise as to whether a specified asset or liability pertains or does not pertain to the TransferredUndertakings 2 or whether it arises or does not arise out of the activities, business or operations of the TransferredUndertakings 2 shall be decided by mutual agreement between the respective Boards of Directors of DCEL and ODCL.
20. Conduct of businesses till this Part IV of the Scheme coming into effect
With effect from the Appointed Date and up to and including the date of Part IV of the Scheme coming into effect:
(a) DCEL shall carry on and shall be deemed to have carried on all its business activities pertaining to the TransferredUndertakings 2 and shall hold and stand possessed and shall be deemed to have held and stood possessed of allthe said assets, rights, title, interests, authorities, contracts, investments and decisions, benefits for and onaccount of and in trust for ODCL;
(b) All obligations, liabilities, duties and commitments attached, related or pertaining to the Transferred Undertakings 2of DCEL shall be undertaken and shall be deemed to have been undertaken for and on account of and in trust forODCL;
(c) All profits or income arising or accruing in favour of DCEL in relation to the Transferred Undertakings 2 and all taxespaid thereon (including but not limited to advance tax, tax deducted at source, minimum alternate tax credit,securities transaction tax, taxes withheld/paid in a foreign country, etc.) or losses arising or incurred by DCEL inrelation to the Transferred Undertakings 2 shall, for all intent and purposes, be treated as and be deemed to be theprofits or income, taxes or losses, as the case may be, of ODCL;
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(d) DCEL shall carry on the activities in relation to the Transferred Undertakings 2 with reasonable diligence andbusiness prudence and in the same manner as it had been doing hitherto, and shall not alter the TransferredUndertakings 2, undertake any additional financial commitments of any nature whatsoever, borrow any amounts orincur any other liabilities or expenditure, issue any additional guarantees, indemnities, letters of comfort or commitmenteither for themselves or on behalf of its respective affiliates or associates or any third party, in relation to theTransferred Undertakings 2; or sell, transfer, alienate, charge, mortgage or encumber or deal in any of its properties/assets of the Transferred Undertakings 2, except:
(i) when the same is expressly provided in this Scheme; or
(ii) when the same is in the ordinary course of business of the Transferred Undertakings 2 as carried on byDCEL, as on the date of filing of this Scheme in the High Court(s); or
(iii) when written consent of ODCL has been obtained in this regard.
21. Consideration for Slump Sale of T ransferred Undert akings 2 into ODCL
Upon Part IV of the Scheme coming into effect and upon transfer and vesting of the Transferred Undertakings 2 of DCEL intoODCL pursuant to the Slump Sale as stated herein, ODCL shall discharge the lump sum consideration of INR 124 Crorespayable by it to DCEL by issue of commercial paper or such other instrument, on such terms and conditions, or in any othermanner, as may be mutually agreed between the Boards of Directors of DCEL and ODCL.
22. Accounting T reatment in the books of ODCL
ODCL shall, upon Part IV of the Scheme becoming effective, with effect from the Appointed Date, record assets and liabilitiesof Transferred Undertakings 2 (as appearing in the books of accounts of DCEL at the close of business on the day precedingthe Appointed Date), as vested in it, pursuant to Slump Sale in terms of Part IV, in accordance with the allocation report to beprepared in accordance with Accounting Standard -10 notified under the 1956 Act read with General Circular 15/2013 dated13th September, 2013 of the Ministry of Corporate Affairs in respect of section 133 of 2013 Act.
23. Accounting T reatment in the books of DCEL
DCEL shall, upon Part IV of the Scheme becoming effective, with effect from the Appointed Date, account for Part IV of theScheme as under:
(a) The accounts representing the assets and liabilities pertaining to the Transferred Undertakings 2 shall standreduced by book value of assets & liabilities transferred.
(b) Any difference between consideration received as per clause 21 above and the items mentioned in clause 23(a)above shall be recognised in profit and loss account.
24. Date of effectiveness of Part IV of the Scheme
This Part IV of the Scheme shall come into effect from Effective Date 1.
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PART VAMALGAMA TION OF OCL WITH ODCL
Transfer and V esting of OCL into ODCL
25. Upon Part V of the Scheme becoming effective, pursuant to the order(s) of the High Court(s) sanctioning the Scheme andpursuant to the provisions of Sections 391 to 394 and other applicable provisions of the 1956 Act and/or the correspondingprovisions of 2013 Act, as applicable, with effect from the Appointed Date, the Amalgamating Undertaking 1, shall standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL, as a going concern, inaccordance with Section 2(1B) of the Income Tax Act without any further act, instrument or deed, so as to become, as fromthe Appointed Date, the undertaking of ODCL by virtue of and in the manner provided in this Part V of the Scheme.
26. Without prejudice to the generality of clause 25 above, upon Part V of the Scheme becoming effective, under the provisionsof Sections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act, asapplicable, with effect from the Appointed Date, the transfer and vesting of Amalgamating Undertaking 1 into ODCL by wayof Amalgamation on a going concern basis shall take place, in the following manner :
(a) all the estate, assets (including intangible assets, whether or not recorded in the books), properties, investments ofall kinds (that is, shares, scripts, stocks, bonds, debenture stocks, units or pass through certificates), rights,claims, title, interest and authorities including accretions and appurtenances, whether or not provided and/orrecorded in the books of accounts, comprising as part of the Amalgamating Undertaking 1 of whatsoever natureand where-so-ever situate shall, without any further act, instrument or deed, cost or charge and without any noticeor other intimation to any third party for the transfer of the same, will be and shall stand transferred to and vestedin ODCL and/or be deemed to be transferred to and vested in ODCL as a part of the transfer of the AmalgamatingUndertaking 1 as a going concern so as to become, as and from the Appointed Date, the estate, assets (includingintangible assets), properties, investments of all kinds (that is, shares, scripts, stocks, bonds, debenture stocks,units or pass through certificates), rights, claims, title, interest and authorities including accretions and appurtenancesof ODCL.
(b) such of the assets and properties of Amalgamating Undertaking 1 as are movable in nature or are incorporealproperty or are otherwise capable of transfer by delivery or possession, or by endorsement and/or delivery shall,without any cost or charge and without any notice or other intimation to any third party for transfer of the same, willbe and shall stand transferred to and vested in ODCL and/or be deemed to stand transferred to ODCL as a part ofthe transfer and vesting of the Amalgamating Undertaking 1 as a going concern so as to become from the AppointedDate, the assets and properties of ODCL. The vesting pursuant to this sub-clause shall be deemed to have occurredby physical or constructive delivery or by endorsement and delivery or by vesting and recordal pursuant to thisScheme, as appropriate to the property being vested and title to the property shall be deemed to have beentransferred accordingly.
(c) all other movable properties of Amalgamating Undertaking 1including sundry debtors, receivables, bills, credits,loans and advances, if any, whether recoverable in cash or in kind or for value to be received, bank balances,deposits with any Government, quasi Government, local or other authority or body or with any company or otherperson shall without any further act, instrument or deed, cost or charge and without any notice or other intimationto any third party for the transfer of the same, be and shall stand transferred to and vested in ODCL and/or deemedto have been transferred to and vested in ODCL, by way of delivery of possession of the respective documents,as applicable, as a part of the transfer of the Amalgamating Undertaking 1 as a going concern, so as to become fromthe Appointed Date, the assets and properties of ODCL.
(d) ODCL may, if it so deems appropriate, give notice in such form as it deems fit and proper, to each such debtor orobligor pertaining to the Amalgamating Undertaking 1, that pursuant to the sanction of Part V of the Scheme by theHigh Court(s), such debt, loan, advance, claim, bank balance, deposit or other asset be paid or made good or heldon account of ODCL as the person entitled thereto, to the end and intent that the right of Amalgamating Undertaking1 to recover or realise all such debts (including the debts payable by such debtor or obligor to AmalgamatingUndertaking 1) stands transferred and assigned to ODCL and that appropriate entries shall be passed in the booksof accounts of the relevant debtors or obligors to record such change. It is hereby clarified that investments, if any,made by OCL and all the rights, title and interest of Amalgamating Undertaking 1in any licensed properties orleasehold properties shall, pursuant to Section 394(2) of the 1956 Act and the provisions of this Scheme, withoutany further act or deed, be transferred to and vested in or be deemed to have been transferred to and vested inODCL.
(e) all immovable properties (including property being more specifically described in Schedule I to the Scheme) ofAmalgamating Undertaking 1, including land together with the buildings and structures standing thereon or underconstruction and rights and interests in immovable properties of Amalgamating Undertaking 1, (whether freehold orleasehold, leave and licensed or otherwise) including any tenancies in relation to warehouses, office space, guesthouses and residential premises including those provided to/occupied by the employees of Amalgamating Undertaking1, all plant and machineries constructed on or embedded or attached to any such immovable properties ,all rights,covenants, continuing rights, title and interest in connection with the said immovable properties, and all documentsof title, rights and easements in relation thereto shall upon Part V of the Scheme becoming effective, stand
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transferred to and be vested in and be deemed to have been transferred to and vested in ODCL, without any furtheract or deed done/executed or being required to be done/executed by OCL and/or ODCL. ODCL shall be entitled toexercise all rights and privileges attached to the aforesaid immovable properties and shall be liable to pay theground rent and taxes and fulfill all obligations in relation to or applicable to such immovable properties. The mutationof the ownership or title, or interest in the immovable properties shall, upon Part V of the Scheme becomingeffective, be made and duly recorded in the name of ODCL by the appropriate authorities pursuant to the sanctionof Part V of the Scheme by the High Court(s) in accordance with the terms hereof.
(f) all lease and/or license or rent agreements entered into by Amalgamating Undertaking 1 with various landlords,owners and lessors in connection with the use of the assets of OCL, together with security deposits and advance/prepaid lease/license fee, etc., shall stand automatically transferred and vested in favour of ODCL on the sameterms and conditions without any further act, instrument, deed, matter or thing being made, done or executed. ODCLshall continue to pay rent or lease or license fee as provided for in such agreements, and ODCL and the relevantlandlords, owners and lessors shall continue to comply with the terms, conditions and covenants there-under.Without limiting the generality of the foregoing, ODCL shall also be entitled to refund of security deposits paid undersuch agreements by Amalgamating Undertaking 1. All the rights, title, interest and claims of OCL in any leaseholdproperties, including the mining leases and the prospecting licenses (including in each case, any applications madetherefore) of OCL shall, pursuant to Section 394 (2) of the 1956 Act, without any further act or deed, be transferredto and vested in or be deemed to have been transferred to and vested in ODCL.
(g) all permissions, approvals, sanctions, consents, subsidies, incentives, privileges, income tax benefits andexemptions, rebates, accumulated tax losses, unabsorbed depreciation, indirect tax benefits and exemptions, allother rights, benefits and liabilities related thereto, licenses, powers and facilities of every kind, nature anddescription whatsoever, provisions and benefits of all agreements, contracts and arrangements and all otherinterests in connection with or relating to Amalgamating Undertaking 1 enjoyed or conferred upon or held or availedof by OCL and all rights and benefits that have accrued or which may accrue to Amalgamating Undertaking 1,whether on, before or after the Appointed Date, if any, shall, without any further act, instrument or deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same be and standtransferred to and vested in and/or be deemed to be transferred to and vested in ODCL as a part of the transfer ofthe Amalgamating Undertaking 1 as a going concern, so as to become, as and from the Appointed Date, thepermissions, approvals, consents, subsidies, incentives, privileges, income tax benefits and exemptions, accumulatedtax losses, unabsorbed depreciation, indirect tax benefits and exemptions, all other rights, benefits and liabilitiesrelated thereto, licenses, powers and facilities of every kind, nature and description whatsoever, provisions andbenefits of all agreements, contracts and arrangements, of ODCL and shall remain valid, effective and enforceableon the same terms and conditions. It is further clarified that they shall be deemed to have originally been given by,issued to or executed in favour of ODCL, and ODCL shall be bound by the terms thereof and the obligations andduties there under, and the rights and benefits under the same shall be available to ODCL.
(h) all contracts, deeds, bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements,licenses (including the licenses granted by any Governmental, statutory or regulatory bodies) for the purpose ofcarrying on the business of Amalgamating Undertaking 1 and in relation thereto, and those relating to tenancies,privileges, powers, facilities of every kind and description of whatsoever nature in relation to AmalgamatingUndertaking 1, or to the benefit of which, Amalgamating Undertaking 1 may be eligible and which are subsisting orhaving effect immediately before the Effective Date 3, shall be in full force and effect on, against or in favour ofODCL and may be enforced as fully and effectually as if, instead of Amalgamating Undertaking 1 , ODCL had beena party or beneficiary or obligor thereto. In relation to the same, any procedural requirements required to be fulfilledsolely by OCL (and not by any of its successors), shall be fulfilled by ODCL as if it is the duly constituted attorneyof OCL.
Any inter-se contracts between ODCL and Amalgamating Undertaking 1 shall stand cancelled and cease to operateupon this Part V of the Scheme becoming effective.
All guarantees provided by any bank in relation to Amalgamating Undertaking 1 outstanding as on the Effective Date3, shall vest in ODCL and shall enure to the benefit of ODCL and all guarantees issued by the bankers of AmalgamatingUndertaking 1 at their request favoring any third party shall be deemed to have been issued at the request of ODCLand continue in favour of such third party till its maturity or earlier termination.
