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Bhagwati Report On Takeover
Bhagwati Report On Takeover
Bhagwati Report On Takeover
CONTENTS
I PREFACE
II PART-I
1 The Approach of the Committee
2 Definitions
3 Applicability of the Regulations
4 Power to remove difficulties
5 Disclosure of shareholding and control in a listed company
6 Substantial Acquisition of shares and acquisition of control of the company
7 Bail out Takeovers
8 Penalties for non-compliance
PREFACE
i. Takeover of companies is a well accepted and established strategy for corporate growth. International
experience of takeovers and mergers and amalgamations has been varied. Nonetheless, one of its important
lessons is that, its appeal as an instrument of corporate growth has usually been the result of an admixture of
corporate ethos of a country, shareholding pattern of companies, existence of cross holdings in companies,
cultural conditions and the regulatory environment.
ii. In India, however, "the market" for takeovers has not yet become significantly active, though following
economic reforms, there is now a discernible trend among promoters and established corporate groups towards
consolidation of market share, and diversification into new areas, albeit in a limited way through acquisition of
companies, but in a more pronounced manner through mergers and amalgamations. The latter course is outside
the purview of SEBI and constitutes a subject matter of the Companies Act, 1956, and the courts of law, and
there are well laid down procedures for valuation of shares and protection of the rights of investors. This Report
and the SEBI Regulations for Substantial Acquisition of Shares and Takeovers do not deal with the subject of
mergers and amalgamations.
iii. In common parlance, a takeover bid is generally understood to imply the acquisition of shares carrying voting
rights in a company in a direct or indirect manner with a view to gaining control over the management of the
company. Generally speaking, there cannot be a change in the control of a company simpliciter, unaccompanied
by acquisition of shares, though there have been cases before SEBI where management control has changed
from one group of persons to another without any overt acquisition of substantial quantities of shares. It would
therefore be correct to state that, takeover or gaining control over a company, as opposed to pure investment,
is the most common leitmotif for substantial acquisition of shares. Such takeovers could take place through a
process of friendly negotiations or in a hostile manner in which, the existing management resists the change in
control. It is for this reason that substantial acquisition of shares in a listed company and change in control of a
listed company have both been addressed in this Report.
iv. In a market driven economy, where free competition should thrive without relying on the protective hand of
bureaucratic intervention, it is important that such critical processes as substantial acquisition of shares and
takeovers, which can significantly influence corporate growth and contribute to the wealth of the economy
through rational allocation and optimal utilisation of resources, take place within the orderly framework of
regulations and that such a framework should be one which comports with principles of fairness, transparency
and equity, and above all with the need to protect the rights of the shareholders.
v. The first attempts at regulating takeovers were made in a limited way by incorporating a clause, viz. Clause
40, in the listing agreement which provided for making a public offer to the shareholders of a company by any
person who sought to acquire 25% or more of the voting rights of the company. This allowed for the passive
participation of shareholders of the company that is being taken over, in the takeover process. But the clause
used to be easily circumvented and its basic purpose frustrated by the acquirers, simply by acquiring voting
rights a little below the threshold limit of 25% for making a public offer. Besides it was also noted that it was
possible to acquire control over a company in the Indian context with even holding 10% directly. There was
therefore a case for lowering of the threshold from 25%. In 1990, even before SEBI became a statutory body,
Government, in consultation with SEBI, amended Clause 40 by -
lowering the threshold acquisition level for making a public offer by the acquirer, from 25% to 10% ;
bringing within its fold the aspect of change in management control under certain circumstances (even without
acquisition of shares beyond the threshold limit), as a sufficient ground for making a public offer;
providing for disclosure requirements through a mandatory public announcement followed by mailing of an offer
document with adequate disclosures to the shareholders of the company; and
requiring a shareholder to disclose his shareholding at level of 5% or above to serve as an advance notice to the
target company about the possible takeover threat.
vi. These changes helped in making the process of acquisition of shares and takeovers transparent, provided for protection of
investors’ interests in greater measure and introduced an element of equity between the various parties concerned by
increasing the disclosure requirement. But the clause suffered from several deficiencies - particularly in its limited
applicability and weak enforceability. Being a part of the listing agreement, it could be made binding only on listed
companies and could not be effectively enforced against an acquirer unless the acquirer itself was a listed company. The
penalty for non-compliance was one common to all violations of a listing agreement, namely, delisting of the company's
shares, which ran contrary to the interest of investors. The amended clause was unable to provide a comprehensive
regulatory framework governing takeovers; nonetheless, it made a positive beginning.
vii. The SEBI Act enacted in 1992, empowered SEBI to regulate substantial acquisition of shares and takeovers,
and made substantial acquisition of shares and takeovers a regulated activity for the first time. The SEBI
Regulations for Substantial Acquisition of Shares and Takeovers were notified by SEBI in November 1994. Clause
40(A & B) of the listing agreement also remained in force. The Regulations preserved the basic framework of
Clause 40 (A & B) by retaining the requirements of - initial disclosure at the level of 5%, threshold limit of 10%
for public offer to acquire minimum percentage of shares at a minimum offer price and making of a public
announcement by the acquirer followed by a letter of offer. But the Regulations did make a significant departure
from Clause 40(A & B) by dropping "change in management" simpliciter as a ground for making a public offer.
