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Mergers & Acquisitions in India - Nishith Desai Associates
May, 14th 2019
  M U M BA I   S I L I C O N VA L L E Y   BA N G A LO RE   S I N G A P O RE   M U M BA I B KC   NEW DELHI   MUNICH   N E W YO RK




                                                                Mergers &
                                                                Acquisitions in India




                                                                April 2016




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                                                                                       Mergers & Acquisitions in India




About NDA
Nishith Desai Associates (NDA) is a research based international law firm with offices in Mumbai, Bangalore, Palo
Alto (Silicon Valley), Singapore, New Delhi, Munich and New York. We provide strategic legal, regulatory, and tax
advice coupled with industry expertise in an integrated manner.

As a firm of specialists, we work with select clients in select verticals. We focus on niche areas in which we provide
high expertise, strategic value and are invariably involved in select, very complex, innovative transactions.

We specialize in Globalization, International Tax, Fund Formation, Corporate & M&A, Private Equity & Venture Cap-
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Our key clientele comprise marquee Fortune 500 corporations.

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in these awards, the firm also won Asia Pacific's best `Innovation in Finance Law', and topped the rankings for the
`Business of Law'. While this recognition marks NDA's ingress as an innovator among the globe's best law firms, NDA
has previously won the award for `Most Innovative Indian Law Firm' for two consecutive years in 2014 and 2015, in
these elite Financial Times Innovation rankings.

Our firm has received much acclaim for its achievements and prowess, through the years. Some include:

IDEX Legal Awards: In 2015, Nishith Desai Associates won the "M&A Deal of the year", "Best Dispute Management
lawyer", "Best Use of Innovation and Technology in a law firm" and "Best Dispute Management Firm". IDEX Legal rec-
ognized Nishith Desai as the Managing Partner of the Year in 2014.

Merger Market has recognized Nishith Desai Associates as the fastest growing M&A law firm in India for the year
2015.

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Legal 500 has ranked us in tier 1 for Investment Funds, Tax and Technology-Media-Telecom (TMT) practices (2011,
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Law (2015); # 1 in Tax, TMT and Private Equity (2013); and # 1 for Tax, TMT and Real Estate ­ FDI (2011).

India Business Law Journal (IBLJ) has awarded Nishith Desai Associates for Private Equity, Structured Finance &
Securitization, TMT, and Taxation in 2015 & 2014; for Employment Law in 2015




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tition, Corporate and M&A, TMT, International Arbitration, Real Estate and Taxation and being Most Responsive
Domestic Firm.

We have won the prestigious `Asian-Counsel's Socially Responsible Deals of the Year 2009' by Pacific Business
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 of Global Business and Organizational Excellence (GBOE).




Please see the last page of this paper for the most recent research papers by our experts.



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Contents

                            1.INTRODUCTION                                                            01

                                 I.     Overview of the M&A Market                                    01
                                 II.    Conceptual Overview                                           01

                            2. MERGERS AND AMALGAMATIONS: KEY CORPORATE AND SECURITIES
                               LAWS CONSIDERATIONS                                                    04

                                 I.     Company Law                                                   04
                                 II.    Securities Laws                                               04

                            3.   ACQUISITIONS: KEY CORPORATE AND SECURITIES LAWS CONSIDERATIONS       06

                                 I.     Company Law                                                   06
                                 II.    Other Securities Laws                                         09
                                 III.   Listing Regulations                                           13
                                 IV.    Insider Trading                                               13
                                 V.     CA 2013                                                       16

                            4.   COMPETITION LAW                                                      17

                                 I.     Anti - Competitive Agreements                                 17
                                 II.    Abuse of Dominant Position                                    17
                                 III.   Regulation of Combinations                                    17

                            5. EXCHANGE CONTROL                                                       21

                                 I.     Foreign Direct Investment                                     21
                                 II.    Indirect Foreign Investment                                   21
                                 III.   Investment in a holding company                               22
                                 IV.    Overseas Direct Investment                                    23

                            6.   TAXES AND DUTIES                                                     26

                                 I.     Income Tax Act, 1961.                                         26
                                 II.    Service Tax                                                   33
                                 III.   Value Added Tax / Sales Tax                                   33
                                 IV.    Stamp Duty                                                    34

                            7.CONCLUSION                                                              35

                            ANNEXURE 1                                                                36

                            ANNEXURE 2                                                                38




©Nishith Desai Associates 2016
                                                                                   Mergers & Acquisitions in India
                                                                                                          Legal & Tax Issues




1.Introduction
                                                           International factors such as decline in the crude
I. Overview of the M&A                                     prices and low inflation locally will also help the

   Market                                                  government to unleash flexible business policies to
                                                           draw interest of the players in the India economy.

