TaxTMI 
TaxTMI 
2016 (5) TMI 883
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....quirers' for convenience) to acquire shares of respondent no. 6 i.e. Network 18 Media & Investments Limited ('target company' for convenience) at an open offer price of Rs. 41.04 per share as against the open offer price of Rs. 5,68,430.32 per share claimed by the appellants. It is not in dispute that in implementation of SEBI communication dated 17.11.2014 the acquirers have acquired the shares of the target company at an open offer price of Rs. 41.04 per share from the public investors of the target company and the entire open offer process has been completed on 26.12.2014. It is also not in dispute that instead of participating in the open offer by offering to sell the shares of the target company to the acquirers without prejudice, the appellants have chosen to file the present appeal inter alia with a view to challenge the communication of SEBI dated 17.11.2014. 2. Under the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 ("Takeover Regulations, 2011" for short) when any indirect acquisition of shares or voting rights in, or control over the target company triggers open offer obligation, then the open offer price sh....
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....companies, had indirect control over 48.30% shares of the target company (through the six holding companies). e) Respondent no. 2 is a Trust set up under a Trust Deed dated 22.11.2011. Mr. L.V. Merchant was the 'settlor' of the Trust with Nirlab Consultancy Pvt. Ltd. as the first trustee of the Trust. The name of Nirlab Consultancy Pvt. Ltd. was later on changed as Digital Content Pvt. Ltd. ('DCPL' for short). 100% shares of DCPL were held by the Bahl Group. Under the Trust Deed respondent no. 4 is the sole beneficiary of the Trust and respondent no. 3 is the protector of respondent no. 2 Trust. f) Respondent no. 2 Trust held 1.85% shares of the target company. As per the Trust Deed, the trustee (DCPL) had the power to vote on behalf of respondent no. 2 Trust. Thus, the aggregate indirect control of Bahl Group over the target company was 50.15% (i.e. 48.30% indirect control through six holding companies + 1.85% indirect control as a trustee of respondent no. 2 Trust). It is not in dispute that in view of certain employee welfare trusts which also had shares of the target company, the aggregate control of the Bahl Group in the target company exceeded 51% as stipulated under Gu....
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....f time the respondent no. 2 has sought conversion of ZOCD's and hence, the question of the six holding companies issuing equity shares in favour of respondent no. 2 did not arise at all. Consequently, the Bahl Group holding 60,000 shares of the six holding companies continued to be 100% shareholders of the six holding companies with 100% voting rights and the respondent no. 2 continued to be holder of ZOCDs issued under the ZOCD agreement. j) It is not in dispute that the six holding companies have utilized the amount of Rs. 2211.80 crore received from respondent no. 2 for subscribing to the shares of the target company and TV 18 under the rights issue. As a result of acquiring the shares of the target company under the rights issue, the shareholding of the companies promoted by the Bahl Group in the target company increased from 48.30% shares to 71.25% shares i.e. total 74,61,88,987 shares. k) By resolutions dated 12.11.2012 and 20.05.2014, Mr. Atul S. Dayal, Mr. P.M.S. Prasad and Sanchar Content Pvt. Ltd. ('SCPL' for short) were inducted as additional trustees of respondent no. 2 Trust. l) On 29.05.2014 a Share Purchase Agreement ("SPA" for short) was entered into by and....
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....PAC" for short) made a public announcement through respondent no. 5 (manager to the offer) under Chapter III of the Takeover Regulations, 2011 offering to purchase up to 22,99,46,996 shares of the target company from the public shareholders at an offer price of Rs. 41.04 per share. It is relevant to note that as per the valuation report submitted by the valuer appointed by respondent no. 2 viz. Ernst & Young Merchant Banking Services Pvt. Ltd. on 29.05.2014, the fair value per equity share of the target company as on 29.05.2014 was Rs. 40.50 per share. However, the acquirers/manager to the offer considered that the highest negotiated price of the shares of the target company ought to be Rs. 41.04 per share, which is higher than the price determined by the above valuer appointed by respondent no. 2. n) On 11.06.2014, the acquirers viz the respondent no. 2 to 4 filed draft letter of offer with SEBI together with requisite disclosures relating to the public offer as contemplated under the Takeover Regulations, 2011. o) In the meantime, the appellant no. 1 had sent an E-mail to the respondent no. 5 on 09.06.2014 requesting respondent no. 5 to ensure that the proposed open offer i....