On the other hand, several new provisions were introduced enabling both negotiated and open market
acquisitions, competitive bids, revision of offer, withdrawal of offer under certain circumstances and restraining
a second offer in relation to the same company within 6 months by the same acquirer. These provisions were
used later by some acquirers to launch hostile and competitive bids. Additionally, the Regulations enhanced the
level of investor protection in several ways. Being statutory in nature, violation of its provisions attracted
several penalties. These inter alia included SEBI’s right to initiate criminal prosecution under section 24 of the
SEBI Act, issue directions to the person found guilty not to further deal in securities, prohibit him from disposing
of any securities acquired in violation of the regulations, or direct him to sell shares acquired in violation of the
Regulations and take action against the concerned intermediary who is registered with SEBI. The SEBI Act also
empowered SEBI to adjudicate fines as penalties for certain violations of the Regulations. Indeed, there have
already been a number of instances, where SEBI has initiated penal action against the acquirers under these
provisions for violation of the Regulations.
viii. The process of substantial acquisition of shares and takeovers is complex. SEBI has now gained
considerable experience and insight into the complexities in this area through the administration of the
Regulations and Clause 40 A & B of the listing agreement. It has also helped SEBI focus attention on certain
areas in the regulatory framework which not only required clarity but also needed to be addressed specifically.
For example, the provisions for open market acquisition of shares, competitive bid and revised offer in the
Regulations allowed hostile takeovers and competitive offers to be launched, and the consequent revision of
offers to take place for the first time in the Indian market; nonetheless, these offers demonstrated with certain
degree of acuity, the deficiencies in the existing provisions. These needed to be specifically addressed in the
extant Regulations to make the regulatory framework more comprehensive and equitable.
ix. A Committee was therefore set up by SEBI in November 1995, under the Chairmanship of Justice P.N.
Bhagwati, former Chief Justice of India, to review the Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeovers) Regulations, 1994. The terms of reference of the Committee were :
to examine the areas of deficiencies in the existing Regulations; and
to suggest amendments in the Regulations with a view to strengthening the Regulations and making them more fair,
transparent and unambiguous and also protecting the interest of investors and of all parties concerned in the
acquisition process.
x. The Committee was constituted with wide representation from the Chambers of Commerce and Industry, Investors
Associations, Stock Exchanges, Merchant Bankers, Institute of Chartered Accountants and Legal Experts.
The members of the Committee were as follows:
Justice P.N. Bhagwati - Chairman
Chambers of Commerce & Industry were represented by
In the event of any ambiguity or doubt as to the interpretation of the regulations, the concerned authority shall pay
adequate attention to and be guided by any one or more of the aforesaid general principles having a bearing on the matter.
2. Definitions
(Reference: Part II of the Report-Chapter I-Regulation 2)
2.1 The "definitions" section should by and large set the tone for interpretation of its substantive provisions.
Very often, imprecision in the definition of the terms results in difficulties in interpretation of regulations. To the
extent possible, definitions should be clear, precise and unambiguous and definitions of key terms and concepts
which form the basis of the regulations should be laid down.
2.2 The Committee noted that some of the difficulties encountered by SEBI in the interpretation and
implementation of the existing Regulations arose either on account of lack of clarity in the existing definitions of
certain terms or for want of definitions in the text of the existing Regulations. For example, the existing
definition of "acquirer" did not cover the concept of indirect acquisition of a company, through acquisition of
unlisted investment companies which is a possible route of acquisition of a listed company under certain
circumstances. Besides, the way the existing definition of acquirer is worded, it covers only acquisition of
shares, but not of control of the company. Both these concepts should be covered. The definition of "persons
acting in concert" should be expanded, in the present day context, to cover a wider group of persons to which
the presumption of acting in concert could be extended. The terms "offer period", "promoter", "public
shareholding" and "target company" which were not defined in the present Regulations, needed to be defined to
give greater clarity to the provisions of the Regulations. Common sense dictates that takeover of a company
should result in change in control of the company. It thus became a matter of debate for the Committee whether
the terms "takeover" and "control", which are the very quintessence of the Regulations, need to be precisely
defined. For reasons explained in para 6.3 of the Report, the Committee had initially taken the view not to
define "control" and decided to leave it to SEBI to determine whether there was a takeover or not in a given
situation. Upon publication of the draft report, there was an overwhelming body of public opinion stressing the
need to define or at least evolve the contours of what constitutes "control", though there was no concrete
suggestion on how to define the term . In response, the Committee, even while recognising the difficulties in
precisely defining ‘control’, agreed to adopt an inclusive definition. The issue is further discussed in para 6.3 of
the Report.
2.21 Definition of ‘Acquirer'
The Committee noted that the very scope of SEBI’s jurisdiction under section 11 of SEBI Act extends not only to
substantial acquisition of shares but also to takeovers. It was the view of the Committee that the Regulations
should not only cover the process of acquisition of shares but also cases where there is change in control over a
company. There could be different ways for exercising control over a company - some overt and some covert
and it would not be possible to list all. But ultimately such control would get reflected in the manner in which
the voting rights on the board of directors of a company are being exercised.
The Committee also noted that in any case, SEBI has been taking notice of situations involving change in
control and has been directing acquirers to make public offer in the interest of investors, by relying on Clause 40
A & B, which continued to be in force. There have also been other cases before SEBI in which indirect acquisition
of a listed company has taken place by acquiring unlisted holding or investment companies, which in turn held a
majority stake in the listed company, or by acquiring voting rights in a listed company from the present
promoters through power of attorney or by entering into covert voting arrangements. It is beyond doubt that as
shareholder interest is involved in such cases too, these must be covered by the Regulations by incorporating
them in the definition of acquirer.