In the last few years, India had witnessed
a substantial slowdown in the mergers and                  II. Conceptual Overview
acquisitions ("M&A") activity. In the year 2014,
Indian companies were involved in transactions             In the sections that follow, we provide an overview of
worth $ 33 billion whereas in the year 2015, the           certain laws that would be of significance to M&A in
value of M&A activity saw a dip to $ 20 billion. It        India. Mergers and acquisitions are modes by which
is forecasted that 2016 will see heightened global         distinct businesses may combine. Joint ventures are
M&A activity and it is anticipated that the value of       another way for two businesses to work together to
transactions would cross $ 30 billion easily.1             achieve growth as partners in progress, though
                                                           a joint venture is more of a contractual arrangement
The election of the Modi led government has brought
                                                           between two or more businesses.
back tremendous faith in investor community. The
coming year is expected to be a booming year in
terms of M&A activity as the investor community
                                                           A.Mergers and Amalgamations
has seen certainty in Modi led government's reform
                                                           The term `merger' is not defined under the
agenda and the policies have been largely formulated
                                                           Companies Act, 1956 ("CA 1956"), and under Income
to encourage foreign investments. It is strongly
                                                           Tax Act, 1961 ("ITA"). However, the Companies Act,
believed that year 2016 will see a surge in M&A
                                                           2013 ("CA 2013") without strictly defining the term
activity due to the new bankruptcy law, the faster
                                                           explains the concept. A `merger' is a combination of
pace of approvals initiated by the government as part
                                                           two or more entities into one; the desired effect being
of its ease of doing business in India campaign and
                                                           not just the accumulation of assets and liabilities of
the relaxation in Foreign Direct Investment norms.
                                                           the distinct entities, but organization of such entity
                                                           into one business. The possible objectives of mergers
Sectors such as IT-ITes, healthcare, energy, pharma,
                                                           are manifold - economies of scale, acquisition
e-commerce and banking and financial services were
                                                           of technologies, access to sectors / markets etc.
the key sectors in 2015.
                                                           Generally, in a merger, the merging entities would
In 2015, inbound deals dominated the Indian M&A            cease to be in existence and would merge into
landscape with interest coming from US, German             a single surviving entity.
and Canadian bidders.
                                                           The ITA does however defines the analogous term
One can expect the increase in the M&A deals and           `amalgamation': the merger of one or more companies
activities in the upcoming time as both local and          with another company, or the merger of two or more
international investors and business houses are            companies to form one company. The ITA goes on to
eyeing India with a hope of tremendous growth.             specify certain other conditions that must be satisfied
                                                           for an `amalgamation' to benefit from beneficial tax
                                                           treatment (discussed in Part VI of this Paper).



1.http://articles.economictimes.indiatimes.com/25-12-25/
  news/69300489_1_deal-value-deals-worth-inbound-deals




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Our laws envisage mergers can occur in more                        ii. Vertical Mergers
than one way, for example in a situation in which
                                                                   Vertical mergers refer to the combination of two
the assets and liabilities of a company (merging
                                                                   entities at different stages of the industrial or
company) are vested in another company (the
                                                                   production process. For example, the merger of
merged company). The merging company loses its
                                                                   a company engaged in the construction business
identity and its shareholders become shareholders
                                                                   with a company engaged in production of brick or
of the merged company. Another method could
                                                                   steel would lead to vertical integration. Companies
be, when the assets and liabilities of two or more
                                                                   stand to gain on account of lower transaction
companies (merging companies) become vested
                                                                   costs and synchronization of demand and supply.
in another new company (merged company).
                                                                   Moreover, vertical integration helps a company
The merging companies lose their identity. The
                                                                   move towards greater independence and self-
shareholders of the merging companies become
                                                                   sufficiency.
shareholders of the merged company.

