Recently, on 21st November 2011 (Appeal No. 134 of 2011, Raghu Hari Dalmia & Others v. SEBI) the Securities Appellate Tribunal (SAT) held that the increase in percentage holding of a person because of buyback of shares does not amount to acquisition and thus cannot result in an open offer. This is, in my view, a correct legal interpretation of the law (as also argued by me earlier in this column of the Journal for the April 2010 and September 2008 issues). But SEBI had, in practice, taken a view that such increase does amount to acquisition. On this basis, it granted exemptions, selectively and subject to certain conditions, from applicability of relevant provisions including open offer. Further, where such ‘acquisitions’ triggered the open offer requirements and the ‘acquirers’ did not make such offers, SEBI passed adverse orders (here and also here which case was now reversed by the SAT). It even inserted a proviso in the Regulations exempting increase in certain cases such ‘acquisitions’, thereby implicitly assuming that such increases were ‘acquisitions’.
My preceding articles referred earlier discuss this issue in more detail where I also expressed my views why such increase should not amount to ‘acquisition’. The regulations define ‘Acquirer’ as a person who ‘acquires or agrees to acquire’ shares, voting rights, etc. Hence, if an acquirer acquires:
- 5% or more shares, he has to make certain disclosures.
- 15% or more (under the 1997 Regulations), he has to make an open offer.
- In additions there are other compliance requirements.
In case of buyback of shares, if a person does not participate in it — that is — does not offer his shares in buyback, there is an involuntary or passive increase of percentage holding. For example, a person holding, say, 60% shares and does not participate in a 20% buyback of shares then, post-buyback, his percentage holding would be 75%. Thus, his percentage holding would increase by 15 percentage points without his having acquired a single additional share. In my view, this passive increase does not make the shareholder an acquirer. One may argue that the intention of the law may be that such increases should also result in an open offer. One may also say a person holding, as in the above example, 60% shares, may initiate a buyback, and then not participate in it, thereby ensuring that his percentage holding increases. However, intentions or potential misuses cannot be allowed to stretch the interpretation of the law. Nevertheless, instead of simply making an amendment to the law, though several opportunities were available when other amendments were made, SEBI initiated and persisted in adopting a practice of taking a stand that such increases amounted to acquisitions.
The SAT rejected this attempt in fairly clear and emphatic words. In the case under consideration, consequent to a buyback, the holding of the Promoters increased from 62.56% to 75%. While there are other aspects and issues in the case, the essential question before the SAT was whether this increase should result in an open offer.
The SAT relied on the definition of an ‘acquirer’ under the Regulations as well as in a legal dictionary. It held that a passive increase in percentage holding pursuant to a buyback cannot amount to acquisition. It observed (emphasis supplied in all extracts):
“In this context the word ‘acquire’ implies acquisition of voting rights through a positive act of the acquirer with a view to gain control over the voting rights. In the case before us, it is the admitted position of the parties that the appellants (promoters of the company) did not participate in the buyback and that there was no change in their shareholding. The percentage increase in their voting rights was not by reason of any act of theirs, but was incidental to the buyback of shares of other shareholders by the company. Such a passive increase in the proportion of the voting rights of the promoters of the company will not attract Regulation 11(1) of the takeover code. The argument of the learned counsel for the Board that merely because there is increase in the voting rights of the appellants, Regulation 11(1) gets triggered cannot be accepted.”
Does such an increase amount to an ‘indirect’ acquisition? This argument too was rejected by observing:
“He also referred to the definition of ‘acquirer’ in Regulation 2(b) of the takeover code and strenuously contended that a passive acquisition of the kind we are dealing with is indirect acquisition and, therefore, the provisions of Regulation 11(1) are attracted. We have no hesitation in rejecting this argument outright. The words ‘directly’ and ‘indirectly’ in the definition of ‘acquirer’ go with the person who has to acquire voting rights by his positive act and if such acquisition comes within the limits prescribed by Regulation 11(1), it would only then get attracted. Passive acquisition as in the present case cannot be regarded as indirect acquisition as was sought to be contended on behalf of the Board.
The SAT also rightly highlighted another absurdity involved. If the view that passive increase may also amount to acquisition, then even a non-controlling shareholder holding, say, 14% may find the requirements of open offer getting triggered off if he does not participate in a buyback and finds his holding increased to, say, 16%. The SAT observed:
“Again, a non-promoter shareholder may increase his percentage of shareholding without participating in the buyback over which he has no control. In such an event he would be burdened with an onerous liability to make a public announcement. It is a well-settled principle of law that a provision ought not to be interpreted in a manner which may impose upon a person an obligation which may be highly onerous or require him to do something which is impossible for no action of his.”
Other difficulties in adopting such an interpretation were also highlighted. At the end, the SAT, in quite emphatic words, held that “we are of the firm opinion that passive acquisition does not attract the provisions of Regulation 11(1) of the takeover code.”
Once such an interpretation is accepted, the following situations, arising out of buyback and under the 1997 Regulations, need to be considered: 1. If a person’s holding increases to 5% or more, will disclosure be required?
2. If a person holding 5% or more finds his holding increased by 2% or more, will disclosure be required?
3. If a person holds less than 15% finds his holding increased to 15% or more, will an open offer be required?
4. If a person holding 15% or more finds his holding increased, will such increase be counted as part of creeping acquisition or will he be entitled to acquire a further 5% in a financial year ignoring such increase?
5. If a person holding 55% or less finds his holding increased beyond 55%, will he be deemed to have violated the Regulations? — And so on.
Applying the decision of the SAT, the answer to each of the aforesaid questions appear to be in the negative.
However, while this was the position under the 1997 Regulations, the question is whether will it also hold good under the 2011 Regulations. The curious thing is that while the corresponding wording in the definition of ‘acquirer’ under the 2011 Regulations remains exactly the same, the Regulations have made further provisions on the assumption that such a passive increase amounts to acquisition. It has exempted two types of such increases (from below 25% to 25% or more, and more than the creeping acquisition if holding is already more than 25%) if certain conditions are satisfied. It is submitted that considering that even the 1997 Regulations did contain such a provision, the ratio of the decision of the SAT should hold good.
One will have to wait and see whether SEBI appeals to the Supreme Court and, if yes, what view the Supreme Court takes. It is also possible that SEBI may amend the Regulations.
In conclusion, one cannot help expressing disapproval of adopting a practice — approach of SEBI — which results in the law becoming opaque and/ or arbitrary depending on the internal — administrative — preference or practice of SEBI.