(i) Without prejudice to the generality of the foregoing, all leave and license agreements/deeds, lease agreements/deeds, bank guarantees, performance guarantees and letters of credit, hire purchase agreements, lendingagreements and such other agreements, deeds, documents and arrangements pertaining to Amalgamating Undertaking1 or to the benefit of which Amalgamating Undertaking 1 may be eligible and which are subsisting or having effectimmediately before the Effective Date 3, including all rights and benefits (including benefits of any deposit, advances,receivables or claims) arising or accruing there from, shall, with effect from Appointed Date and upon Part V of theScheme becoming effective, by operation of law pursuant to the vesting orders of the High Court(s), be deemed tobe contracts, deeds, bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements,licenses of ODCL. Such property and rights shall stand vested in ODCL and shall be deemed to have become theproperty of ODCL by operation of law, whether the same is implemented by endorsement or delivery and possessionor recordal in any other manner.
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(j) all the intellectual property rights of any nature whatsoever, including but not limited to intangible assets, includingregistrations, licenses, trademarks, logos, service marks, copyrights, domain names, trade names and applicationsrelating thereto, goodwill, knowhow and trade secrets, pertaining to Amalgamating Undertaking 1 whether or notprovided in books of accounts pertaining to Amalgamating Undertaking 1, without any cost, further act, instrumentor deed, and without any notice or other intimation to any third party for the transfer of the same, be and standtransferred to and vested in ODCL as a part of the transfer of the Amalgamating Undertaking 1 as a going concern,so as to become, as and from the Appointed Date, the intellectual property of ODCL.
(k) all intangible assets including various business or commercial rights, etc. belonging to but not recorded in books ofAmalgamating Undertaking 1, shall be transferred to and vested with ODCL and shall be recorded at their respectivefair values. The consideration agreed under the Scheme shall be deemed to include payment towards theseintangible assets at their respective fair values. Such intangible assets shall, for all purposes, be regarded asintangible assets in terms of Explanation 3(b) to Section 32(1) of Income Tax Act and shall be eligible for depreciationthere under at the prescribed rates.
(l) all taxes (including but not limited to advance tax, tax deducted at source, minimum alternate tax credits, bankingcash transaction tax, securities transaction tax, input credit, CENVAT, entry tax, taxes withheld/paid in a foreigncountry, value added tax, sales tax, service tax or goods and service tax, as applicable, excise duty, cess, wealth tax,fringe benefit tax and tax collected at source, etc.) payable by or refundable to or being the entitlement of AmalgamatingUndertaking 1, including all or any refunds or claims shall be treated as the tax liability or refunds/credits/claims, as thecase may be, of ODCL, and any tax incentives, advantages, privileges, exemptions, rebates, credits, tax holidays,remissions, reductions and/or any other benefit, as would have been available to Amalgamating Undertaking 1, shallpursuant to Part V of the Scheme becoming effective, be available to ODCL. Benefit of tax losses including broughtforward business loss, unabsorbed depreciation, etc., up to the Appointed Date in relation to Part V of the Scheme,shall be available to ODCL w.e.f. from Appointed Date in terms of section 72A of Income Tax Act.
(m) ODCL shall be entitled to claim refunds or credits, including input tax credits, with respect to taxes paid by, for, oron behalf of Amalgamating Undertaking 1 under applicable laws, including but not limited to sales tax, value addedtax, service tax, excise duty, cess or any other tax, whether or not arising due to any inter se transaction, even ifthe prescribed time limits for claiming such refunds or credits have lapsed. Any inter-se transactions in relation tothe Amalgamating Undertaking 1 and ODCL between the Appointed Date and Effective Date 3 shall be consideredas transactions to self and ODCL shall be entitled to claim refund of tax paid, if any on these inter-se transactions,as per the applicable laws. For the avoidance of doubt, input tax credits already availed of or utilised by AmalgamatingUndertaking 1 and ODCL in respect of inter-se transactions shall not be adversely impacted by the cancellation ofinter-se transactions pursuant to Part V of the Scheme.
(n) All statutory rights and obligations of Amalgamating Undertaking 1 would vest in/accrue to ODCL. Hence, obligationof the erstwhile company constituting the Amalgamating Undertaking 1, prior to the Effective Date 3, to issue orreceive any statutory declaration or any other forms by whatever name called, under the State VAT Acts or theCentral Sales Tax Act or any other act for the time being in force, would be deemed to have been fulfilled if they areissued or received by ODCL and if any form relatable to the period prior to the said Effective Date 3 is received inthe name of the erstwhile company constituting the Amalgamating Undertaking 1, it would be deemed to have beenreceived by ODCL in fulfillment of its obligations.
(o) Benefits of any and all corporate approvals as may have already been taken by Amalgamating Undertaking 1 ,whether being in the nature of compliances or otherwise, without any further act, instrument or deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same, be and standtransferred and vested in ODCL as a part of the transfer of the Amalgamating Undertaking 1 as a going concern, andthe said corporate approvals and compliances shall be deemed to have originally been taken / complied with byODCL.
(p) such of the assets comprised in the Amalgamating Undertaking 1 and which are acquired by OCL on or after theAppointed Date but prior to the Effective Date 3, shall without any further act, instrument or deed, cost or chargeand without any notice or other intimation to any third party for the transfer of the same, be and stand transferredto and vested in and/or be deemed to have been transferred to and vested in ODCL as a part of the transfer of theAmalgamating Undertaking 1 as a going concern, so as to become, as and from the Appointed Date, the assets ofODCL.
27. Pursuant to the transfer and vesting of the Amalgamating Undertaking 1 as provided in clauses 25 and 26 above, upon thecoming into effect of Part V of the Scheme, with effect from the Appointed Date:
(a) all the Liabilities, whether or not provided in the books of Amalgamating Undertaking 1, shall, under the provisions ofSections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act,as applicable, and all other provisions of applicable law, if any, without any further act, instrument, deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same, be and standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a part of thetransfer of the Amalgamating Undertaking 1 as a going concern and the same shall be assumed by ODCL, to theextent they are outstanding on the Effective Date 3 and shall become as and from the Appointed Date the Liabilitiesof ODCL on the same terms and conditions as were applicable to the company constituting the AmalgamatingUndertaking 1, and ODCL alone shall meet, discharge and satisfy the same.
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(b) All Liabilities of Amalgamating Undertaking 1 including those which are incurred or which arise or accrue toAmalgamating Undertaking 1 on or after the Appointed Date but prior to the Effective Date 3, shall under theprovisions of Sections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisionsof 2013 Act, as applicable, and all other provisions of applicable law, if any, without any further act, instrument ordeed, cost or charge and without any notice or other intimation to any third party for the transfer of the same, beand stand transferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a partof the transfer of the Amalgamating Undertaking 1as a going concern and the same shall be assumed by ODCL tothe extent they are outstanding on the Effective Date 3 on the same terms and conditions as were applicable toAmalgamating Undertaking 1, and ODCL alone shall meet, discharge and satisfy the same.
(c) Any Liabilities of Amalgamating Undertaking 1 as on the Appointed Date that are discharged by OCL on or after theAppointed Date but prior to the Effective Date 3, shall be deemed to have been discharged for and on account ofODCL.
(d) All loans raised and utilised, Liabilities, duties and taxes and obligations incurred or undertaken by or on behalf ofAmalgamating Undertaking 1 on or after the Appointed Date but prior to the Effective Date 3 shall be deemed to havebeen raised, used, incurred or undertaken for and on behalf of ODCL and shall, under the provisions of Sections391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act, asapplicable, and all other provisions of applicable law, if any, without any further act, instrument, deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same, be and standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a part of thetransfer of the Amalgamating Undertaking 1 as a going concern and the same shall be assumed by ODCL and to theextent they are outstanding on the Effective Date 3, ODCL shall meet, discharge and satisfy the same.
(e) All inter-se Liabilities between Amalgamating Undertaking 1 and ODCL, if any, due or outstanding or which may atany time prior to the Effective Date 3 become due or remain outstanding, shall stand cancelled and shall be deemedto have been discharged by such cancellation and consequently, there shall remain no inter-se liability betweenthem as of the Effective Date 3 and corresponding effect shall be given in the books of account and records ofODCL.
It is hereby clarified that it shall not be necessary to obtain the consent of any third party or other person who is aparty to any contract or arrangement by virtue of which such debts, Liabilities, duties and obligations have arisenin order to give effect to the provisions of this clause.
28.(a) Upon the coming into effect of Part V of this Scheme and with effect from the Appointed Date, all Encumbrances
existing prior to the Effective Date 3 over the assets of Amalgamating Undertaking 1, if any, which secure or relateto the Liabilities, shall, without any further act, instrument, deed or document, cost or charge and without any noticeor other intimation to any third party for the transfer of the same, continue to relate and attach to such assets or anypart thereof to which they were related or attached prior to the Effective Date 3 and are transferred to ODCL. Itbeing clarified that the aforesaid Encumbrances shall not be extended to any assets of Amalgamating Undertaking1 which were earlier not Encumbered or the existing assets of ODCL. The absence of any formal amendment whichmay be required by a lender or trustee or third party shall not affect the operation of the above.
(b) Any reference in any security documents or arrangements (to which OCL is a party) to OCL and its assets andproperties(other than those forming part of Transferred Undertakings 1), shall be construed as a reference toODCL and the assets and properties of OCL transferred to ODCL pursuant to Part V of the Scheme.
(c) Without prejudice to the foregoing provisions, ODCL may execute any instruments or documents or do all such actsand deeds as may be considered appropriate, including the filing of necessary particulars and/or modification(s) ofcharge, with the Registrar of Companies to give formal effect to the above provisions, if required.
(d) The provisions of this clause shall operate notwithstanding anything to the contrary contained in any instrument,deed, document or writing or the terms of sanction or issue or any security document; all of which instruments,deeds, documents or writings shall stand modified and/or superseded by the foregoing provisions.
29.(a) Upon the coming into effect of Part V of this Scheme, all employees of Amalgamating Undertaking 1 (i.e. other than
those employees of OCL who are primarily engaged in or in relation to any work of Transferred Undertakings 1)shall become employees of ODCL with effect from the Effective Date 3, on same terms and conditions which, as aresult, shall be no less favourable than those on which they are currently engaged by OCL, without any interruptionof service as a result of Amalgamation and transfer of employment. With regard to provident fund, gratuity fund,superannuation fund, leave encashment and any other special scheme or benefits created or existing for thebenefit of such transferred employees of Amalgamating Undertaking 1, upon Part V of the Scheme becomingeffective, ODCL shall stand substituted for OCL, with whom they were earlier employed, for all purposes whatsoever,including with regard to the obligation to make contributions to relevant authorities, such as the Regional ProvidentFund Commissioner or to such other funds maintained by OCL, in accordance with the provisions of applicable lawsor otherwise. Further, the employees of OCL entitled to the benefit of superannuation and gratuity fund from OCLshall continue to be entitled to the same from ODCL. It is hereby clarified that upon Part V of the Scheme becomingeffective, the aforesaid benefits or schemes shall continue to be provided or operated by ODCL in place of OCL inrelation to all such transferred employees and the services of all such transferred employees for such purposeshall be treated as having been continuous.
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(b) ODCL agrees that the services of all employees of Amalgamating Undertaking 1 (i.e. other than those employees ofOCL who are primarily engaged in or in relation to any work of Transferred Undertakings 1), shall be taken intoaccount for the purposes of all benefits to which such employees may be eligible, including in relation to the levelof remuneration and contractual and statutory benefits, incentive plans, terminal benefits, gratuity plans, providentplans and other retirement benefits and accordingly, shall be reckoned from the date of their respective appointmentin OCL. ODCL undertakes to pay the same, as and when payable under applicable laws.
(c) The existing provident fund, employee state insurance contribution, gratuity fund, superannuation fund, annuity,deposit linked insurance fund, pension, staff welfare scheme and any other special scheme or benefits created byOCL for employees of Amalgamating Undertaking 1 shall be continued on the same terms and conditions or betransferred to the existing provident fund, employee state insurance contribution, gratuity fund, superannuationfund, annuity, deposit linked insurance fund, pension, staff welfare scheme, etc., being maintained by ODCL or asmay be created by ODCL for such purpose. Pending such transfer, the contributions required to be made in respectof such transferred employees of Amalgamating Undertaking 1shall continue to be made by ODCL to the existingfunds maintained by OCL. It is the intent that all the rights, duties, powers and obligations of OCL in relation to suchfund or funds shall become those of ODCL without need of any fresh approval from any statutory authority.
(d) Upon Part V of the Scheme becoming effective, OCL will transfer/handover to ODCL, copies of employmentinformation of all such transferred employees of Amalgamating Undertaking 1, including but not limited to, personnelfiles (including hiring documents, existing employment contracts, and documents reflecting changes in an employee’sposition, compensation, or benefits), payroll records, medical documents (including documents relating to past orongoing leaves of absence, on the job injuries or illness, or fitness for work examinations), disciplinary records,supervisory files relating to its and all forms, notifications, orders and contribution/identity cards issued by theconcerned authorities relating to benefits transferred pursuant to this sub-clause.
(e) The contributions made by Amalgamating Undertaking 1 in respect of its employees under applicable law, to theprovident fund, gratuity, leave encashment and any other special scheme or benefits created, for the period afterthe Appointed Date shall be deemed to be contributions made by ODCL.
(f) ODCL shall continue to abide by any agreement(s)/ settlement(s) entered into by OCL with employees of AmalgamatingUndertaking 1 prior to Appointed Date and from Appointed Date till the Effective Date 3.
30.(a) All proceedings of whatsoever nature (legal and others, including any suits, appeals, arbitrations, execution
proceedings, revisions, writ petitions, if any) by or against OCL(other than those pertaining to TransferredUndertakings 1) shall not abate, be discontinued or be in any way prejudicially affected by reason of the transferand vesting of the Amalgamating Undertaking 1or anything contained in this Scheme but the said proceedings, shall,till the Effective Date 3 be continued, prosecuted and enforced by or against OCL, as if this Scheme had not beenmade.