The CA 1956 (Sections 390 to 394) and CA 2013                      iii.Congeneric Mergers
(Sections 230 to 234), deal with the schemes of
                                                                   These are mergers between entities engaged in the
arrangement or compromise between a company, its
                                                                   same general industry and somewhat interrelated,
shareholders and/or its creditors. These provisions
                                                                   but having no common customer-supplier
are discussed in greater detail in Part II of this Paper.
                                                                   relationship. A company uses this type of merger
Commercially, mergers and amalgamations may be                     in order to use the resulting ability to use the
of several types, depending on the requirements of                 same sales and distribution channels to reach the
the merging entities:                                              customers of both businesses.3

Although, corporate laws may be indifferent
                                                                   iv.Conglomerate Mergers
to the different commercial forms of merger /
amalgamation, the Competition Act, 2002                            A conglomerate merger is a merger between two
does pay special attention to the forms.                           entities in unrelated industries. The principal reason
                                                                   for a conglomerate merger is utilization of financial
i. Horizontal Mergers                                              resources, enlargement of debt capacity, and increase
                                                                   in the value of outstanding shares by increased
Also referred to as a `horizontal integration', this
                                                                   leverage and earnings per share, and by lowering
kind of merger takes place between entities engaged
                                                                   the average cost of capital.4 A merger with a diverse
in competing businesses which are at the same
                                                                   business also helps the company to foray into varied
stage of the industrial process.2 A horizontal merger
                                                                   businesses without having to incur large start-up
takes a company a step closer towards monopoly by
                                                                   costs normally associated with a new business.
eliminating a competitor and establishing a stronger
presence in the market. The other benefits of this
                                                                   v. Cash Merger
form of merger are the advantages of economies
of scale and economies of scope. These forms of                    In a `cash merger', also known as a `cash-out merger',
merger are heavily scrutinized by the competition                  the shareholders of one entity receives cash instead
commission.                                                        of shares in the merged entity. This is effectively an
                                                                   exit for the cashed out shareholders.




                                                                   3.   `Financial Management and Policy-Text and Cases', V.K Bhalla,
2.   `Corporate Mergers Amalgamations and Takeovers', J.C Verma,        5th revised edn., p.1016
     4th edn., 2002, p.59                                          4.   Ibid, note 4, at p. 59




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                                                                                      Mergers & Acquisitions in India
                                                                                                                 Legal & Tax Issues




vi.Triangular Merger                                         Another form of acquisitions may be by way of
                                                             demerger. A demerger is the opposite of a merger,
A triangular merger is often resorted to, for
                                                             involving the splitting up of one entity into two or
regulatory and tax reasons. As the name suggests,
                                                             more entities. An entity which has more than one
it is a tripartite arrangement in which the target
                                                             business, may decide to `hive off' or `spin off' one of
merges with a subsidiary of the acquirer. Based on
                                                             its businesses into a new entity. The shareholders of
which entity is the survivor after such merger,
                                                             the original entity would generally receive shares of
a triangular merger may be forward (when the
                                                             the new entity.
target merges into the subsidiary and the subsidiary
survives), or reverse (when the subsidiary merges            If one of the businesses of a company is financially
into the target and the target survives).                    sick and the other business is financially sound, the
                                                             sick business may be demerged from the company.