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....submitted their final letter of offer to SEBI on 21.11.2014. Thereafter, the public offer process was conducted in accordance with the Takeover Regulations, 2011 and the public offer was completed on 26.12.2014. Admittedly, appellants did not participate in the public offer by offering to sell the shares of the target company to the acquirers. s) On 29.12.2014 the appellants have filed the present appeal before this Tribunal. t) During the pendency of the appeal, SEBI by its communication dated 09.02.2015 rejected all contentions raised in the complaint filed by the appellant no. 1 on 25.06.2014. Appellants have not challenged the said communication of SEBI dated 09.02.2015. 4. Mr. Victor Fernandes, (appellant no. 1) appearing in person made oral submissions and also tendered written submissions on behalf of the appellants. Mr. Devitre, Mr. Dwarkadas, Mr. Dada, learned Senior Advocates made oral submissions and also tendered written submissions on behalf of respondent no. 1, respondent no. 5 and respondent no. 2 respectively. Mr. Rajadhyaksha learned advocate appearing on behalf of respondent nos. 3,4 & 6 has adopted the submissions made by counsel for respondent no. 2. ....
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....e extent of 0.003% of the fully diluted share capital of the six holding companies. Since 99.997% of the fully diluted share capital i.e. 99.997% of the economic interest of the six holding companies were already held by the acquirers even prior to entering in to the SPA, SEBI was not justified in approving the decision of the acquirers to include the amount invested under the ZOCD agreement dated 27.02.2012 while determining the highest negotiated price per share paid under the SPA dated 29.05.2014. c) Admittedly, the amounts paid by respondent no. 2 under the ZOCD agreement dated 27.02.2012 have been utilized by the said six holding companies for acquiring the shares of the target company and TV 18 under the rights issue and as a result of such acquisition the shares of the target company held by the six holding companies and RBHPL rose from 48.30% to 71.25%. Since respondent no. 2 had entered into two agreements for indirectly acquiring 71.25% shares of the target company from the six holding companies and RBHPL, to determine the acquisition prices paid by the acquirers under each of the two agreements and the related transactions needed to be separately identified and indepe....
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....ation paid by respondent no. 2 for indirect acquisition of the shares of the target company and TV 18 from the six holding companies. After deducting the amount of Rs. 204.42 crore paid for acquisition of TV 18 shares, balance amount of Rs. 3062.36 crore has been wrongly considered to be the price paid for indirect acquisition of 74,61,88,987 shares of the target company which according to SEBI amounts to indirectly acquiring the shares of the target company at the rate of Rs. 41.04 per share. f) Regulation 8 (8) of the Takeover Regulations, 2011 provides that where an acquirer has acquired or agreed to acquire any shares or voting rights in the target company during the offer period, at a price higher than the offer price, then the offer price shall stand revised to the highest price paid or payable for any such acquisition. In the present case, indirect acquisition of the shares of the target company and TV 18 under the SPA were completed on 07.07.2014 for an aggregate amount of Rs. 1054.98 crore during the offer period. As the provisions of regulation 8(8) got triggered during the offer period, SEBI ought to have taken into account the consideration paid per share of the targ....
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....sued by six holding companies to the Bahl Group). Thus, on conversion of ZOCD's, into equity shares the respondent no. 2 would hold 99.997% shares /economic interest and the Bahl Group would 0.003% shares/economic interest in the six holding companies. Consequently, respondent no. 2 would have 99.997% indirect economic interest in the shares of the target company held by the six holding companies and the Bahl Group would have 0.003% indirect economic interest in the shares of the target company held by the six holding companies. In other words, since the shares of the target company and TV 18 held by the six holding companies were 74,61,88,987 shares and 6,77,33,486 shares respectively, as a result of ZOCD agreement, out of 74,61,88,987 shares of the target company held by six holding companies respondent no. 2 would have indirect economic interest in 74,61,68,627 shares (99.997%) and the Bahl Group would have indirect economic interest in 20360 shares (0.003%). Similarly, out of 6,77,33,486 shares of TV 18 held by six holding companies, respondent no. 2 as a result of ZOCD agreement would have indirect economic interest in 6,77,31,750 shares and the Bahl Group would have indirect ....
