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Mohit Saraf
Partner Luthra and Luthra Law Offices
presented by
Why M&A?
Underlying Principle for M&A Transactions 2+24 Additional Value of Synergy
Why M&A?
Market Intensification: Horizontal Integration Buying a competitor Acquisition of equity stake in IBP by IOC AT&T merger into SBC enables the latter to access the corporate customer base and exploit the predictable cash flows typical of this telephony section Market Extensions New markets for Present products Maersk Pipavav : strategic objective of investing in a container terminal in the west coast Bharat Forges acquisition of CDP (Germany) S&Ps proposed acquisition of CRISIL
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Why M&A?
Vertical Integration : Internalization of crucial forward or backward activities Vertical Forward Integration Buying a customer Indian Rayons acquisition of Madura Garments along with brand rights Vertical Backward Integration Buying a supplier IBMs acquisition of Daksh
Why M&A?
Diversification: Overcome Barriers to Entry Product Extension: New product in Present territory P&G acquires Gillette to expand its product offering in the household sector and smooth out fluctuations in earning Free-form Diversification: New product & New territories Flight Centres proposed acquisition of Friends Globe Indian Rayons acquisition of PSI Data Systems
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Why M&A?
Advantages: Greater Economic Clout: Proposed merger of Petroleum PSUs P&G merger with Gillette expected to correct balance of power between suppliers and retailers. Economies of scale and Overheads: Size really does matter IOC & IBP Sharing
Acquirer
Majority/ Strategic Partner
Target Company
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M&A
TRANSACTION ISSUES: TARGET
Due Diligence Full Disclosures Linked with Reps & Warranties Reps should be negative DD in case of Listed Company Post Closing Adjustment
Condition Precedents Definitive Include as Exhibits Survival of Reps for limited period
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M&A
TRANSACTION ISSUES: ACQUIRER
Due Diligence Risk Matrix and Value Depletor Material Contracts
Any subsisting contracts granting similar or superior rights to other investors Termination rights of major customers Approval rights of financiers
Title to Properties & Assets: esp. where main business is situated Statutory Dues Litigation : Contingent Liabilities IPR protection Tax Compliance (Settlement Commission)
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M&A
TRANSACTION ISSUES: ACQUIRER
Mode of Acquisition Pure Equity (Existing or New); Equity & Preference; Special Class (Differential voting rights, dividends or otherwise) Leveraged Acquisitions Corporate Governance Related Party Transactions (past & going forward) Board Representation - Quorum (Inclusive) - Fiduciary Responsibility of Board v. Shareholders
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M&A
TRANSACTION ISSUES: ACQUIRER
Deadlock Resolution Majority/ Strategic Partner Lenders Return on Investment Cap on dividends to preference shares Liquidation Preference
M&A
TRANSACTION ISSUES: ACQUIRER
Non - Compete/ Non - Solicitation Payment for Goodwill to exiting partner Exclusivity
Enforceability against Company Company as party to SHA Exit Options Listing (Private Equity) Call/ Put Option
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M&A
TRANSACTION ISSUES: GENERAL
Effectiveness of SHA and SPA Indemnity Aggregate Liability Cap De Minimis Threshold Participative Rights v. Protective Rights Strategic Partner : Participative Rights
Control on Board Sharing Control
M&A
TRANSACTION ISSUES: GENERAL
Special Rights
Tag Along Rights: minority partner/ private equity Drag - Along Rights: majority partner Right to share the upside on revised valuation of Target eg: on Merger; Listing at higher valuation
Earn-out Structure
Favorable Business Projections
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M&A
TRANSACTION ISSUES: GENERAL
FCPA Arbitration v. Litigation: Effective Remedy Proper Law of Arbitration ICC v. UNICITRAL Group Companies Doctrine Place of Arbitration Cost Effective
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M&A
REGULATORY FRAMEWORK
TRANSACTION STRUCTURE Companies Act Income Tax Act Stamp Acts Competition Act LISTED COMPANIES SEBI Regulations Stock Exchange Listing Agreement TRANS-BORDER TRANSACTIONS Foreign Exchange Management Act
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M&A
OVERVIEW Mergers Spin Offs Acquisitions
DEMERGER
OTHERS ASSETS
SHARES
CONTROL
SLUMP SALE
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ACQUISITIONS
Acquisition
Shares Control
Acquisition of Assets
Slump Sale
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Acquisitions
ISSUES: COMPANIES ACT
Sections 108A to G: Central Government approval if in excess of threshold prescribed ambiguity as to classification of goods Section 372A: Compliance by transferee company in acquisition of shares Section 77A: Buy Back may be used as a defense to a hostile takeover Used in U.S.: PeopleSofts attempt to thwart Oracle
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Acquisitions
ISSUES: FEMA
Acquirer - Non-Resident: No approval required for purchase of shares (including existing shares) From R From NR
Valuation prescribed in case of R-NR not less than Ruling Market Price - Listed Target Company Fair valuation by a CA as per CCI guidelines Unlisted Target Company
Press Note 18 replaced by Press Note 1 of 2005 Investment has to comply with FDI policy
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Acquisitions
ISSUES: FEMA
Target Company is a Non-Resident Direct investment in JV/ WOS outside India (other than financial services) requires no approval subject to conditions including inter alia Financial commitment < or = 100% networth
Investment by way of remittance only if valuation If > 5 million USD: by Merchant Banker/ Investment Banker registered with SEBI/ appropriate authorities Other cases: by CA/ CPA
Investment by share swap: valuation by Merchant Banker/ Investment Banker registered with SEBI/21 appropriate authorities
Acquisitions
ISSUES: TAKEOVER CODE
Definition of Control - Inclusive Ambiguous:
- TATA Sellout in ACC.