B.Acquisitions                                               This facilitates the restructuring or sale of the
                                                             sick business, without affecting the assets of the
An `acquisition' or `takeover' is the purchase by one
                                                             healthy business. Conversely, a demerger may also
person, of controlling interest in the share capital, or
                                                             be undertaken for moving a lucrative business into
all or substantially all of the assets and/or liabilities,
                                                             a separate entity. A demerger may be completed
of the target. A takeover may be friendly or hostile,
                                                             through a court process under the Merger Provisions
and may be effected through agreements between
                                                             or contractually by way of a business transfer
the offeror and the majority shareholders, purchase
                                                             agreement.
of shares from the open market, or by making an
offer for acquisition of the target's shares to the
entire body of shareholders.                                 C.Joint Ventures
Acquisitions may be by way of acquisition of shares          A joint venture is the coming together of two or
of the target, or acquisition of assets and liabilities of   more businesses for a specific purpose, which
the target. In the latter case the business of the target    may or may not be for a limited duration. The
is usually acquired on a going concern basis. Such a         purpose of the joint venture may be for the entry
transfer is referred to as a `slump sale' under the ITA      of the joint venture parties into a new business, or
and benefits from favourable taxing provisions vis-          the entry into a new market, which requires the
à-vis other transfers of assets/liabilities (discussed in    specific skills, expertise or the investment of each
greater detail in Part VI of this Paper). Section 2(42C)     of the joint venture parties. The execution of a
of the ITA defines slump sale as a "transfer of one          joint venture agreement setting out the rights and
or more undertakings as a result of the sale for a lump      obligations of each of the parties is a norm for most
sum consideration without values being assigned to the       joint ventures. The joint venture parties may also
individual assets and liabilities in such sales".            incorporate a new company which will engage in
                                                             the proposed business. In such a case, the byelaws
An acquirer may also acquire a greater degree of
                                                             of the joint venture company would incorporate
control in the target than what would be associated
                                                             the agreement between the joint venture parties.
with the acquirer's stake in the target, e.g., the
acquirer may hold 26% of the shares of the target
but may enjoy disproportionate voting rights,
management rights or veto rights in the target.




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2.Mergers and Amalgamations: Key
  Corporate and Securities Laws
  Considerations
                                                                         company. The Merger Provisions constitute
I. Company Law                                                           a comprehensive code in themselves, and under
                                                                         these provisions Courts have full power to sanction
Sections 390 to 394 of the CA 1956 (the "Merger                          any alterations in the corporate structure of
Provisions") and Section 230 to 234 of CA 2013                           a company. For example, in ordinary circumstances
govern mergers and schemes of arrangements                               a company must seek the approval of the Court for
between a company, its shareholders and/or its                           effecting a reduction of its share capital. However,
creditors. However, considering that the provisions                      if a reduction of share capital forms part of the
of CA 2013 have not yet been notified, the                               corporate restructuring proposed by the company
implementation of the same remains to be tested.                         under the Merger Provisions, then the Court has the
The currently applicable Merger Provisions are in                        power to approve and sanction such reduction in
fact worded so widely, that they would provide for                       share capital and separate proceedings for reduction
and regulate all kinds of corporate restructuring that                   of share capital would not be necessary.
a company can possibly undertake, such as mergers,
amalgamations, demergers, spin-off/hive off, and
                                                                         B.Applicability of Merger
every other compromise, settlement, agreement or
arrangement between a company and its members
                                                                           Provisions to foreign
and/or its creditors.                                                      companies.
                                                                         Sections 230 to 234 of CA 2013 recognize and
A.Procedure under the Merger                                             permit a merger/reconstruction where a foreign
  Provisions                                                             company merges into an Indian company. Although
                                                                         the Merger Provisions do not permit an Indian
Since a merger essentially involves an arrangement
                                                                         company to merge into a foreign company, the
between the merging companies and their respective
                                                                         merger provisions under Section 234 of the CA
shareholders, each of the companies proposing to
                                                                         2013 do envisage this, subject to rules made by the
merge with the other(s) must make an application
                                                                         Government of India. However, neither is Section
to the Company Court5 having jurisdiction over
                                                                         234 currently in force nor have any rules been
such company for calling meetings of its respective
                                                                         formulated by the Government of India.
shareholders and/or creditors. The Court may then
order a meeting of the creditors/shareholders of the
company. If the majority in number representing                          II. Securities Laws
3/4th in value of the creditors and shareholders
present and voting at such meeting agrees to the
                                                                         A.Takeover Code
merger, then the merger, if sanctioned by the Court,
is binding on all creditors/shareholders of the                          The Securities and Exchange Board of India (the
                                                                         "SEBI") is the nodal authority regulating entities
5.   The High Court of each Indian State will usually designate a        that are listed and to be listed on stock exchanges
     specific bench of the High Court as the Company Court, to
     which all such applications will be made. Upon the constitution      in India. The Securities and Exchange Board of India
     and notification of the National Company Law Tribunal (NCLT),
                                                                         (Substantial Acquisition of Shares and Takeovers)
     the competent authority for filing this applica- tion will be the
     NCLT and not the Company Court.




