Deal Aware

Purview of Non-Compete Clauses in M&A Transactions

non-compete

(Pranshu Gupta and Roopam Dadhich are IV year B.A.LL.B students at National Academy of Legal Studies & Research (NALSAR) University, Hyderabad)

INTRODUCTION

In almost every Mergers & Acquisitions (‘M&A’) contract, the presence of a provision containing non-compete obligations of the target company is a common phenomenon, and is one of the most integral parts of M&A deals. These provisions are referred to as ‘non-compete clauses’ (‘NCC’). They are included in contracts so that the valuable information such as the intellectual property, trade secrets, technical know-how etc. possessed by people related to the target company may not be used to the disadvantage of the acquiring firm post acquisition, and to save the investment value of the transaction. These provisions are governed by the exception to Section 27 of the Indian Contract Act, 1872, which permits contracts restricting a person or an entity from carrying on a similar business where the goodwill is being sold, as long as the restriction pertains only to specified reasonable limits.

NCCs in all M&A agreements need to be reviewed by the Competition Commission of India (‘CCI’) as per the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (‘Combination Regulations’). This article discusses and analyses the legal developments with regards to NCCs and the way in which courts in India have dealt with these clauses.

LEGAL DEVELOPMENTS AND JUDICIAL STANCE

At present, para 5.7 of Form I in the Combination Regulations mandates a detailed explanation and justification of NCCs present in an M&A agreement, which the CCI reviews and analyses in view of Sections 3 and 4 of the Competition Act, 2002 (‘the Act’) thereby ensuring there is no unfair impact on competition. In this regard, the CCI in 2017 released a Guidance Note wherein the scope of NCCs was specified taking into account its decisions in various cases. In this Guidance, the CCI noted that only an ‘ancillary restriction’, or a restriction that is directly related and necessary for the implementation of a transaction shall be permitted. A restriction is considered to be directly related when it is economically related to the transaction and is intended to allow a smooth transition to the post-transaction scenario.

The necessity of a non-compete restriction should be assessed in terms of whether, in the absence of such restriction, the transaction can be implemented or whether it will be more onerous on the parties. If it is not directly related and necessary to the transaction, the CCI will approve the combination without approving the non-compete restriction. In such cases, the CCI’s order would state that the non-compete restriction is not “ancillary” to the combination. However, the finding that a non-compete restriction is not in compliance of the Guidance does not mean it infringes the provisions of the Act. Moreover, the standards set forth in the Guidance would not be applied mechanically, and would be applied taking into consideration the facts and circumstances of each case. The Guidance Note released by the CCI is similar to the Ancillary Note released by the European Commission which envisages similar guidelines for assessment of ancillary restraints in merger deals.

Recently, the CCI in its press release dated May 15, 2020 proposed to omit para 5.7 of Form I in the Combination Regulations which requires the parties to submit a detailed explanation and justification of NCCs under the agreement. The intention is to provide flexibility to the parties in determining non-compete restrictions and reduce the information burden on the CCI by transferring the onus to the parties. Moreover, the rationale was that prescribing a general set of standards for assessment of non-compete restrictions may not be appropriate in modern business environments. Further, conducting a detailed examination on a case by case basis as part of the combination review process may not be feasible considering the tight time cap of 210 days for combination approvals prescribed under the Act. However, the Guidance still holds ground and the parties need to self-assess if the NCC is ancillary to the transaction and no issues arise under Sections 3 and 4 of the Act.

The question of NCCs being ancillary to the transactions depends upon the factual matrix of each case. However, an analysis of the past decisions of courts and the CCI could help companies determine the general approach/standards observed by courts and the CCI while reviewing NCCs in M&A transactions. In Orchid Chemicals, the first ever case on NCC, the CCI found the provision on non-compete restrictive of competition, where Orchid Chemicals and the promoter were restricted for 8 years and 5 years respectively to carry out similar business activities. It was observed that non-compete obligations should be reasonable, particularly in respect of geographical limits, business activities, the duration over which such restraint was enforceable and the people subject to such restraint, in order to ensure that there is no adverse impact on competition. Pursuant to this observation of the CCI, the parties had to modify the term of the NCC to 4 years for both the company and the promoter. The parties also modified the NCC to permit research, development and testing of certain new active pharmaceutical ingredients.

In Affle Holdings v. Saurabh Singh, the Delhi High Court upheld a share purchase agreement which restricted the promoter from engaging in a similar business for 36 months. The duration of such non-compete was found reasonable by the court. In Mylan Inc., the CCI did not uphold the NCC and the parties thereby revised it to cover only those products that were produced or sold by the target company, allowing the promoters of the target company to conduct research and development of new active pharmaceutical ingredients. They were also compelled to reduce the non-compete duration from 6 years to 4 years. In Crompton Greaves Consumer Electricals, the CCI approved the NCC only when the parties agreed to modify the duration of non-compete from 5 years to 3 years.

It is therefore, evident that the CCI has in a number of cases compelled parties to modify NCCs on lines of the Guidance which lays down the duration of an NCC for a period of up to 2 years in case of transfer of goodwill and 3 years in cases of transfer of goodwill and know-how. Even though the CCI has done away with the requirement for the parties to provide a detailed assessment and justification of the non-compete restriction, the judicial precedents along with the Guidance can help counsels of both the parties to determine the CCI’s expectations in terms of the duration, geographical limits, business activities etc. of NCCs in the agreement, as they still need to conduct a comprehensive self-assessment of such clauses in light of the competition law as the CCI will still review transaction documents and approve a combination only when it does not go against Sections 3 and 4 of the Act.

CONCLUDING REMARKS

This seems to be a step in the right direction by the CCI, especially when attracting foreign capital and investments is a major goal for the country; which would have been difficult earlier owing to the onerous formalities of the CCI and its stringent compliance mechanisms. Till now, parties with their counsels’ assistance have already been conducting a detailed self-assessment of non-compete restrictions to ensure compliance of the competition law. However, the CCI while reviewing merger deals has in numerous cases held NCCs to be anti-competitive and non-ancillary, without providing any justification/analysis whatsoever. With this amendment, the process would become more efficient without compromising on the requirement of the parties to undertake a comprehensive anti-trust self-assessment of NCCs in M&A deals.

However, more efficiency can be ensured if the CCI becomes less stringent in terms of reviewing these clauses and takes into account facts and circumstances of each case, departing from its standards created through judicial decisions and the Guidance Note. Treating certain transactions as exceptions is essential especially in dynamic and other stable industries (where customer loyalty is for a longer period or an industry which is highly capital intensive) which would justify a longer non-compete period, and at the same time not casting an adverse impact on competition. Therefore, the implementation of ancillary restrictions necessitates a balance between sustaining fair competition in the market and stimulating a healthy business transaction.

Enforceability of Affirmative Voting or Veto Rights under a SHA

Keywords: M&A, Veto Rights, Affirmative Voting Rights, Enforceability, SHA

(Manudeep Kaur is a LL.M Graduate from O.P. Jindal Global University)

INTRODUCTION

Veto rights or affirmative voting rights hold immense significance to the shareholders who wish to attain substantial control in the management and affairs of the company rather than just an interest in a term venture for profit. Its relevance is most pertinent to the minority shareholders of the company. However, it does not imply that Institutional or Private Equity Investors or Venture Capitalists are exclusively aloof to the affairs of internal management of the company, instead, such investors also have some bearing towards certain reserve matters of the company and claim a right of veto or affirmative voting rights, which are often heavily negotiated at the time of entering into a Shareholders/ Joint Venture Agreement.