Negative control? S. 25(2) prohibits public offers after 21 days of the public announcement of first public offer
In case of indirect acquisition, foreign acquirer has three months from completion of transaction to make open offer. Therefore, foreign transactions can be concluded prior to open offer in India.
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Acquisitions
RECENT CHANGES : TAKEOVER CODE
New thresholds of 54% and 74% in Regulation 7 55% shares cannot be allotted by preferential allotment or market purchase consolidation by public offer only Acquisition by public offer under 11(2) can be for only so many shares as will keep float above listing requirements. Where any acquisition reduces public float below Listing Agreement requirements, acquisition to comply with delisting guidelines Where Code is triggered by a global deal, if the public offer will lower float to below the listing requirement, then acquirer has 12 months to raise float either by 23 fresh issue or by disinvestment.
Acquisitions
ISSUES: MISC
Stamp Duty No stamp duty if transferred shares are dematerialized Industrial Disputes Act (s. 25FF) Workmen employed by transferor company entitled to retrenchment benefits unless retained in employment on same terms.
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Mergers
Mergers Spin-offs
Demergers
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Mergers
STRUCTURE 1
A = Amalgamating Company: Ceases to Exist B = Amalgamated Company B receives all of As assets and liabilities Shareholders of A receive shares in B and maybe other benefits like debentures, cash
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Mergers
STRUCTURE 2
A, B and C = Amalgamating Companies: Cease to exist D = Amalgamated Company: may or may not have existed before Merger All assets and liabilities of A, B and C transferred to D Shareholders in A,B and C get shares in D.
A B C
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Spin-Offs
STRUCTURE
Transfer of undertaking Y Y
Company A
Consideration is usually shares of Company B but maybe cash. Process may or may not be Court sanctioned. Salora spinning off Panasonic to Matsushita under s. 391 Scheme. Consideration in cash.
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Demergers
STRUCTURE
Demergers are one type of spin-offs: under s. 391 A = Demerging Company B = Resulting Company: may or may not have existed earlier A transfers undertaking to B B issues shares to shareholders of A Transfers undertaking Y Shareholders of A
Y
Company B
Company A
Issues shares
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PROCESS
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Other Spin-Offs
ISSUES: COMPANIES ACT
Where spin-offs are outside the 391 mechanism, the following compliances need to be ensured 293(1)(a) resolution Voting has to be by postal ballot in a public listed company
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Spin-off receives tax benefits under Income Tax Act only if it is a demerger
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Slump Sale
ISSUES: TAXATION
Slump Sale = Transfer of undertaking without itemizing individual assets and liabilities- s.2(42C) Income Tax Act Treated as capital gains If undertaking is older than 3 years, long term capital gains rates apply even if individual assets are new Carry forward of losses and unabsorbed depreciation unavailable
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Merger
ISSUES: STAMP DUTY
Divergences between states: Shopping for beneficial rates usually pointless Duty to be imposed on value of shares transferred not on individual assets transferred: Bom HC in Li Taka AIR 1997 Bom 7 States with Specific entries: Maharashtra, Karnataka, Rajasthan and Gujarat
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Merger
ISSUES: STAMP DUTY
States without specific entries: Unclear if duty leviable.
Cal HC in Madhu Intra Ltd. v. ROC, 2004 (3) CHN 607 394 Order is not an instrument chargeable to duty Supreme Court in Ruby Sales v. State of Maharashtra (1994) 1 SCC 531 - specific inclusion of civil court decrees in Bombay Stamp Act only abundant caution
1937 Notification under Indian Stamp Act, 1899 remits duty when merger is of a 90% subsidiary: Remission not available in states with own legislations eg. Kerala, Karnataka, Maharashtra, Gujarat and Rajasthan Gujarat and Maharashtra have limits on stamp duty for mergers and demergers at Rs.10 crore and Rs. 25 40 crore.
Merger
ISSUES: SEBI
Acquisition of shares pursuant to a scheme of arrangement or reconstruction under any law, Indian or foreign exempt from SEBI Takeover Code.
Exemption claimed unsuccessfully by Luxottica in the acquisition of Ray Ban Sun Optics India
Listing Agreement:
Scheme before the Court/ Tribunal must not violate, override or circumscribe the securities laws or stock exchange requirements Disclosure required
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Merger
ISSUES: SEBI
Shares allotted by unlisted transferee company to shareholders of listed transferor company under a HC sanctioned scheme can be listed without an IPO subject to conditions (DIP).
Eg. Dabur Pharmaceuticals
if
public
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Mergers
MISCELLANEOUS ISSUES
Foreign Exchange Management Act, 1999 Where the amalgamated company is Indian, non resident shareholders of the foreign amalgamating company require RBI approval to receive shares. Where the amalgamated company is foreign, the issue of its shares to Indian shareholders requires RBI approval. Automatic route available where non residents have to be issued shares in a merger of Indian companies.
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Mergers
MISCELLANEOUS ISSUES
Human Resources Workmen entitled to retrenchment benefits unless retained in employment on same terms. Adjustments of pay scale needs to be resolved.
Global Trust employees were retained on same terms in OBC. Pay packages of former GTB staff could be altered only after 3 years. OBC management had to contend with GTBs complex salary structure.
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No Central Government approval required for a merger or acquisition under the MRTPA
Act attracted only if amalgamated company discovered to be monopolistic in its working not at stage of amalgamation- Hindustan Lever, 1995 Supp (1) SCC 499
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