Business Strategy, Corporate Restructuring and Take Overs - R. Ramesh Chandra
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Transcript of Business Strategy, Corporate Restructuring and Take Overs - R. Ramesh Chandra
7/29/2019 Business Strategy, Corporate Restructuring and Take Overs - R. Ramesh Chandra
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ICSI - MSOP - 15.03.2012
Business Strategy, CorporateRestructuring and Take Overs
An Overview
By
R. Ramesh Chand ra
Partner
L V V Iyer & Associates
Corporate Lawyers
Begumpet
Hyderabad
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ICSI - MSOP - 15.03.2012
Business Strategy
• increase efficiency
• consolidate
• increase market share• turn around
• increase market capitalization
• entry barrier
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ICSI - MSOP - 15.03.2012
Business Strategy
• Corporate Restructuring
- Part-IX conversion- Mergers
- Acquisitions
- Conversion to LLP
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Business Strategy
Conversion of firm to Company
• Under Part-IX of the Companies Act
• No Stamp Duty• Tax Neutral (subject to conditions)
• Registration - a vesting order
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ICSI - MSOP - 15.03.2012
Mergers & Acquisitions Arrangements pursuant to Sec.391/394
Merger
De-merger
Reverse Merger Hiving off
Re-organization of Capital
Compromise with Creditors
Reduction of capital as part of CompositeScheme
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Mergers & Acquisitions
• What is a reverse merger ?
A profit making company merges into a
loss making company to take advantage of
the accumulated losses of the surviving
company which shall be set off against
the profits of the combined entities
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ICSI - MSOP - 15.03.2012
Mergers & Acquisitions• De-merger
Recognized as a concept under Income – Tax Act,1961
In place of merging the company as a whole, anundertaking (business division) is spun off to aseparate company at book value.
Differs from a hiving off arrangement in that shares
of the resulting company is issued to theshareholders of the de-merged company asopposed to shares being issued to the de-merged company itself in a hiving off arrangement.
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ICSI - MSOP - 15.03.2012
Mergers & Acquisitions
• Hiving off
Resorted to enable holding the hived off
undertaking in a subsidiary
Not recognized for exemption as transfer
under Income Tax Act, 1961
Normal practice is to carry out the hivingat book value to make it tax neutral
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Mergers & Acquisitions
• Reorganization of capital
Consolidation of shares of differentclasses
Division of shares into shares of differentclasses
Combination of both the above
A typical case is to convert preferenceshares into equity or debentures whenredemption under Sec.80 is not possible
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Mergers & Acquisitions
• Reduction of Capital
Can be attempted as part of a compositescheme without a need to follow the
procedure under Sec.100 to 104 Repaying preference capital when
redemption under Sec.80 is not possible
Converting equity capital to preferencecapital under an arrangement would notamount to reduction of capital.
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ICSI - MSOP - 15.03.2012
Mergers & AcquisitionsStamp Duty
Applicable only to Amalgamationsunder AP Stamp Act.
De-merger and other arrangementsnot covered.
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ICSI - MSOP - 15.03.2012
Mergers & Acquisitions
Tax implications
Amalgamations under Sec. 2(1 B) of
Income Tax, Act, 1961 –not a transfer u/s
47
De-merger under Sec.2 (19 AA) of
Income Tax Act, 1961 – not a transfer u/s
47
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ICSI - MSOP - 15.03.2012
Competition Law
Acquisition by enterprises
No Group
• Criteria
Assets – In India – Rs.1500 cr.
Worldwide- USD 750 mn(Rs.750 cr. in India)
Turnover – In India – Rs.4500 cr.
Worldwide- USD 2250 mn
(Rs.2250 cr. in India)Exceptions – Merger between Holding and subsidiary
Companies and between wholly-owned
subsidiaries belonging to the same Group
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ICSI - MSOP - 15.03.2012
Competition Law
Acquisition by Group
Group
• Criteria
Assets – In India – Rs.6000 cr.Worldwide- USD 3 bn
(Rs.750 cr. in India)
Turnover – In India – Rs.18000 cr.Worldwide- USD 9 bn
(Rs.2250 cr. in India)
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ICSI - MSOP - 15.03.2012
Corporate Restructuring-Case Studies
• `B‟ Co.Ltd. to merge with `A‟ Co.Ltd.
