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The Original CHAUKIDAAR ,“TAKEOVER WATCHMAN” since 2007. CA. Arun Goenka* hands-on experience in the share market* deep knowledge of laws and account*one of the early players, pioneered an investment strategy in TAKEOVERS*The WIRC - of The Institute of Chartered Accountants of India, has honoured him with the ‘Recognition of CAs in Social Service’. * often invited by National business news; electronic and print media, for his views on SEBI related matters. * history of red-flagging 100+ cases to SEBI* contributes by giving inputs in drafting amendments to the regulation* Some of the suggestions reflected in subsequent regulatory changes: (a). In takeover of Cairn 3,750 Crores non-compete fees waived off and ultimately Removal of Non-compete fee in 2011 (b) November 2009 amending Regulation 11 (1). (c)Listing agreement baring promoters from voting on related party. (d) Disclosure of past performance by merchant bankers in case of IPO (e) SAST 2011 regulation 10(1)(h), (f) Counter Offer in case of Delisting (g) Interest payment to all in case of delays in Open Offers(05.06.20).

Monday, December 21, 2020

Review of SEBI Delisting Regulations, Comments sent on 19.12.2020

Dear Sir,

We thank you issuing the discussion paper on Delisting Review. We find that some of our suggestions have found their way in the paper but many others have been ignored. While our suggestions on Indicative Price, Lien marking, timeline for applying for Stock Exchange approval have been looked into, other suggestions on discovered price, Counter Offer, Delisting-cum-Open offer, Early Bird Incentive, Definition of DVR have been ignored.   We have given our comments in the desired format and have  reiterated our suggestions at the end of the letter. Hope you will find merit in our suggestions and they will soon be .

Thanking you.

Yours truly

For SMALL INVESTORS’ WELFARE ASSOCIATION

CA Arun Goenka

 

 

1. Public comments are therefore invited on the aforesaid proposals in the following format:

Name of entity/ person/ intermediary: CA Arun Goenka

Name of organization (if applicable): SMALL INVESTORS’ WELFARE ASSOCIATION

Regn No. F-72744 (M)

Contact details: Address, Mobile No. etc. 703, Meadows, Sahar Plaza Complex, AndheriKurla Road,J.B. Nagar, Andheri ( E) , Mumbai 400 059

Email : SirenBajao@gmail.com Tel : +91-22-4215 1349 Mobile No. 93230 91348

 

Sr. No.

Proposals

 

Page No. Para No.

Proposed/

suggested changes

 

Rationale

 

1

1.4.ii

 

The IPA shall be made by the acquirer / promoter through the manager to the delisting offer.

 

 

The words through the manager, have been suggested to be deleted.

No need to first appoint a Merchant Banker to issue “Initial Public announcement / IPA”. This can be “Self Declaration” in the prescribed form.

The basic objective that such “price sensitive information, and should be disseminated in the public domain in a real time manner” is defeated and crucial time is lost in finding and appointing a Merchant Banker. May be quotations will be invited and discussion take place with more than one Merchant Banker leading to the chances of leakage of information.

 

In the case of Takeover the IPA may need a specialist an expert Merchant Banker since the matter is more complicated and often involves information required for a third party which may not be easily available. In the case of delisting the whole information and management is in the control of the promoter, IPA can be issued immediately.

 

The format of IPA can be made simple and self declaration type.

 

On the lines of DPS in the Takeover code, DPS may be issued within 5 days of IPA by a Merchant Banker.

2

3.4

This can be dropped

This will cast an unnecessary obligation on the company. It serves no useful purpose.

Delisting offer should be viewed only as a short-term price advantage opportunity for investors. 

If the company has a bright future, the delisting cannot be in the long-term interest of the investors. On the other hand, if the company does not have a bright future ahead, no Promoter shall go for delisting.

 

Save the Committee of Independent Directors from any kind of false/controversial recommendation. Let the investors decide for themselves.

3

5.2

 

Promoter(s) / Acquirer(s) may be allowed to specify an indicative price which shall not be less than

25% over

the floor price calculated in terms of Regulation 8 of Takeover Regulations.

 

 

It is meaningless to incorporate “Indicative Price” if it is going to be the same as floor price. It will be unnecessary repetition and confusing (Vedanta delisting offer Floor Price 87.25 Indicative price 87.50)

There has to be an objective for giving Indicative Price. It should be made optional not obligatory.

The objective of Indicative Price should be to encourage the investors to participate in the delisting offer. If  an offerer is very keen on the success of delisting offer, he can indicate that by giving a higher offer price which should not be less than 25% of the floor price. The text of my original suggestion to SEBI Chairman sent on 16th September 2020 is reproduced below:

1.      INDICATIVE PRICE

Although the term  “indicative price” is nowhere mentioned in the Regulations, but in practice, it is very commonly used. The use of the term “indicative price” should not be allowed. This is very misleading, and untrue as well. This is also against the spirit of the regulation which wants to provide a free and transparent price discovery mechanism, The “indicative price” unfairly influences the mind of the investor who cannot now bid freely without being guided by the indicative price.   Indicative price is supposed to indicate the price the Promoters / acquirers are willing to give, but in reality the final Exit price is always substantially higher, on an average  by  30% to more than 100%.

