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1
KEY ISSUES IN DOING M&A TRANSACTIONS IN INDIA
Shivpriya NandaShivpriya Nanda Partner
J Sagar AssociatesAdvocates & Solicitors
New Delhi Mumbai Bangalore August 4, 2006
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Definitions & Backdrop
Merger : Target is usually subsumed and loses corporate identity
Acquisition: Target or its business is acquired but Target continues to maintain its legal entity status
Cross border merger of a foreign body corporate in to an Indian Company permissible - but is rare in practice
Cross border merger of an Indian company in to foreign body corporate not permissible
Cross border acquisition – in bound and out bound permissible
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Presentation Context & Focus
Acquisition of an Indian company by a foreign entity
Foreign entity merger in to an Indian company
Regulatory & Contractual Issues
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Regulatory Issues : AcquisitionsForeign Exchange Regulations
FOREIGN DIRECT INVESTMENT POLICY (“FDI POLICY”) & FEMA
FDI upto 100% is permitted through automatic route in all sectors except:– Activities / items that require an Industrial License (e.g.
Cigarettes, Electronic Aerospace and Defence Production).
– Where the Foreign Collaborator has an existing financial / technical collaboration in the same field.
– Acquisition of shares in an existing Indian company in: financial service sector; where the Takeovers Code is attracted
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Regulatory Issues : AcquisitionsForeign Exchange Regulations
– Proposal falling outside notified sectoral policy / caps (e.g. Asset Reconstruction Companies 49%, Broadcasting 49%, Defence Production 26%, Insurance 26%, Refinery 26% in case of PSU, Print Media (newspapers and periodicals) 26%).
– Prohibited Sectors: Retail (except single brand product retailing); Atomic Energy; Lottery Business; Gambling and betting.
– Foreign Investment of more than 24% for manufacture of item reserved for Small Scale Sector.
All investment proposals not covered by Automatic Route require approval of Foreign Investment Promotion Board.
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Regulatory Issues : AcquisitionsForeign Exchange Regulations
Pricing Norms– Minimum pricing norms apply : equal to or greater
than the value of the shares as per CCI guidelines
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Regulatory Issues : Acquisitions
Indian policy prescriptions and practice make a hostile bid for a listed entity an
impossibility!!
FEMA Rules provide that any acquisition which triggers “Takeover Code” requires prior approval of FIPB
Practice requires that FIPB application be supported by Resolution of the Board of the Target
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Regulatory White Knight!
“Don’t worry about his reputation as a corporate raider. Our white knight is FEMA”
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Regulatory Issues in Acquisitions: Takeover Code
Listed Indian Companies subject to Takeover Code Acquirer (and persons acting in concert) acquiring 15% or more
of equity shares or voting rights to make a tender offer for at least an additional 20% of shares of the Target
Pricing norms for tender offer – highest of – contracted price;
– average of weekly high and low closing price for last six months;
– average of daily high and low closing price over the last two weeks; and
– price at which acquirer may have made any acquisition in the last six months
Off shore change in control of holding company triggers Takeover Code of Indian listed entity
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Regulatory Issues in Acquisitions: Takeover Code
Off shore merger of holding structure one of the exceptions to the Takeover Code
Provisions for “creeping” acquisition – 15 to 55% @ not more than 5% a year
Specific obligations triggering at various levels of holdings
Comprehensive code provides for competing bids Strict requirements for public announcement, disclosures
and compliance timelines Tough penalties for breach of the Code Private agreement to acquire enforced only after
compliance with applicable provisions of Takeover Code
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Regulatory Issues in Acquisitions: Takeover Code
Pricing– Pricing of Shares subject to valuation under CCI
Guidelines
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Regulatory Issues Acquisitions: Companies Act
Competition Law – amendments pending But Section 108A to G of the Companies Act
prescribes prior approval requirement if acquisition – is by a “dominant undertaking”
– will create a dominant undertaking Relevant market definitions not perfect and
“dominance” precedents under Sections 108 A to G do not exist
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Merger
Companies Act description of common parlance merger:
– “amalgamation” of two or more companies”
– under a Scheme of “arrangement”
– which provides for undertaking of the “transferor” (merging company) to be transferred to “transferee” (the merged company – or the resultant entity)
Court sanctions scheme of “arrangement” : highly process driven
Court would not go in to commercial merits though it seeks to ensure that the scheme is not detrimental to the interest of the shareholders and creditors
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Regulatory Issues in Mergers: FEMA
Merger of two or more Indian companies: merged entity shares issued automatically to non resident shareholders of merging entity subject to percentage holding, meeting the criteria set out in approval.
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Regulatory Issues in Mergers: SEBI & Stock Exchange
Listing Agreement requires one month prior submission of scheme with Stock Exchange for approval – if refused appeal to SAT
Exemption from Takeover Code for acquisition of shares pursuant to a scheme of arrangement or reconstruction under any law, Indian or foreign
Disclosure required Compliance with Delisting Guidelines if public
shareholding in merged entity falls below requirement of listing agreement – usually 25%
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Regulatory Issues in Mergers: Companies Act
Section 391-394: Complete code on Mergers Detailed procedure and forms under the
Company (Court) Rules 1959 Transnational scheme of arrangements –
only if Indian entity is the merged entity – not the other way around
Squeeze out provisions for compulsory acquisition of dissenting shareholders up to 10%
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Contractual Issues
Key commercial and contractual issues are about the same in a merger or acquistion
The intended end commercial result is usually the same – money or money’s worth (stock) is paid for acquiring a business
Determination, certainty, accuracy and preservation of value is at the core of it
Due diligence, reps and warranties and indemnities and covenants rule the landscape of contractual issues
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Due Diligence
Usual– corporate records
– property title check
– liabilities
– contingent liabilities
– pending and potential legal claims etc
– Regulatory compliances
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Lawyer’s Delight :Reps, Warranties & Indemnities
Who represents and warrants –more complex question in case of merger
Absolute or qualified - match the concerns raised in the Due Diligence
Limitation : different levels – e.g., tax liabilities 7 or more years
Enforceability of liquidated damages - In India LD becomes a cap - penal damages will not be enforced.
Threshold for invoking indemnity claims- individual and aggregate thresholds
Cap on indemnity liability Use of Escrow by acquirer to recover indemnity claims
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Non-compete
Usual to insert a non-compete but enforcement specific or otherwise a big question mark – though Indian law different from usual common law rule of “reasonable restriction” acceptability
Section 27 of Contract Act renders “void” a non-compete restrictions except in case of “sale of a business” with goodwill and that too with specific limitations on duration, scope and geographic extent
Exception not helpful in cases of share acquisition E.g., Selling Shareholders cannot be prevented from
undertaking employment in a competing business but a back ended consulting agreement could work
Confidentiality obligations are enforceable
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Some other critical points
… Usually more relevant in an acquisition Continuing or transferring employee benefit
plans; Notifying parties to contracts; Dispute resolution