(b) Upon the coming into effect of Part V of this Scheme, all suits, actions, and other proceedings including legal andtaxation proceedings, (including before any statutory or quasi-judicial authority or tribunal) by or against OCL(otherthan those pertaining to Transferred Undertakings 1), whether pending and/or arising on or before the EffectiveDate 3 shall be continued and / or enforced by or against ODCL as effectually and in the same manner and to thesame extent as if the same had been instituted and/or pending and/or arising by or against ODCL.
(c) ODCL undertakes to have accepted on behalf of itself, all suits, claims, actions and legal proceedings initiated byor against OCL, pertaining to Amalgamating Undertaking 1, transferred to its name and to have the same continued,prosecuted and enforced by or against ODCL.
31. All books, records, files, papers, information, databases, whether in physical or electronic form, pertaining to AmalgamatingUndertakings 1, to the extent possible and permitted under applicable laws, be handed over to ODCL.
32. Without prejudice to the provisions of clauses 25 to 31 above, with effect from the Appointed Date, all inter-party transactionsamongst OCL and ODCL pertaining to Amalgamating Undertaking 1 shall be considered as intra-party transactions for allpurposes.
33. Without prejudice to the other provisions of this Scheme and notwithstanding the fact that vesting of the AmalgamatingUndertaking 1occurs by virtue of this Scheme itself, ODCL may, at any time after Part V of the Scheme becoming effective,in accordance with the provisions hereof, if so required under any law or otherwise, take such actions and execute suchdeeds (including deeds of adherence), documents, confirmations or other writings or enter into any arrangements with anyparty to any contract or arrangement to which OCL is party in respect of any matter pertaining to Amalgamating Undertaking1 or any writings as may be necessary in order to give formal effect to the provisions of Part V of this Scheme. It is herebyclarified that if the consent of any third party or authority is required to give effect to the provisions of this clause, the saidthird party or authority shall be obligated to, and shall make and duly record the necessary substitution/endorsement in thename of ODCL pursuant to the sanction of this Scheme by the High Court(s), and upon Part V of the Scheme becomingeffective in accordance with the terms hereof. For this purpose, ODCL shall, as required, file appropriate applications/documents with relevant authorities concerned for information and record purposes. ODCL shall, under the provisions of thisScheme, be deemed to be authorised to execute any such writings on behalf of OCL and to carry out or perform all suchformalities or compliances referred to above on the part of OCL to be carried out or performed.
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Conduct of Business
34. With effect from the Appointed Date and up to the Effective Date 3:
(a) OCL shall carry on and be deemed to have carried on all business and activities of Amalgamating Undertakings 1 andshall hold and stand possessed of and shall be deemed to hold and stand possessed of the entire AmalgamatingUndertaking 1for and on account of, and in trust for, ODCL;
(b) all obligations, liabilities, duties and commitments attached, related or pertaining to Amalgamating Undertakings 1shallbe undertaken and shall be deemed to have been undertaken by OCL for and on account of and in trust for ODCL.
(c) all profits and income accruing or arising to OCL pertaining to the Amalgamating Undertaking 1, and losses andexpenditure arising or incurred by OCL pertaining to the Amalgamating Undertaking 1, for the period commencingfrom the Appointed Date shall, for all purposes, be treated as and be deemed to be the profits, income, losses orexpenditure, as the case may be, of ODCL;
(d) any of the rights, powers, authorities or privileges exercised by OCL in relation to Amalgamated Undertakings1,shall be deemed to have been exercised by OCL for and on behalf of, and in trust for and as an agent of ODCL.Similarly, any of the obligations, duties and commitments that have been undertaken or discharged by OCL in relationto Amalgamated Undertakings 1,shall be deemed to have been undertaken for and on behalf of and as an agent ofODCL;
(e) all taxes, where applicable, (including but not limited to advance income tax, tax deducted at source, minimumalternate tax, wealth tax, fringe benefit tax, banking cash transaction tax, tax collected at source, taxes withheld/paid in a foreign country, sales tax, value assed tax, excise duty, customs duty, service tax or goods and servicetax, as applicable, cess, tax refunds) payable by or refundable to OCL which pertains to Amalgamated Undertakings1, including all or any tax refunds or tax liabilities or tax claims arising from pending tax proceedings, under any law,on or before the Effective Date 3 which pertains to Amalgamated Undertakings 1, shall be treated as or deemed tobe treated as the tax liability or tax refunds/ tax claims (whether or not recorded in the books of OCL) as the casemay be, of ODCL, and any unabsorbed tax losses and depreciation, etc., which pertains to Amalgamated Undertakings1, as would have been available to OCL, on or before the Effective Date 3, shall be available to ODCL upon the PartV of the Scheme coming into effect; and
(f) OCL shall not without the concurrence of ODCL alienate, charge or otherwise deal with any of its assets formingpart of Amalgamating undertaking 1, except in the ordinary course of business.
(g) Subject to the terms of the Scheme, the transfer and vesting of the Amalgamating Undertaking 1 as per theprovisions of Part V of the Scheme shall not affect any transactions or proceedings already concluded by OCL onor with effect from the Appointed Date till the Effective Date 3.
Reduction of Share Capital in ODCL
35. Upon Part V of the Scheme becoming effective, all the shares of ODCL held by OCL, shall, without any consideration,application, act, instrument or deed be deemed to have been automatically cancelled and be of no effect.
36. The reduction in the share capital of ODCL upon cancellation of Investment held by OCL in ODCL, as mentioned in clause 35above, shall be effected as an integral part of the Scheme in accordance with provisions of Sections391 to 394 read withSections 100 to 103 and other relevant provisions of the 1956 Act or the corresponding or relevant provisions of the 2013Act, as applicable and accordingly the order of the High Court(s) sanctioning the Scheme under Section 391 to 394 of the1956 Act shall be deemed to be also the order under Section 102 and other relevant provisions of the 1956 Act or thecorresponding or relevant provisions of the 2013 Act, as applicable, for the purpose of confirming such reduction of sharecapital. The reduction of share capital as aforesaid would not involve either a diminution of liability in respect of unpaid sharecapital or payment of paid-up share capital, and as such the provisions of Section 101 of the 1956 Act or the other relevantprovisions of the 2013 Act will not be applicable. Notwithstanding the reduction in the share capital of ODCL, ODCL shall notbe required to add “And Reduced” as suffix to its name.
Consideration for Amalgamation of OCL with ODCL
37. Upon Part V of the Scheme becoming effective, the Board of Directors of ODCL shall fix a record date, for determining theentitlement of the shareholders of OCL to the number of fully paid-up equity shares, to be issued by ODCL in accordance withclause 38 of this Scheme (“Record Date 1 ”). OCL shall provide to ODCL, a list containing particulars of equity shareholdersof the OCL as on the Record Date 1, along with their respective entitlement to the fully paid-up equity shares of ODCL thatwould be required to be issued and allotted by ODCL to the shareholders of OCL, in terms of clause 38 of this Scheme.
38. Upon Part V of the Scheme becoming effective and in consideration of the Amalgamation and transfer and vesting of theAmalgamating Undertaking 1(i.e. OCL other than Transferred Undertakings 1)with ODCL, in terms of Part V of this Scheme,ODCL shall, without any further application or deed, issue and allot to the shareholders of OCL as on the Record Date 1, inaccordance with their respective entitlement in the ratio of 1:1 (“Share Entitlement Ratio ”), meaning thereby that upon thisScheme becoming effective, for 1 (one)fully paid equity share of Rs. 2 each held by such shareholder in OCL as on theRecord Date 1, the holder thereof shall be entitled to receive 1 (one)fully paid up equity shares of ODCL of Rs. 10each.
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39. The Share Entitlement Ratio has been arrived at on basis of the valuation report of M/s Sharp & Tannan, an independentchartered accountant. Axis Capital Ltd., an independent merchant banker has provided a fairness report on the fairness ofthe Share Entitlement Ratio determined for the vesting of the Amalgamating Undertaking 1 into ODCL. Based on therecommendations of the audit committee of OCL, the valuation report and fairness report as aforesaid have been dulyapproved by the Board of Directors of each of OCL and ODCL.
40. The equity shares to be issued and allotted by ODCL in terms of Clause 38 above shall be subject to the provisions of thememorandum and articles of association of ODCL and shall rank paripassu in all respects with the existing equity shares ofODCL.
41. The new equity shares issued pursuant to Clause 38 above shall be issued in the dematerialized form by ODCL unlessotherwise notified in writing by the shareholders of OCL to ODCL on or before such date as may be determined by the Boardof Directors of ODCL or a committee thereof. In the event, such notice has not been received by ODCL in respect of any ofthe members of OCL, the new equity shares shall be issued to such shareholders in dematerialized form subject to themembers of OCL having or opening an account with a depository participant and providing details thereof and such otherconfirmations as may be required by ODCL. Only upon receipt of details of account with a depository participant and otherrequired confirmations, from such shareholders of OCL, ODCL shall issue and directly credit the dematerialized securities tothe account of such members of OCL with the depository participant. In the event that ODCL has received the notice from anyof the shareholders of OCL that the new equity shares are to be issued in certificate form or if any shareholder has notprovided the requisite details regarding the account with a depositary participant or other confirmations as may be required,then ODCL shall issue the new equity shares in certificate form to such members of OCL.
42. The equity shares to be issued pursuant to this Scheme by ODCL in respect of the equity shares of OCL which are requiredto be held in abeyance under the provisions of Section 126 of the 2013 Act and/or applicable provisions of 1956 Act orotherwise shall, pending allotment or settlement of dispute by order of Court or otherwise, be held in abeyance by ODCL.
43. In the event of there being any pending share transfers, whether lodged or outstanding, of any shareholder of OCL, theBoard of Directors or any committee thereof, of OCL at the sole discretion shall be empowered in appropriate cases, prior toor even subsequent to the Effective Date 3, as the case may be, to effectuate such a transfer in OCL as if such changes inregistered holder were operative as on the Effective Date 3 in order to remove any difficulties in relation to the issue of newshares after part V of the Scheme becomes effective, and the Board of Directors of ODCL shall be empowered to removesuch difficulties as may arise in the course of implementation of the Scheme and registration of new members in ODCL onaccount of difficulties faced in the transition period.
44. The equity shares issued to the shareholders under Clause 38 will be listed and admitted for trading and ODCL shall complywith the requirements of Circular No. CIR/CFD/CMD/16/2015 dated 30th November, 2015 issued by SEBI in this regard (“SEBICircular ”) and take all steps to get all the equity shares issued pursuant to the Scheme, listed on NSE and BSE on which theequity shares of OCL are listed, in accordance with relevant regulations.
45. The equity shares of ODCL issued in terms of this Scheme shall pursuant to the SEBI Circular and subject to compliance withrequisite formalities be listed and/or admitted to trading on the relevant stock exchange(s) where the existing equity sharesof OCL are listed and/or admitted to trading, i.e., BSE and NSE. ODCL shall enter into such arrangement and issue suchconfirmations and/or undertakings as may be necessary in accordance with the applicable law or regulation for the abovepurpose.
46. The equity shares in ODCL allotted pursuant to the Scheme shall remain frozen in the depositories system till listing andtrading permission is given by the designated stock exchange.
47. Post the issue of shares pursuant to Clause 38 above, there shall be no change in the shareholding pattern or control in ODCLbetween the Record Date 1 and the listing which may affect the status of the approval by the stock exchanges.
48. In the event that OCL and ODCL restructure their equity share capital by way of share split / consolidation / issue of bonusshares during the pendency of the Scheme, the Share Entitlement Ratio shall be adjusted accordingly to take into account theeffect of any such corporate actions.
49. The issue and allotment of equity shares by ODCL to the equity shareholders of OCL as provided in this Scheme is an integralpart thereof, and shall be deemed to have been carried out pursuant to the provisions of the Scheme as if the procedure laiddown under Section 62(1)(c) of the 2013 Act and any other applicable provisions of the 1956 Act or 2013 Act were dulycomplied with and will not require any further act or deed by ODCL.
50. Accounting treatment in the books and financial statements of ODCL
On Part V of the Scheme becoming effective, ODCL shall account for the Amalgamation in its books as under:
(a) ODCL shall account for the Amalgamation of Amalgamating Undertaking 1 (i.e. OCL excluding the TransferredUndertakings 1), in its books of account with effect from the Appointed Date.
(b) The Amalgamation of Amalgamating Undertaking 1 (i.e. OCL excluding the Transferred Undertakings 1) shall beaccounted for in accordance with “Purchase Method” of accounting as per the Accounting Standard 14 “Accountingfor Amalgamation” as prescribed in Companies (Accounting Standards) Rules, 2006 issued by the Ministry of CorporateAffairs, as may be amended from time to time read with General Circular 15/2013 dated 13 September 2013 of theMinistry of Corporate Affairs in respect of Section 133 of the 2013 Act.
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(c) All the assets including intangible assets, if any, whether or not recorded in the books of OCL and Liabilities of OCLpertaining to Amalgamating Undertaking 1 shall be recorded in the books of account of ODCL at their respective fairvalues and in the same form except to ensure uniformity of accounting policies.
(d) ODCL shall record issuance of equity shares at fair value and accordingly credit to its Share Capital Account theaggregate face value of the equity shares issued on Amalgamation. The excess, if any, of the fair value of the equityshares over the face value of the shares issued shall be credited to Securities Premium Reserve. The SecuritiesPremium Reserve so credited shall be available for issuance of bonus shares in accordance with applicable laws.