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....disclosures under Chapter V and also for the purposes of open offer process contained in Chapter III, the diluted equity capital ought to have been taken into consideration. Regulation 28(2), 29(2), 30(1) and 30(2) contained in Chapter V of the Takeover Regulations, 2011 in fact mandate disclosure of shareholding on the basis of diluted share capital and for the purposes of disclosures the acquisition and holding of any convertible security be regarded as shares. As the diluted share capital has not been taken into consideration in computing the offer price, the respondent no. 2 as also SEBI violated the provisions contained in the Takeover Regulations, 2011. h) Regulation 5(2) of the Takeover Regulations, 2011 stipulates the circumstances under which the indirect acquisition attracting the provisions of regulation 5(1) shall be regarded as direct acquisition. Applicability of regulation 5(2) to the facts of present case is not in dispute. Therefore, fact of indirect acquisition of the shares of the target company (through the six holding companies) ought to have been considered for all purposes of the Takeover Regulations including those related to pricing and compliance (inclu....
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....resent case, SEBI ought to have approved the open offer price by taking the diluted shareholding of the target company acquired under SPA dated 29.05.2014. k) With the help of a chart, the appellants sought to demonstrate that if the gross amount of Rs. 1054.98 crore paid by the acquirers under the SPA dated 29.05.2014 is segregated, then it would reveal that for indirect acquisition of the diluted share capital of the target company (through the six holding companies) the acquirers have paid Rs. 5,68,430.32 per share of the target company. l) Appellants submit that the concept of 'economic interest' cannot be restricted to Chapter V of the Takeover Regulations, 2011. The expression 'shareholding' is not defined under regulation 2(1) however, the expression 'shareholding' is used in regulation 2(1)(e) & 2(1)(o) of Chapter I, regulations 3,6,7 & 10 of Chapter II, regulation 16 in Chapter III and regulation 32 under Chapter VI. Since the expression 'shareholding' is not defined under the Takeover Regulations 2011, it becomes necessary to review and understand that expression within the overall frame work of the Takeover Regulations, 2011. Regulation 28(2) clearly provides that ....
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....h under Chapter V or elsewhere in the Takeover Regulations, 2011 form an integral part of the legal regime governing substantial acquisition of shares and takeovers. Therefore, if the effective economic interest of the acquirer held indirectly through the six holding companies is computed without considering the ZOCDs, then the very purpose for the disclosure obligation would be defeated and would tantamount to giving a free reign to acquirers to circumvent and void the regulatory intent, purpose and underlying philosophy of the Takeover Regulations, 2011. p) The format prescribed under regulation 16(1), mandates the acquirers to ensure that the minimum disclosure requirements are contained in the letter of offer including the shareholding pattern as on the date of letter of offer. In the present case, the pre and post offer shareholding pattern of the target company have not been disclosed and hence the disclosures are not in compliance with the format prescribed. If the pre and post offer shareholding pattern of the target company was disclosed as per the prescribed form, then there would not have been any difficulty in ascertaining the offer price per share of the target comp....
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....the Bahl Group. By subscribing to the ZOCD's, the respondent no. 2 had acquired from Bahl Group 99.997% economic interest in six holding companies and by executing SPA what could be acquired by respondent no. 2 from the Bahl Group was only 0.003% direct economic interest in the six holding companies and consequently 0.003% indirect economic interest in the shares of the target company held by the six holding companies. u) It is not in dispute that the transactions under the SPA were completed on 07.07.2014 i.e. during the offer period which was extended to 26.12.2014. Therefore, the transactions completed on 07.07.2014 necessarily needed to be taken into consideration while determining the highest negotiated price under regulation 8(8) as the said transactions were effected during the offer period. v) Irrespective of the date on which the acquirers obligation to make a public announcement for the open offer got triggered, in the facts of present case, the acquisitions completed by the acquirers on 07.07.2014 would attract the provisions of offer price related regulation 8(8) as the said transactions were executed within the offer period. If the offer price was computed in acc....
