CORPORATE LAWS

INTELECTUAL PROPERTY (TRADE MARK/ COPYRIGHT/ PATENT)

 

TRADE MARK

“trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours: and—

  • A registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark: and
  • A mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person , and includes a certification trade mark or collective mark:

 

COPYRIGHT

Copyright is a form of intellectual property protection giving exclusive right and assignable legal right to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. This is usually only for a limited time. 

 

PATENT

Patent is an exclusive right given to a inventor of any invention for making, using and selling of invention for a fixed period of time once such time is complete such invention become public property

 

BANKING AND FINANCE

Advising and representing banks/ NBFCs/ financial institutions/ borrowers on financing/refinance/ debt restructuring of working capital and term loans for various project financing transactions relating to solar power projects, wind power projects, transmission projects, thermal power projects, road projects, business loans etc., and other cross border transactions for external commercial borrowing under purview of RBI/ FEMA guidelines for overseas direct investment.

Advising and opining clients on various issues relating to property, creating of equitable mortgage/ registered mortgage, stamp requirements, conducting title search reports and due-diligence of companies with respect to Indian Laws perspective.

 

MERGER AND ACQUISITION

Mergers and acquisitions (M&A) are transactions in which the ownership of companies, other business organizations or their operating units are transferred or combined in one new/ existing entity. Further a merger is a legal consolidation of two entities into one entity, whereas acquisition is occurs when one entity takes ownership of another entity’s stockequity interests or assets.

 

Procedure for Merger and Acquisition: –

Provisions for merger and acquisition of companies is governed by Section 230 to 232 of the Companies Act, 2013 and Rules of Companies (Compromises, Arrangements and Amalgamations) Rules,2016 of Companies Act, 2013. Further is brief following will be process for merger and acquisition of company.

 

  1. Making share valuation certificate for both companies (for getting value of shares)
  2. Drafting scheme of merger
  3. Hold a Board Meeting and passing board resolution for approval of Scheme.
  4. File an application to NCLT in form NCLT-1 annexing the following documents:
  • Copy of scheme
  • Material disclosure such as any pendency of investigation proceedings, change in Board of directors, latest audited financial statements etc.
  • Creditors Responsibility statements in FormCAA-1.
  • Valuation report in respect of shares and assets of the company from a registered valuer.
  • Reduction of share capital
  1. After submission of NCLT-1 the Tribunal may call for meeting appointing chairman, and alternate chairman. However, the meeting of members or creditors as the case may be dispensed with. If meeting is to be called for, then the notice of the meeting is required to be published in English and Hindi newspapers as format prescribed in AMG-2. Notice to be sent individually in the prescribed form AMG-4
  2. Copy of the scheme is required to be sent to Central Government, ROC, Income Tax, the OL and such other authorities that may affected due to this event
  3. The chairperson shall file report of the meeting not less than 7 days from the conclusion of the meeting.
  4. The companies shall file a petition for confirming the scheme within 7 days of the filing of the report by the Chairman. The petition shall be in form AMG-8
  5. The Tribunal shall fix a date for hearing and direct the company publish the notice of the hearing in English and Hindi newspapers not less than 10 days before the hearing was fixed.
  6. The Tribunal may sanction the scheme or pass such orders or directions as it may deem fit.
  7. Copy of the order sanctioning the scheme is required to be filed to ROC within 30 days from the date of the order.
  8. Schedule of assets and liabilities are required to be filed to Roc with the order of scheme sanctioned by the Tribunal.
  9. Stamp duty @ of 3% (applicable in Delhi) is required to be paid on consideration set forth in the instrument.

 

Notes:

  1. Since it’s a big event from company’s and management perspective detailed deliberations is required from Management, Auditors of the Company and other consultant to arrive at the finalization of the scheme.
  2. Liaising with office of OL, RD and Income Tax is required to be taken care on priority basis after the second motion petition is filed with the ROC for clearance of Report/NOC/Affidavits as the case maybe.
  3. Fix a appointed dated for the purpose of valuation, assessment of income and transfer of assets and liabilities.