The Committee recommends that
not only acquisition of shares but also voting rights in a company or control over a company, howsoever such
control be exercised -directly or indirectly- must be covered under the Regulations and the present definition
of "acquirer " expanded to include these situations; (Reference : Part II of the Report - clause (b) of sub-
regulation (1) of Regulation 2)
The term ‘control’ be defined to include " the right to appoint majority of the directors or to control the
management or policy decisions, exercisable by person or persons acting individually or in concert, directly or
indirectly, including by virtue of their shareholding or management rights or shareholders agreements or
voting agreements, or in any other manner.
( Reference : Part II of the Report - clause (c) of sub regulation (1) of Regulation 2)
as the expansion of the definition of "acquirer" in the Regulations would render Clause (40 A & B) of the listing
agreement redundant, it may now be replaced by a clause requiring compliance of the SEBI Regulations as a
condition of listing.
sub-clause (iv) of clause (d) of regulation 2 of the existing Regulations be re-worded to bring out the role of
investment companies in cases where such companies are used as vehicles to make substantial acquisition of
shares or voting rights in a company;
the term "associate" which has been used in the Regulations in the context of "person acting in concert" be
defined;
public financial institutions which are at present included in the list of persons deemed to be acting in concert
be excluded. (Reference: Part II of the Report - clause (e) of sub regulation (1) of regulation 2)
The inclusion of "venture capital funds and sponsors" in the definition of "persons acting in concert" and the definition of the
term ‘associate’ were in response to the feedback received by the Committee on the draft Report.
2.23 Burden of proof on ‘persons acting in concert’
The Committee further noted that in the existing Regulations, there is no burden of proof on the ‘persons acting
in concert'. Once the burden of proof is cast on the persons presumed to be acting in concert, it would be
important to ensure that the persons are grouped in categories such that the persons may be presumed to be
acting in concert only with another person belonging to the same category. A general reading of the existing
provisions implies that a person belonging to any one of the categories mentioned in sub-clauses (i) to (iv) of
clause (d) of regulation 2 could be presumed to be acting in concert with a person belonging to any other
category. Thus, a company could be presumed to be acting in concert with a merchant banker, mutual fund, or
any other body even though they may all be distinctly independent entities without any connection whatsoever.
Such irrebuttable presumption of a common motive amongst unrelated parties would be illogical and not legally
tenable. A distinction must be made between persons who could be presumed to be acting in concert unless
proved to the contrary and others who may be acting in concert even though such a presumption cannot be
raised against them. In this context, it may be noted that the UK City Code of Takeovers and Mergers, for this
very reason, has divided the persons acting in concert into groups in such a manner that these persons would in
the natural course of affairs be presumed to be acting in concert only with another person in the same group.
This served to set the pattern for raising rebuttable presumptions.
The Committee recommends that
in the definition of persons acting in concert, the persons be grouped in such a manner in the same group or
category that they bear such relationship amongst themselves as could justify raising of a presumption in the
normal course of affairs that they are acting in concert. For example, a sponsor of a mutual fund could be
presumed to be acting in concert with the trustee company or asset management company of the same mutual
fund; similarly a merchant banker may be presumed to be acting in concert with his client as acquirer. But no
presumption may be made that persons in one group are acting in concert with persons in another group. It has to
be proved by evidence that they are acting in concert. (Reference : Part II of the Report- sub-clause (e) of sub-
regulation (1) of regulation 2).
The definition of the persons acting in concert as defined above would imply a rebuttable presumption. The question which
arises is who would rule whether the presumption has been rebutted. The responsibility of ruling will lie with SEBI and over a
period of time, jurisprudence on the subject will develop.
2.24 Definition of ‘Offer Period’
Offer period has not been defined in the existing Regulations. The Committee noted that the Regulations require
certain activities to be carried out within the offer period and also cast restrictions on the acquirer and the
target company not to carry out certain activities during that period. Besides, offers, competitive offers and
revised offers will have to be made during the offer period. The Committee therefore decided that it would be
best to define the term.
The Committee recommends that
the offer period be defined as the period from the date of the first public announcement of the first offer till
the date of the closure of that offer. (Reference: Part II of the Report- clause (f) of sub-regulation (1) of
Regulation 2).
acquisition through preferential issue for consolidation of holdings by foreign collaborators, Indian
promoters and also, consequent upon induction of foreign collaborators for technology transfer etc.
acquisition by way of transfer of shares inter se among group companies, promoters, state level
financial institutions and promoters in joint and assisted sector projects, foreign collaborators and Indian
promoters, split in family and consequential regrouping of shareholding among branches of the family and
corporate restructuring plans.
It was also brought to the notice of the Committee that while firm allotment in public issues and preferential offers should
continue to be permitted, it should be ensured that these routes are not used to bring about change in control without
appropriate disclosures and proper consent of the shareholders. Similarly, in the case of rights issues the exemption from the
applicability of the requirement to make a public offer should normally be restricted to the extent of the entitlement of a
shareholder. At the same time, if a shareholder passively crosses the threshold limit of a public offer under the Regulations,
or were allotted additional shares within the limit of the acquisitions permitted in any period of twelve months, he should
not be required to make a public offer. Further, if the persons presently in control of the company have disclosed in the
rights letter of offer that they intend to acquire additional shares beyond their entitlement if the issue is undersubscribed,
they should be permitted to do so as long as there is no change in control.
