SEBI TAKEOVER CODE AN OVERVIEW RECENT CHANGES VNS

SEBI TAKEOVER CODE AN OVERVIEW & RECENT CHANGES VNS Legal, Advocates VNS Legal

BACKGROUND § The SEBI Takeover Code aims to regulate acquisition of shares of a listed Company / acquiring control over a listed Company § Effective October 22, 2011 § Earlier Takeover Code revamped post recommendations of advisory committee § Constantly evolving code in line with international practices. VNS Legal

APPLICABILITY OF THE CODE § Applies in case of “substantial acquisition” of § Shares; or; § voting rights; or; § control, § By an acquirer by itself or together with Persons Acting in Concert. § Applies to direct and indirect acquisitions (global acquisitions also covered) VNS Legal

IMPORTANT DEFINITIONS z Acquirer y. Any Person acquiring , directly or indirectly y. Shares or Voting Rights or Control y. In the Target Company y. By himself or Persons Acting in Concert z Control y. Right to appoint majority of Directors or control the policy decisions of the company y. By means of their share holding, or management rights or share holders agreements or any other manner VNS Legal

IMPORTANT DEFINITIONS z Person Acting in Concert y. Persons who for a common objective y. Directly or indirectly cooperate y. To acquire shares or voting rights or control over the Target Company y. By means of an agreement or understanding y. Certain cases of deemed PAC VNS Legal

EARLIER PROVISION z. Upto 5% - no disclosures z 5% to 14. 9% - disclosures z 15% & above – Open Offer for 20% z. Above 15% holders – permitted upto 5% p. a upto 54. 9% z. To hold 55% - Open Offer (subject to min pub shldg) z. Above 55% holders – Open offer (subject to min pub shldg) VNS Legal

NEW PROVISIONS z. Upto 5% - no disclosures z 5% upto 25% - disclosure to S. Exch z. To cross 25% - open offer of min 26% z. Above 25% - upto 5% p. a upto 75% z. Shareholding is Acq + PAC in aggregate z. Increase in threshold & offer size VNS Legal

TRIGGER OF OPEN OFFER z Reg 3 (1) – If holding >= 25% z Reg 3 (2) – for a person already holding above 25%, - if acq is more than 5% p. a z Between 25% to 75% - upto 5% p. a allowed. z Cannot acq more than permitted holding z Only Gross Acqn considered z Diff between post & pre allot – computation z Individual plus aggregate holding considered now. z Promoter treated on par with any other acquirer VNS Legal

ACQN OF CONTROL z. Reg 4 – separate regulation for acqn of control z. Applicable irrespective of whethere is acqn of shares or not z. Earlier exemption of postal ballot resolution, is now removed. VNS Legal

INDIRECT ACQUISITION z Reg 5 (1) – defining indirect acqn y. Acq of shares, voting rts, control y. Over any company or other entity y. That would enable the person + PAC to y. Exercise voting right or control over target co y. Such that it would attract open offer z Direct (vs) percentage rule z Reg 5 (2) - Indirect is construed as Direct if proportionate value of target is - > 80% of acquired entity’s value VNS Legal

VOLUNTARY OFFERS z Min eligibility – 25% z Offer size – minimum of 10% z Last 52 week voluntary acqn by self & PAC – cannot make a volunt offer z Cannot acq shares from open market during offer period z Cannot acquire for 6 months post offer period except thro another volun offer z Volun acq by Promoters – whether hit by the bar on earlier acqn rule ? VNS Legal

OFFER SIZE z. Reg 7 - Offer Size – y. At least 26% of total shares as of 10 th day of PA (including shares to be acq through PA) y. If shareholding would exceed the max limit, undertaking to bring it down within time given under SCR Act. y. Such person who has exceeded the max limit, cannot make a voluntary delisting offer for a period of 12 months post offer period VNS Legal

OFFER PRICE z. In case of direct acqns – as per Reg 8(2) z. In case of indirect acqns – as per Reg 8 (3) z. If acq has any outstanding convertible instrument, conversion price of those also to be computed z. Non-compete fee to be added z. Higher price paid during offer period – offer price will stand revised VNS Legal

