sebitakeovercode ppt 120222065817 phpapp02
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SebiTRANSCRIPT
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An Analysis of SEBI Takeover Code
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Regulation 3(3)Regulation 3(4)Regulation 3(5)Regulation 6Regulation 7Regulation 8
Regulation 10, 11 & 12Regulation 20(4) & 20(5)Clause 40A of Listing Agreement
Disclosures & Compliances
Open Offer Provisions Pricing Provisions
Minimum Public Shareholding
Regulation 3 (1) Exemptions under Takeover CodeRegulation 4 Takeover Panel Exemptions
Key Regulations
Definitions
Regulation 2
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Key Regulations- Contd……
Determination of Offer Price:•In case of Direct Acquisition•In case of Indirect Acquisition
Escrow Account
Competitive Bid
Relaxation from the strict provisions of Chapter III
Regulation 20
Regulation 28
Regulation 25
Regulation 29A
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Definitions-Acquirer
“Acquirer" means any person who, directly or indirectly, acquires or agrees to acquire shares or voting rights in the target company, or acquires or agrees to acquire control over the target company, either by himself or with any person acting in concert with the acquirer.
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Query
Whether a person agreeing to acquire shares is an acquirer under SEBI Takeover Regulations?
Yes
The scope of SEBI Takeover Regulations takes in its ambit not only a person directly or indirectly acquiring the shares or voting rights in the target company or acquiring control over the target company, but one agreeing to acquire shares/voting rights or control is also an acquirer and it is not necessary that one should actually acquire shares/voting
rights or control to consider him as an acquirer.
B.P. Amoco Plc & Castrol Limited Vs. SEBI
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Definition-Shares
“Shares" means shares in the share capital of a company carrying voting rights and includes any security which would entitle the holder to receive shares with voting rights but shall not include preference shares.
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Query
Whether partly paid-up shares which do not carry any voting rights shall be covered in the definition of shares?
If the partly paid up shares are excluded from voting, then they will not be covered in Takeover Code. However, in case of absence of any such condition, the partly paid up shares will be covered under the definition
of shares as voting rights are embedded in such type of shares.
Shri Ch.Kiron Margadarsi Financiers Vs SEBI
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QueryWhether SEBI Takeover Regulations are applicable on
preference shares where voting rights have been arise on them due to the non payment of dividend?
No.
Since vide amendment dated Sep 09, 2002, Preference Shares have been excluded from purview of SEBI Takeover Regulations, therefore, when voting rights have been arise on the preference shares due to the non payment of dividend, SEBI Takeover Regulations will not be applicable.
Weizmann Ltd. and PACs Vs Adjudicating Officer
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Definition- Person Acting In Concert
Persons who, for a common objective or purpose of substantial acquisition of shares or voting rights or gaining control over the target company, pursuant to an agreement or understanding (formal or informal),directly or indirectly co-operate by acquiring or agreeing to acquire shares or voting rights in the target company or control over the target company.
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Query
Whether shares held by all persons acting in concert with acquirer have to be taken into account for determining
whether regulation 7 gets triggered?
Yes
The shares held by all the persons, who act in concert with him, are to be taken into account for determining whether regulation 7 gets triggered.
Radheshyam Tulsian –SAT.
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Query
Where a promoter who is interested in selling off his shareholding, can he be treated as person acting in
concert with another co-promoter who is interested in acquiring shares?
No.Where a promoter does not share common objective or purpose of
acquirers in as much as it is not interested in acquiring further shares but, on the contrary, is interested in selling off its
shareholding in Target Company with a view to meet its financial obligations, it must be held that such promoter was not acting in
concert with acquirers.
K.K. Modi-Supreme Court
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Disclosures Requirements
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Acquisition of more than 5%, 10%, 14%, 54% & 74% [Regulation 7 (1)]
Persons, who are holding between 15% - 55%, acquisition/ sale aggregating 2% or more share capital/ voting rights [Regulation 7(1A)]
Person holding more than 5% shares and Promoter or any person having control over the company.(Transitional Provisions) [Regulation 6]
Thresholds Defined
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Compliance Chart – Regulation 6
Regulation No.
By whom To whom Time limit (from date of
notification)6(1) Any person holding
More than 5% shares or voting
rights
Target Company within 2 months
6(2) Target Company All Stock Exchanges
where shares are listed
within 3 months
6(3) Promoter or any person having
control over the company
Target Company within 2 months
6(4) Target Company All Stock Exchanges
where shares are listed
within 3 months
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Compliance Chart – Regulation 7
Regulation No.