However, there are certain concerns that have to be kept in mind by the investor while negotiating such rights in an M&A or a Joint Venture transaction, especially with respect to the enforceability of such rights, since the Companies Act, 2013 (Companies Act) is silent on certain aspects of these rights that have been discussed below.

ANALYSIS

Firstly, an investor can rightly insert a clause into the Shareholders’ Agreement (SHA) providing them veto rights with respect to the Shareholders’ General Meetings even though CompaniesAct does not address such a clause. However, the investor should ensure that the Company is also made party to the SHA and such Company undertakes to amend and incorporate those clauses in its Articles of Association (Articles). Since a company derives power and authority from its Articles, companies and their members are bound to comply with the provisions of their Articles as per Section 10 of the Companies Act. As already held in the case of V.B. Rangaraj v. V.B. Gopalakrishnan and Ors., that the terms of the Agreement shall not be enforced unless they have been incorporated in the Articles of the company.

However, the Company must ensure that the Articles are in consonance with the provisions of the Companies Act. If such Articles of the Company bypass or are ultra vires the provisions of the Companies Act, the provisions of the statute shall overrule the Articles of the Company.[1] The Companies Act ensures that the companies are democratically governed, therefore, providing special rights such as veto rights to the investor who is a minority shareholder, shall not be contrary to the provisions of the Companies Act nor its objectives.

The effect of such veto rights is to protect the minority shareholders’ interests i.e. the investors and hinder or restrict the possible arbitrary conduct or absolute control by the majority shareholders of the Company, especially over the matters relevant to the minority shareholders. However, to enforce such a clause it is necessary for the Company to amend its Articles bringing it in consonance with the SHA. As it has been observed by the Delhi High Court in the case of World Phone India Pvt. Ltd. and Others v. WPI Group Inc. (USA), special rights agreed under an SHA if not incorporated in the Articles, are not binding on the company and clauses in the memorandum, Articles, SHA or resolution if in contravention with the Companies Act, shall be void.

Secondly, while analysing the enforceability of an affirmative voting rights provision in favour of an investor, to further protect the interest of the investors with respect to their special rights, the Companies Act also allows for entrenchment provisions in the Articles, that means specified provisions of the Articles may be altered only if conditions or procedures previously agreed by the parties, which may be more restrictive than those required by law in the case of passing of a special resolution are met or complied with[2]. Thus, a clause requiring an affirmative vote of a particular shareholder for any amendment in the Articles will be enforceable.

Such an entrenchment provision further results in the protection of the interests of the investor where, the Company shall be restricted to exercise its majority opinion by making an arbitrary amendment in the Articles with respect to the concerned rights of the minority investor, thereby prejudicing the minority interests in the company. Thus, the insertion of an entrenchment provision lets the minority investors to exercise some amount of control and effectively put their view on board.

Thirdly, it has to be noted that the SHA is ultimately an ordinary contract. And since its subject matter revolves around the manner in which the Company’s affairs will be conducted, it defines the rights and liabilities of the shareholders and the Company. Hence, the SHA is governed by two legislations i.e. the Indian Contract Act, 1872 (Contract Act) and the Companies Act; its mere non-enforceability under corporate law does not ipso facto imply its non-enforceability under contract law as well. This is because under the Contract Act, an agreement becomes invalid if it falls under section 23, i.e. if it is forbidden by law or is of such nature that, if permitted, would defeat the provisions of law. Since the Companies Act is an enabling statute, a SHA is not forbidden under the it

Further, it is not always that enforcing a SHA under the Contract Act would defeat the provisions under the Companies Act, as sometimes the Companies Act itself allows for such contracting explicitly or impliedly or through its silence on certain aspects which a SHA deals with. Hence, where a SHA is not affected by section 23 of the Contract Act, it could be enforced as an agreement under contract law even when no remedy can be awarded for its breach under Companies Act .[3]

CONCLUSION

Since Veto, affirmative vote or consent rights are a bunch of contractually-agreed matters provided in a Joint Venture Agreement or a Shareholders’ Agreement that need consent of all the parties before being approved and implemented; for the investors their enforceability depends on the Company being made party to it, and the terms of such SHA be brought in consonance with the Articles of such Company by way of an amendment.

[1] Section 6, Companies Act, 2013
[2] Section 5(3), Companies Act, 2013
[3] Vodafone v. Union of India (2012) 6 SCC 613

Loopholes in Indian M&A Laws and the Way Forward

Keywords: M&A, SEBI, Loopholes

(Kritika Ishwar is a B.B.A. L.LB (Hons.) student at Amity Law School, Noida)

INTRODUCTION

Mergers and Acquisitions (M&A) are consolidations, enhancement, and enlargement of scope of business. The unification of companies’ assets through various forms of financial transactions, including mergers, consolidations, tender offers and other such amalgamations related to purchase of assets and management acquisitions is generally used to brief the term M&A. It can happen organically or inorganically.

Organic growth of business refers to the growth of business in size and scale on its own. This can be done by surviving the existing clients, extending client pace, introducing new products or by getting into newer markets.. Inorganic growth is where M&A comes into the picture. It is assumed that by merging the businesses the cumulative value would be exponentially more than what they have individually. Untapped potential that can be tapped by these M&A activities.[1]

LOOPHOLES IN LAWS GOVERNING MERGERS AND ACQUISITIONS

M&A holds a very important and popular role in business strategy for companies looking to expand into new areas, markets or territories. There are five reasons why M&A has proved beneficial in growth strategies-

Fills critical gaps in service offerings and or client lists
Logical way to acquire talent and intellectual property
Opportunity to leverage synergies
New business models
Save time and long learning curves

There are various laws that govern mergers and acquisitions, to achieve growth, prosperity and success in any amalgamations. The key acts which have provisions for regulating mergers and acquisitions are The Companies Act 2013, SEBI (Takeover Code) 2011, SEBI (Issue of Capital and Disclosure Requirements) Regulations 2009, SEBI (Prohibition of Insider Trading) Regulations 2015, The Competition Act 2002, Foreign Exchange Management Act 1999, The Income Tax Act 1961.[2] Loopholes and challenges in some of the provisions are-

COMPANIES ACT, 2013 [3]

The Companies Act, 2013 is one of the most important M&A laws as it deals with the various procedural aspects. The 2013 act regulates the process of mergers, acquisitions and restructuring, facilitates domestic and cross border mergers and other such amalgamations.

Specifically sections 230-234 of Companies Act 2013 govern mergers and schemes of arrangements between a company, its shareholders and/or its creditors. It acknowledges a merger/reconstruction of a foreign company into an Indian company.

With all these provisions and regulations for the betterment and growth of this sector there are various issues or challenges that this act still holds.

1. The Act has failed to consider the practical difficulties which will be faced by the non-residents of foreign owned and controlled companies where 50% of the equity is held by a non-resident or where they have the power to appoint a majority of its directors in the company as a result of certain provisions.

2. The power to make exemptions for private companies has been shifted from the legislature to the executive, most commonly in taxation laws, which has led to uncertainty on the applicability of certain provisions in the future.

3. An important provision in the Act is the restriction on a company from making investments through more than two layers of investment companies. There is no guidance on determination of the principal business of a company. In the absence of any statutory clarity pertaining to this, deal structures would need to be looked into carefully to ensure compliance with this restriction.

4. Lack of Proper Structure- There is lack of awareness about various hindrances like quality and frequency of disclosures of financial as well as managerial aspects. There have been many situations of failure like collusion between the companies and their accounting areas, not so effective internal audits, lack of skills as well no compliance with the standards dealt with.