PRICING z Indirect acq – if delay in PA more than 5 days, int @ 10% p. a z Payment of diff in price if acq / PAC acquire post offer for a period of 26 weeks at a price higher than the offer price except for another open offer, delisting, market purchases other than thro negotiated deal. If Promoter subsc to Pref Offer @ higher price – impact ? VNS Legal

EXEMPTIONS z Under Reg 10 (1) – for exemption u/ 3 & 4 y. Interse transfer of shs amongst qualifying persons – between relatives, PAC, Promoters etc y. Acqn in the ord course of business by broker, Merch Banker, Bank / FI as pledgee y. Pursuant to scheme of merger / BIFR etc y. SARFAESI y. Delisting y. Transmission VNS Legal

EXEMPTIONS z. Under Reg 10 (2) – acqn of shares without change in control pursuant to CDR Scheme z. Under Reg 10 (3) - Increase in voting right beyond 25% pursuant to a buyback if the shareholding is not reduced < 90 days of buyback. VNS Legal

EXEMPTIONS z. Reg 10 (4) – Exemption under Creeping Acqn of 3(2) y. Rights issue y. Buy back – as long as not participated y. Acqn by promoter from State Fin Corp pursuant to agmt y. Acqn by promoter from VC Fund / FVCI pursuant to agmt VNS Legal

RECENT CHANGES – PROCESS & PROCEDURE z. Public Announcement – on the date of acqn / agreeing to acquire. In case of market purchases – prior to order placing. z. In case of Indirect acqn – within 4 days. zwithin 4 days of intent / acqn – notify to S. Exch z. Detailed Public Statement – within 5 days of PA VNS Legal

PROCESS & PROCEDURE z Detailed PA to be sent to all S. Exch, SEBI & to Company plus publication in papers. z File Draft Letter of Offer to SEBI within 5 days of Detailed PS. z Create escrow a/c within 2 days of Detailed PA y. First 500 crs – 25% y. Excess – 10% of the balance z Send LOO to shareholders < 7 days of SEBI observations VNS Legal

PROCESS z. Acq + PAC to disclose their acq during the offer period < 24 hrs of acqn z. Acq + PAC cannot acquire during the period 3 days prior to open of offer & till close of offer z. Offer period – 10 days open z. Once tendered cannot withdraw z. Acq to complete formalities < 10 days of closure of offer VNS Legal

OTHER ISSUES z. Completion of acquisition y. Can be made only after completion of offer process y. Exemption for pref allotment y. In case of 100% Escrow, can be completed after 21 days of Detailed PA y. What happens to Open Offers triggered by Market purchases ? z. Board appt – only after offer closes or 100% escrow after. VNS 15 Legaldays of Det PA

OBLIGATIONS OF TARGET COMPANY z. No matl changes during offer period unless spl resln thro postal ballot z. Constitute committee of Indp Dirs to recommend on open offer & publish in papers + send to SEBI / S. Exch z. Make available all info to acquirer VNS Legal

DISCLOSURES z Disclosure to S. Exch & Company < 2 days of y. Acqn exceeding 5% aggregate y. Once above 5%, every acqn or disposal > 2% aggregate z Acqn includes pledge. Except for Bk/FI z Persons holdg > 25% and Promoters shd disclose their aggregate holdg to S. Ex & Co within 7 days of 31 Mar Promoter to disclose creation / invocation / disposal of pledge < 7 days by Promoter / PAC VNS Legal

IMPACT OF THE NEW CODE z. Cost of open offers increases z. Hostile takeover – quite remote z. Exemptions – rationalised & clarified z. Process & procedures – rationalised z. Foreign acquirer – require FIPB clearances z. Role of SEBI in processing offer docs – needs rationalisation & clarity VNS Legal

ROLE OF PRACTICSING COMPANY SECRETARIES z. Role of CS – crucial / critical in listed entities z. Apart from ensuring compliance, can also assist in structuring transactions z. Role as advisor to Open Offers z. SEBI to consider empanelling CS to certify smaller offers. VNS Legal

CONCLUSION z. Objective of SEBI regulations - increasing transparency and protecting interest of the investors in the Capital Markets z. Need to distinguish between large / small companies & role of intermediaries z. Flexibility to be given to Promoters to increase holding z. International practices to be adapted to Indian context. VNS Legal