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....ion, the public announcement obligation under the Takeover Regulations, 2011, get triggered on the date on which the option to convert such securities into shares is exercised. In the present case, the option for conversion of ZOCDs has not been exercised by respondent no. 2 and therefore, the six holding companies have not issued equity shares in favour of respondent no. 2. In the absence of acquiring equity shares, the respondent no. 2 could not exercise any voting rights or control over the six holding companies by merely being a ZOCD holder. Thus, subscribing to the ZOCDs under the ZOCD agreement did not confer on respondent no. 2 any voting rights or control over the six holding companies and consequently respondent no. 2 could not be said to have indirectly acquired shares or voting rights in, or control over the target company. In such a case, it cannot be said that on subscribing to the ZOCDs under the ZOCD agreement the respondent no. 2 was obliged to public announcement of an open offer. It is only when the respondent no. 2 entered into SPA dated 29.05.2014 for acquiring 60,000 shares of the six holding companies which constituted acquisition of 100% shares of the six hol....
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....as having no merit in it. Without challenging the communication of SEBI dated 09.02.2015, appellants are not justified in agitating the issues which have been rejected by SEBI by its communication dated 09.02.2015. Accordingly, we refrain from considering various issues raised in this appeal relating to the alleged violation of the provisions contained in the Takeover Regulations, 2011 as well as the violations allegedly committed by respondent no. 5 as lead Manager to the open offer made by the acquirers viz. respondent nos. 2 to 4. Thus, the only issue that falls for consideration in this appeal is, whether SEBI by its communication dated 17.11.2014 was justified in approving the open offer price at Rs. 41.04 per share of the target company offered by the acquirers as against the open offer price claimed by the appellants at Rs. 5,68,430.32 per share of the target company. 10. Open offer obligations under the Takeover Regulations, 2011 arise when any acquirer acquires shares or voting rights or control in a target company in excess of the limits prescribed under the said Regulations. As per regulation 3(1) of the Takeover Regulations, 2011 no acquirer shall acquire shares or v....
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....sis of the most recent audited annual financial statements, such indirect acquisition shall be regarded as a direct acquisition of the target company for all purposes of these regulations including without limitation, the obligations relating to timing, pricing and other compliance requirements for the open offer." 11. In the present case, it is not in dispute that prior to the ZOCD agreement, the Bahl Group consisting of Mr. Raghav Bahl and his wife Mrs. Ritu Kapur were the promoters holding 100% shares (60,000 shares) of the six holding companies. The six holding companies promoted by the Bahl Group along with RBHPL also promoted by the Bahl Group held 48.30% shares of the target company. It is on record that the six holding companies have been declared as promoters of the target company and TV 18 in the stock exchange declarations for the quarter ending on December 31, 2011. Thus, at the relevant time, the Bahl Group were the promoters of six holding companies and the said six holding companies were the promoters of the target company and TV 18. Since the six holding companies (promoted by Bahl Group) and RBHPL (also promoted by Bahl Group) held 48.30% shares of the target co....
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....cised. 14. In the present case, the acquirers contend that the open offer obligation got triggered on execution of SPA dated 29.05.2014. However, while determining the open offer price at Rs. 41.04 the acquirers have taken into account the amount invested by respondent no. 2 under the ZOCD agreement dated 27.02.2012 and hence we deemed it fit to look into the clauses contained in the said ZOCD agreement. 15. On perusal of the ZOCD agreement dated 27.02.2012 we were surprised to find that although the parties to the said agreement were the six holding companies, the respondent no. 2 and the Bahl Group consisting of Mr. Raghav Bahl and his wife Mrs. Ritu Kapur, the ZOCD agreement is signed only by Mr. Raghav Bahl and his wife Mrs. Ritu Kapur on behalf of all parties. While Mr. Raghav Bahl and Mrs. Ritu Kapur have signed the ZOCD agreement as 100% shareholders of six holding companies, Mr. Raghav Bahl has also signed the ZOCD agreement as Director of each of the six holding companies and has also signed the ZOCD agreement as authorized representative of respondent no. 2. 16. Apart from the above, following clauses in the ZOCD agreement prima facie give an impression that the ....