5. Insider trading- The corporate insiders have the ultimate access to the confidential information of the companies. They may misappropriate this information to earn profits. Although various laws have been regulated to deal with such situations but a lot more has to be gained. [4]

SECURITIES AND EXCHANGE BOARD OF INDIA [5]

SEBI (Takeover Code) 2011, SEBI (Issue of Capital and Disclosure Requirements) Regulations 2009, SEBI (Prohibition of Insider Trading) Regulations 2015 are the key acts that provide laws and regulations for the stocks of the companies merging.

Insider Trading has been a major issue for SEBI to look after. The Indian Securities market regulator has been criticized since long for its failure to scrutinize the matters of insider trading. The following reasons persists-

1. Lack of full-fledged facility to tap devices - SEBI has insufficient basic investigative powers and tools which is a major reason for prosecution of insider trading cases. Even the power to call for phone records of suspects has been granted very late in the process.

2. Enforcement - SEBI has lacked in utilizing its powers to the fullest. It needs to strengthen its surveillance and enforcement functions. It should ensure that violations should not go unnoticed whether small or large.

Some other weaknesses include-

1. The Indian stock market suffers from poor liquidity. The market regulators have lacked the ability to develop a vibrant debt and scrutinize the market but these largely remain part of over the counter market.

2. With time, capital markets are growing and the scale of SEBI operations as compared to security markets is not sufficient to properly regulate the market. Like the US and UK market regulators, SEBI also needs to establish self-regulatory organizations which will lead to them matching up with the global standards.

3. Others- there is lack of professionalism, domination of financial institutions, domination by big operators and also less floating stocks.

CROSS BORDER MERGERS [6]

Cross border mergers and acquisitions have molded the industrial structure at the national level. They are referred to as deals between foreign firms and national firms in the target country. The assets and processes of the firms in different countries are combined to form a new legitimate entity.

Some of the issues faced with respect to cross border mergers are-

1. A lot of mergers have faced failure due to the cultural differences between countries. Due to the geographical scope of the deal there are intercultural disagreements. To manage such issues businesses should be aware of intercultural engenderment and should prepare their workforce for the same.

2. The tax and accounting considerations involve proportion of debt and equity and a clear understanding of such matters becomes significant. Due diligence plays a vital role here. If not regulated efficiently it could influence the deal and could also affect the price of the deal.

3. The not so stagnant laws in an economy may result in regulatory issues in the landscape of target sectors.

THE COMPETITION ACT, 2002 [7]

The Competition Act regulates M&A activities across the globe, focusing on promoting and maintaining competition as well as consumer welfare. The main concerns of this act are-

Prevention of concentration of economic power
Control of monopolies
Forbidding monopolistic, restrictive and unfair trade practices

Competition law allows the aspect of economic analysis of society and the consumer welfare analysis is not taken into consideration. The consumer welfare is much more acquainted to the consumer than to efficiency and though there arises the need to analyze such flaws. It then brings in initiatives to curb them in order to increase total social welfare. Necessary efforts have not yet been made to make sure that our law adopts common principles for the analysis of anti-competitive conduct. Parallel investigation is necessary for global cartels but unfortunately, our country has not yet been able to look into the practices of big cartels like vitamin cartel, price-fixing behavior and others.

THE WAY FORWARD FOR M&A LAWS

A region’s legal and political environment is vital for multinational business enterprises when preparing various investment proposals pertaining to developing markets as a host. Indian Institutional laws, governance and its mechanism are weak compared to advanced countries like Brazil.

It is worth mentioning that there should be reasonable congruence in the legal structures and fiscal policies. In fact, there is a need for a cross-border cash-flow tax regime for both national and global welfare maximization. In addition, an advice to both economic policy makers and regulatory authorities that a tax credit should be allowed in foreign transactions. It will let MNC’s to make more investment in prospective industries.
Better economic governance, laws and procedures, effective bankruptcy laws, showing a strong commitment in the process of financial markets deregulation, enhancing participation in overseas investments in terms of trade, inflows and outflows of FDI and mergers and acquisitions.
There must be second-phase economic and financial reforms towards internationalization and to strengthen the economy and financial system. Therefore foreign investment limits, equity laws, investment banking for mergers and such key reforms should be focused fairly.
MNCs participating in an overseas acquisition should have access to better information relating to the host country’s business environment, local political party influence, economic and financial policies and performance.
To overcome difficulties faced by small scale industries, the government may allow a certain percentage (%) of FDI through acquisition in order to enhance the performance of the country. A legal guideline or framework should benefit business in terms of employment, social security which will lead to growth of the economy. [8]

CONCLUSION

Mergers, acquisitions or any form of unifications are crucial for any developing country. It leads to various advantages like diversification of business, increased synergy, accelerated growth, tax benefit, improved profitability and other such aspects. They accelerate growth by enabling foreign collaboration through cross border mergers and enable companies to withstand global competition.

With such prospective benefits, they need ultimate regulation as they may lead to monopoly or create barriers to entry and similar anti-competitive practices. The efforts that have been made to make these provisions efficient have led to an appreciable state but has scope for a lot more in terms of its regulation. The legislations and regulations together hold the merger control regime and day by day efforts are being put in to make it successful.

[1] https://shodhganga.inflibnet.ac.in/bitstream/10603/103368/12/12_chapter-iv.pdf

[2] http://www.legalserviceindia.com/article/l463-Laws-Regulating-Mergers-&-Acquisition-In-India.html

[3] https://www2.deloitte.com/be/en/pages/mergers-and-acquisitions/articles/growth-through-merger-and-acquisitions.html#

[4] http://www.mca.gov.in/MinistryV2/mergers+and+acquisitions.html

[5] https://www.sebi.gov.in/legal/regulations/sep-2018/securities-and-exchange-board-of-india-substantial-acquisition-of-shares-and-takeovers-second-amendment-regulations-2018_40332.html

[6] https://www.lawctopus.com/academike/foreign-exchange-management-act-1999/

[7] http://www.cuts-international.org/pdf/challenges.pdf

[8] https://corporate.cyrilamarchandblogs.com/category/mergers-acquisitions/

Drag-along and Tag-along Rights in a SHA & their Enforeceability

Keywords: Drag-along rights; Tag-along rights; Shareholders’ Agreement

Christina D'Souza is a III Year B.A. L.LB Student at Dr. Ram Manohar Lohiya National Law University (RMNLU)

INTRODUCTION

A “Shareholders’ Agreement” is an important legally binding contract between the shareholders and the company, and between the shareholders themselves. A Shareholder’s Agreement sets out a shareholder’s rights and responsibilities. The existence of “Drag-along right” and “Tag-along right” in a Shareholders’ Agreement is commonly found in modern day investment agreements. With the rise of globalization and cross-border investments, it becomes essential to understand the importance of these rights as classic exit-related provisions, which are widely used in international Merger & Acquisition deals but remain relatively underutilized in India. Perhaps because of this reason, the enforceability of these rights in India remains debatable.

DRAG-ALONG RIGHTS AND ITS RELEVANCE

Drag-along and Tag-along rights are relatively new to India and therefore, the legal enforceability of such rights is a concern for the foreign investors. For public limited companies, prior to 2013, these rights were practically unenforceable in India because Section 111A of the Companies Act, 1956 (‘the 1956 Act’) required shares of a company be ‘freely transferable’ and the invocation of these rights could have been construed as causing a restriction in the free transferability of shares. However, the doubts regarding the enforceability of the same were cleared by the Bombay High Court in Messer holdings v Shyam Madanmohan Ruia, which held that any contract or arrangement between two or more persons with respect to transfer of securities can be enforced like any other contract and does not impede the free transferability of shares at all.