By whom To whom Time limit
7(1) Any person who acquires more than
5%, 10%, 14%, 54%, 74%
Target Company & Stock Exchanges where shares are
listed
Within 2 Days of Acquisition
7 (1A) Any person who holds 15%-55%
shares and purchases/sells 2% or more of shares
Target Company & Stock Exchanges where shares are
listed
Within 2 Days of
purchase/sale
7 (3) Target Company All Stock Exchanges where shares are listed
Within 7 Days of receipt of information
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Disclosures by Promoters or Person having control over a company [Regulation 8 (2)]
Disclosure by Person holding more than 15% shares [Regulation 8(1)]
Thresholds Defined
Disclosures by Target Company [Regulation 8 (3)]
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Compliance Chart – Regulation 8
Regulation No.
By whom To whom When Time limit
8(1) Any person who holds more than 15% shares
Company As on 31st March
21 Days
8 (2) Promoters or person having
control over a company
Company As on 31st March
Record Date
21 Days
8 (3) Target Company
Stock Exchange
As on 31st March
Record Date
30 Days
8 (4) Maintenance of Register of Holdings
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QueryWhether an unlisted Company is also required to make
disclosure under regulation 6, 7 & 8?
Yes
If an unlisted Company acquirers or holds shares/voting rights of a Listed Company beyond the limits specified under regulation 6, 7 & 8, then it is also required to make disclosures as any other acquirer.
DALP Tradepool Pvt. Ltd – Informal Guidance
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Query
Whether dispatch of disclosures is sufficient to ensure compliance?
No
The proof of dispatch is not sufficient to prove compliance. The obligation is to ensure delivery to the stock exchange.
Therefore, proof of delivery should be produced.
Sudeep Chitlangia vs. AO
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Thresholds Defined
Disclosure by Promoters or Person forming part of promoter group about the shares pledged before notification [Regulation 8A(1)]
Disclosures by Promoters or Person forming part of promoter group on pledge of share.[Regulation 8A (2)]
Disclosures by Promoters or Person forming part of promoter group on invocation of pledge .[Regulation 8A (3)]Disclosures by Company when shares pledged exceeds 25000 or 1% of share capital .[Regulation 8A (4)]
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Compliance Chart – Regulation 8A
Regulation No.
By whom To whom When (Event)
Time limit
8A(1) Promoter or person forming part of the promoter group
Company Details of shares
pledged before
notification
Within 7 working Days of notification
8A (2) Promoter or person forming part of the promoter group
Company On pledge of single shares
Within 7 working days of pledge
8A(3) Promoter or person forming part of the promoter group
Company On invocation of pledge
Within 7 working days of invocation of pledge
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Compliance Chart – Regulation 8A, Cont’d
Regulation No.
By whom To whom When Time limit
8A (4) Company Stock Exchange
On receipt of information under regulation 8A (1), (2) and (3) if the total number of shares pledged during the quarter exceeds 25000 or 1% of the total paid up capital of the company
Within 7 working days of receipt of information
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Acquisition of 15% or more voting rights [Regulation 10]
Persons, who are holding between 15% - 55%, acquisition more than 5% or more voting rights in a financial year.[Regulation 11(1)]Persons, who are holding between 55% - 75%, acquisition of any additional single share or voting right [Regulation 11(2)]
Thresholds Defined
Acquisition of Control or Change in Control with or without acquisition of shares [Regulation 12]
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Compliance Chart – Regulation 10, 11& 12
Regulation No.
By whom To whom When (Event)
Time limit
10 Acquirer or by his PAC
Shareholders of Target
Company
Acquisition of 15% or
more voting rights
Within 4 working Days of entering in to agreement for acquisition of share/voting rights
11(1) Acquirer or along with PAC holding equal or more than 15% but less than 55% of shares/ voting rights
Shareholders of Target
Company
Acquisition of 5% or
more shares or voting rights in Financial
Year
Within 4 working Days of entering in to agreement for acquisition of share/voting rights
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Regulation No.
