The Karachi Stock Exchange (Guarantee) Limited’s Scheme of Arrangement for Amalgamation between GlaxoSmithKline Pakistan Limited and STIEFEL Laboratories Pakistan (Private) Limited
Karachi: The Principal object of this Scheme is to merge/amalgamate Stiefel Laboratories Pakistan (Private) Limited (“STIEFEL PAKISTAN”) with GlaxoSmithkline Pakistan Limited (“GSK PAKISTAN”) (hereinafter collectively referred to as the “Merging Companies”) by transfer to and vesting in GSK PAKISTAN the whole of undertakings and businesses of STIEFEL PAKISTAN together with all the properties, assets, rights, liabilities, quotas and obligations of every kind and description as subsisting on the Effective Date.
Benefits of Amalgamation
1. Economics of Scale:
The respective Directors of GSK PAKISTAN and STIEFEL PAKISTAN have considered to amalgamate STIEFEL PAKISTAN with GSK PAKISTAN in anticipation that the proposed new set-up as envisaged under this Scheme of Arrangement for Amalgamation (hereinafter referred to as the “Scheme”) will cause consolidation, facilitate expansion and growth of the business as a single unit by strengthening management and finances, reduction in administrative and overhead expenses, enlarged equity base and a larger asset base, thus facilitating business to be carried on more aggressively, advantageously, economically and profitably due to unified control and as a consequence thereof , bettor yield may eventually be expected by the shareholders from economy of scales and the proposed set-up as a single consolidated operating unit.
2. Shareholders’ Value Increase
Based on the synergies which are expected to be achieved after the merger, the shareholders’ value is expected to increase.
3. Larger Asset Base to Result in Higher Profitability
The Merged Company would have a larger asset and product base enabling it to achieve higher growth which is expected to result in enhanced profitability.
4. Savings in administrative expenses:
In the event of amalgamation of STIEFEL PAKISTAN with GSK Pakistan, the administrative costs incurred by it will be considerably reduced as:
(i) Only a single Board of Directors will be required to administer GSK PAKISTAN as a consolidated unit;
(ii) Only one Annual General Meeting will be required to be held and one set of annual/quarterly accounts published and circulated by GSK PAKISTAN;
(iii) Only one Register of Shareholders and one set of books and records will be required to be maintained and one set of forms will be filed with the various Government agencies including the Stock Exchanges and Registrar of companies;
(iv) Only one set of senior managerial administrative personnel would be required for managing the affairs of the company; and
(v) Single assessment for income tax and sales tax and their filing and record keeping.
5. Administrative convenience:
The amalgamation of the Merging Companies would result in an improvement in the administration of personnel affairs of the companies (merged setup), as staff and administrative policies will be uniform and simpler to administer.
6. Overall benefits:
The amalgamation will be to the advantage of shareholders and employees of the companies. Since the reduced overhead costs is likely to result in enhanced revenues, the prospects of higher profitability with its attendant consequences of better dividends to shareholders may be expected.
The aforesaid advantages and benefits are sought to be achieved through the proposed Scheme, subject to sanction by the Honorable High Court of Sindh at Karachi. The proposed Scheme shall be submitted to the Honorable High Court of Sindh at Karachi seeking its sanction to the Scheme for carrying it into effect and taking such actions as it may consider necessary and conducive to the attainment of the aforesaid objectives.
Article 1 Definitions
Unless the context requires otherwise, the following terms stated in this Scheme shall have the meanings assigned thereto.
1.1. “GSK PAKISTAN” means GlaxoSmithkline Pakistan Limited, a public company limited by shares, incorporated under the provisions of the Companies Ordinance, 1984, with its Registered Office situated at 35 – Dockyard Road, West Wharf, Karachi-74000 and listed on the Karachi Stock Exchange and the Lahore Stock Exchange. The principal business of GSK PAKISTAN is the production, manufacturing, sale and marketing of pharmaceutical and related products.