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                                                                                                       Mergers & Acquisitions in India
                                                                                                                               Legal & Tax Issues




Regulations, 2011 (the "Takeover Code") restricts                        its shares with a stock exchange prescribed certain
and regulates the acquisition of shares, voting rights                   conditions for the listed companies which they have
and control in listed companies. Acquisition of                          to follow in the case of a Court approved scheme
shares or voting rights of a listed company, entitling                   of merger/amalgamation/reconstruction. However,
the acquirer to exercise 25% or more of the voting                       on September 2, 2015, the SEBI (Listing Obligations
rights in the target company or acquisition of                           and Disclosure Requirements) Regulations, 2015
control, obligates the acquirer to make an offer to                      ("Listing Regulations") were notified and has
the remaining shareholders of the target company.                        been effective from December 1, 2015. The Listing
The offer must be to further acquire at least 26% of                     Regulations provide for a comprehensive framework
the voting capital of the company.6 However, this                        governing various types of listed securities under the
obligation is subject to the exemptions provided                         Listing Regulations, SEBI has altered the conditions
under the Takeover Code. Exemptions from open                            for the listed companies which they have to follow
offer requirement under the Takeover Code inter                          in the case if a Court approved scheme of merger/
alia include acquisition pursuant to a scheme of                         amalgamation/reconstruction has been altered.
arrangement approved by the Court.                                       Following are the key changes that have been
                                                                         introduced by the Listing Regulation and table

B.Listing Regulations                                                    highlighting the comparison between the conditions
                                                                         prescribed under the listing agreement and Listing
Prior to December 1, 2015, the listing agreement7                        Regulation:
entered into by a company for the purpose of listing
8 9 10                                                                   11 12 13 14 1516



 Sr. Particulars                Listing Agreement                                       Listing Regulation
 No
 1.      Filing of scheme       Listed companies have to file the scheme with stock Listed companies have to file the scheme
         with stock ex-         exchange at least one month prior to filing with the  with stock exchange for `observation letter' or
         change                 Court.8                                              `no-objection'.9
 2.      Compliance with        Listed companies shall ensure that the scheme          Listed companies shall ensure that the
         securities law         does violate or override the provisions of any securi- scheme does violate or override or limit
                                ties law/stock exchange requirements.10                the provisions of any securities law/stock
                                                                                       exchange requirements.11
 3.      Pre and                Listed companies have to disclose the pre and           The listed entity shall have to disclose the
         post-merger            post-merger shareholding to the shareholders.12         details with the stock exchange as per the dis-
         shareholding                                                                   closure requirements of stock exchange. 13
 4.      Auditor's certif-      Listed companies have to file with a stock exchange There is no corresponding provision under the
         icate                  an auditors' certificate to the effect that the     Listing Regulation.
                                accounting treatment contained in the scheme is in
                                compliance with all the Accounting Standards spec-
                                ified by the Central Government in Section 211(3C)
                                of the CA 1956.14
 5.      Corporate actions Listed companies have to disclose to public if the           Listed companies have to disclose to Stock
         pursuant to       listed company is proposing to undergo acquisition,          Exchange of all the events which will have
         merger            merger, de-merger, amalgamation, restructuring,              bearing on the performance/operations of
                           scheme of arrangement, spin off or selling divisions         the listed entity as well as price sensitive
                           of the company, etc.15                                       information. 16




6.    Regulation 3 read with Regulation 7 of the Takeover Code.          11. Regulation 11 of the Listing Regulation.

7.    We refer to the Listing Agreement of the Bombay Stock Ex-          12. Clause 24(h) of the listing agreement.
      change as a standard since it is India's largest Stock Exchange.   13. Regulation 69 (2) of the Listing Regulation.
8.    Clause 24(f) of the listing agreement.                             14. Clause 24(i) of the listing agreement.
9.    Regulation 37(1) of the Listing Regulation.                        15. Clause 36(7) of the listing agreement.
10. Clause 24(g) of the listing agreement.                               16. Regulation 58 of the Listing Regulation.