Thereafter in 2013, the Companies Act, 2013 (‘the 2013 Act’) replaced the 1956 Act, but retained the requirement under new Section 58(2) (corresponding to Section 111A of the 1956 Act) that shares of a company be freely transferable. However, the newly inserted proviso to Section 58(2) made enforceable “any contract or arrangement between two or more persons in respect of transfer of securities”, meaning thereby that the shareholders now had the freedom to incorporate any restriction in the transfer of securities in the Shareholders’ Agreement, including Drag-along and Tag-along rights.

Even though the Drag-along and Tag-along rights may prima facie seem enforceable, it is not clear what should be the pre-conditions required to be satisfied for their enforceability. In the next part of this article, a discussion regarding the importance and existence of these pre-conditions will be made by learning how they are enforced in foreign jurisdictions. Moreover, till now, the enforceability of these rights has been discussed only in the context of a public limited company and in the next part, the context will change to a private limited company.

ENFORCEABILITY IN INDIA: PRIVATE LIMITED COMPANY

As far as a private limited company is concerned, enforceability of Drag-along and Tag-along rights remained in doubt. This is because neither the 1956 Act nor the 2013 Act even remotely talked about Drag-along and Tag-along rights in the context of a private limited company. Shortly after the 2013 Act was introduced, in order to elucidate upon the situation, the SEBI by way of its notification dated 03.10.2013 declared that contracts including Drag-along and Tag-along rights contained in the Shareholders’ Agreement need not seek SEBI’s permission in advance.

The notification was not issued in the specific context of either private limited companies or public limited companies. This can be construed to mean that the Drag-along and Tag-along rights are enforceable in India as long as they are incorporated by the shareholders in their Shareholders’ Agreement and Articles of Association. However, it must be noted that private companies derive this freedom only in the absence of any formal provision applicable to them in this regard. Absence of a formal provision raises certain questions,as would be evident in the subsequent paragraphs.

ENFORCEABILITY AROUND THE WORLD

Despite their widespread use, the enforceability of Drag-along and Tag-along rights has received little attention and relevant case law is also thin on this ground. Authors in common law jurisdictions like Australia, Ireland, Malaysia, the UK, and the US usually point out that there is no prohibition against these clauses and that in principle, they are enforceable.

In the United Kingdom, Drag-along and Tag-along rights are widely regarded as enforceable. These rights are formally recognized by the recent UK legislation in the Growth and Infrastructure Act, 2013. If the enforceability of these rights is challenged, the Court carefully scrutinizes these rights and through the test of reasonableness, it considers whether they are being exercised in good faith. In a recent case, the Chancery Division of the High Court upheld the application of Drag-along provisions in a Shareholders’ Agreement and made itself clear on the enforceability of these rights and held that these rights, if exercised in good faith, are enforceable.

Coming to the US, in so far as the Drag-along rights are concerned, case law seems to suggest that they are enforceable where they serve a reasonable corporate purpose. Failure to comply with the Drag-along sale provisions contained in the Shareholders’ Agreement will render the drag along rights unenforceable.

However, in Turkey, these rights come with practical constraints to enforcement because they are not regulated under the Turkish law and execution of these rights may thus be problematic. In case of a dispute between the shareholders, the courts will not render a specific performance decision, but instead will grant monetary compensation to remedy the Drag-along or Tag-along Rights related breaches.

A more peculiar situation can be observed in Brazil, where the concept of only Tag-along Rights is recognized. However, the position of law on their enforceability is quite dynamic. Initially, a Tag-along right for the minority shareholders was in place. However, a new law was enacted in 1977 amending the previous law which abolished Tag-along rights. The rationale behind this change was to facilitate the ongoing privatization program, allowing the Government to sell off its controlling stakes without sharing the control premium with minority shareholders. In 2011, another amendment was passed to partially reinstate tag along rights.

COMPARATIVE CONCLUSION

The need for protective rights like Drag-along and Tag-along rights in a Shareholders’ Agreement is indispensable. Establishing a company is an adventurous task. It is very important for the shareholders to include proper preventive measures while entering into a Shareholders’ Agreement to be prepared for future conflicts. With regard to the current status of these rights India, a need is realized for certain reforms with respect to both private and public limited companies.

As far as public limited companies are concerned, it is almost settled that Drag-along and Tag-along rights are enforceable. However, since public interest may be involved in such companies, to avoid a possible misuse of the Drag-along and Tag-along rights, certain restrictive guidelines must be issued so as to ensure that these rights are not misused by shareholders. For instance, an insight must be taken from the UK & the US regarding a bar to enforceability of Drag-along and Tag-along rights when they are not exercised reasonably and in good faith. This should ideally be done by a legislative exercise but judiciary’s prudence on the matter will also suffice.

Coming to the private limited companies, their situation in India is similar to the situation of companies in Turkey as discussed above, which is, there is a lack of an express governing law on the matter. Therefore, it is suggested that the Drag-along and Tag-along rights must be formally recognized in the specific context of private limited companies as well and be regulated by the Indian law.

Intellectual Property Due Diligence in M&A Transactions

Keywords: Intellectual Property, Due Diligence, Target Company

(Adv. Meyyappan Kumaran S is a II year, L.LM student at the Tamil Nadu Dr. Ambedkar Law University, School of Excellence in Law)

INTRODUCTION TO DUE DILIGENCE:

A Merger is a transaction wherein a company merges with another to form one company and an Acquisition refers to a transaction where one company acquires another company. When a company merges with or acquires another, it also absorbs its assets and liabilities as on the date of the Mergers & Acquisitions (M&A) transaction, and therefore very careful due diligence must be carried out before concluding the transaction.

Due Diligence refers to the process that the buyer company undertakes to make a thorough analysis of the target company and its finances, contracts and customers. Due diligence happens when a Letter of Intent (LOI) is signed at first. Due diligence is important to help the buyer understand the position of the company and whether it is financially viable to merge with or acquire the concern. It also shows the potential buyer, the risks involved that the company has placed itself into. Such risks are essential to be known to the buyer in advance to help him make careful decisions and to uncover any potential financial threats the company may be facing prior to signing the M&A Agreement.

INTELLECTUAL PROPERTY
Intellectual Property (IP) Law aims at protecting the intellect of a person (Humans) and to create economic value for their information to prevent individuals from copying the work of another. IP Law deals with a plethora of intellectual properties. For a company, IP includes Patents, Trade Secrets, Trade Marks, Designs, and Copyrights and in some transactions, this is the sole reason to buy a company itself by another concern. Hence, it is of utmost importance to conduct an due diligence audit before signing the Letter of Intent.

IMPORTANCE OF IP DUE DILIGENCE IN M&A
The importance of conducting due diligence before investing or acquiring a technology company is more so important because the main reason for buying the technology-driven company would be for its Intellectual Property Assets (IPA) and the value of IP enhances the overall value of the M&A deal to be struck. An IP Due Diligence is mainly to audit and assess the quality of IPAs licensed to the target company (the company that is going to be acquired or merged in the transaction).

The IP due diligence may be the sole criterion to enter or to not enter into such a transaction as its protection is very important, without which the case to acquire the company or to merge with it would become weak for the buyer. This can be done by the target company itself to fix a value for their IP or by the potential buyer to enumerate the risks involved if the IP is purchased.