WINDING UP/ INSOLVENCY

The winding up or insolvency of a company is the process by which a company’s assets are collected and sold by liquidator appointed to pay off debts of the company. Any amount remaining after all debts, expenses and costs have been paid off are distributed amongst the shareholders of the company.

 

Procedure for winding up/ Insolvency: –

  1. Declaration of Solvency under Section 59 (3) (a) of the Insolvency and Bankruptcy Code, 2016
  2. Company will have to convene Board Meeting to discuss and approve Voluntary winding up of the Company and Appointment of Liquidator subject to the approval of Members in the General Meeting
  3. Company to convene shareholder meeting and to pass the Special Resolution for Voluntary Winding up and Appointment of Insolvency Professional to act as a Liquidator
  4. Intimation to ROC within 7 days of approval of liquidation of Company /subsequent approval by the creditors owing 2/3rd of the Value of the Debt of the Company
  5. Company to intimate IBBI regarding initiation of Voluntary Winding up within 7 days of approval of liquidation of Company /subsequent approval by the creditors owing 2/3rd of the Value of the Debt of the Company
  6. Within 5 days of Appointment of Liquidator:
  • Company need to published in one English Newspaper and one Regional Language Newspaper having wide circulation where the registered office and the principal office if any, of the Company is situated about winding up of company.
  • Liquidator to intimate Insolvency and Bankruptcy Board of India (IBBI) regarding Public announcement.
  • Public announcement to be updated on website of Company, if any
  1. Liquidator to open Bank Account within One month of passing of Special Resolution
  2. Intimation to Income Tax Department within One month of passing resolution regarding Voluntary Winding up of the Company and to obtain NOC.
  3. Preparation of Preliminary Report (To be submitted within 45 days from the commencement of the liquidation process
  4. Liquidator to prepare list of stakeholders within 45 days from the last date for receipt of claims
  5. Liquidator to value and sell the assets of the Corporate Person in the manner and mode approved by the Company.
  6. Liquidator to deposit proceeds of distribution in Bank Account
  7. Distribution of Proceeds within 6 months from the receipt of amount to the stakeholders
  8. The entire process to be completed within 12 months from the date of commencement of liquidation
  9. Where the affairs of the Company is completely wound up and its assets completely liquidated, the liquidator shall make an application to Adjudicating Authority for the dissolution of such Company. The Adjudicating Authority -NCLT shall on an application filed by the liquidator pass an order for the dissolution of the Company.

 

ALTERNATE DISPUTE RESOLUTION

 

ARBITRATION: – 

Indian law of arbitration is contained in the arbitration and conciliation act 1996. In most of the contract or agreements there is a arbitration clause which Arbitration is a quasi judicial procedure in which dispute are being heard before an arbitrator in which arbitrator pronounces final award which is binding on both the parties.

 

SECTION 9 :- INTERIM MEASURES

Before appointment of an arbitrator when a disputing party wants to secure the material or disputed assets an application is moved before an appropriate court as per territorial jurisdiction to secure those disputed assets.

 

SECTION 11:- APPOINTMENT OF ARBITRATOR

When parties to the agreement enters a dispute one party sends a letter to the other party for appointment of arbitrator and if both the parties do not agree for the appointment of the arbitrator then an application is moved under this section of arbitration and conciliation act 1996 before the Hon’ble High Court

 

When the parties cannot be mutually decided the arbitrator, they refer to an application under this section before the Hon’ble High Court.  The hon’ble high court appoints an arbitrator resolve the dispute.

 

SECTION 17:- INTERIM MEASURES

This application is similar to section 9 and only difference is that this application is filed before the learned arbitrator to secure the assets in dispute.

 

SECTION  34:-  OBJECTION

When an arbitrator gives a final award, against this final award an objection petition is filed under this section before an appropriate court to as per territorial jurisdiction to secure those disputed assets.

 

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