- 1 -COMPANY PETITION NO. 987 OF 2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 987 OF 2007 CONNECTED WITH COMPANY APPLICATION NO. 1333 OF 2007 In the matter of the Companies Act, 1956; And In the matter of Petition under Sections 391 to 394, of the Companies Act, 1956; And In the matter of BMC Software India Private Limited, a company incorporated under the Companies Act, 1956, having its registered office at Tower A, ICC Tech Park, Senapati Bapat Road, Pune – 411016; And In the matter of the Scheme of Amalgamation of ProactiveNet Software Private Limited with BMC Software India Private Limited and their respective shareholders. BMC Software India Private Limited, a company incorporated under the Companies Act, 1956, having its registered office at Tower A, ICC Tech Park, Senapati Bapat Road, Pune – 411016. ) ) ) ) …Petitioner Mr. Virag Tulzapurkar Senior Counsel with Mr. Tapan Deshpande i/b Amarchand & Mangaldas & Suresh A. Shroff & Co., for the Petitioner. Mr. C. J. Joy i/b Mr. S.K. Mohopatra for Regional Director - 2 -COMPANY PETITION NO. 987 OF 2007 Corum: A. M. Khanwilkar, J. Date: 8th February 2008 P.C.: 1. Heard learned counsel for the parties. 2. The sanction of the Court is sought under Sections 391 to 394 of the Companies Act 1956 to the Scheme of Amalgamation of ProactiveNet Software Private Limited with BMC Software India Private Limited and their respective shareholders. 3. Counsel appearing on behalf of the Petitioner Company, has stated that the Petitioner Company has complied with all requirements as per the directions of this Hon’ble Court and they have filed necessary affidavits of compliance in the Court. However Petitioner Company also undertakes to comply with all statutory requirements, if any, as required under the Companies Act 1956. 4. The Regional Director has filed affidavit stating therein that the Scheme is not prejudicial to the interest of shareholders and creditors and public. So far as paragraph no.6 of the said Affidavit is concerned the Petitioner through their counsel undertakes that the Petitioner will comply with the accounting treatment as prescribed under the Accounting Standard – 14 i.e. ‘Accounting for Amalgamation’ and other applicable accounting standards issued by the Institute of Chartered Accountants of India from time to time. The said undertaking is accepted. 5. Upon perusal of the entire material placed on records, the Scheme appears to be fair and reasonable and is not violative of any provisions of law and is not contrary to any public policy. None of the parties concerned have come - 3 -COMPANY PETITION NO. 987 OF 2007 forward to oppose the Scheme. Moreover, the Regional Director has stated that the Scheme as proposed is not prejudicial to the interest of creditors and shareholders. 6. There is no objection to the Scheme and since all requisite statutory compliances have been fulfilled, Company Petition No. 987 of 2007 filed by the Petitioner/Transferee Company is made absolute in terms of prayer clauses (a) to (f) of the said Petition as reproduced below: “(a.) that the Scheme of Amalgamation of ProactiveNet Software Private Limited with BMC Software India Private Limited and their respective shareholders being Exhibit "E" to the Petition, be sanctioned by this Hon'ble Court so as to be binding with effect from the Appointed Date, as defined in the Scheme on all the shareholders and creditors of the Transferor Company and the Petitioner Company; (b.) for an order under Section 394 of the Companies Act, 1956 for transfer and vesting of the entire business and the whole of the Undertaking of the Transferor Company as set out in the Scheme, being Exhibit "E" hereto, and which shall without any further act or deed be transferred to and be vested in and/or deemed to be transferred to and be vested in the Petitioner Company; (c.) with effect from the Appointed Date, all debts, liabilities, duties and obligations of the Transferor Company as set out in the Scheme shall, without any further act or deed be transferred to or deemed to be transferred to the Petitioner Company so as to become the debts, liabilities, duties and obligations of the Petitioner Company; (d.) for an order under Section 394 of the Companies Act, 1956 that all suits, actions and proceedings by or against the Transferor Company pending and/or arising on or before the date on which the said Scheme shall finally takes effect be continued and be enforced by or against the Petitioner Company as effectually as if the same had been pending and/or arising by or against the Petitioner Company; (e.) for an order under Section 394 of the Companies Act, 1956, that all permanent employees of the Transferor Company as on the Effective Date shall become the employees of the Petitioner Company in accordance with applicable law and without any breach or interruption of service, as set out in the Scheme; (f.) for an order that the Petitioner Company shall within 30 days after the date of sealing of the order to be made herein or within such other time as may be permitted by this Hon'ble Court cause a - 4 -COMPANY PETITION NO. 987 OF 2007 certified copy thereof to be delivered to the Registrar of Companies, Maharashtra at Pune for registration.” 7. The Transferor Company has its registered office in the state of Karnataka and the sanction of this court is therefore subject to the sanction of the Scheme by the High Court of Karnataka at Bangalore. 8. The Petitioner Company to pay cost of Rs. 5000/- to the Regional Director in the said Petition. Costs to be paid within four weeks from the date of the order. 9. Filing and issuance of the drawn up order is dispensed with. 10. All authorities concerned to act on a copy of this order along with Scheme, duly authenticated by the Registry. (A. M. Khanwilkar, J)