STAGE WISE APPROACH IN DEALING WITH IP DUE DILIGENCE OF A COMPANY

STAGE 1:

IP lawyers practicing in IP due diligence would be able to tell us the ground rules for conducting a due diligence of the IP owned or licensed by the business concern. This stage would help the buyer know whether to buy the asset or structure it like a share purchase. The buyer should verify the level of IP protection by the target company for it to make an informed decision regarding the M&A of the target company.

A process called ‘high level IP mapping’ is done, wherein the buyer evaluates if there are any obstacles to the deal and which IPAs are core to the business of the target company and for this, the buyer should first evaluate the current level of technology in the target company and identify gaps (if any), the level of IP protection they have, the licences granted to them (if any), and the transfer of such licences, its processes and so on. The important aspect to note here is to include in the M&A agreement about any post-transfer litigations like a patent litigation which would be a costly affair for the buyer, if such a case arises.

STAGE 2:

In this stage, the buyer does a process called a ‘Traditional due diligence’ which is carried out more meticulously, wherein all the IP ie. Copyrights, Patents, Trademarks, Trade secrets, Design, are evaluated in an in depth manner to ascertain the ownership title for the IP, legal protection for the IPA, and use of free and open software and shared IP.

CONCEPT OF SHARED INTELLECTUAL PROPERTY:

A Company may be sharing its IP with another company and the buyer intending to merge with or acquire the firm, should evaluate the potential aspects of shared IP and evaluate whether they would like to continue having such a shared IP with another firm. If they wish so, they must:

a) draft a fresh licensing agreement with the shared IP company post-M&A.

b) If the buyer wants such an IP only for a limited period of time, they need to draft a traditional license at closing of the deal.

c) draft a traditional services agreement in case of shared software wherein, the company may be sharing its pay-roll or telecommunications with its service provider and until the buyer wants to use it or replace it with a company of the buyer’s choice.

TITLE TO THE INTELLECTUAL PROPERTY:
The buyer should study whether the target company owns the IP it purports to own, as any such disputes may cost the buyer dearly to resolve in the courts of Law. The buyer should ascertain whether:

a) ownership records of the IP are clear;

b) whether it is listed in public records;

c) the right to use is with the company and whether the company is currently abiding by usage of such IP so that any legal issue does not crop up in the future.

The due diligence by the buyer should also ascertain the legal protection accorded to the IP of the target company and this exercise requires expertise in due diligence of IP.

SOME OF THE FORMS OF IP-DUE DILIGENCE:

1. TRADE SECRET DUE DILIGENCE

A Trade Secret is an IP of the Company generally not known by any other company in that industry based on which the owning company of such a trade secret gets a competitive advantage over the others in the business arena. Therefore, this is protected under Trade Secrets and they may include patterns, method of preparation, method of production, and the like.

Trade Secrets are primarily protected through secrecy and not merely on paper. Hence, the buyer must carefully analyse the due diligence on trade secrets and launch a study to find out whether the employees haven’t shifted jobs to competitor companies where they let out this trade secret and the form & manner in which this trade secret is documented so as to ensure no reproduction of such a trade sceret is done. If the trade secrets have already been let out, and the buyer would want to litigate the matter, then such costs would have to be incurred which therefore would reduce/diminish the value of the IP further and make it an unviable proposition.

2. SOFTWARE DUE DILIGENCE

While conducting software due diligence, the buyer needs to keep in mind the software licenses granted, whether such a software is needed to continue running the business or the new buyer can get a different software for themselves to use it in the business. If in case, the software cannot be transferred whether there would be any other substitute software he can use, the ways and manner in which the software will be used post closing the deal.

There are basically two types of software that a company may generally use:

a) proprietary software, and

b) third party software.

Proprietary software is owned by the company, if its employees have indigenously developed it. If it is developed by a consultancy firm (third party software), then the target company might only have rights to use the software which must be verified and seen whether such a right can be transferred to the buyer. Consent of the third party is required to be used afresh by the buyer even in case of shrink-wrap and click-wrap licenses.

Also, the buyer company must ensure if all the necessary payments to the software provider are paid up to date when the deal is struck, including any licence fee payments, insurance payments, warranties, maintenance of software, cap on liability, and so on. Otherwise, the buyer will need to pay all this if lapsed and also lose out on protection in case of an unfortunate event. All these are potential risks involved and must be evaluated before signing the deal and reduced into writing.

3. EVALUATION OF QUALITY OF TITLE
The Quality of Title shows the buyer the present worth of the IP of the target company, so as to test if the target company has granted any licenses to the software (which includes conditions and retained rights, the liens and security interests on the title) and if any infringements on the title were done. Like a software, even copyright needs to be evaluated for quality of title and the buyer company has to hire an expert lawyer in this field to carefully conduct the due diligence for them.

CONCLUSION:

We can come to a conclusion on how important it is for a buyer to ensure and verify the status of the IP of the target company before entering into the M&A transaction, as it is extremely important to avoid future litigations due to the pre-M&A faults of target company. IPAs must be scrutinised for their current protection status before signing the deal as IP litigations would cost the buyer company dearly and is a result of not running background checks on the IP of the Company. Hence, whoever intends to enter into an M&A, must do an IP Due Diligence to ascertain the status of the protection accorded to the IP of the target company.

REFERENCES:

https://www.dorsey.com/newsresources/publications/2003/12/intellectual-property-in-ma-transactionswhat-dil__

https://www.corporatelivewire.com/top-story.html?id=ip-due-diligence-in-ma-transactions

Hostile Takeovers of Business Development Companies and Closed-End Funds: SEC takes a U-Turn

Keywords: hostile takeover, Business development companies, SEC, Closed-end funds

(Amar Singh is a II year, B.A. L.LB student at Gujarat National Law University, GNLU)

INTRODUCTION:

When one company acquires another against the target company’s wishes, it is termed as a hostile takeover. This can be accomplished in either of 3 different ways:

Toehold acquisition: an offer to buy stock from the existing shareholders, or
Tender offer: buying majority of shares from the open market, or
Proxy fight: shareholders of the target are convinced to assign their voting rights to the acquiring company so that it can boot out the management opposing the takeover and take control.

While there are various defences available to ward off a hostile takeover until recently one of them called the “Control Share Statute” under U.S. state corporate laws which is a powerful statutory anti-takeover defense was unavailable to Business Development Companies (“BDC”) and Closed-End Funds (“CEF”) which were regulated under the Investment Company Act of 1940 (“1940 Act”).

On 27th May 2020 the Securities Exchange Commission (“SEC”), which is the federal agency of United States Government, reversed its decade-old stance by withdrawing its 2010 no-action letter that prevented BDCs and CEFs regulated under the 1940 Act to exercise the Control Share Statute.

The 2010 letter (“Boulder Letter”) had stated that the SEC staff believed such a statute would be,

“inconsistent with the fundamental requirements of Section 18(i) of the 1940 Act that every share of stock issued by a fund ( A fund is a company under Section 2(8) of the 1940 Act) be voting stock and have equal voting rights with every other outstanding voting stock.”

CIRCUMSTANCES LEADING TO THE ISSUE OF THE BOULDER LETTER:

Section 18(i) of the 1940 Act, as amended states that every share of stock issued by a registered investment company shall be a voting stock with equal rights. A defensive measure that limits the voting rights attached to a share potentially implicates the share voting requirements in Section 18(i) of the 1940 Act. A Control Share Statute generally prohibits an acquirer of “control shares” from voting its control shares unless or until its voting rights are reinstated by a vote of the disinterested shareholders.

