Buyers have to make open offer for upto 100% stake!

Last Updated: Sunday, December 27, 2009 - 16:20

Mumbai: Corporate acquisitions in India could become costlier with market regulator SEBI mulling making it mandatory for acquirers to make an offer for up to 100 percent stake in any listed company.

As of now, an open offer for a minimum of 20 percent in the target company is required to be made by any entity that has purchased 15 percent equity, either from the promoters or the open market.

The Securities and Exchange Board of India has set up a Takeover Regulatory Advisory Committee, with former Securities Appellate Tribunal (SAT) presiding officer C Achuthan as Chairman, which is looking into suitable changes in the existing takeover regulations.

While any changes are expected to take effect from the next fiscal only, the committee is said to be seriously looking at increasing the open offer size from 20 percent to as high as 100 percent, while it might also increase the open offer trigger limit from 15 percent, sources said.

While an increase in open offer size could mean larger cash outgo for the acquirers, the step is being considered in larger interest of retail and other public shareholders.

As per the current practice, all the public shareholders do not necessarily get an exit option even if the ownership of a company changes hands, as the open offer size need not be more than 20 percent.

In most of the M&A deals, the promoters sell off their stake to the acquirer, which later makes a 20 percent open offer for public shareholders.

Accordingly, an acquirer can get away with acquisition of just 35 percent stake in a listed company? 15 percent from promoters or open market and further 20 percent from public open offer? Thus leaving as much as 65 percent equity holders without any option to sell their shares.

The SEBI committee is currently holding talks with various stakeholders on the issue, sources added. The acquisition of shares and control of a company are currently governed by the SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 1997, commonly known as the Takeover Code.

While there have been many amendments to the code,
whenever there has been any need, such as any particular deal.

Experts have been saying that some parts of the code
needed to be changed and an urgent attention was needed in the
open offer trigger and size related provisions.

They have been asserting that an open offer trigger of as
low as 15 percent restricts the companies, mostly private
equity firms, from making any larger investment in a company.
The current rules restrict any investment to below 15 percent, unless the investor is willing to go for as high as 35 percent investment.

Globally, many countries such as the UK, Hong Kong and
Singapore, have a higher open offer trigger limit.

The demands for a higher open offer size, compared with
20 percent currently, is mostly based on the fact that many
shareholders get stuck in a company even if they want to exit
in cases like change in control of a company.

As per the current regulations, an acquirer who intends
to acquire shares which alongwith his existing shareholding
would entitle him to exercise 15 percent or more voting
rights, can acquire such additional shares only after making a
public offer to acquire atleast additional 20 percent of the
voting capital of target company from the shareholders through
an open offer.

The price for the open offer is derived after taking into
consideration the negotiated price under the agreement which
triggers the open offer and the price paid by the acquirer for
acquisition.

Besides, it needs to take into account the average of
weekly high and low of the closing prices of the shares of the
target company during the 26 weeks, or the average of the
daily high and low prices during the two weeks preceding
the date of public announcement, whichever is higher.

PTI



First Published: Sunday, December 27, 2009 - 16:20

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