Changes to Takeover Regulations

SEBI has approved most of the changes suggested by the Takeover Regulations Advisory Committee (TRAC) last year to the Takeover Regulations. The key changes are summarized in SEBI’s board note:

a) Initial trigger threshold increased to 25 % from the existing 15 %.

b) There shall be no separate provision for non-compete fees and all shareholders shall be given exit at the same price.

c) In cases of competitive offers, the successful bidder can acquire shares of other bidder(s) after the offer period without attracting open offer obligations.

d) Voluntary offers have been introduced subject to certain conditions.

e) A recommendation on the offer by the Board of Target Company has been made mandatory.

In the following areas, SEBI either did not accept, or deviated from, the recommendations of TRAC:

f) Existing definition of control shall be retained as it is.

g) The minimum offer size shall be increased from the existing 20 % of the total issued capital to 26 % of the total issued capital.

The Board did not accept the recommendation of TRAC to provide for delisting pursuant to an offer and proportionate acceptance.

Here are some quick reactions:

1. The increase in the mandatory offer threshold from 15% to 25% brings the Takeover Regulations closer to other regimes that have a somewhat similar threshold (e.g. 30% in the UK and Singapore). This will provide ample opportunity for existing shareholders or new investors to raise their shareholding up to 25%, which SEBI appears to have set as the limit when effective control can be said to have passed to the acquirer. It will also benefit companies as they will be able to attract investors in a less tedious manner, as such investors will not be obligated to make an open offer up to the higher threshold of 25%.

2. As for the offer size, SEBI has not accepted the recommendations of TRAC to mandate a 100% offer. Understandably, those recommendations increase the cost of acquisition, especially in a scenario where bank or similar financing is hard to come by (if at all) for Indian acquirers. SEBI has instead adopted an interesting via media of increasing the offer size to 26%. The idea seems to be to provide the acquirer with the ability to obtain de jure control of the company, with an initial 25% acquisition coupled with 26% in the open offer (assuming full acceptance).

3. As far as the definition of “control” is concerned, SEBI’s decision to maintain status quo may perpetuate the existing ambiguity. While the increase in the mandatory offer threshold from 15% to 25% will provide more wiggle room for investors, adequate care must be taken to ensure that they do not get ensnared within the wide definition of “control”, which nevertheless triggers mandatory offer requirements. Although investors have obtained some respite with the favourable ruling in the Subhkam case, the uncertainty may be far from over given that an appeal has been filed in the Supreme Court.