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....agreement. Schedule 2 to the ZOCD agreement records that the Bahl Group inter alia agrees that on the respondent no. 2 opting for conversion of ZOCDs, the six holding companies shall issue requisite equity shares in favour of respondent no. 2. Since the ZOCDs issued under the ZOCD agreement could be converted into equity shares at any point of time, by giving warranties under the ZOCD agreement, the Bahl Group have assured respondent no. 2 that control over the six holding companies and consequently control over the target company and TV 18 could be exercised by respondent no. 2 at any time under the ZOCD agreement, without the Bahl Group receiving any consideration from respondent no. 2. It is inconceivable that the Bahl Group would agree to such a clause in the ZOCD agreement, which had the effect of divesting direct and indirect control of the Bahl Group over the six holding companies and the target company/TV 18 respectively without the Bahl Group receiving any consideration. d) Clause 9 of the ZOCD agreement records that the Bahl Group as shareholders of the six holding companies shall not transfer any equity securities of the six holding companies or transfer any right, ti....
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....e 6 to the ZOCD agreement. g) Clause 12.1 of the ZOCD agreement records that each party to the said agreement shall not, without the prior written consent of the other party, disclose the terms and conditions of the ZOCD agreement to any third party. As noted earlier, the Bahl Group alone being signatories to the ZOCD agreement there was no question of either keeping the terms of the agreement as secret or disclosing it to third parties with the consent of the other party. In any event, if the ZOCD agreement was a mere loan agreement, then there was no reason to keep the terms and conditions of the ZOCD agreement confidential. Very fact that the terms of the ZOCD agreement were sought to be kept confidential, clearly shows that it was not a loan agreement executed in the ordinary course of business. h) Clause 13.1 of the ZOCD agreement provides that the six holding companies shall remain as private limited companies and passive strategic investment companies and shall not carry on any other activity. This clause read with clause 6.1, clearly show that on execution of the ZOCD agreement, respondent no. 2 conducted the business of the six holding companies in the manner desired....
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....t company and TV 18 without receiving any consideration. 17. As the aforesaid clauses in the ZOCD agreement, in our opinion prima facie demonstrate, that the respondent no. 2 through Bahl Group exercised direct control over the six holding companies and indirect control over the target company & TV 18 even before respondent no. 2 exercised its option to seek conversion of ZOCDs into equity shares, we called upon the respondents to explain the motive behind executing such ZOCD agreement. 18. Counsel for respondent no. 2 by his oral (as also by written arguments) submitted that the ZOCD agreement in question was executed in the ordinary course of business. It is submitted that since the Bahl Group did not have the requisite resources to subscribe to the shares of the target company and TV 18 under the rights issue and the only asset of the six holding companies were the shares of the target company & TV 18 valued at Rs. 2450 crore (approx.) against the value of ZOCDs of about Rs. 2211.80 crore, it was negotiated and agreed that although as per the terms of the ZOCD agreement respondent no. 2 had the ability to convert the ZOCDs into equity shares of the six holding companies at....
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....ring into ZOCD agreement acquired direct control over the six holding companies and indirect control over the target company from the Bahl Group so as to trigger open offer obligation under the Takeover Regulations, 2011 and if so, take appropriate action for not complying with the said obligation so that such instances do not occur again in the future. 21. As noted earlier, the only question that falls for consideration in the present appeal is, whether SEBI is justified in approving the open offer price at Rs. 41.04 per share of the target company. 22. First contention of the appellants is that the shares of the target company held by the six holding companies were acquired by respondent no. 2 under two agreements, namely, ZOCD agreement dated 27.02.2012 and SPA dated 29.05.2014. The appellants submit that in the draft letter of offer having stated that the transactions under the SPA were for Rs. 1054.98 crore, in the disclosures made in the draft letter of offer, the transaction consideration under the SPA could not have been enhanced from Rs. 1054.98 crore t o Rs. 3266.78 crore by including the amount of Rs. 2211.80 crore which was invested by the respondent no. 2 in the ....