• Average Share Price :
A Co.Ltd. B Co.Ltd
• Rs 250 Rs 50
• Swap Ratio: 1 4
• EPS of B Co.Ltd. Rs 5
• Net Result: A Co. Ltd adds to itself abusiness with an EPS of Rs 20
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Corporate Restructuring-Case Studies
• B Co.Ltd. to merge with A Co.Ltd.
• Average Share Price : A Co.Ltd. B Co.Ltd.
Rs 200 Rs 8
• B Co.Ltd. has an operating profit but on account of huge debt burden it hasa net loss. The merger scheme includes an arrangement by which all thelong term debts are extinguished by issuance of shares of A Co.Ltd. at Rs180 per share.
• Net Result : After merger B Co.Ltd. becomes a viable division of A Co.Ltd.
• Issue: Whether under Section 78 of the Companies Act, 1956, SecuritiesPremium A/c can be credited without receipt of money.
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ICSI - MSOP - 15.03.2012
Corporate Restructuring-Case Studies
• A Co.Ltd. is a holding company of B Co.Ltd. Both A Co.Ltd. and B Co.Ltd.are listed companies. After the merger in the next two to three years theshare price of A Co.Ltd. is supposed to rule quite high.
• Instead of canceling the shares held by A Co.Ltd. in B Co.Ltd. in the processof merger, shares of A Co.Ltd. in the swap ratio to be issued to a Trust.
• The Trust to hold the shares for three years for disposal, the proceeds thereof to go to A Co.Ltd.
• Issue: When the proceeds of the sale of shares by the Trust are received in the
hands of the Company, what is the nature of such a receipt –
is it a capitalreceipt not subject to Income Tax ?
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ICSI - MSOP - 15.03.2012
Corporate Restructuring-Case Studies
• A Co.Ltd. is a closely held family company.
• B Co.Ltd. is a listed company where the family
has controlling interest.
• By merging A Co.Ltd. into B Co.Ltd. the
shareholding of the family in B Co.Ltd. isincreased substantially without having to go
through the Takeover Code.
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Corporate Restructuring-Case Studies
• A Company Limited is a listed BIFR Company which has been sanctioned aCorporate Debt Restructuring package. In terms of this package, 50% of the equity share capital is converted into preference capital, Part of theloans are converted into preference capital and promoters bring freshmoney as equity contribution.
• A Company Limited goes in for a Scheme of Reconstruction & Arrangementunder Section 391 of the Companies Act, 1956.
• Implications
• Can such a thing be done under the provisions of Section 391 of theCompanies Act, 1956, when the Company is a BIFR Company?
• Does it involve reduction of capital?
• Are the promoters equity contribution exempt under Takeover code?
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ICSI - MSOP - 15.03.2012
Corporate Restructuring-Case Studies
• A Company Limited, B Company Limited and C Company Limited have acommon business i.e chemical business. All these companies also haveother businesses. A new company is formed called D Company Limited. ACompany Limited is a listed company with a share capital of Rs.30 crores.B Company and C Company are non listed companies with share capital of Rs.5 crores and Rs.2 crores respectively. D Company Limited is formedwith an authorised capital of Rs.10 crores.
• On the basis of evaluation by experts, the equity capital of D CompanyLimited is kept at Rs.10 crores. All the chemical businesses of A CompanyLtd., B Co., Ltd., and C Co., Ltd., are de-merged into D Company Limited.The net assets remaining in A Co., Ltd., is Rs.12 crores. The capital of ACo., Ltd., is reduced from Rs.30 crores to Rs.12 crores.
• D Company Limited becomes a listed company with a healthy EPS of Rs.7/-as against a combined EPS of Rs.3/- of A Company Limited, B CompanyLimited and C Company Limited
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Corporate Restructuring-Case Studies
• A Company Limited has issued Cumulative Preference Sharesamounting to Rs.50 crores redeemable at the end of 10 years.Since A Company Limited has been able to securitize its futurereceivables, it wants to redeem the preference shares now, i.e.
after three years of issue, despite the fact that it does not haveenough profits to redeem the shares nor does it come out with anew issue of shares for this purpose, under Section 80 of theCompanies Act, 1956.