(e) To the extent that there are inter-company loans, advances, investments, deposits or other obligations (other thanthose pertaining to Transferred Undertakings 1) as between OCL and ODCL, the obligation in respect thereof willcome to an end and corresponding effect shall be given in the books of account and records of OCL as well as ODCLfor the reduction of any such assets or liabilities as the case may be and there would be no accrual of interest or anyother charges in respect of such inter-company loans, advances, deposits or balances, with effect from theAppointed Date.
(f) Excess, if any, of the consideration, viz., fair value of equity shares issued over the fair values of net assets ofAmalgamating Undertaking 1 (i.e. OCL excluding the Transferred Undertakings 1) (including identifiable intangibleassets, if any, whether or not recorded in their books of accounts) taken over and recorded and after makingadjustment for sub-clause (e) above will be recognized as goodwill in accordance with Accounting Standard- 14. Inthe event the result is negative, it shall be credited as capital reserve in the books of account of ODCL.
(g) ODCL shall record in its books of account, all transactions of Amalgamating Undertaking 1 (i.e. OCL excluding theTransferred Undertakings 1) in respect of assets, liabilities, income and expenses, from Appointed Date to theEffective Date 3.
(h) Entire costs and expenses incurred in connection with Part V of the Scheme and to put it into operation and any otherexpenses or charges attributable to the implementation of Part V of the Scheme shall be charged to Profit and LossAccount of ODCL.
(i) The intangible assets transferred (if any) on Amalgamation, as aforesaid, shall be amortized in the books of ODCLover its useful life. Goodwill (if any) arising on Amalgamation, as aforesaid, shall be amortized to income systematicallynot exceeding 20 years, on a justifiable basis & as reviewed by the Board of Directors periodically.
(j) The Board of Directors may adopt any other accounting treatment for the Amalgamation which is in accordance withAccounting Standards notified under the 1956 Act read with General Circular 15/2013 dated 13 September 2013 ofthe Ministry of Corporate Affairs in respect of Section 133 of 2013 Act.
51. Date of effectiveness of Part V of the Scheme
This Part V of the Scheme shall come into effect from Effective Date 3.
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PART VIAMALGAMA TION OF DCEL, SRSHL and DBCHL WITH ODCL
Transfer and V esting of DCEL, SRSHL and DBCHL into ODCL
52. Upon Part VI of the Scheme becoming effective, pursuant to the order(s) of the High Court(s) sanctioning the Scheme andpursuant to the provisions of Sections 391 to 394 and other applicable provisions of the 1956 Act and/or the correspondingprovisions of 2013 Act, as applicable, with effect from the Appointed Date, the Amalgamating Undertakings 2, shall standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL, as a going concern, inaccorSection 2(1B) of the Income Tax Act without any further act, instrument, or deed, so as to become, as and from the
Appointed Date, the undertaking of ODCL by virtue of and in the manner provided in this Part VI of the Scheme.
53. Without prejudice to the generality of clause 52 above, upon Part VI of the Scheme becoming effective, under the provisionsof Sections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act, asapplicable, with effect from the Appointed Date the transfer and vesting of Amalgamating Undertakings 2 into ODCL by wayof Amalgamation on a going concern basis shall take place in the following manner :
(a) all the estate, assets (including intangible assets, whether or not recorded in the books), properties, investments ofall kinds (that is, shares, scripts, stocks, bonds, debenture stocks, units or pass through certificates), rights, claims,title, interest and authorities including accretions and appurtenances, whether or not provided and/or recorded in thebooks of accounts, comprising as part of the Amalgamating Undertakings 2 of whatsoever nature and where-so-eversituate shall, without any further act, instrument or deed, cost or charge and without any notice or other intimation toany third party for the transfer of the same, will be and shall stand transferred to and vested in ODCL and/or bedeemed to be transferred to and vested in ODCL as a part of the transfer of the Amalgamating Undertakings 2as agoing concern so as to become, as and from the Appointed Date, the estate, assets (including intangible assets),properties, investments of all kinds (that is, shares, scripts, stocks, bonds, debenture stocks, units or pass throughcertificates), rights, claims, title, interest and authorities including accretions and appurtenances of ODCL.
(b) Such of the assets and properties of Amalgamating Undertaking 2 as are movable in nature or are incorporealproperty or are otherwise capable of transfer by delivery or possession, or by endorsement and/or delivery shall,without any cost or charge and without any notice or other intimation to any third party for transfer of the same, willbe and shall stand transferred to and vested in ODCL and/or be deemed to stand transferred to ODCL as a part of thetransfer and vesting of the Amalgamating Undertakings 2 as a going concern so as to become from the AppointedDate, the assets and properties of ODCL. The vesting pursuant to this sub-clause shall be deemed to have occurredby physical or constructive delivery or by endorsement and delivery or by vesting and recordal pursuant to thisScheme, as appropriate to the property being vested and title to the property shall be deemed to have been transferredaccordingly.
(c) all other movable properties of Amalgamating Undertaking 2 including, sundry debtors, receivables, bills, credits,loans and advances, if any, whether recoverable in cash or in kind or for value to be received, bank balances,deposits with any Government, quasi Government, local or other authority or body or with any company or otherperson shall without any further act, instrument or deed, cost or charge and without any notice or other intimation toany third party for the transfer of the same, be and shall stand transferred to and vested in ODCL and/or deemed tohave been transferred to and vested in ODCL, by way of delivery of possession of the respective documents, asapplicable, as a part of the transfer of the Amalgamating Undertakings 2 as a going concern, so as to become from theAppointed Date, the assets and properties of ODCL.
(d) ODCL may, if it so deems appropriate, give notice in such form as it deems fit and proper, to each such debtor orobligor pertaining to the Undertaking of Amalgamating Undertaking 2, that pursuant to the sanction of Part VI of thisScheme by the High Court(s), such debt, loan, advance, claim, bank balance, deposit or other asset be paid or madegood or held on account of ODCL as the person entitled thereto, to the end and intent that the right of DCEL, SRSHLand DBCHL to recover or realise all such debts (including the debts payable by such debtor or obligor to AmalgamatingUndertaking 2 ) stands transferred and assigned to ODCL and that appropriate entries shall be passed in the booksof accounts of the relevant debtors or obligors to record such change. It is hereby clarified that investments, if any,made by Amalgamating Undertaking 2 and all the rights, title and interest of Amalgamating Undertaking 2 in any licensedproperties or leasehold properties shall, pursuant to Section 394(2) of the 1956 Act and the provisions of thisScheme, without any further act or deed, be transferred to and vested in or be deemed to have been transferred toand vested in ODCL.
(e) all immovable properties (including property being more specifically described in Schedule II to the Scheme) ofAmalgamating Undertaking 2, including land together with the buildings and structures standing thereon or underconstruction and rights and interests in immovable properties of Amalgamating Undertaking 2, (whether freehold orleasehold, leave and licensed or otherwise)including any tenancies in relation to warehouses, office space, guesthouses and residential premises including those provided to/occupied by the employees of Amalgamating Undertaking2, all plant and machineries constructed on or embedded or attached to any such immovable properties, all rights,covenants, continuing rights, title and interest in connection with the said immovable properties, and all documents oftitle, rights and easements in relation thereto shall upon this Part VI of the Scheme becoming effective, standtransferred to and be vested in and be deemed to have been transferred to and vested in ODCL, without any furtheract or deed done/executed or being required to be done/executed by Amalgamating Undertaking 2 and/or ODCL.
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ODCL shall be entitled to exercise all rights and privileges attached to the aforesaid immovable properties and shall beliable to pay the ground rent and taxes and fulfill all obligations in relation to or applicable to such immovable properties.The mutation of the ownership or title, or interest in the immovable properties shall, upon Part VI of the Schemebecoming effective, be made and duly recorded in the name of ODCL by the appropriate authorities pursuant to thesanction of this Scheme by the High Court(s) in accordance with the terms hereof.
(f) all lease and/or license or rent agreements entered into by Amalgamating Undertaking 2 with various landlords,owners and lessors in connection with the use of the assets of DCEL, SRSHL and DBCHL, together with securitydeposits and advance/prepaid lease/license fee, etc., shall stand automatically transferred and vested in favour ofODCL on the same terms and conditions without any further act, instrument, deed, matter or thing being made, doneor executed. ODCL shall continue to pay rent or lease or license fee as provided for in such agreements, and ODCLand the relevant landlords, owners and lessors shall continue to comply with the terms, conditions and covenantsthere-under. Without limiting the generality of the foregoing, ODCL shall also be entitled to refund of security depositspaid under such agreements by Amalgamating Undertaking 2.
(g) All permissions, approvals, sanctions, consents, subsidies, incentives, privileges, income tax benefits and exemptions,rebates, accumulated tax losses, unabsorbed depreciation, indirect tax benefits and exemptions, all other rights,benefits and liabilities related thereto, licenses, powers and facilities of every kind, nature and description whatsoever,provisions and benefits of all agreements, contracts and arrangements and all other interests in connection with orrelating to Amalgamating Undertaking 2 enjoyed or conferred upon or held or availed of by Amalgamating Undertaking2 and all rights and benefits that have accrued or which may accrue to Amalgamating Undertaking 2 , whether on,before or after the Appointed Date, if any, shall, without any further act, instrument or deed, cost or charge andwithout any notice or other intimation to any third party for the transfer of the same be and stand transferred to andvested in and/or be deemed to be transferred to and vested in ODCL as a part of the transfer of the AmalgamatingUndertakings 2as a going concern, so as to become, as and from the Appointed Date, the permissions, approvals,consents, subsidies, privileges, income tax benefits and exemptions, accumulated tax losses, unabsorbed depreciation,indirect tax benefits and exemptions, all other rights, benefits and liabilities related thereto, licenses, powers andfacilities of every kind, nature and description whatsoever, provisions and benefits of all agreements, contracts andarrangements, of ODCL and shall remain valid, effective and enforceable on the same terms and conditions. It isfurther clarified that they shall be deemed to have originally been given by, issued to or executed in favour of ODCL,and ODCL shall be bound by the terms thereof and the obligations and duties there under, and the rights and benefitsunder the same shall be available to ODCL.
(h) all contracts, deeds, bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements,licenses (including the licenses granted by any Governmental, statutory or regulatory bodies) for the purpose ofcarrying on the business of Amalgamating Undertaking 2, and in relation thereto, and those relating to tenancies,privileges, powers, facilities of every kind and description of whatsoever nature in relation to Amalgamating Undertaking2, or to the benefit of which, Amalgamating Undertaking 2 may be eligible and which are subsisting or having effectimmediately before the Effective Date 2, shall be in full force and effect on, against or in favour of ODCL and may beenforced as fully and effectually as if, instead of DCEL, SRSHL and DBCHL, as the case may be, ODCL had been aparty or beneficiary or obligor thereto. In relation to the same, any procedural requirements required to be fulfilledsolely by either of DCEL, SRSHL and DBCHL (and not by any of its successors), shall be fulfilled by ODCL as if it isthe duly constituted attorney of DCEL, SRSHL and DBCHL, as the case may be.
Any inter-se contracts between ODCL and Amalgamating Undertaking 2 shall stand cancelled and cease to operateupon this Part VI of the Scheme becoming effective.
All guarantees provided by any bank in relation to Amalgamating Undertaking 2 outstanding as on the Effective Date2, shall vest in ODCL and shall enure to the benefit of ODCL and all guarantees issued by the bankers of AmalgamatingUndertaking 2 at the request of concerned company favoring any third party shall be deemed to have been issued atthe request of ODCL and continue in favour of such third party till its maturity or earlier termination.
(i) Without prejudice to the generality of the foregoing, all leave and licence agreements/deeds, lease agreements/deeds, bank guarantees, performance guarantees and letters of credit, hire purchase agreements, lending agreementsand such other agreements, deeds, documents and arrangements pertaining to Amalgamating Undertaking 2 or to thebenefit of which Amalgamating Undertaking 2 may be eligible and which are subsisting or having effect immediatelybefore the Effective Date 2, including all rights and benefits (including benefits of any deposit, advances, receivablesor claims) arising or accruing there from, shall, with effect from Appointed Date and upon Part VI of the Schemebecoming effective, by operation of law pursuant to the vesting orders of the High Court(s), be deemed to becontracts, deeds, bonds, agreements, schemes, arrangements and other instruments, permits, rights, entitlements,licenses of ODCL. Such property and rights shall stand vested in ODCL and shall be deemed to have become theproperty of ODCL by operation of law, whether the same is implemented by endorsement or delivery and possessionor recordal in any other manner.
(j) all the intellectual property rights of any nature whatsoever, including but not limited to intangible assets, includingregistrations, licenses, trademarks, logos, service marks, copyrights, domain names, trade names, and applicationsrelating thereto, goodwill, know-how and trade secrets pertaining to Amalgamating Undertaking 2, whether or notprovided in books of accounts of concerned company relating to Amalgamating Undertaking 2 , without any cost,further act, instrument or deed, and without any notice or other intimation to any third party for the transfer of thesame, be and stand transferred to and vested in ODCL as a part of the transfer of the Amalgamating Undertakings 2as a going concern, so as to become, as and from the Appointed Date, the intellectual property of ODCL.
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(k) all intangible assets including various business or commercial rights, etc. belonging to but not recorded in books ofconcerned company pertaining to Amalgamating Undertaking 2, shall be transferred to and vested with ODCL andshall be recorded at their respective fair values. The consideration agreed under the Scheme shall be deemed toinclude payment towards these intangible assets at their respective fair values. Such intangible assets shall, for allpurposes, be regarded as intangible assets in terms of Explanation 3(b) to Section 32(1) of Income Tax Act and shallbe eligible for depreciation there under at the prescribed rates.