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3. Acquisitions: Key Corporate and Securities
  Laws Considerations

I. Company Law                                                              ii. Squeeze Out Provisions
                                                                            a. Section 395 of the CA 195619
A.Acquisition of Shares.17
                                                                            Section 395 envisages a complete takeover or squeeze-
Acquisitions may be via an acquisition of existing                          out without resort to court procedures. Section 395
shares of the target, or by subscription to new shares of                   provides that if a scheme or contract involving the
the target.                                                                 transfer of shares or a class of shares in a company
                                                                            (the `transferor company') to another company (the
i. Transferability of shares                                                `transferee company') is approved by the holders of at
                                                                            least 9/10ths (in value) of the shares whose transfer
Broadly speaking, an Indian company is set up as
                                                                            is involved, the transferee company may give notice
a private company or as a public company. Membership
                                                                            to the dissenting shareholders that it desires to acquire
of a private company is restricted to 200 members18
                                                                            the shares held by them. Once this notice is issued, the
and a private company is required by the CA 2013 to
                                                                            transferee company is not only entitled, but also bound,
restrict the transferability of its shares. A restriction on
                                                                            to acquire such shares. In computing 90% (in value) of
transferability of shares is consequently inherent to
                                                                            the shareholders as mentioned above, shares held by the
a private company, such restrictions being contained in
                                                                            acquirer, nominees of the acquirer and subsidiaries of
its articles of association (the byelaws of the company),
                                                                            the acquirer must be excluded.
and usually in the form of a pre-emptive right in favor
of the other shareholders. With the introduction of CA                      If the transferee already holds more than 10% (in value)
2013, although shares of a public company are freely                        of the shares (being of the same class as those that are
transferable, share transfer restrictions for even public                   being acquired) of the transferor, then the following
companies have been granted statutory sanction. The                         conditions must also be met:
articles of association may prescribe certain procedures
relating to transfer of shares that must be adhered to                      §§The transferee offers the same terms to all holders
                                                                              of the shares of that class whose transfer is involved;
in order to affect a transfer of shares. While acquiring
                                                                                 and
shares of a private company, it is therefore advisable for
the acquirer to ensure that the non-selling shareholders
                                                                            §§The shareholders holding 90% (in value) who have
(if any) waive any rights they may have under the
                                                                              approved the scheme/contract should also be not
articles of association. Any transfer of shares, whether
                                                                                 less than 3/4th in number of the holders of those
of a private company or a public company, must
                                                                                 shares (not including the acquirer).
comply with the procedure for transfer under its articles
of association.                                                             §§The scheme or contract referred to above should
                                                                              be approved by the shareholders of the transferee
                                                                                 company within 4 months from the date of the
                                                                                 offer. The dissenting shareholders have the right to
                                                                                 make an application to the Court within one month
                                                                                 from the date of the notice, if they are aggrieved by
                                                                                 the terms of the offer. If no application is made, or
17. Please note we have not addressed issues with respect to a non-In-
    dian acquirer, which we have briefly addressed in our section on
    Exchange Control in Chapter V.
18. Not including employees and former employees.                           19. Corresponding provisions of the CA 2013 have not yet been notified.




6                                                                        ©Nishith Desai Associates 2016
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                                                                                                               Legal & Tax Issues