The Committee therefore recommends that
the requirement to make a public offer be exempted for acquisitions made under firm allotment in
public issues and preferential offers, with full disclosure as to who the allottees are and the
consequences, if any, on the control of the company; acquisitions by the shareholder pursuant to
rights issue to the extent of his entitlement and additional entitlement subject to certain conditions;
inter se transfers among group companies within the definition of group in the MRTP Act; inter se
transfer among promoters and foreign collaborators, among relatives, among government companies,
among state level financial institutions and private co-promoters in joint sector projects; acquisitions
pursuant to schemes of arrangement or reconstruction including amalgamation or merger or
demerger under any law or Regulation, Indian or foreign; acquisition of shares by market makers
during the course of market making, acquisition of shares by financial institutions in the ordinary
course of their business in view of the special role in the Indian context or as pledgees. (Reference :
Part II of the Report - sub-regulation 1 of Regulation 3)
instead of fully exempting rights issue as was proposed in the draft Report, apart from acquisitions
made by a shareholder pursuant to an application made to the extent of his entitlement, additional
allotments within the limit of the acquisitions permitted in any period of 12 months and additional
allotments to the persons currently in control of the company, provided he had disclosed in the letter
of offer that he intends to take up additional shares if the issue is undersubscribed, be excluded.
(Reference : Part II of the Report - clause (b) of sub-regulation (1) of Regulation 3)
3.32 Preferential Offers
Companies adopt the preferential offer route in varied situations for the purpose of consolidation of stake by the
existing Indian or foreign promoters, induction of foreign collaborators with foreign technology, gaining
management control of the company, injection of fresh funds for turning around sick companies. At present,
SEBI has been granting exemption on case to case basis under the powers granted to it under regulation 4 of
the existing Regulations.
The Committee debated on whether preferential issues, which are approved by the shareholders under Section
81 (1A) by passing special resolution, should at all attract the regulations, as it is the very body of shareholders
whose interest the takeover regulations seek to protect which has given consent to the preferential issue.
Besides, as preferential issue helps infusion of fresh capital into the company, it is largely in the general interest
of all shareholders and also SEBI Guidelines for Preferential Issues have neutralised any economic advantage to
any person acquiring shares through preferential allotment on terms more favourable than the market. There is
also a need to differentiate between the acquisition of shares through the primary market and the secondary
market. The Committee also noted that market participants with whom the Committee discussed this issue,
overwhelmingly favoured exclusion of preferential issue from the ambit of the Regulations, provided it does not
lead to change in control.
Following suggestions received on the draft Report and also on its own, the Committee deliberated on the
possibilities of misuse of this exemption route to circumvent the regulatory provisions for public offer. The
Committee ultimately decided to exempt preferential issue of capital made with express consent of the
shareholders to whom full disclosures about the proposal including the likely changes in the control of the
company, if any, has been made by way of explanatory statement to the notice to the general meeting in which
the proposal is being put up for shareholders approval.
The Committee also examined whether the exemption of preferential offer discourages competitive offers. The
Committee, however, noted that the company is required to notify the stock exchange upon passing of the
board resolution approving the public offer and thus, the proposal of preferential offer becomes publicly
available information and that preferential offer, per se, does not debar a serious acquirer from making a bid on
the company.
The Committee recommends that
the acquisition of shares covered under section 81 (1A) of the Companies Act be exempt from the
applicability of the regulations subject to full disclosure in the notice for the extraordinary general
meeting called for consideration of preferential issue, including identity of the acquirer and
consequent changes in shareholding pattern and control of the company etc. (Reference : Part II of the
Report - clause (c) of sub-regulation (1) of regulation 3).
Acquisition of shares in the ordinary course of business by a registered market maker of a Stock
Exchange in respect of shares for which he is the market maker during the course of market making
be exempt. (Reference : Part II of the Report - sub-clause (ii) of clause (f) of sub-regulation (1) of
regulation 3).
concept of indirect acquisitions be brought in. This has been done in the definition of acquirer in
clause (b) of sub regulation (1) of regulation (2); in the definition of persons acting in concert in sub
clause (1) of clause (e) of sub regulation (1) of regulation (2); further while excluding unlisted
companies from the purview of the Regulations in clause (k) of subregulation(1) of regulation 3.
the shareholding in the second company constitutes a substantial part of the assets of the first
company; or
one of the main purposes of acquiring control of the first company was to secure control of the second
company.
indirect acquisition of control of a company should require compliance to the Regulations and this
needs to be clarified by way of suitable explanation. (Reference : Part II of the Report - Explanation
to clause (k) of sub-regulation (1) of regulation 3 and Explanation to Regulations 10 and 11).
SEBI may be vested with power to grant exemption in residuary cases and for this purpose SEBI
shall set up a Panel. The Panel would be recommendatory in nature. Any order granting or refusing
exemption passed by the Board shall be a reasoned order and shall be published. This, procedure,
while bringing transparency, would also serve to create precedents and help develop jurisprudence
on the subject through case law. (Reference : Part II of the Report - clause (l) of sub-regulation (1) of
regulation 3 and Regulation 4)
in order to ensure transparency in the transaction and assist in the monitoring, all the exempted
transactions should be subject to reporting requirements to the concerned stock exchanges in
advance of the proposed acquisition and to SEBI. (Reference : Part II of the Report - sub-regulation (3)
and (4) of Regulation 3)
the Board be vested with power to remove difficulties in the interpretation or application of the
Regulations. (Reference : Part II of the Report - Regulation 5)
apart from disclosures about individual holdings, disclosures about persons in control of
management of the company and their shareholding interest in the company should also be called for.
(Reference : Part II of the Report- Regulations 6, 7 & 8)
6 Substantial Acquisition of shares and acquisition of control of the company (Reference : Part II of the Report - Chapter III)
6.1 Acquisition of shares or voting rights (Reference : Part II of the Report- Regulation 10)
6.11 Negotiated vs. open market acquisition
The provisions in Regulations 9 & 10 of the existing Regulations differentiate between the manner of acquisition
of shares - i.e. either by way of negotiations or through open market transactions. This distinction is however
without much significance as it exists only in the manner of the initial acquisition. There is hardly any distinction
between the procedure to be followed for making public offers and compliance with the remaining provisions of
the Regulations in both these cases. The Committee considered this matter and felt that keeping separate
regulatory provisions for the two modes of acquisition served no purpose.