1.2. “Assets” means, unless the context otherwise permits or requires, all properties and rights of every description of STIEFEL PAKISTAN and GSK PAKISTAN or related thereto or connected therewith (whether present or future) and shall include, all rights, titles, interests, permits, authorities, privileges, benefits, facilities, licenses and properties of all kinds and by whatever title held and whether moveable or immoveable, tangible or intangible, leasehold or freehold, including, but not limited to, stock-in-trade, stock-in-transit, inventories, raw materials, ingredients, office supplies, spares, consumable stores, works-in-progress, finished goods, actionable claims, cash and bank balances, investments, receivables, book debts, advances and deposits, prepayments and all other rights and interest in and arising out of such properties in the ownership, possession, power or control of STIEFEL PAKISTAN and GSK PAKISTAN, whether within or outside Pakistan, and all books of account, registers, records and all other documents of whatever nature relating or belonging thereto, and plants and machinery of STIEFEL PAKISTAN and GSK PAKISTAN, together with all plants and equipment, spare parts, tools, equipment, motor vehicles, furniture, fixtures and fittings, office and storehouses/ warehouses, and all proprietary rights, titles and interests of STIEFEL PAKISTAN and GSK PAKISTAN in any product registrations, trademark, service mark, design including but not limited to product pack design and product label design, patent, copyright, whether registered or by way of passing-off, used exclusively in the business of STIEFEL PAKISTAN and GSK PAKISTAN.
1.3. “Claims” means all present or future, actual or contingent, current or deferred claims, counter claims, demands or causes of action by or against STIEFEL PAKISTAN and GSK PAKISTAN.
1.4. “Contracts” means agreements, deeds, trusts, leases, conveyances, grants, undertakings, and/or contracts of every description related to or connected with STIEFEL PAKISTAN and GSK PAKISTAN.
1.5. “Court” means the Honorable High Court of Sindh at Karachi or any other Court for the time being having jurisdiction under Sections 284 to 288 of the Companies Ordinance, 1984.
1.6. “Effective Date” means the date specified in Article 15 of this Scheme.
1.7. “Employees” mean all permanent employees of STIEFEL PAKISTAN and GSK PAKISTAN.
1.8. “Existing” means existing, outstanding or in force immediately prior to the Effective Date.
1.9. “Liabilities” means and includes all borrowings, duty drawbacks, debts, all sums of money payable including duties and obligation of every description (whether present or future, actual or contingent, current or deferred) whether incurred solely or jointly, including amounts owing to banks and financial institutions and other creditors, of STIEFEL PAKISTAN and GSK PAKISTAN.
1.10. “Merged Company” means GSK PAKISTAN as the surviving and merged entity after the amalgamation/merger of STIEFEL PAKISTAN into GSK PAKISTAN.
1.11. “Merging Companies” means GSK PAKISTAN and STLEFEL PAKISTAN that are proposed to be merged in terms of the Scheme with an effect of constituting a Merged Company
1.12. “Ordinance” means the Companies Ordinance, 1984 or any statutory modification or re-enactment thereof for the time being in force.
1.13. “Scheme” means the Scheme of Arrangement for Amalgamation contained herein for amalgamation of STIEFEL PAKISTAN with GSK PAKISTAN in terms of the Ordinance for transferring to and vesting of STIEFEL PAKISTAN into GSK PAKISTAN and constituting the surviving Merged Company as GSK PAKISTAN.
1.14. “Security” or “Securities” means interests, rights or titles in and to any or all mortgages or charges (whether legal or equitable), debentures, bills of exchange, promissory notes, guarantees, liens, pledges (whether actual or constructive), hypothecations, assignments by way of security, rights of set-off or other means of securing payment or discharge of any liability relating to and connected with STIEFEL PAKISTAN and GSK PAKISTAN.
1.15. “STIEFELPAKISTAN” means Stiefel Laboratories Pakistan (Private) Limited, a private company limited by shares, incorporated under the provisions of the Companies Ordinance, 1984, with its Registered Office at 403 – Fortune Centre, Shahra-e-Faisal, Karachi. The principal business of STIEFEL PAKISTAN is the production, manufacturing, sale and marketing of pharmaceutical and related products.
1.16. “Transferee Company” means GSK PAKISTAN.
1.17. “Transferor Company” means STIEFEL PAKISTAN.
The headings are inserted for convenience and shall not affect the construction of the Scheme and shall not be construed ejusdem generis.