In a 2007 opinion, the U.S. District Court for the District of Maryland, inter alia applied the terms of the Maryland Control Share Acquisition Act (“MCSAA”) to shares acquired by a stockholder after the fund had opted in to the statute. In a 2009 speech, however, the director of the SEC’s Division of Investment Management expressed the view that a closed-end fund’s reliance on control share statutes “constitutes a denial of equal voting rights and may violate the fundamental requirement that every share of fund stock be voting stock.” Subsequently, the Boulder letter was issued.

CRITICISM OF THE BOULDER LETTER:

Recently, the Investment Company Institute submitted a report (“the ICI Report”) to the SEC that criticized the Boulder Letter’s stand on the issue. The ICI Report stated that the letter misreads the plain language of Section 18(i) because it pertains to the voting rights of each share of stock, rather than the voting rights of a particular stockholder.; The use of defensive measures, including a control share statute that impact the voting rights of a particular stockholder does not change the stock’s voting rights and thus, does not violate Section 18(i) of the 1940 Act.

In addition, if a disinterested shareholder vote restores an investor’s ability to vote control shares, or that investor sells or otherwise reduces his holdings below the applicable statutory threshold, that investor would again be permitted to vote on all his shares, and none of these events would change the voting rights of those shares. The ICI Report also argued that enabling the use of such takeover defenses to prevent activist shareholders from taking control of a fund for their own benefit at the expense of the fund and the other shareholders furthers the purposes of the 1940 Act.

REVERSAL OF SEC's STAND AND WITHDRAWAL OF BOULDER LETTER:

In 2018, SEC Chair Jay Clayton issued a statement noting that the “staff statements are nonbinding and create no enforceable legal rights or obligations of the Commission or other parties” and stating that the SEC’s divisions and offices “have been and will continue to review whether prior staff statements and staff documents should be modified, rescinded or supplemented in light of market or other developments.” Without commenting specifically on the several arguments that have been raised since 2010 regarding the Boulder Letter, in the statement the SEC staff announced that based on this review, as well as market developments since the Boulder Letter’s issuance and recent feedback from affected market participants, the Boulder Letter shall be withdrawn effective immediately.

The Statement also provides that the SEC staff:

“would not recommend enforcement action to the Commission against a closed-end fund under Section 18(i) of the 1940 Act for opting in to and triggering a control share statute if the decision to do so by the board of the fund was taken with reasonable care on a basis consistent with other applicable duties and laws and the duty to the fund and its shareholders generally.”

The SEC staff cautioned that any inquiry into the application of Section 18(i) of the 1940 Act to a fund’s decision to opt in to a control share statute would be based on the facts and circumstances. In this regard, the SEC staff reminded market participants that any actions taken by a board of a fund, including with regard to control share statutes, should be examined in light of:

the board’s fiduciary obligations to the fund,
applicable federal and state law provisions, and
the particular facts and circumstances surrounding the board’s action.

The 27th May 2020 statement adopts the position that the SEC staff “would not recommend enforcement action to the Commission against a closed-end fund under Section 18(i) of the 1940 Act for opting in to and triggering a control share statute if the decision to do so by the board of the fund was taken with reasonable care on a basis consistent with other applicable duties and laws and the duty to the fund and its shareholders generally.”

The statement also requests inputs as to whether the SEC staff should recommend that the SEC take an additional action to provide clarity regarding the applicability of the 1940 Act to a closed-end fund’s decision to opt in to a control share statute.

CONCLUSION:

For BDCs and CEFs this is good news since now they can freely utilize the defense available to them under the state laws which they were previously hesitant to use since the SEC staff statement though not binding did have an effect on the willingness of the board to rely on the Control Share Statutes.

-by Amar Singh

Efficacy of the Demerger Route and its impact on Shareholder Value

Keywords: Demerger, Companies Act 2013, Company Examples, Corporate restructuring

Keywords: Demerger, shareholder value, corporate, corporate restructuring, Jio Demerger

(Dhruv Thakur is a IV year, B.B.A.LL.B student at Gujarat National Law University, GNLU)

INTRODUCTION:

Companies have now figured out that a diversified business model under one listed entity fails to attract the required valuation. In the previous decade, India witnessed a trend where companies rambled diversification drives beyond their central businesses. However, in today’s era, there is a clear inclination towards value unlocking by demerging business units which indicates many of them have now realized that the diversified business model does not work well in terms of stock valuations and fundraising compared to companies which stayed focused on their core businesses. But the question is whether in the last few years demergers have created value for shareholders? Before diving into that it is important to get familiarized with the fundamental idea behind a demerger.

DEFINITION AND RATIONALE OF A DEMERGER:

A Demerger is essentially separation of one or more units of a company to either be liquidated or form a new company independent from the original one. Primarily, demergers are a form of corporate restructuring the objective behind which is to promote specialization. Sections 230 to 240 of Chapter XV of the Companies Act, 2013 (hereinafter ‘CA, 2013’) read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 are the applicable provisions in case of a demerger. The term ’demerger’ is not defined under the CA, 2013 per se but explanation to Section 230 (1) allows for division of shares of different classes as a route for the readjustment of share capital. Section 2 (19AA) of Income Tax Act, 1961 (hereinafter ‘IT Act’)defines a demerger as-

“Demerger”, in relation to companies, means the transfer, pursuant to a scheme of arrangement under sections 391 to 394 of the Companies Act, 1956 (1 of 1956, old act), by a demerged company of its one or more undertakings to any resulting company…”

However, it was held by the High Court of Delhi in the matter of Indo Rama Synthetics Ltd. that the definition under the IT Act was only for the mere purpose of making sure that the demerger was tax neutral, irrespective of whether it fulfills other conditions as regarded by the IT Act.

The rationale behind pursuing demergers is based on the many benefits if offers, which works as motives for a company to initiate the process. It allows a specific division or unit to grow as a separate and focused entity, thereby increasing its efficiency and effectiveness.

To illustrate better, Reliance Jio Infocom Ltd. (hereinafter ‘RJI’) which had three primary undertakings namely (a) digital services business, (b) optical fibre business, and (c) tower infrastructure business went for an NCLT approved demerger process in 2019. It transferred the optical fibre business to a newly formed company ‘Jio Fibre Pvt Ltd.’ and the tower infrastructure business to an existing company ‘Reliance Jio Infratel Pvt Ltd’. However,the digital services business was retained with the original company (RJI).

Each of the three undertakings do have a distinct strategy, separate industry specific risks and operate inter alia under differentiated market dynamics. Even the competition involved in each of the businesses is different from the other two. Hence, segregation of the company by a demerger will incorporate enhanced focus of each of the undertakings and help exploit varied opportunities in their respective fields. Here’s a link to RJI’s composite scheme of arrangement.

Further, in a few cases of family owned companies, demergers are also used to give effect to family partitions, for instance the division of Ambani Group in 2013 between Anil and Mukesh Ambani, splitting up Reliance Industries Ltd. into four distinct entities.

WAYS TO GIVE EFFECT TO A MERGER:

Agreement between the promoters

Under this case a company may hive off its undertaking to a new resulting company. This new company formed due to the demerger issues shares of the resulting company to shareholders of the parent company as consideration. The assets and liabilities pertaining to the undertaking which has been demerged will be transferred to the new resulting company.

2. Demerger under the scheme of arrangement

Similar to the amalgamation process, in this case approval from the NCLT, under CA, 2013 is mandatory. Provisions governing this route are Sections 230-232 of the CA, 2013. However, this route is only permissible if the Memorandum of Association (hereinafter ‘MoA’) and Articles of Association (hereinafter ‘AoA’) of the company allow for such a process. If not, then the first step would be to amend the AOA of the company by passing a special resolution in the general meeting.