The use of indicate price should be permitted only in the situation where the promoters want to encourage public participation in the offer  giving  incentive by means of offering a higher price. In such a situation the “Indicative price” should not be less than 150% of the “floor price”. In the case of Alfa Laval the indicative price announced was higher by more than 40%. The Floor Price was  Rs. 2,045/-whereas the Indicative Offer Price was Rs. 2,850/- Such indicative price can be permitted, but not Rs.87.50 announced by the promoters of  Vedanta, since the floor price is almost the same. 

4

6.5

Promoter(s) / acquirer(s) shall open an escrow a/c with in seven working days of the shareholder’s approval and deposit therein an amount equivalent to 25% of the total consideration, calculated on the basis of the floor price / indicative price. The remaining amount may be deposited as per the existing provisions contained in Regulation 11(1).

 

The change suggested is to remove the word indicative price and make it obligatory to deposit only 25% of floor price. This is suggested to encourage the Offerer to offer liberal indicative price without much obligation and funds constraint right from the beginning. There is a considerable time gap  between the time of opening the Escrow account and the actual fructification of the delisting offer. This may add a substantial additional initial financial constraint for the promoter in declaring a higher Indicative Price, and will discourage him from announcing higher indicative price. 

5

13.6.i

Prior to making the IPA, the Promoter / Acquirer shall appoint a merchant banker registered with the Board, who is not an associate of the acquirer / promoter, as the manager to the delisting offer.

 

In line with our suggestion that IPA can be in the self-declaratory mode, IPA should be deleted.

 

13.6.ii

Due – diligence shall be performed by peer reviewed practicing Company Secretary or Chartered Accountant, in place of MB, not relating to MB / Acquirer / Promoter / their Associates;

 

The word Chartered Accountant (CA) has been suggested to be added in view of the fact that CAs are more suitable for the job because of the education, training and regular involvement with the financial and corporate legal affairs of  companies

 

 

Apart from the above there are several other suggestions which were given to SEBI from time to time. These suggestions needs to be looked into seriously to achieve the stated objective.

 

 

Extracts from my email dated 16th September 2020

Further to my earlier letter dated  4th  July 2020 given in the the trail mail, I am eagerly waiting for some amendments and clarifications on the matter of Delisting as suggested. When the delisting fails, the investors and promoters alike everyone loses. SEBI as a regulator has to ensure fair play and higher success ratio of any such exercise.  Keeping this in mind I had given my suggestions and I am clarifying and adding some small suggestions so that all can be incorporated in one go.

 

1.           DISCOVERED PRICE

 

The discovered price has not been defined in the regulations. please define it as a price at which maximum number of shares have been offered. Not the price at which the threshold of 90% is reached.

 

2.         COUNTER OFFER

 

The Counter offer should be allowed to be given even when shares offered have not reached 90%  threshold.

 

3.        DELISTING-CUM-OPEN OFFER

 

Promoters may be given a Delisting-cum-Open offer opportunity. For example in the case of Vedanta, promoter's holding is 50% they have to acquire minimum 40% from the market, assuming they fail to get 40%  and the offer fails. In such a situation the promoter may be allowed a-la counter offer style, that he is willing to accept such % of shares as will not violate the MPS norms. Say in this case 25% at a price to be announced  by him. This will work in favour of all.

 

4.             EARLY BIRD INCENTIVE

 

An early bird incentive may be allowed to be offered for better management of delisting. Rather than everyone waiting till the last, investors who tender their shares early may be given incentive, say 0.5% for each day. Since the offer is to be kept open for 5 days.{Reg.13 (2)}, let it be, for example 2.5% more to the person tendering on day 1, day2, 2%.......so on .

 

 

5.            SUGGESTED CHANGE IN REGULATION 3(1)-- DVR

 

[Explanation: For the purposes of these regulations, the term “shares” shall include equity shares having superior voting rights.]

The above explanation seems to be a drafting error and needs to be changed. Because of the above, delisting of shares with inferior voting rights are not covered . This seems to be an oversight.

The concept of shares with Differential Voting Rights or (DVRs) was introduced by way of amendment of Section 86 in the Companies Act 1956 which came into effect from 13.12.2000. Such voting rights may be superior or inferior.

In the case of Jagatjit Industries, DVR shares with superior voting rights were issued. These DVR shares carried no rights to dividend, but 20 votes per share.

In 2008, Tata Motors had issued DVR shares with inferior voting rights. Tata Motor s DVR shares carried one vote per 10 DVR shares but a 5 per cent higher dividend. Shares with inferior voting rights have not been included in the definition of ‘Equity Share’ the implication is that shares like TATA Motors DVRs cannot be delisted or delisted without following the delisting regulation

 

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