(l) all taxes (including but not limited to advance tax, tax deducted at source, minimum alternate tax credits, banking cashtransaction tax, securities transaction tax, input credit, CENVAT, entry tax, taxes withheld/paid in a foreign country,value added tax, sales tax, service tax or goods and service tax, as applicable, excise duty, cess, wealth tax, fringebenefit tax and tax collected at source, etc.) payable by or refundable to or being the entitlement of AmalgamatingUndertaking 2 , including all or any refunds or claims shall be treated as the tax liability or refunds/credits/claims, asthe case may be, of ODCL, and any tax incentives, advantages, privileges, exemptions, rebates, credits, tax holidays,remissions, reductions and/or any other benefit, as would have been available to Amalgamating Undertaking 2 , shallpursuant to Part VI of the Scheme becoming effective, be available to ODCL. Benefit of tax losses including broughtforward business loss, unabsorbed depreciation, etc., up to the Appointed Date in relation to Part VI of the Scheme,shall be available to ODCL w.e.f. from Appointed Date in terms of section 72A of Income Tax Act.
(m) ODCL shall be entitled to claim refunds or credits, including Input Tax Credits, with respect to taxes paid by, for, or onbehalf of, Amalgamating Undertaking 2 under applicable laws, including but not limited to sales tax, value added tax,service tax, excise duty, cess or any other tax, whether or not arising due to any inter se transaction, even if theprescribed time limits for claiming such refunds or credits have lapsed. Any inter-se transactions in relation to theAmalgamating Undertaking 2 and ODCL between the Appointed Date and Effective Date 2 shall be considered astransactions to self and ODCL shall be entitled to claim refund of tax paid, if any on these inter-se transactions, as perthe applicable laws. For the avoidance of doubt, Input Tax Credits already availed of or utilised by concernedcompany forming part of Amalgamating Undertaking 2 and ODCL in respect of inter-se transactions shall not beadversely impacted by the cancellation of inter-se transactions pursuant to Part VI of the Scheme.
(n) All statutory rights and obligations of concerned companies forming part of Amalgamating Undertaking 2 would vestin/accrue to ODCL. Hence, obligation of either of the erstwhile companies forming part of Amalgamating Undertaking2, prior to the Effective Date 2, to issue or receive any statutory declaration or any other forms by whatever namecalled, under the State VAT Acts or the Central Sales Tax Act or any other act for the time being in force, would bedeemed to have been fulfilled if they are issued or received by ODCL and if any form relatable to the period prior tothe said Effective Date 2 is received in the name of either of the erstwhile companies forming part of AmalgamatingUndertaking 2 , it would be deemed to have been received by ODCL in fulfillment of their obligations.
(o) Benefits of any and all corporate approvals as may have already been taken by Amalgamating Undertaking 2, whetherbeing in the nature of compliances or otherwise, without any further act, instrument or deed, cost or charge andwithout any notice or other intimation to any third party for the transfer of the same, be and stand transferred andvested in ODCL as a part of the transfer of the Amalgamating Undertakings 2 as a going concern, and the saidcorporate approvals and compliances shall be deemed to have originally been taken / complied with by ODCL.
(p) such of the assets comprised in the Amalgamating Undertakings 2 and which are acquired by either DCEL, SRSHL orDBCHL on or after the Appointed Date but prior to the Effective Date 2, shall without any further act, instrument ordeed, cost or charge and without any notice or other intimation to any third party for the transfer of the same, be andstand transferred to and vested in and be deemed to have been transferred to and vested in ODCL as a part of thetransfer of the Amalgamating Undertakings 2 as a going concern, so as to become, as and from the Appointed Date,the assets of ODCL.
54. Pursuant to the transfer and vesting of the Undertaking as provided in clauses 52 and 53 above, upon the coming into effectof Part VI of the Scheme, with effect from the Appointed Date:
(a) all the Liabilities, whether or not provided in the books of Amalgamating Undertaking 2, shall, under the provisionsof Sections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act,as applicable, and all other provisions of applicable law, if any, without any further act, instrument, deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same, be and standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a part of thetransfer of the Amalgamating Undertakings 2 as a going concern and the same shall be assumed by ODCL, to theextent they are outstanding on the Effective Date 2 and shall become as and from the Appointed Date the Liabilitiesof ODCL on the same terms and conditions as were applicable to the companies constituting the AmalgamatingUndertaking 2, and ODCL alone shall meet, discharge and satisfy the same.
(b) All Liabilities of Amalgamating Undertakings 2 including those which are incurred or which arise or accrue toAmalgamating Undertaking 2 on or after the Appointed Date but prior to the Effective Date 2, shall under theprovisions of Sections 391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisionsof 2013 Act, as applicable, and all other provisions of applicable law, if any, without any further act, instrument ordeed, cost or charge and without any notice or other intimation to any third party for the transfer of the same, beand stand transferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a partof the transfer of the Amalgamating Undertakings 2 as a going concern and the same shall be assumed by ODCLand to the extent they are outstanding on the Effective Date2 on the same terms and conditions as were applicableto DCEL, SRSHL and DBCHL, and ODCL alone shall meet, discharge and satisfy the same.
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(c) Any Liabilities of Amalgamating Undertaking 2 as on the Appointed Date that are discharged by DCEL, SRSHL andDBCHL on or after the Appointed Date but prior to the Effective Date 2, shall be deemed to have been discharged forand on account of ODCL.
(d) All loans raised and utilised, Liabilities, duties and taxes and obligations incurred or undertaken by or on behalf ofAmalgamating Undertaking 2 on or after the Appointed Date but prior to the Effective Date 2 shall be deemed to havebeen raised, used, incurred or undertaken for and on behalf of ODCL and shall, under the provisions of Sections391 to 394 and other applicable provisions of the 1956 Act or the corresponding provisions of 2013 Act, asapplicable, and all other provisions of applicable law, if any, without any further act, instrument, deed, cost orcharge and without any notice or other intimation to any third party for the transfer of the same,be and standtransferred to and vested in and/or be deemed to have been transferred to and vested in ODCL as a part of thetransfer of the Amalgamating Undertakings 2 as a going concern and the same shall be assumed by ODCL and tothe extent they are outstanding on the Effective Date 2, ODCL shall meet, discharge and satisfy the same.
(e) All inter-se Liabilities between Amalgamating Undertakings 2 and ODCL, if any, due or outstanding or which may atany time prior to the Effective Date 2 become due or remain outstanding, shall stand cancelled and shall be deemedto have been discharged by such cancellation and consequently, there shall remain no inter-se liability betweenthem as of the Effective Date 2 and corresponding effect shall be given in the books of account and records ofODCL.
It is hereby clarified that it shall not be necessary to obtain the consent of any third party or other person who is aparty to any contract or arrangement by virtue of which such debts, Liabilities, duties and obligations have arisenin order to give effect to the provisions of this clause.
55.(a) Upon the coming into effect of Part VI of this Scheme and with effect from the Appointed Date, all Encumbrances
existing prior to the Effective Date 2over the assets of Amalgamating Undertaking 2, if any, which secure or relateto the Liabilities, shall, without any further act, instrument, deed or document, cost or charge and without any noticeor other intimation to any third party for the transfer of the same, continue to relate and attach to such assets or anypart thereof to which they were related or attached prior to the Effective Date 2 and are transferred to ODCL. Itbeing clarified that the aforesaid Encumbrances shall not be extended to any assets of Amalgamating Undertaking2 which were earlier not encumbered or the existing assets of ODCL. The absence of any formal amendmentwhich may be required by a lender or trustee or third party shall not affect the operation of the above.
(b) Any reference in any security documents or arrangements (to which DCEL, SRSHL and DBCHL are a party) toDCEL, SRSHL and DBCHL and their assets and properties (other than those forming part of Transferred Undertakings2), shall be construed as a reference to ODCL and the assets and properties of DCEL, SRSHL and DBCHLtransferred to ODCL pursuant to Part VI of the Scheme.
(c) Without prejudice to the foregoing provisions, ODCL may execute any instruments or documents or do all such actsand deeds as may be considered appropriate, including the filing of necessary particulars and/or modification(s) ofcharge, with the Registrar of Companies to give formal effect to the above provisions, if required.
(d) The provisions of this clause shall operate notwithstanding anything to the contrary contained in any instrument,deed, document or writing or the terms of sanction or issue or any security document; all of which instruments,deeds, documents or writings shall stand modified and/or superseded by the foregoing provisions.
56.(a) Upon the coming into effect of Part VI of this Scheme, all employees of Amalgamating Undertaking 2 (i.e. other than
those employees of DCEL who are primarily engaged in or in relation to any work of Transferred Undertakings 2),shall become employees of ODCL with effect from the Effective Date 2, on same terms and conditions which, as aresult, shall be no less favourable than those on which they are currently engaged by DCEL, SRSHL or DBCHL, asthe case may be, without any interruption of service as a result of Amalgamation and transfer of employment. Withregard to provident fund, gratuity, leave encashment and any other special scheme or benefits created or existingfor the benefit of such transferred employees of Amalgamating Undertaking 2, upon Part VI of the Scheme becomingeffective, ODCL shall stand substituted for DCEL, SRSHL or DBCHL, as the case may be, with whom they wereearlier employed, for all purposes whatsoever, including with regard to the obligation to make contributions torelevant authorities, such as the Regional Provident Fund Commissioner or to such other funds maintained by DCEL,SRSHL or DBCHL, as the case may be in accordance with the provisions of applicable laws or otherwise. It ishereby clarified that upon Part VI of the Scheme becoming effective, the aforesaid benefits or schemes shallcontinue to be provided or operated by ODCL in place of DCEL, SRSHL or DBCHL, as the case may be, in relationto such transferred employees and the services of all such transferred employees, for such purpose shall betreated as having been continuous.
(b) ODCL agrees that the services of all employees of Amalgamating Undertaking 2 (i.e. other than those employees ofDCEL who are primarily engaged in or in relation to any work of Transferred Undertakings 2) prior to the transfer,shall be taken into account for the purposes of all benefits to which such employees may be eligible, including inrelation to the level of remuneration and contractual and statutory benefits, incentive plans, terminal benefits,gratuity plans, provident plans and other retirement benefits and accordingly, shall be reckoned from the date oftheir respective appointment in DCEL, DBCHL or SRSHL, as the case may be. ODCL undertakes to pay the same, asand when payable under applicable laws.
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(c) The existing provident fund, employee state insurance contribution, gratuity fund, superannuation fund, annuity,deposit linked insurance fund, pension, staff welfare scheme and any other special scheme or benefits created byDCEL, SRSHL or DBCHL, as the case may be, for employees Amalgamating Undertaking 2 shall be continued on thesame terms and conditions or be transferred to the existing provident fund, employee state insurance contribution,gratuity fund, superannuation fund, annuity, deposit linked insurance fund, pension, staff welfare scheme, etc.,being maintained by ODCL or as may be created by ODCL for such purpose. Pending such transfer, the contributionsrequired to be made in respect of such transferred employees of Amalgamating Undertaking 2shall continue to bemade by ODCL to the existing funds maintained by DCEL, SRSHL or DBCHL, as the case may be. It is the intent thatall the rights, duties, powers and obligations of DCEL, SRSHL or DBCHL in relation to such fund or funds shallbecome those of ODCL without need of any fresh approval from any statutory authority.
(d) Upon Part VI of the Scheme becoming effective, DCEL, SRSHL and DBCHL will transfer/handover to ODCL, copiesof employment information of all such transferred employees of Amalgamating Undertaking 2, including but notlimited to, personnel files (including hiring documents, existing employment contracts, and documents reflectingchanges in an employee’s position, compensation, or benefits), payroll records, medical documents (includingdocuments relating to past or ongoing leaves of absence, on the job injuries or illness, or fitness for workexaminations), disciplinary records, supervisory files relating to its and all forms, notifications, orders and contribution/identity cards issued by the concerned authorities relating to benefits transferred pursuant to this sub-clause.
(e) The contributions made by Amalgamating Undertaking 2 in respect of its employees under applicable law , to theprovident fund, gratuity, leave encashment and any other special scheme or benefits created, for the period afterthe Appointed Date shall be deemed to be contributions made by ODCL.
(f) ODCL shall continue to abide by any agreement(s)/ settlement(s) entered into by DCEL, SRSHL and DBCHLrespectively, as the case may be, with employees of Amalgamating Undertaking 2 prior to Appointed Date and fromAppointed Date till the Effective Date 2.
57.(a) All proceedings of whatsoever nature (legal and others, including any suits, appeals, arbitrations, execution
proceedings, revisions, writ petitions, if any) by or against DCEL(other than those forming part of TransferredUndertakings 2), SRSHL and DBCHL shall not abate, be discontinued or be in any way prejudicially affected byreason of the transfer and vesting of the Amalgamating Undertakings 2 or anything contained in this Scheme but thesaid proceedings, shall, till the Effective Date 2 be continued, prosecuted and enforced by or against DCEL, SRSHLand DBCHL, as if this Scheme had not been made.
(b) Upon the coming into effect of Part VI of this Scheme, all suits, actions, and other proceedings including legal andtaxation proceedings, (including before any statutory or quasi-judicial authority or tribunal) by or against DCEL(otherthan those forming part of Transferred Undertakings 2), SRSHL and DBCHL, whether pending and/or arising on orbefore the Effective Date 2 shall be continued and / or enforced by or against ODCL as effectually and in the samemanner and to the same extent as if the same had been instituted and/or pending and/or arising by or against ODCL.