3. Demerger under voluntary winding up and the power of liquidator

After the split of the original company into various companies, the original company can go for voluntary winding up under Section 270 of the CA, 2013. Original company may transfer or sell its workings to the resulting companies.

DEMERGERS AND SHAREHOLDERS' VALUE:

Demergers benefit the shareholders of the company by providing them shares of the applicant company (which is going for the demerger) as well as the resulting company (company segregated from applicant company), which in turn divests better opportunities to participate in the management, decision making process, operations and profits.

But is shareholder value in practice enhanced by demergers and spin-offs? It depends and needs to be carefully examined, as with everything else in life. It is a well-known fact that one of the major objectives behind demergers is to increase the shareholder value. Disposal of any undertaking, will replace cash and/or securities for assets. The benefits to shareholders are mightily dependent on the reaction of the stock market. The typical situation is where the subsidiary is in a high rated sector (rated highly by the market) and the seller is outmoded. Then as an inevitable result demerger unlocks the hidden value for shareholders who receive a part in the demerged equity.

To give an example, in 2016 Crompton Greaves through a court approved process demerged its consumer product business into a separate listed company ‘Crompton Greaves Consumer Electrical’. Consequentially, shareholders of Crompton Greaves were issued shares in the resulting company, The result of the arrangement was a 57% combined return of both original and resulting undertaking since its record date on March 16, 2016.

CONCLUSION:

Well, ideally shareholders of the demerged undertakings do reap the benefits of higher focussed businesses with management accountability driving the intrinsic value of each company, propelling their respective share prices higher than had they remained a combined entity. And spin-offs are usually preferred over IPOs by investors due to their assets being better known and better positioning of incentives due to the parent company’s wish for the progeny to succeed. That being said, have spin-offs underachieved after being demerged?

A few definitely have. All things considered, one thing is for certain, be it Crompton Greeves 2016 demerger (57% combined return) or Reliance Jio Infocom’s 2019 demerger, the value generated for shareholders is positively reflected in the market price of the demerged and resulting corporate entities where the split in undertakings is well defined and better thought out.

Fundamental Framework for Takeovers of Listed Entities

Keywords: M&A, takeover, PAC, Creeping acquisition, open offer, public announcement

[Anjana Ravikumar is a III Year B.B.A.LL.B student at Gujarat National Law University (GNLU)]

INTRODUCTION

Since the advent of globalization, the doors of the Indian economy have been open for overseas investors. To compete on a global platform, companies have to continuously amplify the scale of their business. Mergers and Acquisitions (“M&A”) pave the way for a suitable option to capture the opportunities created by such policies.

BACKGROUND

One of the earliest takeovers in India can be traced back to the acquisition of Pukhuri Tea Co. Ltd. by Bishnauth Tea in 1965. However, the waves of corporate deal-making swept the Indian landscape during the 1980s, which witnessed tentative reforms under the Rajiv Gandhi administration. The first hostile takeover attempt was made out by the London based industrialist, Swaraj Paul in 1983.

A takeover is an acquisition of control of a registered company through the purchase or exchange of shares. A Merger on the other hand involves the amalgamation of two or more companies either through the exchange of shares or the formation of a new company. Thus, while mergers involve an amalgamation through mutual consent of the companies, acquisitions or takeovers may either be friendly or hostile. Further, in an acquisition, the target company is engulfed by the acquirer and hence ceases to exist, while in a merger it is the fusion of two or more companies into one new entity.

Takeovers have been associated with propelling economic efficiency. However, it has a tendency for being exploited as a weapon, at the disposal of corporate raiders with massive capital resources, often prejudicial to the interests of retail investors. To prevent such exploitation and encourage the growth of the securities market, SEBI was established in 1992 as a regulatory body.

Subsequently, the SEBI (Substantial Acquisition of Shares and Takeover [SAST]) Regulations, 1997 were formulated; incorporating the suggestions of the PN Bhagwati Committee. These were substituted by the SEBI (Substantial Acquisition of Shares and Takeover) Regulations in 2011 (hereinafter “Takeover Code”). based on the recommendations of the Takeover Regulations Advisory Committee (“TRAC”) headed by Mr. C. Achuthan.

IMPORTANT TERMINOLOGIES:

Persons acting in concert (“PACs”):

According to Regulation 2(1)(q) of the Takeover Code, PACs are persons who, in furtherance of a common objective or purpose of substantial acquisition of shares, voting rights, or gaining control over the target company. The same is done pursuant to a formal or informal agreement or an understanding which is pertaining to either directly or indirectly co-operating in acquiring, agreeing to acquire shares, voting rights or control of the target company. The question regarding whether two persons constitute PACs is to be answered based on an analysis of the facts and circumstances of the case.

The scope of PAC has been broadened to include a new class known as deemed PACs under regulation 2(1)(q)(2) of the latest Takeover Code. Deemed PACs include promoters, immediate relatives, trustees, a collective investment scheme and its company, venture capital fund, and its sponsor and asset management company. However, deemed PACs will be considered after the abovementioned PACs as acting in concert.
Acquirer

An acquirer is defined under regulation 2(1)(a) of the Takeover Code. Any person who by himself or through or with PACs, directly or indirectly acquires or agrees to acquire, shares, voting rights or control of the target company is called an acquirer. An acquirer may be a natural person, a corporate entity, or any other legal entity.

DISCLOSURE REQUIREMENTS:

To ensure that the price discovery of shares of the target company takes place in an informed manner, several disclosures have been made mandatory under Chapter V of the Takeover Code. The disclosures required are:

Disclosure of acquisition and disposal: It is required for all acquirers to disclose acquisitions of 5% or more voting rights of the target company within two working days after such acquisition. The disclosure must be made to every stock exchange where the shares of the company are listed and to the registered office of the target company. The same does not apply to a scheduled commercial bank or a public financial institution.

Continual disclosures: If any acquirer along with his PACs holds shares or voting rights entitling him to exercise 25% or more of voting rights in the target company, he is required to disclose the same. Further, every promoter along with his PACs is required to disclose their aggregate shareholding and voting rights in the form as specified in the Regulations.

Disclosure of encumbered shares: The promoter along with his PACs shall disclose details regarding any shares encumbered by them or any release or invocation of such encumbered shares to the stock exchange and the target company’s registered office within seven working days.Disclosure requirements thus, seek to protect the interest of the public stakeholders by ensuring transparency.

OPEN OFFER:

An open offer under the Takeover Code is an offer made by an acquirer to the shareholders of the target company inviting them to tender their shares at a particular price. It provides an exit option to the shareholders of the target company during a change in control or substantial acquisition of shares in the target company. Thus, open offer provides the public shareholders an opportunity to withdraw their investment when there is a change in the management or promoter shareholding.

The Takeover code stipulates clearly that not just direct but even indirect acquisitions of shares, voting rights or control will trigger an open offer. Indirect acquisition is defined under regulation 5(1) of the Takeover Code. It includes any acquisition of shares, voting rights in or control over any company which enables the acquirer and PACs, to exercise or direct the exercise of control over or voting rights in the target company. Such acquisition is made without attracting the obligation to make an announcement of public offer.

