This article is written by Bhavna Hemrajani, pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) from Lawsikho.com.
The SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 2011 (“Takeover Code”) applies to an acquisition, directly or indirectly, of shares, voting rights in or control in the company except where the company issued shares on the institutional trading platform of a recognized stock exchange. The provisions of the Takeover Code mandate the target company and the acquirer to submit a few documents to the Securities and Exchange Board of India (“SEBI”) at different stages until the whole acquisition procedure is completed. The intention behind mandating the same is to ensure transparency and fairness and prevent any wrongdoings against the public shareholders. This article shall discuss the relevance and all essential details concerning all statutory documents to be submitted by the acquirer and the target company to SEBI and the stock exchange in accordance with the Takeover Code and other compliances.
Where an acquisition triggers the application of Regulation 3 (‘Substantial Acquisition of Shares or Voting Rights’), Regulation 5 (‘Indirect Acquisition of Shares or Control’), Regulation 5A (‘Delisting Offer’) read with Regulation 4 (‘Acquisition of Control’), every acquirer is legally obligated to make a public announcement of an open offer. The copy of the public announcement is to be sent to SEBI within 1 working day of the date of the public announcement (Regulation 14(2)). As provided under Regulation 15(1), the public announcement shall be inclusive of the following information:
- name and identity of the acquirer and persons acting in concert with him;
- name and identity of the sellers, if any;
- nature of the proposed acquisition such as the purchase of shares or allotment of shares, or any other means of acquisition of shares or voting rights in, or control over the target company;
- the consideration for the proposed acquisition that attracted the obligation to make an open offer for acquiring shares, and the price per share, if any;
- the offer price, and mode of payment of consideration; and
- offer size, and conditions as to the minimum level of acceptances, if any.
To prevent any wrongdoing, the Code mandates that no relevant information shall be omitted or misleading information shall be put (Regulation 15(3)) but the same isn’t enough. In my view, to prevent dissemination of wrong information which could possibly result in confusion and chaos, the provision should provide a prior submission of the public announcement rather than ‘within one working date of the date of the public announcement’. In a hypothetical situation, if the announcement is made on a Friday and the Board received a copy on the succeeding Monday and if the announcement contains any wrong information, the time in between could cause irreparable damage to the Target Company and shareholders. In such circumstances, a penal action isn’t sufficient to undo the damage caused.
The second most important document to be filed with the Board is a detailed public statement. A copy of the statement is sent to the Board and stock exchange simultaneously when it is published in the daily newspaper (Regulation 14(4)). This document contains all the necessary information concerning the open offer based on which the public shareholders shall choose to tender their shares to the acquirer. However, it is surprising to note considering the relevance of this document, the Code fails to specify the details of the document and merely state under Regulation 15(2) that the detailed public statement pursuant to the public announcement shall contain such information as may be specified in order to enable shareholders to make an informed decision with reference to the open offer. The words appear to be wide and vague and reflect a lazy attitude of drafting. They fail to specify how the content of the public statement shall differ from those of the public announcement. The said can be interpreted differently therefore, there shall be no uniformity regarding publication which may cause confusion for the public shareholders. Further, such a wide interpretation may allow companies to create any loopholes as well. In practice, many companies do follow a standard format but to ensure that all companies follow it as a norm such widely worded provisions should be amended.
Pursuant to the publication of the public statement, the acquirer is mandated to file the draft Letter of offer with the Board and stock exchange (Regulation 18(1)). The letter carries the formal proposal to the concerned shareholder to tender their shares at a respective price in light of the proposed takeover. Lastly, within 5 working days after the offer period, the acquirer is obligated to issue a post-offer advertisement that reflects the details of shares tendered and the accepted date of payment of consideration. This advertisement has to be published in daily newspapers and sent to the Board and stock exchange (Regulation 18(12)).