(c) ODCL undertakes to have accepted on behalf of itself, all suits, claims, actions and legal proceedings initiated byor against DCELSRSHL and DBCHL pertaining to Amalgamating Undertaking 2, transferred to its name and to havethe same continued, prosecuted and enforced by or against ODCL.
58. All books, records, files, papers, information, databases, whether in physical or electronic form, pertaining to AmalgamatingUndertaking 2, to the extent possible and permitted under applicable laws, be handed over to ODCL.
59. Without prejudice to the provisions of clauses 52 to 58 above, with effect from the Appointed Date, all inter-party transactionsamongst DCEL, SRSHL, DBCHL and ODCL pertaining to Amalgamating Undertaking 2 shall be considered as intra-partytransactions for all purposes.
60. Without prejudice to the other provisions of this Scheme and notwithstanding the fact that vesting of the AmalgamatingUndertakings 2 occurs by virtue of this Scheme itself, ODCL may, at any time after Part VI of the Scheme becoming effective,in accordance with the provisions hereof, if so required under any law or otherwise, take such actions and execute suchdeeds(including deeds of adherence), documents, confirmations or other writings or enter into any arrangements with anyparty to any contract or arrangement to which DCEL, SRSHL and DBCHL are party in respect of any matter pertaining toAmalgamating Undertaking 2 or any writings as may be necessary in order to give formal effect to the provisions of Part VIof this Scheme. It is hereby clarified that if the consent of any third party or authority is required to give effect to the provisionsof this clause, the said third party or authority shall be obligated to, and shall make and duly record the necessary substitution/endorsement in the name of ODCL pursuant to the sanction of this Scheme by the High Court(s), and upon Part VI of theScheme becoming effective in accordance with the terms hereof. For this purpose, ODCL shall, as required, file appropriateapplications/documents with relevant authorities concerned for information and record purposes. ODCL shall, under theprovisions of this Scheme, be deemed to be authorised to execute any such writings on behalf of DCEL, SRSHL and DBCHLand to carry out or perform all such formalities or compliances referred to above on the part of DCEL, SRSHL and DBCHL tobe carried out or performed.
Conduct of Business
61. With effect from the Appointed Date and up to the Effective Date 2:
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(a) DCEL, SRSHL and DBCHL shall respectively carry on and be deemed to have carried on such part of all the businessand activities of Amalgamating Undertakings 2which is connected with their respective company and shall hold andstand possessed of and shall be deemed to hold and stand possessed of such part of the entire AmalgamatingUndertakings 2which relates to their respective company for and on account of, and in trust for, ODCL;
(b) all obligations, liabilities, duties and commitments attached, related or pertaining to Amalgamating Undertakings 2shallbe undertaken and shall be deemed to have been undertaken by DCEL, SRSHL or DBCHL, as the case may be, forand on account of and in trust for ODCL.
(c) all profits and income accruing or arising to DCEL(other than those of Transferred Undertakings 2), SRSHL andDBCHL, and losses and expenditure arising or incurred by DCEL(other than those of Transferred Undertakings 2),SRSHL and DBCHL for the period commencing from the Appointed Date shall, for all purposes, be treated as and bedeemed to be the profits, income, losses or expenditure, as the case may be, of ODCL;
(d) any of the rights, powers, authorities or privileges exercised by DCEL, SRSHL and DBCHL in relation to AmalgamatedUndertakings 2,shall be deemed to have been exercised by DCEL, SRSHL and DBCHL for and on behalf of, and intrust for and as an agent of ODCL. Similarly, any of the obligations, duties and commitments that have beenundertaken or discharged by DCEL, SRSHL and DBCHL in relation to Amalgamated Undertakings 2, shall be deemedto have been undertaken for and on behalf of and as an agent of ODCL;
(e) all taxes, where applicable, (including but not limited to advance income tax, tax deducted at source, minimumalternate tax, wealth tax, fringe benefit tax, banking cash transaction tax, tax collected at source, taxes withheld/paid in a foreign country, sales tax, value assed tax, excise duty, customs duty, service tax or goods and servicetax, as applicable, cess, tax refunds) payable by or refundable to DCEL, SRSHL and DBCHL which pertains toAmalgamated Undertakings 2, including all or any tax refunds or tax liabilities or tax claims arising from pending taxproceedings, under any law, on or before the Effective Date 2, which pertains to Amalgamated Undertakings 2, shallbe treated as or deemed to be treated as the tax liability or tax refunds/ tax claims (whether or not recorded in thebooks of DCEL, SRSHL and DBCHL) as the case may be, of ODCL, and any unabsorbed tax losses and depreciation,etc., which pertains to Amalgamated Undertakings 2, as would have been available to DCEL, SRSHL and DBCHL onor before the Effective Date 2, shall be available to ODCL upon the Part VI of the Scheme coming into effect; and
(f) DCEL, SRSHL and DBCHL shall not without the concurrence of ODCL alienate, charge or otherwise deal with anyof its assets forming part of Amalgamating undertaking 2, except in the ordinary course of business.
Subject to the terms of the Scheme, the transfer and vesting of the Amalgamating Undertakings 2 as per the provisions of PartVI of the Scheme shall not affect any transactions or proceedings already concluded by DCEL, SRSHL and DBCHL on or witheffect from the Appointed Date till the Effective Date 2.
Cancellation of Shares
62. The entire issued, subscribed and paid-up share capital of SRSHL is held by DBCHL and its nominees, and of DCEL is heldby SRSHL and its nominees. DCEL and SRSHL are thus wholly owned subsidiaries, directly or indirectly, of DBCHL.
63. In view of the position explained in clause 62 above, upon Part VI of the Scheme becoming effective, all the shares of DCELand SRSHL held by its members, shall, without any application, act, consideration, instrument or deed be deemed to havebeen automatically cancelled and be of no effect.
64. Consideration for Amalgamation of DCEL, SRSHL & DBCHL with ODCL
(a) Upon Part VI of the Scheme becoming effective, the Board of Directors of ODCL shall fix a record date, fordetermining the entitlement of the shareholders of DBCHL to the number of fully paid-up shares, to be issued byODCL in accordance with clause 64(b) below(“Record Date 2”) . DBCHL shall provide to ODCL, before EffectiveDate 2, a list containing particulars of shareholders of the DBCHL as on the Record Date 2, along with theirrespective entitlement to the fully paid-up shares of ODCL that would be required to be issued and allotted by ODCLto the shareholders of DBCHL, in terms of clause (b) below. Provided however, that the entitlement to the fully paidup shares of ODCL of the nominees of DBCHL instead of being issued and allotted by ODCL to such nominees shallbe allotted directly to DBCHL, it being the beneficial owner of such shares.
(b) Upon part VI of the Scheme becoming effective and in consideration of the Amalgamation and transfer and vestingof the Amalgamated Undertaking 2 (i.e. DCEL other than Transferred Undertakings 2 and SRSHL and DBCHLrespectively) with ODCL, in terms of Part VI of this Scheme, ODCL shall, without any further application or deed,issue and allot to the shareholders of DBCHL (whose name appears in the register of members as on the RecordDate 2 and who are entitled to be issued shares by ODCL)in proportion to their respective shareholding in DBCHL,in aggregate, 3,43,00,000 0.1% Optionally Convertible Redeemable Preference Shares (“OCRPS”) of ODCL of Rs10 each at a premium of INR 90 per share.
(c) The OCRPS to be issued to the shareholders of DBCHL by ODCL pursuant to Para 64(b) above, shall be issued inthe demat form to the shareholders of DBCHL, provided that all details relating to the account of the shareholderwith the depositary participant are available to ODCL. All those shareholders of DBCHL who hold share of DBCHL
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and do not provide the details relating to their demat account with the depositary participant will be distributedOCRPS in the physical/certificate form unless otherwise communicated in writing by such shareholders on orbefore such date as may be determined by the Board of Directors of the ODCL or by a Committee created thereof.
(d) The OCRPS shall be issued on terms and conditions consistent with the principal terms and conditions set out inSchedule -VIII as set out in the Scheme.
Accounting treatment in the books and financial statements of ODCL
65. On Part VI of the Scheme becoming effective, ODCL shall account for the Amalgamation in its books as under:
(a) ODCL shall account for the Amalgamation of Amalgamating Undertaking 2 in its books of account with effect from the Appointed Date.
(b) The Amalgamation of Amalgamating Undertaking 2 shall be accounted for in accordance with “Purchase Method” of accounting as per the Accounting Standard 14 “Accounting for Amalgamation” as prescribed in Companies (Accounting Standards) Rules, 2006 issued by the Ministry of Corporate Affairs, as may be amended from time to time read with General Circular 15/2013 dated 13 September 2013 of the Ministry of Corporate Affairs in respect of Section 13 of the 2013 Act.
(c) All the assets including intangible assets, if any, whether or not recorded in the books of DCEL, SRSHL and DBCHLand Liabilities of DCEL, SRSHL and DBCHL, pertaining to the Amalgamating Undertakings 2, shall be recorded in thebooks of account of ODCL at their respective fair values and in the same form except to ensure uniformity ofaccounting policies.
(d) ODCL shall record issuance of OCRPS at fair value and accordingly credit to its Share Capital Account the aggregateface value of the preference shares issued on Amalgamation. The excess, if any, of the fair value of the preferenceshares over the face value of the preference shares issued shall be credited to Securities Premium Reserve. TheSecurities Premium Reserve so credited shall be available for issuance of bonus shares in accordance with applicablelaws.
(e) To the extent that there are inter-company loans, advances, investments, deposits or other obligations as amongstDCEL (other than those belonging to Transferred Undertakings 2), SRSHL, DBCHL and ODCL, the obligation in respectthereof will come to an end and corresponding effect shall be given in the books of account and records of DCEL,SRSHL and DBCHL as well as ODCL for the reduction of any such assets or liabilities as the case may be and therewould be no accrual of interest or any other charges in respect of such inter-company loans, advances, deposits orbalances, with effect from the Appointed Date.
(f) Excess, if any, of the consideration, viz., fair value of OCRPS issued over the fair values of net assets of AmalgamatingUndertaking 2 (i.e. DCEL excluding the Transferred Undertakings 2 and, SRSHL and DBCHL) (including identifiableintangible assets, if any, whether or not recorded in their books of accounts) taken over and recorded and aftermaking adjustment for sub-clause (e) above will be recognized as goodwill in accordance with Accounting Standard-14. In the event the result is negative, it shall be credited as Capital Reserve in the books of account of ODCL.
(g) ODCL shall record in its books of account, all transactions of Amalgamating Undertaking 2 (i.e. DCEL excluding theTransferred Undertakings 2 and SRSHL and DBCHL) in respect of assets, liabilities, income and expenses, fromAppointed Date to the Effective Date 2.
(h) Entire costs and expenses incurred in connection with Part VI of the Scheme and to put it into operation and any otherexpenses or charges attributable to the implementation of Part VI of the Scheme, shall be charged to Profit and LossAccount of ODCL.
(i) The intangible assets transferred (if any) on Amalgamation, as aforesaid, shall be amortized in the books of ODCLover its useful life. Goodwill (if any) arising on Amalgamation, as aforesaid, shall be amortized to income systematicallynot exceeding 20 years, on a justifiable basis & as reviewed by the Board of Directors periodically.
(j) The Board of Directors may adopt any other accounting treatment for the Amalgamation which is in accordance withAccounting Standards notified under the 1956 Act read with General Circular 15/2013 dated 13 September 2013 ofthe Ministry of Corporate Affairs in respect of Section 133 of 2013 Act.
Date of effectiveness of Part VI of the Scheme
66. This Part VI of the Scheme shall come into effect from Effective Date 2.
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PART VII – GENERAL TERMS AND CONDITIONS
Reorganisation and Combination of the Authorised Share Capital
67. Upon (i) Part V of the Scheme becoming effective, the authorised share capital of OCL and (ii) Part VI of the Schemebecoming effective, the authorised share capital of DCEL, SRSHL and DBCHL,will get merged with the authorised sharecapital of ODCL without any further act, instrument or deed or without payment of any additional fees and duties as the saidfees and duties have already been paid. The authorised share capital of ODCL will accordingly be increased to give effectto such merger of the authorized share capital and from such merged increased authorized equity share capital , the equityshare capital to the extent of Rs 50,00,00,000 (Rupees Fifty Crores) shall stand converted into preference share capital bysimply filing the requisite forms and no separate procedure shall be required to be followed or no separate fees required tobe paid under the applicable provisions of the 1956 Act and the 2013 Act.