The Committee recommends that
as the manner of initial acquisition which would trigger public offer has no relevance as far as
performance of obligations under the Regulations are concerned, the two provisions should be
combined into a single provision. (Reference : Part II of the Report- Regulation 10)
having regard to the Indian situation in which it is possible to acquire control of a company with a
lower percentage of holding, the present threshold of 10% for public offer be retained;
the present ambiguity about the applicability of the Regulations to persons who acquire shares
beyond the threshold limit of 10% without initially holding any share be removed by adding the words
"together with shares or voting rights held, if any". (Reference : Part II of the Report - Regulation 10)
person(s) holding not less than 10% but not more than 75% may acquire upto 2% shares in any
period of twelve months, without attracting the mandatory public offer requirement. (Reference :
Part II of the Report - Regulation 11).
The percentage of acquisition referred to above is on absolute basis i.e. there should be no netting of acquisition and
disinvestment during the said period. In other words if a person acquired x% during a period of 12 months, sold y% and
acquired z% his aggregate acquisitions of (x% + z%) would be reckoned for the purpose of the Regulation and not (x% - y% + z
%).
The Committee also felt that it would be desirable to clarify that the provisions of these
Regulations will not be applicable to any person who holds 75% or more at the time of notification of
these Regulations and also to any acquirer who has reached the level of 75% without any breach of
the provisions of the Regulations in force from time to time.
6.3 Takeovers
(Reference : Part II of the Report - Regulation 12)
The question of defining takeovers was discussed. It was noted that though the concept of takeovers was easily
comprehensible, it eluded precise definition. It is perhaps for this reason why regulations in most countries have
not defined it. While takeover is taken to be synonymous with acquisition of control over the company, opinions
vary on what constitutes change of control. According to industrialists and professionals who have involved
themselves in takeovers, management control ultimately manifests itself through control over the board of
directors of the company, whatever be the manner in which such change of control may be achieved.
The Committee agreed that attempting a precise definition of takeover would not only be counter productive
but also limit the scope of the Regulations, and it should be left to SEBI to decide whether there has been a
violation of regulations in a given situation of a takeover, through investigation if necessary, and enforce the
Regulations. The Committee was of the view that the Regulations should nonetheless contain an inclusive
definition of the term ‘control’ which would serve to indicate the circumstances when compliance with the
provisions of the Regulations would be necessitated, even where there has been no acquisition of shares, so
that SEBI would not be on an uncharted sea in investigating whether there has been change in control.
On the issue of change in control of a company attracting the provisions for public offer, the Committee felt that
control of a company is interlinked with its fortunes and any change in control could not be without impact on
company's policies and business prospects and is thus linked to investors interest. And given that investor
protection is a mandate of SEBI, takeover which entails change in control should necessarily be the concern of
SEBI. This is all the more necessary because under clause (h) of sub section (2) of Section 11 of SEBI Act, SEBI is
empowered to regulate not only substantial acquisition of shares but also takeovers. This was also the
overwhelming view of all professionals, intermediaries and financial journalists who made submissions before
the Committee. The Committee also noted that though the existing Regulations did not include change in
control as triggering of a public offer, SEBI has placed continued reliance on Clause 40 A and B of the Listing
Agreement in such cases where the acquisition of shares has been less than the threshold limit of 10%. The
Committee recognised that the Regulations should, as far as possible, be comprehensive and self contained and
SEBI should not have to rely on outside rules and regulations to implement its objective.
On the above considerations and given on the one hand that it would be difficult, if not impossible, to attempt
at a precise and comprehensive definition of takeover, and on the other hand that takeover does ultimately
result in change in control of the company, howsoever such control may be exercised, the Committee felt that
change in control of a company, as opposed to change in management of a company, should be made a
condition requiring a public offer to be made. When there is change in control, the shareholders must be
afforded an opportunity to exit from the company if they do not want to continue under the new acquirers. This
will also obviate the need for SEBI to fall back upon Clause 40 A & B of the Listing Agreement, which could now
be repealed. The Committee originally thought that it would be advisable to refrain from defining "control of a
company" and allow time and practice to craft a well accepted definition of control. The above decision of the
Committee was incorporated in the draft report of the Committee. But, as already discussed in para 2.2 of this
Report, the Committee received numerous comments advocating the need to define at least the parameters of
control. Having regard to the feed back received, the Committee felt that a term of such critical relevance to the
Regulations should not be left undefined.
The Committee, therefore, agreed to define control. The Committee also felt that concept of joint control which
is often seen in practice should also be recognised. The Regulations should make it explicit that cessor of any
one person from joint control, thus giving the remaining person or persons sole control or taking of any person
or persons in joint control by a person having sole control shall not be construed as ‘change in control over the
company’ attracting the Regulations.