By whom To whom When (Event)
Time limit
11(2) Acquirer or along with PAC holding equal or more than 55% but less than 75% of shares/ voting rights
Shareholders of Target
Company
Acquisition of any
additional single share
or voting right
Within 4 working Days of entering in to agreement for acquisition of share/voting
rights
12 Acquirer or by his PAC
Shareholders of Target
Company
Acquisition of control
irrespective of with or
without acquisition of
shares
Within 4 working Days of occurring
the event
Compliance Chart – Regulation 10, 11& 12
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Regulation 12“Control” must be taken to mean de facto control also and not de jure control alone.While determining control for the purpose of regulation 12, following points must be remembered:• A pure assessment of numerical composition of Board by itself would lead one too far to identify seat of control. • The fact that a company is professionally managed does not mean that nobody is in control over Company. • Even majority holding of shares is not a decisive factor in determining effective control. • On the other hands, sometimes a person not holding majority shares, say even less than 15%, can be said to have control over the Company if he has effective de facto control over the Company.
Ashwin K. Doshi -SAT
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QueryWhether exemption from making public announcement under
regulation 12 will also exempt the acquirer from making public announcement under regulation 11(1)?
No
No, only because regulation 12 also speaks of public announcement, same by itself would not exempt acquirer from making a public
announcement in terms of clause (1) of regulation 11. Moreover, merely because in a case where acquisition of additional shares may result in change of control over company, same by itself would not
exempt acquirer from complying with statutory requirement of making public announcement under section 11.
Swedish Match AB-Supreme Court
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Amendment in Regulation 11 (2)
w.e.f. October 31, 2008
Proviso to Regulation 11 (2)
Extra limit of 5% is allowed to persons holding 55%-75% shares
Routes Allowed
Purchase through Open market
Buy-back
Routes Dis-allowed
Bulk DealBlock DealOff-market
Preferential Allotment
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Issues in Amendment
• Whether the limit of 5% is allowed for one-time acquisition or it is allowed for one financial year?
• Whether a person holding 53% shares can acquire 5% shares?
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Clarification Circular August 06, 2009
• Minimum 55% shareholdingIt is allowed only to the acquirer who together with the PACs with him
holds 55% or more shares in the Target Company
• Not at par with regulation 11(1)Creeping Acquisition is not allowed in each financial year.
• One time acquisitionIt is allowed once during the entire life time of the Target Company and can
be made in one or more trenches without any restriction on the time frame.
• No netting off allowedThe limit of 5% shall be calculated by aggregating all the purchases without
netting the sales
• Maximum 75% shareholdingIrrespective of the level of minimum public shareholding to be maintained in terms of clause 40A of the listing agreement, the shareholding cannot exceed 75%
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Unanswered Questions
What is the applicability of the SEBI (SAST) Regulations, 1997 on the acquirer who has acquired 5% shares before March 31, 2009 and another 5% shares after March 31, 2009 in terms of the second proviso to sub-regulation (2) of regulation 11 on
the assumption that the creeping acquisition as allowed under said regulation is for each financial year.
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QueryWhether the acquirer belonging to promoter group is
required to make open offer if the aggregate shareholding of promoter group exceeds beyond the creeping acquisition
limit pursuant to the acquisition of shares by acquirer, irrespective of the fact that his individual shareholding is
within the limit?
Yes.
The term acquirer includes the acquirer and other persons acting in concert with the acquirer. Since, the acquirer admittedly belongs to the promoter group
therefore can be treated as persons acting in concert for the purpose of determining the triggering of the provisions of Regulation 11 (1) of Takeover
Regulations and would be required to give open offer if his shareholding exceeded beyond the creeping acquisition.
Shingar Ltd-SEBI
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Query
Whether for applying regulation 11 of the SEBI Takeover Regulations the comparative percentage of holdings in the
pre acquisition and post acquisition equity share capital should be applied?
For the purpose of regulation 11, the incremental voting right acquired by the acquirer would be considered.
Jain Irrigation Systems Ltd. –Informal Guidance
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Controversial Issues
• Whether a person holding shares between 15%-55%, can acquire further shares increasing his shareholding equal to or more than 55% in terms of regulation 11(1).
• Whether in terms of regulation 11(2), the acquirer can increase his shareholding to 75%/90%.
• In regulation 11(2), the acquirer is restricted from acquiring a single shares without giving the public announcement whereas Takeover Regulations are applicable only on the acquisition of voting rights.
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Exemptions under Takeover Code
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Key Exemptions
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Exemptions
Whether exemption is available from SEBI Takeover Code?
No.
Exemption is available only from the provisions of Regulation 10, 11 & 12.
The provisions of regulation 7 are nevertheless required to be complied.
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Key Exemptions – Inter-se Exemption
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Compliance Chart under Inter Se Transfer
Particulars Inter se transfer
among MRTP group
Inter se transfer among
relatives
Inter se transfer among
Qualifying promoters
Inter se transfer between
Acquirer and PACs
Compliance with the regulation 6, 7 and 8
√ √ √ √
Advance Intimation under regulation 3(3)
√ √ √ √
Report to SEBI under regulation 3(4)
√ √ √ √
Pricing Norms i.e. Inter se transfer cannot be at a price exceeding 25% of the price determined under regulation 20(4) or 20(5).