68. Consequently, the memorandum of association of ODCL shall without any act, instrument or deed be and stand altered,modified and amended, pursuant to Sections 13 and 61 of the 2013 Act and Section 394 of the 1956 Act and other applicableprovisions of the 1956 Act and 2013 Act, as set out below:
(a) The authorised equity share capital of ODCL shall be increased by Rs. 3,50,00,00,000 (Rupees Three Hundred FiftyCrores) divided into 28,50,00,000 (Twenty Eight Crores and Fifty Lakhs) equity shares of Rs. 10 (Rupees ten) eachand 1,00,000 Equity Shares of Rs. 100 (Rupees Hundred) each and 7,00,00,000 equity shares of Rs.2 (Rupeestwo) each and 5,00,00,000 (Five Crore) preference shares of Rs. 10 (Rupees ten) each
(b) Clause V of the memorandum of association of ODCL shall, without any further act, instrument or deed, be andstand altered, modified and amended pursuant to Sections 13 and 61 of the 2013 Act and Section 394 of the 1956Act and other applicable provisions of the 1956 Act and the 2013 Act as the case may be and be replaced by thefollowing clause:
“The Authorised Share Capital of the Company is Rs. 3,50,10,00,000 (Rupees Three Hundred Fifty Crores and TenLacs only ) divided into 28,51,00,000 (Twenty Eight Crores and Fifty One Lacs only) Equity Shares of Rs. 10/-(Rupees Ten only) each, 1,00,000 (One Lakh only) Equity Shares of Rs. 100/- (Rupees One Hundred only) eachand 7,00,00,000 (Seven Crores only) Equity Shares of Rs. 2/- (Rupees Two only) each and 5,00,00,000 (FiveCrore) preference shares of Rs. 10 (Rupees ten) each with power of the Board of Directors of the Company toincrease or reduce such capital, from time to time, in accordance with the Act, Company regulations and thelegislative provisions for the time being in force in this behalf and with the power to sub-divide the shares in thecapital for the time being. If whenever the capital of the Company is divided into shares of different classes, therights of any class may be varied, modified, effected, extended, abrogated or surrendered as provided in theArticles of Association of the Company and the legislative provisions for the time being in force.”
69. It is clarified that upon approval of the Scheme by the High Court(s), ODCL shall not be required to seek separate consent/approval of its shareholders for the aforesaid alteration of the memorandum of association of ODCL as required underSection 13 and 61 of the 2013 Act and other applicable provisions of the 2013 Act and the 1956 Act.
70. Compliance with Section 2(1B) of The Income Tax Act, 1961
The provisions of Part V & VI of the Scheme as they relate to the Amalgamation comply with the conditions relating to“Amalgamation” as defined and specified under Section 2(1B) of the Income Tax Act. If any terms or provisions or part of thisScheme are found or interpreted to be inconsistent with the provisions of Section 2(1B) of the Income Tax Act, at a later dateincluding resulting from an amendment of law or for any other reason whatsoever, the provisions of Section 2(1B) of theIncome Tax Act shall prevail and the Scheme shall stand modified to the extent necessary to comply with Section 2(1B) of theIncome Tax Act and such modifications shall not affect other parts of the Scheme.
71. Section 180(1)(a) of the 2013 Act:
With effect from the Appointed Date, upon Part III & IV of the Scheme becoming effective, the consent / approval given by theshareholders of OCL and DCEL to the Scheme, in writing or by passing a resolution at a general meeting of OCL and DCEL orat a court-convened meeting if so directed by the High Court, shall also be deemed as the consent of the members of OCL andDCEL under Section 180(1)(a) of the 2013 Act and all other relevant provisions of 2013 Act, as applicable, to the Slump Saleof Transferred Undertakings 1 of OCL and Transferred Undertakings 2 of DCEL to ODCL and there shall be no need to passa separate shareholders’ resolution/s as is required under Section 180(1)(a) of the 2013 Act and/or other relevant provisionsof 2013 Act, as applicable.
72. Dividend
(a) During the pendency of the Scheme, DCEL, SRSHL, DBCHL, OCL and ODCL shall be entitled to declare and paydividends, whether interim and/or final, to their members in respect of the accounting period prior to the Effective Date2 or Effective Date 3, as applicable.
(b) The holders of the shares of DCEL, SRSHL, DBCHL, OCL and ODCL shall, save as expressly provided otherwise inthis Scheme, continue to enjoy their existing rights under their respective Articles of Association including the right toreceive dividends.
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(c) On and from the (i) Effective Date 2, the profits of DCEL, SRSHL and DBCHL and (ii) Effective Date 3, the profits ofOCL, for the period beginning from the Appointed Date, shall belong to and be deemed to be the profits of ODCL andwill be available to ODCL for being disposed of in any manner as it thinks fit.
(d) It is clarified that the aforesaid provisions in respect of declaration of dividends are enabling provisions only and shallnot be deemed to confer any right on any member of OCL, DCEL, SRSHL, DBCHL and/or ODCL to demand or claim anydividends which, subject to the provisions of the 1956 Act or the 2013 Act, as applicable, shall be entirely at thediscretion of the Boards of Directors, subject to such approval of the members, as may be required.
73. Operational sequence of the Scheme
Upon sanction of the Scheme, the Scheme shall be operative in the following sequence:
(a) From Effective Date 1, Slump Sale of Transferred Undertakings 2 of DCEL to ODCL pursuant to provisions of Sections391 to 394 of the 1956 Act and other applicable provisions of the 1956 Act and the 2013 Act in terms of Part IV of theScheme;
(b) From Effective Date 2, Amalgamation of Amalgamating Undertakings 2 with ODCL pursuant to provisions of Sections391 to 394 of the 1956 Act and other applicable provisions of the 1956 Act and the 2013 Act in terms of Part VI of theScheme;
(c) From Effective Date 3, Slump Sale of Transferred Undertakings 1 to ODCL and Amalgamation of AmalgamatingUndertaking 1 with ODCL pursuant to provisions of Sections 391 to 394 of the 1956 Act and other applicableprovisions of the 1956 Act and the 2013 Act in terms of Part III and Part V of the Scheme, respectively.
74. Validity of existing resolutions, etc.
Upon the coming into effect of Part V and VI of this Scheme, the resolutions passed by the respective Board of Directors and/or the Shareholders of OCL, DCEL, SRSHL and DBCHL, as are considered necessary by the Board of Directors of ODCL andwhich are valid and subsisting on the Effective Date 2 or Effective Date 3, as applicable, shall continue to be valid andsubsisting and be considered as the resolutions of ODCL upto the end of financial year 2016-17,and if any such resolutionshave any monetary limits approved under the provisions of the 1956 Act and the 2013 Act, or any other applicable statutoryprovisions, the said limits as are considered necessary by the Board of Directors of ODCL shall be added to the limits, if any,under like resolutions passed by the Board of Directors and/or the Shareholders of ODCL and the aggregate of the said twolimits shall constitute the revised limit for ODCL, for the relevant purpose and or under the relevant provisions of the 1956 Actand the 2013 Act.
75. Approval of shareholders to Scheme through Postal Ballot and E-voting
The Scheme shall be approved by public shareholders of OCL passed by way of postal ballot and e-voting in terms of paraI(A)(9)(a) of Annexure I of SEBI Circular; provided that the said resolution shall be acted upon only if the votes cast by thepublic shareholders of OCL in favour of the proposal are more than the number of votes case by the public shareholdersagainst it.
76. Dissolution of OCL, DCEL, SRSHL and DBCHL
(i) On Part VI of the Scheme becoming effective and with effect from Effective Date 2, DCEL, SRSHL and DBCHL and (ii) On Part V of the Scheme becoming effective and with effect from Effective Date 3, OCL, shall, without any further act,instrument or deed, stand dissolved without winding up. On and from (i) the Effective Date 2, the name of DCEL, SRSHL andDBCHL and (ii) Effective Date 3, the name of OCL, shall be struck off from the records of the Registrar of Companies andrecords relating to these companies shall be transferred and merged with the records of ODCL.
77. Change of Name of Transferee Company
With effect from Effective Date 3, the name of the Transferee Company shall be deemed to have been changed from “OdishaCement Limited” to “OCL India Limited” in accordance with Section 13 of the 2013 Act and other relevant provisions of the1956 Act or the 2013 Act, as applicable. It is hereby clarified that for the purposes of this clause, the consent of theshareholders of ODCL to this Scheme shall be deemed to be sufficient for the purposes of effecting the name change and thatno further resolution under Section 13 of 2013 Act or any other applicable provisions of the 1956 Act or the 2013 Act, asapplicable, would be required to be separately passed. Pursuant to this Scheme, ODCL shall file the requisite forms with theRegistrar of Companies for change of the name of ODCL.
78. Applications/Petitions to the High Court(s) and Approvals
(a) OCL, DCEL, SRSHL, DBCHL and ODCL shall with utmost dispatch, make and file all applications and petitions underSections 391 to 394 of the 1956 Act and other applicable provisions of the 1956 Act and the 2013 Act before the HighCourt(s), under whose jurisdiction their respective registered office are situated, for sanction of this Scheme underthe relevant provisions of law, and shall apply for such approvals as may be required under law.
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(b) ODCL shall be entitled, pending the sanction of the Scheme, to apply to any Appropriate Authority, if required, underany law for such consents and approvals which ODCL may require to own and operate the relevant Undertakingsand to carry on the business of OCL, DCEL, SRSHL and DBCHL without any interruption.
79. Modifications to the Scheme
OCL, DCEL, SRSHL, DBCHL and ODCL (through their respective Board of Directors), in their full and absolute discretion,jointly and as mutually agreed in writing, may:
(a) assent to any alteration(s) or modification(s) to this Scheme which the High Court(s)and/or any other GovernmentalAuthority may deem fit to approve or impose, and/or effect any other modification or amendment jointly and mutuallyagreed in writing, including, without limitation, any modifications to the accounting treatment set out in the Scheme dueto the Indian Accounting Standards being made applicable to them or to the matters set forth in this Scheme, and to doall acts, deeds and things as may be necessary, desirable or expedient for the purposes of this Scheme;
(b) give such directions (acting jointly) as they may consider necessary to settle any question or difficulty arising underthe Scheme or in regard to and of the meaning or interpretation of this Scheme or implementation hereof or in anymatter whatsoever connected therewith, or to review the position relating to the satisfaction of various conditions ofthis Scheme and if necessary, to any of those (to the extent permissible under law);
(c) modify or vary the respective parts of the Scheme prior to the Effective Date 1 , Effective Date 2 or Effective Date 3,as the case may be, in any manner at any time; or
(d) in case Part IV and Part VI of the Scheme together or Part III and Part V of the Scheme together are found to beunworkable for any reasons whatsoever, delete Part IV and Part VI of the Scheme together and/or Part III and Part Vof the Scheme together, as the case maybe, prior to the Effective Date 1 in case of former and Effective Date 3 incase of latter and make consequential changes in the Scheme wherever required, in such manner as may benecessary;
(e) determine jointly whether any asset, liability, employee, legal or other proceedings pertains to OCL, DCEL, SRSHL andDBCHL or not, on the basis of any evidence that they may deem relevant for this purpose.
80. Change of Registered office of OCL and ODCL
80.1 OCL is in the process of initiating necessary steps for shifting its registered office from the state of Odisha to the State ofTamil Nadu. For the purpose of this Scheme, the application/petitions pursuant to the provisions of Sections 391 to 394 of the1956 Act and other provisions of the 1956 Act or the 2013 Act, as applicable shall be made by or on behalf of OCL, to the HighCourt then having jurisdiction, where the registered office of OCL will be situated.
80.2 ODCL is in the process of initiating necessary steps for shifting its registered office from the state of Odisha to the State ofTamil Nadu. For the purpose of this Scheme, the application/petitions pursuant to the provisions of Sections 391 to 394 of the1956 Act and other provisions of the 1956 Act or the 2013 Act, as applicable shall be made by or on behalf of ODCL, to theHigh Court then having jurisdiction, where the registered office of ODCL will be situated.
80.3 DCEL has initiated necessary steps for shifting its registered office from the National Capital Territory of Delhi to the State ofTamil Nadu. For the purpose of this Scheme, the application/petitions pursuant to the provisions of Sections 391 to 394 of the1956 Act and other provisions of the 1956 Act or the 2013 Act, as applicable shall be made by or on behalf of DCEL, to the HighCourt then having jurisdiction, where the registered office of DCEL will be situated.
81. Withdrawal from the Scheme
OCL, DCEL, SRSHL, DBCHL and/or ODCL acting through their respective Board of Directors shall each be at liberty towithdraw from this Scheme in case any condition or alteration imposed by any authority/person or otherwise is unacceptableto any of them, in the following manner:
a. In case only OCL decides to withdraw from this Scheme for the reasons as stated above, Part III and Part V of theScheme shall stand deleted from the Scheme with such consequential changes in other relevant places of the Schemeas may be necessary.
b. In case only DCEL decides to withdraw from this Scheme for the reasons stated above, Part IV and Part VI of theScheme shall stand deleted from the Scheme with such consequential changes in other relevant places of the Schemeas may be necessary.
c. In case both OCL and DCEL and/or ODCL decides to withdraw from this Scheme for the reasons stated above then theentire Scheme stand withdrawn
d. In case SRSHL and/or DBCHL decide to withdraw from this Scheme for the reasons stated above then consequentialchanges in Part VI of the Scheme and other places as may be necessary shall be deemed to be made accordingly
82. When the Scheme comes into operation and its Parts given effect to:
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(a) The Scheme shall come into operation from the Appointed Date but different parts of the Scheme alongwith provisionsof other parts as may be relevant shall become effective on and from the Effective Date 1, Effective Date 2 andEffective Date 3, as the case be, in terms of the Scheme.
(b) ODCL, shall carry on and shall be authorized to carry on, with effect from the Effective Date 1, the Rail Business andSolid Waste Management Business pertaining to Transferred Undertakings 2 and with effect from Effective Date 2,the businesses of Amalgamating Undertakings 2. With effect from the Effective Date 3, ODCL shall carry on and shallbe authorized to carry on the Power Business, Rail Business and Solid Waste Management Business pertaining toTransferred Undertakings 1 and the businesses of Amalgamating Undertaking 1. For the purposes of giving effect tothe order of the High Court(s) under Section(s) 391 to 394 and other applicable provisions of the 1956 Act or relevantprovision of 2013 Act as applicable, sanctioning the Scheme, ODCL shall at any time pursuant to such orders beentitled to get the recordal of change in the legal right(s) upon the Slump Sale of Transferred Undertakings 1 andTransferred Undertakings 2 and Amalgamation of Amalgamating Undertaking 1 & Amalgamating Undertakings 2 inaccordance with the provisions of the Sections 391 to 394 of the 1956 Act or the relevant provisions of the 2013 Act,as applicable. ODCL is and shall always be deemed to have been authorized to execute any pleadings, applications,forms etc. as may be required to remove any difficulties and carry out any formalities or compliance as are necessaryfor the implementation of the Scheme.