Scheme of Arrangement for Amalgamation
This Scheme is proposed pursuant to the provisions of Sections 284 to 288 of the Ordinance for transfer and vesting of Transferor Company in Transferee Company with effect from the Effective Date or such other date as the Court may Order. This Scheme shall be subject to sanction of the Court with such modifications and or additions or deletions herein as may be ordered by it. This Scheme shall, subject to the sanction by the Court, become effective and come into operation from the Effective Date as specified in Article 15 of this Scheme unless otherwise determined by the Court. The terms of this Scheme are set-forth hereunder.
Assets, Claims, Contracts, Liabilities and Securities
On the Effective Date, the Transferor Company shall, together with all their Assets, Claims, Contracts, License(s), Registration, Liabilities and Securities of every description as subsisting on the Effective Date, pursuant to the provisions contained in Section 287 of the Ordinance, without any further act, deed, matter, or thing, be and the same shall be deemed to have been transferred to and be vested in Transferee Company subject to the charges, if any, existing thereon on the Effective Date in favour of banks/financial institutions and any other secured creditors of the Transferor Company, and subject to all outstanding claims of unsecured creditors and other valid claims, if and only if such charges and claims relate to or are pertaining to the Transferor Company. The Assets, Claims, Contracts, Liabilities and Securities of Transferor Company shall and be deemed to have been transferred at book value, as of the Effective Date.
Physical delivery and transfer of such assets including registration and mutation, thereof where applicable or necessary shall be made or procured within a reasonable time but not later than 365 days from the date of the order of the Court sanctioning this Scheme. Without derogating from the generality of definitions of terms, Transferor Company, along with its Assets and Liabilities as defined herein, shah be transferred to and to be vested in Transferee Company under this Scheme from the Effective Date and the said transfer shall mean, include and constitute the following:
All the Assets of the Transferor Company, including
(i) The fixed assets of the Transferor Company including immovable properties and leasehold properties of all kinds, if any, including but not limited to the entire estate, right, title and interest of Transferor Company, in and to the piece or parcel of land bearing No. 410-411 Sundar Industrial Estate, Raiwind Road, Lahore and the factory, warehouse, office buildings and other buildings and structures constructed thereon together with all rights, easements, privileges and advantages appurtenant thereto or for the benefit thereof, or with the same enjoyed or reputed to belong thereto etc. but the transfer and vesting of fixed assets shall be subject to all mortgages or charges or other encumbrances subsisting thereon, in accordance with or associated with such assets all mortgages, charges and encumbrances on assets of the Transferor Company. Transferee Company shall retain its inter-se ranking in respect of such assets, as if Transferor Company and Transferee Company are independent units within the merged entity pursuant to this Scheme of Arrangement;
(ii) the current assets of Transferor Company including properties of all kinds, movable, tangible or intangible, stock-in-trade, inventory, actionable claims, book debts, advances, deposits, prepayments and other receivables, investments, cash and bank balances but the transfer to and vesting of current assets shall be such that from the Effective Date, in consideration of the transfer of the Undertakings and Businesses of Transferor Company to Transferee Company, it shall be automatically deemed that the charges or encumbrances previously created and subsisting in favour of financial institutions by Transferee Company, as the case may be, shall subsist on the current assets of Transferee Company as if originally created by Transferee Company on the same terms and conditions as existing on the Effective Date without the need for execution of fresh documents and the ranking of such charges or encumbrances on the current assets of Transferee Company shall be the same as their ranking on the current assets of Transferor Company, as the case may be , as at the Effective Date i.e. first charge on the current assets of Transferor Company, as the case may be, shall continue to subsist as a first charge on the current assets of Transferee Company after the Effective Date and shall rank pari passu in all respect with first charges on current assets created in favour of financial institutions by Transferee Company prior to the Effective Date notwithstanding the prior registration creation of such charges, a second charge on the current assets of Transferor Company, as the case may be, shall continue to subsist as a second charge on the current assets of Transferee Company after the Effective Date and shall rank pari passu in all respects with second charges on current assets created in favour of financial institutions of transferee companies prior to the effective data notwithstanding the prior creation registration of such charges and so on:
(iii) The goodwill of Transferor Company in respect of each and all of its business and activates:
All claims, book trade and other debts or sums (including suppliers’ credit notes) due, owing. Accrued or payable to Transferor Company (whether or not invoiced, and whether or not immediately due or payable), advances, deposits, prepayments and other receivables, investments, cash in hand and at bank, or other depositories and obligations and other liabilities of every kind and description whether accrued or accruing, contingent or deferred and whether incurred solely or jointly with other or others including amounts owing to banks and financial institutions and other creditors of Transferor Company at book value as on the Effective Date;
All accounts maintained by the Transferor Company with any bank, financial institution, customer supplier, government department, including, but not limited to the Collector of Customs and other authorities, any agency supplying any amenities to the Transferor Company shall on the Effective Date, become the account to Transferee Company and be subject to the same terms and conditions and incidents as before. Any existing instructions, orders, directions, mandates, powers of attorney, authorities, undertakings or consents given to Transferor Company in writing in relation to an account shall have effect on and from the Effective Date as if given to Transferee Company:
All rights, powers, authorities and privileges of the Transferor Company, including, without limitation:
(i) all registrations, licenses, permits, authorizations, sanctions, permissions and approvals issued or granted by any government, governmental department or agency, or any statutory on local authority or any municipal corporation to the Transferor Company;
(ii) All concessions and entitlements: and
(iii) Rights against third parties (including sub-contracts and any retention of title rights);
(e) Telecommunication facilities:
All connections and facilities of telecommunications owned or leased or licensed including telephones and mobile telephones, telexes and facsimiles and benefits of all payments and deposits made in connection therewith related to the Transferor Company:
(f) Utility connections:
All connections, meters and other installations owned by or leased or licensed for the supply of electricity, water and gas and the benefit of all payments and deposits made in connection therewith related to the facilities of the Transferor Company:
(i) All contracts, agreements, trusts, leases, conveyance and instruments of transfer, engagements, commitments and arrangements relating to the Transferor Company executed by or subsisting in the name and/or in favour of the Transferor Company and the rights and obligations arising there under relating to the Transferor Company;
(ii) All contracts which remain in whole or in part to be performed at the Effective Date entered into by or subsisting in favour of the Transferor Company, inclusive of all rights and obligations of the Transferor Company there under;
(iii) The contracts of employment between Transferor Company and such of its employees who may have agreed to accept employees with Transferee Company in lieu of their employment with Transferor Company upon the merger of Transferee Company and Transferor Company becoming effective and the rights and obligations of Transferor Company arising under such contracts including the Memorandum of Agreements with the CBA unions;
(h) Intellectual Property and Records:
(i) All proprietary rights, tiles and interests of the Transferor Company anywhere in Pakistan/ the world in any trademark, service mark, design, patent, copyright and invention used exclusively in the business of Transferor Company, including, but not limited to, any licenses (inclusive of the benefits and burdens of such licenses) for the same, and any applications or the rights to apply for protection or registration of any of the same having an effective filing date of priority date on or earlier than the Effective Date, and any continuing, reissue, divisional and re-examination patent application;
(ii) All rights, titles and interests in the intellectual property of Transferor Company and all rights for registration in respect thereof and matters ancillary and incidental thereto shall vest in Transferee Company as on the Effective Date;
(iii) All rights, titles and interest of Transferor Company in technical data and know-how industrial and technical information, trade secrets, secret processes, confidential information drawings, formulations, technical reports, operating and testing procedures, instruction manuals, raw material or production specifications, the results of research and development work, whether in hard copy or in computer held form (including but not limited to, for avoidance of doubt, such media as microfilms, compact diskettes, DVDs, floppy diskettes, USBs, etc) and existing computer software used exclusively in the business of Transferor Company;
iv. All historical and current documents, customer lists, product and supplier lists, catalogues, literature, employee records, documents of title, sale targets, sales statistics, market share statistics, marketing surveys and reports, marketing research and any advertising or other promotional materials and accounting (including management account records) and other financial data whether in hard copy or in computer held from (including but not limited to, for avoidance of doubt, such media as microfilms, compact diskettes, DVDs, floppy diskettes, USBs, etc) of Transferor Company but the transfer and vesting of such assets shall be subject to all mortgages or charges or other encumbrances subsisting thereon;