After the acquisition has taken place, the acquirers and PAC are obligated to make certain disclosures. Firstly, the acquirer and PAC shall submit the details regarding shareholding and voting rights in the target company within 7 working days from the end of each financial year to the stock exchange(s) where the shares have been listed (Regulation 30(1) and (2). Secondly, the promoter of the Target Company is obligated to disclose details of shares encumbered by him or PAC in the target company within 7 working days from the creation or invocation or release of encumbrance to the stock exchange where shares of the Target Company have been listed (Regulation 31).
Other listing compliances
- Quarterly, half-yearly, and annual compliances
The recognized stock exchanges provide a list of certain documents which have to be submitted to it by a Target Company in a routine manner and as part of the compliance under the Listing Agreement read with the SEBI Regulations.
For quarterly compliance, the target is mandated to submit the following:
- Shareholding pattern details within 21 days from the end of the quarter (Regulation 31(1)(b) SEBI (Listing Obligations and Disclosure Requirements) Regulations;
- Corporate Governance Report within 15 days from the end of the quarter (Regulation 27(2)(a) SEBI (Listing Obligations and Disclosure Requirements);
- Financial Results along with Limited Review Report or the Auditor’s Report within 45 days from the end of the quarter (Regulation 33(3)(a) SEBI (Listing Obligations and Disclosure Requirements);
- Reconciliation of share capital Audit Report within 30 days from the end of the quarter (Regulation 31(1)(b) SEBI (Listing Obligations and Disclosure Requirements)
- Statement of Grievance Redressal Mechanism within 21 days from the end of the quarter (Regulation 13(3) SEBI (Listing Obligations and Disclosure Requirements); and
- Statement of deviation or variation.
For half-yearly compliance, target is mandated to submit the following:
- Share Transfer Agent agreement within 1 month of the end of half of the financial year (Regulation 7(3) SEBI (Listing Obligations and Disclosure Requirements), and
- Document for Transfer of securities within 1 month of the end of half of the financial year (Regulation 40(10) SEBI (Listing Obligations and Disclosure Requirements.
For annual Compliance, Target Company is mandated to submit the Secretarial Compliance Report, Financial Results along with the Auditor’s Report, and Annual Reports of the target company.
- Prior Intimation under Regulation 29 (2) (c) of SEBI (Listing Obligations and Disclosure Requirements) Regulations
In an event of voluntary delisting, the Target Company is required to intimate the stock exchange within at least 2 days in advance, excluding the date of intimation and date of meeting before the date of the Board meeting of the company for approving the voluntary delisting of shares.
- Disclosure of events or information under Regulation 30 of SEBI (Listing Obligations and Disclosure Requirements) Regulations
Sub-regulation (1) mandates that a listed company to disclose all information which is material or deemed to be deemed as specified under Schedule III which includes the case of voluntary delisting (i) as soon as possible reasonably and not later than 24 hours from the occurrence of event or information.
- Holding of specified securities and shareholding pattern under Regulation (1)(c) of SEBI (Listing Obligations and Disclosure Requirements) Regulations
A listed company is obligated to submit a statement showing holding of securities and shareholding patterns separately for each class within 10 days of capital restructuring resulting in a change exceeding 2% of the total paid-up share capital.
Any public company which seeks to be listed on a recognized stock exchange is mandated to follow all compliances provided under the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 amended time to time and the terms and conditions of the listing agreement which it enters with the stock exchange. Such a listed company is referred to as a target company in reference to SEBI (Substantial Acquisition and Takeover Code) Regulations. The said regulations were enacted to govern the acts of acquisition which causes a substantial change in the shareholding pattern, management, and voting rights along with a potential impact on the position of public shareholders. Both of the above-mentioned regulations provided various steps and compliances which shall be fulfilled by the target company and acquirers. Any failure in the filing of any documents as provided under the regulations or agreement can lead to grave consequences in form of penalty to the acquirers and target company executives and therefore, it is of utmost importance that parties concerned are aware of the same before they choose to fall under the applicability of the regulations.
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