(c) ODCL shall be entitled to, amongst others, file/ or revise its income tax returns, TDS/TCS returns, wealth tax returns,service tax, excise duty, sales tax, value added tax, entry tax, cess, professional tax or any other statutory returns,if required, credit for advance tax paid, tax deducted at source, claim for sum prescribed under Section 43B of theIncome Tax Act on payment basis, claim for deduction of provisions written back by ODCL previously disallowed inthe hands of OCL, DCEL, SRSHL and DBCHL under the Income Tax Act, credit of tax under Section 115JB read withSection 115JAA of the Income Tax Act, credit of foreign taxes paid/ withheld etc., if any, pertaining to OCL, DCEL,SRSHL and DBCHL as may be required consequent to implementation of this Scheme and where necessary to giveeffect to this Scheme, even if the prescribed time limits for filing or revising such returns have lapsed without incurringany liability on account of interest, penalty or any other sum. ODCL shall have the right to claim refunds, tax credits,set-offs and/or adjustments relating to its income or transactions entered into by it by virtue of this Scheme witheffect from Appointed Date. The taxes or duties paid by, for, or on behalf of, OCL, DCEL, SRSHL and DBCHL relatingto the period on or after Appointed Date shall be deemed to be the taxes or duties paid by ODCL and ODCL shall beentitled to claim credit or refund for such taxes or duties.
(d) Any advance tax, self-assessment tax, minimum alternate tax and/or TDS credit available or vested with OCL, DCEL,SRSHL and DBCHL, including any taxes paid and taxes deducted at source and deposited by OCL, DCEL, SRSHL andDBCHL on inter se transactions during the period between Appointed Date and the Effective Date 2 or Effective Date3, as applicable, shall be treated as tax paid by ODCL and shall be available to ODCL for set-off against its liabilityunder the Income Tax Act and any excess tax so paid shall be eligible for refund together with interest. Further, TDSdeposited, TDS certificates issued or TDS returns filed by OCL, DCEL, SRSHL and DBCHL on transactions other thaninter se transactions during the period between Appointed Date and the Effective Date 2 or Effective Date 3, asapplicable, shall continue to hold good as if such TDS amounts were deposited, TDS certificates were issued andTDS returns were filed by ODCL. Any TDS deducted by, or on behalf of, OCL, DCEL, SRSHL and DBCHL on inter setransactions will be treated as tax deposited by ODCL.
(e) Transfer and vesting of Transferred Undertakings 1 and Transferred Undertakings 2 in terms of Part III and IV of theScheme respectively and Amalgamating Undertaking 1 and Amalgamating Undertakings 2 in terms of Part V and VI ofthe Scheme, respectively, is not a sale in the course of business or otherwise.
83. Severability
If any provision or part of this Scheme is found to be unworkable for any reason whatsoever, the same shall not, subject tothe decision of OCL, DCEL, SRSHL, DBCHL and ODCL, affect the validity or implementation of the other provisions and partsof this Scheme.
In the event of any inconsistency between any of the terms and conditions of any earlier arrangement among OCL, DCEL,SRSHL, DBCHL and ODCL and their respective shareholders and/or creditors, and the terms and conditions of this Scheme,the latter shall have overriding effect and shall prevail.
84. Costs
(a) In the event of any of the required material statutory or regulatory sanctions and approvals not forthcoming or notbeing received and/or the Scheme not being sanctioned by the High Court(s), the Scheme shall become null and voidand each party shall bear and pay its respective costs, charges and expenses for and/or in connection with theScheme.
(b) Subject to clause 84(a) above, all costs, charges and expenses (including, but not limited to, any taxes and duties,stamp duty, registration charges, etc.) of /payable by OCL, DCEL, SRSHL, DBCHL and ODCL in relation to or inconnection with the Scheme and of carrying out and completing the terms and provisions of the Scheme and/orincidental to the completion of the Scheme shall be borne and paid solely by ODCL.
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SCHEDULE I - Immovable Properties of Amalgamating Undertaking 1
A. Land Part iculars Area in Acres
A. Distr ict - Sun dargarh, S tate - O disha
V illages
JA MPALI 8.48
JHA GARPU R 2.40
KUMA RKELA 35.23
KUNU MURU 7.72
LA MLOI 11.57
LIPLOI 6.93
PA DAJA MPALI 0.44
RA IBERNA 24.84
RA JGAN GPUR 'KA ' 485.90
RA JGAN GPUR 'KHA ' 2.30
RA NIB ANDHA 1.15
RUM ABA HAL 4.59
LA NJIBERN A 283.94
BIHABA NDH 151.77
KUKUDA 46.35
DHAU RADA 341.12
PA TIA 0.15
BJB NAGA R 0.34
A IGIN IA 0.13
CO LLEGE S QUA RE 0.01
HILL PATANA 0.01
A INTHAPA LLI 0.04
RA JGAN GPUR 0.44
CUTTACK BBSR ROA D 1.22
CHIRAPA NI 4.08
KA TA NG 0.74
1,421.89
B . District - C uttack, S tate - O disha
BA YREE 109.92
MA NIA 38.40
BISW ALI 100.55
BA YAMBA 1.50
250.37
C. Dist ric t - S al boni, State - W est Bengal
JA MDAR GARH-2 5.21
JA MDAR GARH-1 7.66
RA NA-2 5.04
RA NA-1 14.17
DURGA DAS PUR-2 26.39
DURGA DAS PUR-1 14.34
KULA PACHU RIA -2 55.85
KULA PACHU RIA -1 25.77
MIDNAPO RE 0.55
154.98
D. Dist rict - R anchi , State - Jharkh and
HA WA I NA GAR 0.11
E. Distr ict - Kadm a, St at e - Jharkhand
SINDYCATE COLO NY 0.02
E. Distr ict - Ahm edabad, St at e - Gujarat
A HEMEDA BAD 0.08
TOTAL AREA 1,827.44
B. Buildings & Structures – As constructed on the land mentioned in point A above.
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Schedule II - Immovable Properties of the Amalgamating Undertakings 2
Leasehold land, admeasuring 38.52 acres, along with buildings and structures situated thereon at Bokaro Industrial Area,Balidih, Bokaro Steel City, Jharkhand.
Schedule III - Immovable Properties of the Power Undertakings of OCL
A. Land
Particulars Area in Acres
District - Cuttack, State - Odisha
AMIYAJHARI 12.00
TOTAL AREA 12.00
B. Buildings & Structures – As constructed on the land mentioned in point A above.
Schedule IV - Immovable Properties of the Rail Undertaking of DCEL
A. Freehold land, admeasuring 2.31 acres, situated at Bokaro Industrial Area, Balidih, Bokaro Steel City, Jharkhand.
B. Leasehold land, admeasuring 24.37 acres, situated at Bokaro Industrial Area, Balidih, Bokaro Steel City, Jharkhand.
Schedule V - Immovable Properties of the Rail Undertaking of OCL
A. Land
Particulars Area in Acres
District - Cuttack, State - Odisha
AMIYAJHARI 63.00
BAYREE 24.00
TOTAL AREA 87.00
Schedule VI - Immovable Properties of the Solid Waste Management System Undertaking of DCEL
A. Freehold land, admeasuring 4 acres, situated at Bokaro Industrial Area, Balidih, Bokaro Steel City, Jharkhand.
B. Building constructed on Bokaro Industrial Area. Balidih, Bokaro Steel City, Jharkhand.
Schedule VII - Immovable Properties of the Solid Waste Management System Undertaking of OCL
A. Buildings & Structures as constructed on Land at Biswali, Dist- Cuttack, Odisha.
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Schedule VIII
Terms and Conditions for issue of Optionally Convertible Redeemable Preference Shares (OCRPS)
Dividend Rate on OCRP S 0.1% p.a.
Tenure for conversion Convertible at the option of holder within 18 months from the date of allotment
Lock in OCRPS shall be locked in for a period of 3 years from the date of allotment provided the same is
not converted into equity shares within the Tenure for Conversion.In the event, OCRPS is converted
into equity shares within the Tenure for Conversion, equity shares issued upon conversion shallbe locked in for the balance period so that total period of lock in (including the period of lock in for
OCRPS) would be 3 years from the date of allotment of OCRPS.
Convertibility OCRPS shall be converted into equity shares at the then prevailing price determined in accordance
with the SEBI preferential issue guidelines. The conversion of OCRPS into equity shares shall be
limited to such number as would enable ODCL to continue fulfilling the criteria of minimum publicshareholding as per Rule 19(2) and Rule 19A of the Securities Contracts (Regulation) Rules,
1957. Conversion ratio of OCRPS into equity shares being presently unknown, hence possible
increase in shareholding of promoter(s) in ODCL pursuant to conversion of ORCPS is alsounknown at this stage.
Terms of Equity Share 1) Equity shares issued and allotted pursuant to conversion shall be listed on the stock exchanges
where the equity shares of ODCL are listed viz., BSE and NSE.
2) The Equity shares issued and allotted by ODCL in terms upon conversion shall rank paripassu
in all respects including dividend with the existing equity of ODCL
Redeemable Preference Non converted OCRPS after the expiry of 18 months from the date of allotment, will be
converted into equivalent number of Redeemable Preference Shares (RPS)
Dividend Rate on RPS 0.1% p.a.
Tenure of RPS upto10 years from the date of allotment of OCRPS
Redemption terms of RPS Redemption of RPS would be done at a price to give 6% p.a. yield-to-maturity.
Redemption option of RPS Shareholders shall have the option to seek redemption of RPS held by them at any time within 10
years from the date of allotment of OCRPS.
allotted on Conversion
Shares
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In the Hon’ble High Court of Orissa, CuttackOriginal Jurisdiction
Company Petition No. 37 of 2016In the matter of Companies Act, 1956
ANDIn the matter of Sections 391 to 394 CompaniesAct, 1956
ANDIn the matter of Scheme of Arrangement andAmalgamation amongst OCL India Limited,Dalmia Cement East Limited, Shri RangamSecurities & Holdings Limited, Dalmia BharatCements Holdings Limited and Odisha CementLimited and their respective shareholders andcreditors
OCL India Limited )a company incorporated under the provisions of the )Companies Act, 1913, having its registered office at )Rajgangpur-770017, Dist. Sundargarh, )Odisha, India ) ……..Applicant/Transferor Company No. 1
FORM OF PROXY
I/ We ____________________________________________, the undersigned, being the equity
shareholder(s) of OCL India Limited, the Applicant/Transferor Company No. 1 do hereby appoint Mr./Ms. ____________________________of _________________________ and failing him/her______________________________ of________________________ as my/our proxy, to act for me/
us at the meeting of the equity shareholders to be held on Sunday, November 27, 2016 at 11.00 a.m.
at the premises of the Applicant/Transferor Company No. 1 at Rajgangpur-770017, Dist. Sundargarh,
Odisha for the purpose of considering and, if thought fit, approving, with or without modification, the
arrangement embodied in the proposed Scheme of Arrangement and Amalgamation amongst OCL
India Limited, Dalmia Cement East Limited, Shri Rangam Securities & Holdings Limited, Dalmia Bharat
Cements Holdings Limited and Odisha Cement Limited and their respective shareholders and creditors,
and at such meeting, and any adjournment/ adjournments thereof, to vote, for me/us and in my/ our
name(s) _____________________________________ (herein, if for insert ‘FOR’, if against insert
‘AGAINST’ and in the latter case strike out the words “either with or without modifications” after the
word “Arrangement and Amalgamation”) the said arrangement and amalgamation embodied in the
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Scheme of Arrangement and Amalgamation either with or without modifications as my/our proxy may
approve.
*Strike out what is not necessary
Signature: ______________________________
Dated this _________________ day of ___________________ 2016
Name ___________________________________________________________
Shareholder(s) Sole / First Holder: ____________________________
Second Holder: _______________________________
Third Holder: _________________________________
Signature of Proxy Proxy: ______________________________________
Notes:
1. The Proxy must be deposited at the registered office of the Applicant/Transferor Company No.
1 at Rajgangpur-770017, Dist. Sundargarh, Odisha, India at least 48 hours before the time
for holding the meeting. The Proxy need not be a member of the Applicant/Transferor Company
No. 1.
2. All alterations made in the form of Proxy should be initialed.
3. In case of multiple proxies, the Proxy later in time shall be accepted.
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ATTENDANCE SLIP
PLEASE COMPLETE THIS ATTENDANCE SLIP AND HAND IT OVER AT THE ENTRANCE OF THE MEETINGVENUE.
Joint shareholders may obtain additional Attendance Slip at the venue of the meeting.
I hereby record my presence at the meeting of the equity shareholders of the Applicant/Transferor Company No.1, convened pursuant to the order dated October 06, 2016 of the Hon’ble High Court of Orissa, at the premises ofthe Applicant/Transferor Company No. 1 at Rajgangpur-770017, Dist. Sundargarh, Odisha.
Name and Address of equity shareholder: ________________________________________________________
(IN BLOCK LETTERS) _________________________________________________________
Shareholders attending the meeting in person or by Proxy are requested to complete the Attendance Slip andhand it over at the entrance of the meeting venue.