To protect the economic interests of the exiting shareholders of the target company, it has been made mandatory for the offer to be at the best possible terms for the shareholders. To ensure the same, the Takeover Code prescribes the timing, minimum offer size, price discovery mechanisms, etc. An open offer may be:

Mandatory Open Offers: The Takeover Code prescribes certain circumstances under which an acquirer is obliged to issue a mandatory tender offer to the existing shareholders of the target company to acquire at least a minimum of 26% of its shares. The triggers/ circumstances include:

Initial Trigger – When the acquirer along with his PACs plans to acquire shares which allows them to exercise 25% or more of the voting rights in the company.
Consolidation Trigger – When acquirer and PACs together hold 25% or more of shares or voting rights but it is less than the maximum permissible limit of non-public shareholding in a target company.
Control Trigger – When an acquirer gains control over the target company, irrespective of shares owned.
Trigger on Indirect Acquisition – When an acquirer indirectly acquires the ability to exercise voting rights or control over target company as specified in initial, consolidation, or control triggers.

Voluntary Open Offer: A voluntary offer is made by an existing shareholder or an acquirer who holds no shares. Under Regulation 6 of the Takeover Code, a voluntary offer is to be made when the acquirer and PACs exercise a minimum of 25% or more of voting rights but less than the maximum limit of non-public shareholding in the target company. Voluntary offers have to be made for a minimum of 10% of the total shareholding of the target company.

Competing Offer: The Takeover Code under Regulation 20 permits third parties to make offers to the shareholders providing exit opportunities while the acquirer’s open offer subsists. This creates orderly competition among acquirers.

PROCEDURE OF AN OPEN OFFER:

The major steps involved in the open offer process are as follows:

CREEPING ACQUISITION:

· Covered under Regulation 3(2) of the Takeover Code, Creeping Acquisition is a means to facilitate the consolidation of shares, voting rights, or control in the company by persons already holding or controlling a substantial number of shares.

· Under this provision, acquisition of voting shares in a listed company; without public announcement; in excess of 25%, is permissible provided that the acquisition is limited to 5% in one financial year.

· Every financial year, an additional 5% voting rights can be acquired by an acquirer with PACs. However, this additional acquisition via creeping acquisition can only extend up to a total shareholding of 75% of the share capital.

· Beyond this 75% limit, a public announcement is mandatory. The 5% limit is to be calculated by aggregating all purchases, without including the aggregate sales.

EXEMPTIONS FROM OPEN OFFERS:

The exemptions applicable to open offers are dealt with under Regulation 10 and 11 of the Takeover Code. Circumstances under which a company is exempt from the issue of open offer include:

1. Inter se Transfers: Inter se transfers occur between immediate relatives, between a company and its subsidiaries, holding company and other subsidiaries of such holding company are exempt from the obligation of issuing open offer. Transfer to PAC for three years or more, prior to the proposed acquisition is also exempted.

Regulation 10(1)(a)(ii) of the Takeover Code provides for inter se transfer amongst promoters which can be exempted only if the said promoter holds shares for at least three years, prior to such acquisition. Inter se transfers are exempt from the obligation of open offer since there is no change in ownership per se.

2. Trusts: The transfer of shares to trusts are exempt from the obligation of open offer under the following conditions:

Such transfer shall not affect the ownership or control of shares or voting rights in the target company.
The trust is a mirror image of the promoter holding such shares.
Only individual promoters, immediate relatives, or lineal descendants can be the beneficiaries of the trust.
The beneficial interest shall not be transferred, assigned, or encumbered.
After dissolution, the assets can be transferred only to beneficiaries or their legal heirs.
The trustees cannot transfer or delegate their powers.

3. Intermediaries: The transfer of shares in return for services rendered are exempt from the obligation of open offer. Intermediaries include underwriters, stockbrokers, merchant bankers, registered stock marker, and scheduled commercial banks acting as an escrow agent.

4. Insolvency and Bankruptcy: The acquirers of distressed companies are not obliged to make an open offer. The acquisitions of Bhushan Steel by Tata Steel is one such acquisition under IBC which was exempted from open offer obligation.

5. Disinvestment: Defined under Regulation 2(g) of the Takeover Code, disinvestment is the direct or indirect sale by the Central/State Government or by a government company of shares, voting rights or control over a target company, which is a public sector undertaking. Acquisition of shares during disinvestment is exempt from the obligation of open offer.

6. Investment Funds: Alternate Investment Funds and Venture Capital Funds are exempted from making an open offer, when their investments cross the threshold which triggers an open offer.

7. Buyback of shares: If the buyback of shares results in an increased shareholding of the promoter, it will not trigger an open offer.

8. Forfeiture of shares: Increase in voting rights of existing shareholders due to forfeiture of partly paid shares and non-payment by defaulting shareholders does not necessitate the issue of an open offer.

9. Acquisition under the SARFAESI Act, 2002: The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) vests in banks the power to auction properties of borrowers who default the loan payment.

Asset Reconstruction Companies acquiring financial assets from banks and other financial institutions are duty-bound to return them upon recovery of the amount. Such acquisitions under SARFAESI Act, therefore, fall within the ambit of exemption from open offers.

Acquisitions by way of transmissions, inheritance, succession, rights issue, and exchange of shares also fall within this exemption. When the company is unsure about the exemption of a proposed transaction, it may seek informal guidance from SEBI through an application. Further, SEBI also has the discretionary power to grant exemptions for specific transactions, in the interest of the stakeholders of the company though not provided for in the code.

PUBLIC ANNOUNCEMENT:

When the acquirer acquires voting rights of the target company, in excess of limits prescribed under Regulation 3 and 4 of the Takeover Code, the acquirer is required to give a Public Announcement of Open offer to the shareholders of the target company.

It contains details about the offer, the acquirer(s)/PAC, the transaction which triggered the open offer or the underlying transaction details of selling shareholders (if any), the target company, and the price and mode of payment. It is the first announcement made by the acquirer disclosing details of the intention to acquire the shares of the target company from existing shareholders through an open offer.

Public Announcement is issued on behalf of the acquirer, by the Manager to the offer, in the format as provided under Regulation 15(1) of the Takeover Code. The Takeover Code also prescribes a specific timeline for Public Announcement. Public announcements are essential to safeguard the interests of the shareholders.

DETAILED PUBLIC STATEMENT (DPS):

The DPS is the second announcement made by the acquirer and the PACs disclosing all relevant information regarding the open offer. It enables the shareholders to make an informed decision regarding the open offer. Under Regulation 13(4) of the Takeover Code, a DPS shall be published by the acquirer through the manager to the offer within a maximum of five working days from the date of Public Announcement. Regulation 15(2) of the Takeover Code provides the format for the Detailed Public Statement.

LETTER OF OPEN OFFER (LO):

After the publication of Detailed Public Statement (DPS), within 5 days, the acquirer through the manager of the offer is required to file a draft letter of offer with SEBI. SEBI is required to revert with its comments on the LO within 15 working days. SEBI oversees that the disclosures contained in the LO are adequate and in conformity with the Regulations. Once approved by SEBI, it is dispatched to the shareholders of the target company as on an identified date.

While the PA and the DPS are made by the acquirer to inform the public of an exit opportunity available to them, the LOO is an offer made by the acquirer to the identified shareholder of the target company to purchase their shares.

CONCLUSION:

Although not all corporate takeovers may be deemed beneficial to the economy, an overwhelming majority of them are economically justifiable and are not mere opportunistic managerial power-grabs. SEBI has constantly strived to curb undesirable practices and protect the interests of investors to encourage mergers and takeovers.

The new Code based on the suggestions of the TRAC has relied on court rulings, International Takeover Codes, and sound statistical analysis to plug all loopholes. It aims to provide clarity by simplifying and aligning with internationally accepted practices.

The ever-evolving public M&A landscape continues to throw new challenges for SEBI to address. However, the new Takeover Code presently is at par with any foreign code on mergers and acquisitions and continues to ensure a systematic and transparent mechanism for takeovers in India.

-By Anjana Ravikumar

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