• In view of this, A Company Limited goes in for a reduction of capital under Section 80 of the Companies Act, 1956. Can thisbe made possible in law?
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Take Over
Regulation – 3 - Trigger for open offer
No acquirer shall acquire shares or voting rightswhich (taken together with shares or votingrights, if any, held by him or by persons acting inconcert with him), entitle such acquirer toexercise 25% or more of the voting rights in a
company, unless such acquirer makes a publicannouncement to acquire shares of suchcompany in accordance with the regulations.
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Take Over
• The term „acquirer‟ covers
(i) Persons – both individual and juristic person
(ii) who either directly or indirectly, acquires or
agrees to acquire – a. Shares
– b. voting rights
– c. control of the target company
(iii) by himself or with any person acting in concert.
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Take Over
• Acquirer includes a person acquiring
shares under blank transfers which are yet
to be registered – as decided by Bombay
High Court in Sreenivasulu Reddy‟s case
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Take Over • The SEBI Tribunal in Kiron Margadarsi’s
case held that in the case of a pledge of shares with blank transfer forms there is nocase of acquisition by the pledgee since theintention of the pledger is only to pledge theshares and not to sell them and also since inthe case of pledge only the special propertyin the pledged goods including shares would
pass to the pledgee while the legalownership of the same still remain with thepledger.
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Take Over
• The SEBI Tribunal in Ashwin Doshi‟s case
held that in order to arrive at the
percentage of voting rights, the shares
which are frozen or attached by a specialcourt cannot be excluded from the total
voting power in relation to the company
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ICSI - MSOP - 15.03.2012
Take Over
• Creeping Acquisition upto 5% of voting
rights in any financial year ending 31st
March – limited to Acquirer along with
persons acting in concert (PAC) holdingshares or voting rights of 25% or more but
less than maximum permissible non-public
shareholding.
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Take Over • Regulation – 4 – Trigger for Open Offer • Acquisition of control directly or indirectly with or
without acquisition of shares or voting rights shalltrigger an open offer unless the Acquirer makes apublic announcement of an open offer.
• For the purpose of Regulation – 3 and Regulation – 4, acquisition of shares or voting rights in, or controlover, any company that would enable exercise or direct the exercise of such percentage of voting
rights in, or control over target company otherwiseattracting the regulations would be consideredindirect acquisition of shares or control.
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Take Over
• SEBI Tribunal in the Gujarat Ambuja
Case held the term „control‟ would mean
effective de facto control and not dejure
control alone
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Take Over • The term „Control‟ includes The right to appoint majority of the directors; or
(ii)To control the management or policy decisions exercisable by aperson or persons, acting individually or in concert, directly or indirectly, by
(a) virtue of their shareholding(b) management rights
(c) shareholding agreements, or
(d) voting agreements, or
(e) in any other manner
In order to come within the definition of „control‟ it is not necessary
that one should have actually appointed majority of directors, itwould be enough if such a right of appointment is vested in him.
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Take Over
Exempted Categories
• Rights Issue to the extent of one‟s
entitlement and beyond entitlement
subject to not having renounced any of the
entitlements and the price at which the
rights issues made is not higher than the
ex-rights price of the shares calculated asper the Regulations.
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ICSI - MSOP - 15.03.2012
Take Over
Pursuant to a scheme-
framed under Section 18 of SICA
of arrangement or reconstructionincluding amalgamation or merger or de-
merger
Pursuant to the provisions of SRFAESI
Pursuant to the scheme of CDR not
involving change of control
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Take Over
• SEBI Tribunal held in Mega Resources‟
case otherwise known as Bombay Dyeing
case that for the purpose of disclosure the
holdings of the acquirer along with hisassociates and persons acting in concert
have to be taken into account.
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ICSI - MSOP - 15.03.2012
• (1)“Shares” means shares in the equity
share capital of a company carrying voting
rights and includes any security which
would entitle the holder to exercise votingrights (including all depository receipts
carrying an entitlement to exercise voting
rights)
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• The SEBI Tribunal in Modipon case held
that there is no legal presumption that
every promoter is an acquirer or a person
acting in concert with another promoter unless the facts are otherwise.
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ICSI MSOP 15 03 2012
Thank you