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....shares and not acquiring 0.003% shares of the six holding companies as wrongly contended by the appellants. At this stage, we would like to make it clear that the question as to whether the respondent no. 2 in the guise of entering into ZOCD agreement had acquired control over the six holding companies as well as control over the target company is not the question that falls for consideration in this appeal. In fact by choosing not to challenge the decision of SEBI contained in its letter dated 09.02.2015, appellants are precluded from agitating the above question in the present appeal. However, fact that this Tribunal has directed SEBI to reinvestigate the matter cannot be a ground to uphold the contention of the appellants that on execution of ZOCD agreement, 99.997% shares of the six holding companies stood vested in respondent no. 2. 24. Argument of the appellants that for determining the highest negotiated price, amounts paid under each of the two agreements and the related transactions needed to be separately identified is without any merit because, the very basis of the argument of the appellants that the respondent no. 2 has acquired the shares of the six holding compani....
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....the ZOCD agreement. 27. Argument of appellants that acquisition of shares of the six holding companies by respondent no. 2 from the Bahl Group under SPA dated 29.05.2014 amounted to acquisition of 0.003% of shares of the target company held by the six holding companies could be accepted only if it is accepted that by subscribing to the ZOCDs under the ZOCD agreement the respondent no. 2 had acquired 99.997% interest in the shares of the target company held by the six holding companies even before the option for conversion of ZOCDs into equity shares is exercised. As noted earlier, specific plea raised to that effect in the complaint dated 25.06.2014 was refuted by SEBI perfunctorily vide communication dated 09.02.2015 and the appellants have chosen not to challenge the said decision of SEBI contained in communication dated 09.02.2015. Therefore, the argument of the appellants that under SPA dated 29.05.2014, acquisition of 60,000 shares of the six holding companies from the Bahl Group by respondent no. 2 represented acquisition of 0.003% interest in the diluted share capital of the six holding companies cannot be accepted because, as on the date of SPA, the option for conversion....
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....rcised and the shares are issued. Accepting such a contention would mean extending the deeming fiction beyond the scope for which it is created which is not permissible in law. 29. Apart from the above, when regulation 13(2)(b) of the Takeover Regulations specifically provides that the date on which option for conversion of ZOCDs into equity shares is exercised shall be the date for triggering the open offer process, it would be improper on the basis of the format set out in the Takeover Regulations, 2011 to hold that even if option is not exercised open offer obligation get triggered on execution of convertible securities. It is well established in law, that even if there is any conflict between the regulation and the format prescribed thereunder, then the regulation shall prevail. Therefore, in view of the specific provision contained in regulation 13(2) (b) of the Takeover Regulations 2011, it is not possible to hold that the deeming fiction created for the purposes of disclosures in the format prescribed in the Takeover Regulations, 2011 has to be applied while determining the highest negotiated price for the purposes of open offer under the Takeover Regulations, 2011. 30....
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....ix holding companies and RBHPL and consequently acquiring shares of the target company and TV 18 from the Bahl Group (through six holding companies) is segregated, it is seen that the respondent no. 2, under the SPA dated 29.05.2014 has paid much less than Rs. 41.04 per share of the target company. Therefore, in the facts of present case, decision of SEBI in approving the open offer price at Rs. 41.04 per share, by taking into consideration the amount invested under the ZOCD agreement cannot be faulted. c) Decision of the acquirers to consider the amount invested under the ZOCD agreement while determining the open offer price, led us to consider the clauses contained in the ZOCD agreement. Perusal of various clauses contained in the ZOCD agreement as more particularly set out in para 16 above, led us to believe, prima facie, that by executing ZOCD agreement on 27.02.2012 the Bahl Group sought to divest its control over the six holding companies and consequently sought to divest control over the target company and TV 18 without receiving any consideration which is rather strange and unusual to say the least. d) In our opinion, divesting the control over the target company in t....