The Committee recommends that
the term ‘control, may be defined by giving an inclusive definition and also, the consequences of
change in control be included in the substantive portion of the Regulations, through provision for
disclosure of person(s) in control of the company at periodical intervals which could indicate change
in control over the company, when it occurs; (Reference : Part II of the Report- Regulations 2 (1) (c), 6
& 8)
mandatory public offer consequent upon change in control over the company be also provided
(Reference : Part II of the Report - Regulation 12).
clause 40 A & B of the listing agreement may be replaced by a clause requiring compliance with the
SEBI Regulations on Takeovers.
only a Category I Merchant Banker, not being a group company or associate of the acquirer or the
target company, be appointed for the purpose. (Reference : Part II of the Report - Regulation 13)
the public announcement of offer be made not later than four working days of the agreement.
in case of acquisition of securities (including GDRs / ADRs) which would entitle the acquirer to
voting rights at a later date, the public announcement be made not later than four working days
before conversion, or exercise of option, as the case may be leading to acquisition of shares with
voting rights exceeding the threshold limit. (Reference : Part II of the Report - sub- regulation (2) of
Regulation 14)
Public announcement be released in all editions of an English national daily with wide circulation,
one Hindi national daily with wide circulation and a regional language daily having circulation at the
place where the registered office of the target company is situated and at the place of the stock
exchange where the shares of the target company are most frequently traded. (Reference : Part II of
the Report - sub regulation (1) of Regulation 15).
Public announcement be submitted to SEBI two working days in advance of its release. (Reference :
Part II of the Report - sub regulation (2) of Regulation 15).
Public announcement be sent to all the stock exchanges on which the shares of the company are
listed and to the target company at its registered office. (Reference : Part II of the Report - sub-
regulation (3) of Regulation 15).
Once the public announcement is made, the public offer shall be deemed to have been made.
(Reference : Part II of the Report - sub regulation (4) of Regulation 15)
The highest and average price paid by the acquirer or persons acting in concert with him for
acquisition, if any, of shares of target company during the twelve month period prior to the date of
the public announcement be disclosed in public announcement (Reference : Part II of the Report -
Regulation 16 (viii)).
The future plans of the acquirer, if any, for the target company, including whether the acquirer
proposes to strip or dispose of or otherwise encumber any of the assets of the target company during
the next succeeding 2 years be disclosed in the public announcement and in the absence of such
disclosure, the acquirer shall be debarred from doing so. Where the public announcement sets out
future plans, the acquirer shall also state how he proposes to implement such future plans.
(Reference : Part II of the Report - Regulation 16 (ix) and 22 (18)).
Public announcement should contain disclosure on financial arrangements for implementing the
offer. (Reference : Part II of the Report - Regulation 16 (xiv)).
Persons holding unregistered shares should be enabled to participate in the offer (Reference : Part
II of the Report -Regulation 16 (xv)).
The statutory approvals required to give effect to the offer be spelt out, with a declaration that no
other approvals other than those mentioned in the public announcement are required for giving
effect to the offer. (Reference : Part II of the Report- Regulation 16(xvi)).
Offer conditional as to minimum level of acceptances may be allowed, subject to checks and
balances. (Reference : Part II of the Report - Regulation 16(xviii)).
The acquirer should be required to accept minimum of 20% irrespective of whether the conditional
offer has elicited response to the level of acceptances desired by the offeror, but a lower price,
which shall not be less than the minimum offer price as per the Regulations, can be offered for the
minimum mandatory acceptances. (Reference : Part II of the Report - Regulation 16 (xviii) and
Explanation 4 to Regulation 20 and sub-regulation (8) of Regulation 22).
disclosure requirements be clearly and elaborately specified by the Board (Reference : Part II of the
Report - sub-regulation (1) of Regulation 18)
offer document be filed with SEBI within fourteen days of public announcement and if no comments
are communicated within twenty one days, the offer document may be circulated to the
shareholders. (Reference : Part II of the Report - sub-regulations (1) and (2) of Regulation 18)
concept of ‘record date' may be replaced with ‘specified date', which can be any date as may be
decided by the acquirer and indicated in the public announcement subject to the condition that such
date shall not be later than the thirtieth day from the date of public announcement. (Reference : Part
II of the Report - Regulation 19)
6.11 Minimum offer price and payment of consideration other than in cash
(Reference: Part II of the Report - Regulation 20)
The existing Regulations have three stipulations about pricing of an offer. First, it specifies the minimum offer
price to be paid by an acquirer to those to whom the offer is being made. This price is the higher of the weekly
highs and lows of the twenty six weeks immediately prior to the date of public announcement and the price
paid by the acquirer in the negotiated transactions. Second, this price could be paid in cash or by way of
exchange of shares. In other words, share swap is permitted with the stipulation that if the negotiated price paid
by the acquirer is in cash, the offer must also be a cash offer. Third, if the shares of the target company are
infrequently traded, the price would have to be approved by SEBI. Infrequent trading has not been defined in
the Regulations.
The Committee agreed that there should be a principle setting down the minimum level of offer price as in the
existing Regulations. Laying down this minimum level of offer price was, in the opinion of the Committee,
necessary to protect the interest of investors and not discordant with the free pricing regime.
The Committee felt that while cash offers and exchange offers are already permitted under the present
Regulations, there was need to extend the manner of payment of consideration to include other securities
including debt instruments. This need to encourage payment of consideration other than by way of cash must
be balanced with the need to protect the interest of shareholders. The Committee, therefore, agreed to modify
the earlier recommendations in the draft Report and recommend that even where payment in cash has been
made to any class of shareholders for acquisition of their shares under any agreement or through open market
purchases or otherwise, the acquirer might be allowed to make payment in cash or by way of exchange of
securities. However, in such cases, an option should be given to the investor. This would imply that if a
shareholder desires the payment of consideration in cash only, the acquirer would have to make the payment in
cash. In the case of exchange offers, the merchant banker should be responsible for ensuring that the swap
ratio fixed for the exchange is in conformity with the principles for determining the minimum offer price laid
down in the Regulations. The Committee also felt that subject to compliance with minimum offer price
requirements, in the case of exchange offer or conditional offer, the acquirer may be permitted to have dual
pricing for his offer i.e. the cash offer can be at a price lower than that for securities exchange offer. Similarly,
the price for minimum mandatory acceptances may be lower than the price for targeted full acceptances. The
Committee was of the view that such provisions, while being fair to the investors, would also balance the need
of the acquirers. Adjustments in price would also have to be made for market quotations on cum/ex-rights or
cum/ex-bonus basis.