Χ Χ √ √
Prior holding of three years
Χ Χ √ Χ
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Query
How the limit of 5% is calculated under regulation 3 (3) in case of acquisition of shares through fresh allotment?
In case of acquisition of shares by way of fresh allotment, such percentage shall be calculating after taking the post-allotment capital as denominator
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Query
If a person is already holding more than 15%, whether he is required to file the report under Regulation 3(4)?
Yes.
The compliance under regulation 3(4) is not a one-time compliance.
Naagraj Ganeshmal Jain- SAT
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Query
For claiming exemption on inter-se transfer, whether prior holding of 3 years is required by all transferors
and transferees?
No
The collective holding of transferor and transferee is required, therefore if there are more than one transferors and
transferees and one of them does not hold shares for 3 years, the transfer will be eligible for exemption.
Pudumjee Agro Industries Limited
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•What is the relevant date for deciding the eligibility for availing exemption??
Regulation 3 comes into play only if a violation of the substantive clauses 10, 11 or 12 is first established. Therefore, the date of claiming exemption under regulation 3 cannot be prior to the date when regulation 10, 11 or 12 is attracted.
•Whether acquisition of shares pursuant to conversion of warrants is an involuntary acquisition and hence eligible for exemption??
The acquisition of shares and consequent voting rights is out of a voluntary action on the part of the Acquirers and it is not due to compulsion under or operation of any law. Hence, such acquisition is not exempt.
SEBI Judgment
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Determination of Offer Price
Frequently Traded Shares
Regulation 20(4)
In Case of Direct Acquisition
Infrequently Traded Shares
Regulation 20 (5)
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Determination of Offer PriceIn Case of Indirect Acquisition
Frequently Traded Shares
Regulation 20(4)
Infrequently Traded Shares
Regulation 20 (5)
•Date of public announcement for parent Company
•Date of Public announcement for Target Company
Regulation 20(12)
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QueryWhether the date on which share purchase agreement was executed for acquisition of parent company can be taken as the relevant date where no public announcement has been
made for the parent company?
NO
Where no public announcement has been made for the acquisition of shares of the parent company, the date when the share purchase agreement was entered into for the acquisition of shares of parent company cannot be taken as the date of its PA for the purpose of
regulation 20(12) of the SEBI Takeover Code.
Hamlet Holdings II ApS and Others-SAT
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Payment of Non-Compete Consideration
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Issue Involved
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Issue involved …
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What SEBI held …
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Competitive Bid
When an acquirer has made an offer to acquire a Company, and subsequently, some other acquirer also makes an offer to acquire the same Company, that subsequent offer by other person is called Competitive Bid.
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Competitive Offer
Competitive Offer to the shareholders of Orissa Sponge Iron and Steel Limited
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Competitive Offer
Competitive Offer to the shareholders of Great Offshore Limited
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Regulation 29ARelaxation from the strict compliance of provisions of Chapter
III in certain cases
In the background of recent fiddles discovered in the corporate sector, whereby the interest of investors has been bigoted to a great extent, Securities and Exchange Board of India has come out with regulatory changes to help the investors who are interested in reviving the victim companies so that any further prejudice to the interest of investors could be avoided.
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Analysis of Regulation 29A
• Where BODs of the Company has been removed by Central Government or State Government or any other authority due to the serious mismanagement of operations and other person has been nominated to hold the office;
• For the orderly conduct of the affairs of Target Company or to revive its operations, such new directors have devised a plan;
• There has been a competitive process;
• Provisions relating to open offer cannot be complied with.
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Issue
Why separate Regulation 29A has been inserted when Bail Out Takeover is there?
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Practical Issues…
• Applicability of SEBI Takeover Code on Warrants
• Valuation of shares in case of swapping
• Inter Se transfer of shares among MRTP Group: The Group should be shown in the Balance Sheet of Target Company
• Increase in shareholding pursuant to Corporate Actions such Buyback or forfeiture
• Calculation of acquisition limits when shares are acquired through preferential allotment
• Relationship between Promoter and Control
• Actual Acquisition Vs Agree to Acquire
• Netting off Vs Gross Acquisition
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Practical Issues…
Acquisition of shares but no increase in
voting rights in terms of Voting Rights …
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Thank You …