v. All licenses of every kind and description for the manufacture of drugs (whether by way of basic manufacture, semi-basic manufacture, formulation, repacking, experimental purposes, or otherwise howsoever) held in respect of every and all premises where the manufacture of drugs or any process in connection therewith is undertaken by or for Transferor Company and for the import, export, sale and distribution of drugs; and all drug registrations held by Transferor Company (whether for local manufacture or import or export or any other dealing whatsoever with such drugs); and all rights, powers, authorities, and privileges of every kind and description held by Transferor Company in connection with the manufacture, import, export, storage, transportation, labeling, advertising, distribution or sale of or any other dealings whatsoever with respect to drugs or any raw materials auxiliaries or packing material there for including without limitation the right to use all existing packaging materials, labels and stocks of drugs, together with every and all renewals, validations and approvals and every and all rights and entitlements for renewal or validation or approval and further renewal or validations of every such drug manufacturing license, drug registration, or other right, power, authority or privilege whatsoever;
(vi) All licenses, permits and authorizations for the import or export of any materials, goods, articles or things and all bills of entry, airway bills, bills of lading or other documents of title relating thereto and all letters of credit and other payment orders and all rights, titles, privileges, benefits, liabilities and obligations of Transferor Company arising thereunder or pursuant thereto or in relation thereof;
(i) Taxes, Levies and other duties:
All liabilities on account of taxes and all concessions, tariff protections and duty and tax Exemptions and remissions, and all entitlements to credit or refund of tax payments, including, but not limited to, advance tax collections and withholding taxes collected/deducted, sales tax, customs duty, octroi and other duties, taxes, levies, fees, charges, or imposts paid or made for in respect of any assessment or liability of taxes or in connection with the purchase, acquisition or import of plant, machinery, equipment and other material comprised in the Assets;
(i) Outstanding amounts:
All amounts owing (whether or not due for payment) or payable by the Transferor Company and which are unpaid at the Effective Date in respect of the supply of goods, raw materials, utilities and services (including, without limitation, credit notes granted and advances received from suppliers or customers) to the extent arising exclusively or primarily in the ordinary course of business, shall be owed or paid by Transferee Company on transfer to and vesting in Transferee Company of the Transferor Company under this Scheme;
Documents, Records and Goods in Custody:
The custody of any document, record or goods held by the Transferor Company as bailee and fully recorded in their books, shall pass to Transferee Company on the Effective Date and the rights and obligations of the Transferor Company wider any contract of bailment relating to any such document, record or goods shall on that day become rights and obligations of transferee Company;
Interests of Customers and Creditors
This Scheme shall not in any manner affect the interest of any customer or creditor of the Transferor Company subsisting on the Effective Date and Transferee Company shall be bound to carry out the terms and conditions connected therewith with the same legal effect and force as if this Scheme was not sanctioned.
All suits, appeals, arbitrations, governmental investigations and other legal proceedings, if any, instituted by or against the Transferor Company, pending on or immediately before the Effective Date shall be treated as suits, appeals and legal proceedings by or against transferee Company and may be continued, prosecuted and enforced by or against Transferee Company accordingly.
Where by virtue of this Scheme any right, claim or liability of the Transferor Company becomes a right, claim or liability of Transferee Company on and from the Effective Date, Transferee Company shall have the same right, claim, power and remedy (and in particular the same right, claim and power as to taking or resisting or contesting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that right, claim or liability as if it had at all times been a right, claim or liability of Transferee Company and any legal proceedings or applications to any authority existing or pending immediately before the Effective Date by or against the Transferor Company may be continued by or against Transferee Company.
Cost and Expenses
All costs, charges and expenses in relation to or in connection with this Scheme and of carrying out and implementing the terms and provisions of this Scheme and incidental to the completion of arrangement of transfer and vesting of the Transferor Company in pursuance of this Scheme shall be borne and paid by Transferee Company.
Consequent upon approval of this Scheme by the Board of Directors of the Merging Companies, a petition will be submitted to the Court for obtaining sanction of this Scheme by shareholders of the Merging Companies, under the supervision of the Court and by the Court in terms of the provisions of Section 284 of the Ordinance and for an Order under Section 287 of the Ordinance for carrying the Scheme into effect.
Consent to Accept Alteration in the Scheme
The Shareholders of the Merging Companies can approve this Scheme with or without modifications as per their own discretion and/or as per the instructions of the Court.