Additionally, the Committee recommended that the highest price paid by an acquirer for any acquisition of
shares of the target company in the last twelve months prior to the date of public announcement be also taken
as a parameter for deciding the minimum offer price. In regard to infrequently or thinly traded shares for which
quotations were not available, the Committee felt that SEBI
should not be involved in approving the offer price in infrequently traded shares and should leave it to the
acquirer and merchant bankers to determine the offer price and disclose the basis on which it is determined.
The Committee recommends that
The existing formula for minimum offer price be retained with the additional parameter namely the
highest price paid by the acquirer for any acquisition of shares of the target company during the
twelve months prior to the date of public announcement. (Reference : Part II of the Report sub-
regulation (2) of Regulation (20).
Where a preferential offer is made to an acquirer during the twelve month period ending with the
date of closure of the offer , the price at which the preferential allotment has been made will also be
taken into account in determining the offer price. (Reference : Part II of the Report - sub-regulation (2)
of Regulation 20)
The minimum offer price shall be fixed in consultation with the merchant banker in case of
infrequently traded shares, to be justified on parameters specified in the regulations. (Reference :
Part II of the Report - sub-regulation (3) of Regulation 20)
Infrequent trading be defined. (Reference : Part II of the Report -sub-regulation (3) of Regulation (20)
In case of acquisitions made by the acquirer during the offer period in any manner either from the
market or from any particular investor(s), the highest price paid for such acquisition be paid to the
shareholders under the public offer, unless it is less than the minimum offer price. (Reference : Part II
of the Report - sub-regulation (4) of Regulation 20)
The takeover should not lead to a situation of minority oppression and therefore, the Regulations must
have a provision requiring the acquirer to buy out the remaining shares if the public shareholding were to
fall below 10% consequent upon a public offer;
Impossibility of performance on the basis that the public holding left would be low cannot be a ground
for not making mandatory minimum offer to the shareholders, in a takeover situation.
The Committee also observed that with respect to the paid up capital on the basis of which the specified percentages are to
be worked out, the existing regulations do not take into account conversion of securities into shares. This raises doubts
whether conversions due after the date of public announcement should also be reckoned. The Committee felt that paid up
equity capital as would emerge at the closure of offer should be reckoned for the purpose.
The Committee recommends that
The minimum offer as stipulated in the present regulations may continue but with a proviso
allowing minimum offer of only 10% for consolidation of holdings by persons presently in control of
the company. (Reference : Part II of the Report- sub-regulation (1) of Regulation 21).
An offer may be made for 100% of the shares of the target company (Reference : Part II of the
Report - sub-regulation (2) of Regulation 21).
The acquirer may be given an option to buy out the remaining shares if the public shareholding
were to fall below 10% consequent upon a public offer which would have the effect of deemed
delisting; or
Alternatively, the acquirer may undertake to bring the public shareholding to a level as would
satisfy the listing requirements through an offer for sale, with suitable disclosure in the offer
document. (Reference : Part II of the Report- sub-regulation (2) of Regulation 21).
persons other than parties to the agreement, in the case of negotiated takeovers, may participate
in the open offer. (Reference : Part II of the Report - sub-regulation (3) of Regulation 22)
the time limit for each activity should be spelt out, as an obligation of the acquirer, so that the
takeover process is completed promptly. These are -
Filing of offer document with SEBI within fourteen days of the date of public announcement
(Reference : Part II of the Report - sub-regulation (2) of Regulation 22)
Mailing of letter of offer so as to reach the shareholders, within forty five days of the date of public
announcement (Reference : Part II of the Report - sub-regulation (3) of Regulation 22)
Offer to open within sixty days of the date of public announcement (Reference : Part II of the Report
- sub-regulation (4) of Regulation 22)
Offer to close within a maximum of 105 days of the date of public announcement (Reference : Part
II of the Report - sub-regulation (5) of Regulation 22)
Consideration to be mailed within thirty days of the date of closure (Reference : Part II of the Report
- sub-regulation (12) of Regulation 22 )
SEBI may permit extension of time limit under certain circumstances, subject to acquirer agreeing
to pay interest for delayed period ((Reference : Part II of the Report - sub-regulation (12) of Regulation
22 )
except where an offer is made conditional as to minimum level of acceptances, the acquirer may
be allowed to make acquisitions during offer period subject to the condition that highest price paid
for such acquisition be paid to the shareholders under the public offer, unless it is less than the
minimum offer price (Reference : Part II of the Report - sub regulation (4) of Regulation 20 and sub-
regulations (8) and (17) of Regulation 22).