Authorizations by the Board
Notwithstanding Article S above, the respective Hoard of Directors of the Merged Company may generally or with regard to any specific issue or matter related to the execution and implementation of the Scheme upon its due approval by the Court, authorize any person(s) or committee of persons to carry out such acts, deeds and things as may be deemed from time to time expedient and necessary for a proper and smooth implementation of the Scheme.
10.1 All existing permanent Employees engaged by the Transferor Company shall and be deemed to have become the Employees of Transferee Company with effect from the Effective Date on the same tern-is and conditions on which they were engaged immediately before the Effective Date, without any interruption or affect on the continuity or length of theft respective services and the services of all such Employees shall be taken into account for purposes of all retirement/termination and related benefits to which they were eligible in the Transferor Company.
10.2 The account balances of all such Employees referred to above, relating to Provident Fund and Gratuity Fund and benefits accrued to the Employees of the Transferor Company, if any, shall be identified and determined on the Effective Date and be deemed to have been transferred to the trustees of the similar finds in Transferee Company or to the management of Transferee Company as trustees thereof for the benefit of Employee’s Provident Fund, Gratuity Fund and Workers Profit Participation Fund and other accrued benefits (hereinafter referred to as “the Funds”), as the case may be, and all those Funds shall be deemed to have been in existence and be in force and effect for the benefit of those Employees from the Effective Date and all such Employees referred to above, shall and be deemed to have become members of these Funds with effect from the Effective Date subject however to the condition that the continuity and the length of their respective membership or interest in such Provident Funds and Gratuity Fund, etc., as the case may be, shall remain unaffected as it was before the Scheme was sanctioned.
Vesting of Management in Transferee Company
The Transferor Company shall take all actions and execute all formalities considered by their Board of Directors necessary and expedient to properly and smoothly cause the transfer of and vesting of the Transferor Company in Transferee Company and carry out and execute this Scheme pursuant to and in accordance with the Order of the Court.
Non-Approval or Non-Sanctioning of the Scheme
This Scheme shall become null and void subject to the following and in that event, no rights and liabilities shall accrue to or be incurred in terms of this Scheme if the Scheme is not approved by the requisite majority of members of the Merging Companies or if the Scheme is not sanctioned by the Court in respect of the relevant provision of the Ordinance.
Authorized Capital and Issue of Shares
Authorized capital of GSK PAKISTAN is Rs. 5,000,000,000 divided into 500,000,000 ordinary shares of Rs. 10 each and authorized capital of STIEFEL PAKISTAN is 100,000 divided into 10,000 ordinary shares of Rs. 100 each. Pursuant to this Scheme authorized capital of STIEFEL PAKISTAN shall stand cancelled and that of GSK PAKISTAN shall remain the same. Further, the issued and outstanding shares of STIEFEL PAKISTAN shall stand cancelled and the shareholders of STIEFEL PAKISTAN will be issued 144.52 ordinary shares of 10 each of GSK PAKISTAN for every 1 ordinary share of STIEFEL PAKISTAN.
14.1 The transfer and vesting of the Transferor Company in Transferee Company in terms of this Scheme shall not:
(i) constitute any assignment
(iv) alienation or other disposition under any law for the time being in force
(v) give rise to any forfeiture
(vi) invalidate or discharge any contract or security.
14.2 As of the Effective Date, the terms of this Scheme shall be binding on the Transferor Company and all their members, and also on transferee Company and all its members and also on all the employees, debtors and creditors of the said companies and any person having any right or liability connected with or in relation to them.
The Scheme shall be effective from July 1, 2010 or such other date as may be stipulated by the Court.
Interest of Directors
The Directors of Transferor Company do not hold any shares in said company. The Directors of Transferor Company are therefore only interested to the extent of remuneration and fringe benefits as per the policies of Transferor Company and no compensation is payable to any of the Directors of Transferor Company for the loss of office as Director(s).
Approval of the Scheme by the Directors of the Merging Companies
The Directors of the Merging Companies have approved the foregoing Scheme for submission to the Court as resolved at the Board of Directors Meetings of the respective companies.
For more information, contact:
Karachi Stock Exchange
Tel: +9221 111-001122
Fax: +9221 3241 0825, +9221 3241 5136
Email: [email protected]