For consideration payable under the public offer upto and including Rs.100 crore - 25%; and for
consideration exceeding Rs.100 crore - 25% upto Rs.100 crore and 10% thereafter.
the amount will be used for payment of consideration to shareholders or refunded upon timely
fulfillment of the obligations and forfeited, if not.
to ensure that this escrow account which is in the interest of investors does not become too
onerous a burden on the acquirer especially where the acquisition could involve large sums, the
acquirer should also be allowed the option of depositing the escrow amount otherwise than in cash
i.e. by way of bank guarantee or approved securities with appropriate margin as determined by the
merchant banker. (Reference : Part II of the Report - sub-regulation (10) of Regulation 22 and Regulation
28.)
the acquirer shall make firm arrangements for finance required and disclose full details of the
arrangements both in the public announcement and in the letter of offer. (Reference : Part II of the
Report - Regulation 16 (xiv) and sub- regulation (11) of Regulation 22)
an obligation to open a separate bank account may be cast on the acquirer and the procedure for
payment of consideration may be laid down in the Regulations (Reference : Part II of the Report - sub-
regulation (12) of Regulation 22 and Regulation 29)
In the event of non-fulfillment of obligations under Chapter III or IV of the Regulations, the acquirer shall not
make an offer for acquisition of shares of any company or a period of twelve months from the date of closure
of the offer. (Reference : Part II of the Report - sub-regulation (15) of Regulation 22).
till the offer formalities are completed, the target company shall be precluded from inducting any
person or persons nominated by the acquirer or belonging to his group into the board of the target
company or in management of the target company during the offer period (Reference : Part II of the
Report - sub regulation (7) of Regulation 22 and sub-regulation (3) of Regulation 23).
the target company shall exclude any person or persons connected with the acquirer from
participating in any matter(s) relating to or arising from the offer(Reference : Part II of the Report -
sub-regulation (9) of Regulation 22 and sub-regulation (3) of Regulation 23)
management changes can be made after closure of the offer and deposit of full amount in a special
account with the bank. (Reference : Part II of the Report - proviso to clause (a) of sub-regulation (3) of
Regulation 23).
to begin a healthy trend as obtaining in developed markets, the board of directors of the target
company, if they so wish, may send their unbiased comments on any bid to their shareholders
keeping in view the fiduciary responsibility of the directors and for that purpose, seek the opinion of
an independent merchant banker or a committee of independent directors. The directors of the
target company shall be liable for any mis-statement or concealment of material information in the
discharge of this function. (Reference : Part II of the Report - sub-regulation (4) of Regulation 23 and
sub-regulation (6) of Regulation 45)
the board of directors of the target company shall facilitate the acquirer in verification of
securities tendered for acceptances. (Reference : Part II of the Report - sub-regulation (5) of Regulation
23).
once the acquirer fulfills his obligations under the regulations as certified by the merchant banker,
the target company shall -
allow proportional representation on the board to the acquirer or give control over the company,
as the case may be . (Reference : Part II of the Report - sub-regulation (6) of Regulation 23)
obligations of the merchant bankers be specifically laid down in the Regulations and penalties for
non-compliance by the merchant bankers be provided. (Reference : Part II of the Report, Regulation 24
and sub-regulation (5) of Regulation 45).
Merchant banker shall be liable to make good the shortfall, if any, in the escrow account.
(Reference : Part II of the Report, sub-regulation (7) of Regulation 28).
A competitive bid can be for some or all of the shares of the target company the outer time limit
within which a competitive can be made may be increased to 21 days . (Reference : Part II of the
Report - sub-regulation (1) of Regulation 25)
No bid for the target company can be made during the offer period, after twenty one days from the
date of public announcement of the first offer. (Reference : Part II of the Regulation - sub-regulation (2)
of Regulation 25)
Subject to minimum offer requirement, any competitive offer by an acquirer shall be for such
number of shares which, when taken together with shares held by him shall be at least equal to the
number of shares for which the first public announcement has been made.(Reference : Part II of the
Report - sub-regulation (3) of Regulation 25)
Consequent upon a competing bid or bid(s), the acquirer(s) under the earlier offer should have the
freedom either to revise their terms of offer or withdraw from the offer with the prior approval of
the Board, within fourteen days of the announcement of the competing bid and if no such
announcement is made, the offer on original terms shall subsist and be binding the acquirer.
(Reference : Part II of the Report - sub-regulation (4) of Regulation 25)
The competing bidders shall have the freedom to revise their offer price upwards anytime upto
seven working days prior to the date of closure of the offer. (Reference : Part II of the Report - sub-
regulation (6) of Regulation 25)
If more than one bid subsist at the end of thirty five days from the date of public announcement of
the first offer, it would be the shareholders' prerogative to choose one over another and to facilitate
shareholders exercise of option in such an event, the competing offers shall close on the same date
(Reference- Part II of the Report : sub-regulation (7) of Regulation 25)
6.17 Revision of offer
The Committee noted that the Regulations do not specify the circumstances and the time limit within which a
revised offer can be made; nor do the Regulations specify whether revision of all the terms of offer, upward or
downward, is permissible. The regulations also require approval of SEBI for revision in the terms of offer.
But it might be plausible that even in the absence of a competing bid, the acquirer may like to or may have
genuine reason to revise his offer, if he finds that acceptances to the offer on original terms are poor. The
Committee, therefore, desired that flexibility should be built into the Regulations to allow an acquirer to revise
his price, if he so desires any time before the closure of the offer period. The Committee, however,
acknowledged that in the interests of the investors, such revision should only be in terms of number of shares to
be acquired and the price offered and that too only upwards.
The Committee recommends that
upward revision in price and number of shares sought to be acquired may be permitted,
irrespective of whether or not there is a competitive bid, upto seven working days prior to the date
of closure of the offer, subject to public announcement in respect of such changes and consequent
changes in the escrow. (Reference : Part II of the Report - Regulation 26)
the circumstances under which withdrawal of offer can be made could be clearly spelt out.
(Reference : Part II of the Report - Regulation 27).
retention of the existing provisions with marginal changes for enhanced clarity and operational
simplicity. Additionally, competitive bid would not be allowed for bail out takeovers as the selection
of the incumbent in the management has been made through a process of competitive bidding.
(Reference : Part II of the Report -Chapter IV).