    the application is dismissed within one month        in Section 236, may be modified to a `company whose
    of issue of the notice, the transferee company is    shares are being transferred' or alternatively, an
    entitled and bound to acquire the shares of the      explanation be provided in the provision clarifying
    dissenting shareholders.                             that Section 236 only applies to the acquisition of
                                                         shares so as to clearly exclude amalgamations and
§§ Section 395 does not regulate the pricing of the      mergers from the ambit of this provision.
   offer made by the acquirer, and the powers of the
    court are limited if an objection is made by         c. Scheme of capital reduction under section
    a dissenting shareholder. The court cannot direct       100 of the CA 1956
    the acquirer to pay a price that has not been
                                                         Section 100 of the CA 1956 permits a company to
    offered. The Court would be guided by the fairness
                                                         reduce its share capital in any manner and prescribes
    of the scheme including the valuation offered.
                                                         the procedure to be followed for the same. The
    However, if an overwhelming majority has
                                                         scheme of capital reduction under section 100 of the
    approved the scheme, it would be a heavy burden
                                                         CA 1956 must be approved by, (i) the shareholders
    on the dissenting shareholder to establish why his
                                                         of the company vide a special resolution; and (ii)
    shares should not be compulsorily acquired.
                                                         a competent court by an order confirming the
§§ Section 395 of the CA 1956 provides that the          reduction. When the company applies to the
  `transferor company' (i.e. the target) can be any      court for its approval, the creditors of the company
    body corporate, whether or not incorporated          would be entitled to object to the scheme of capital
    under Indian law. Therefore the target can also      reduction. The court will approve the reduction
    be a foreign company. However, a `transferee         only if the debt owed to the objecting creditors is
    company' (i.e. the acquirer), must be                safeguarded/provided for. What is interesting to
    an Indian company.                                   note is that the framework for reduction of capital
                                                         under section 100 has been utilized to provide exit to
b. Section 236 of the CA 2013 (not yet notified)         certain shareholders, as opposed to all shareholders
                                                         on a proportionate basis. The courts have held that
Under the CA 2013, if a person or group of persons
                                                         reduction of share capital need not necessarily be qua
acquire 90% or more of the shares of a company, then
                                                         all the shareholders of the company.21
such person(s) have a right to make an offer to buy
out the minority shareholders at a price determined
                                                         d. Scheme of capital reduction under Section 66
by a registered valuer in accordance with prescribed        of the CA 2013 (not yet notified)
rules.20 The provisions in the CA 2013 aim to provide
a fair exit to the minority shareholders, as the price   The capital reduction requirements are more
offered must be based on a valuation conducted by        stringent under the CA 2013. In addition to giving
a registered valuer. However, it is not clear whether    notice to creditors of the company, the NCLT
the minority shareholders can choose to retain           is required to give notice of the application for
their shareholding. However, the Companies Law           reduction of capital to the Central Government
Committee vide report dated February, 2016 has           and the SEBI (in case of a listed company), who will
recommended that the references to the phrase            have a period of three months to file any objections.
`transferor company'                                     Companies will have to mandatorily publish the
                                                         NCLT order sanctioning the scheme of capital
                                                         reduction.




                                                         21. Sandvik Asia Limited vs. Bharat Kumar Padamsi and Ors
                                                             [2009]92SCL272(Bom); Elpro International Limited (2009 4 Comp
20. Section 236 of the CA 2013                               LJ 406 (Bom))




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e. New share issuance                                                       §§ Shares must be allotted within a period of 60 days,
                                                                               failing which the money must be returned within
Section 42, 62 of CA 2013 and Rule 13 of the Companies
                                                                                 a period of 15 days thereafter. Interest is payable @
(Share Capital and Debenture) Rules 2014 prescribe the
                                                                                12%p.a. from the 60th day.28
requirements for any new issuance of shares on
a preferential basis (i.e. any issuance that is not a rights                §§These requirements apply to equity shares, fully
or bonus issue to existing shareholders) by an unlisted                       convertible debentures, partly convertible
company. Some of the important requirements under                                debentures or any other financial instrument
these provisions are described below:                                            convertible into equity.29

§§The company must engage a registered valuer to                            f. Limits on acquirer
  arrive at a fair market value of the shares for the
                                                                            Section 186 of CA 2013 provides for certain limits on
    issuance of shares.22
                                                                            inter-corporate loans and investments. An acquirer
§§The issuance must be authorized by the articles of                        that is an Indian company might acquire by way of
  association of the company23 and approved by                              subscription, purchase or otherwise, the securities of
    a special resolution24 passed by shareholders in                        any other body corporate upto (i) 60% of the acquirer's
    a general meeting, authorizing the board of directors                   paid up share capital and free reserves and securities
    of the company to issue the shares.25A special                          premium, or (ii) 100% of its free reserves and securities
    resolution is one that is passed by at least 3/4ths of                  premium account, whichever is higher. However, the
    the shareholders present and voting at a meeting                        acquirer is permitted to acquire shares beyond such
    of the shareholders. If shares are not issued within                    limits, if it is authorized by its shareholders vide
    12 months of the resolution, the resolution will                        a special resolution passed in a general meeting.
    lapse and a fresh resolution will be required for the
    issuance.26
                                                                            g. Asset/ Business Purchase

                                                                            As against a share acquisition, the acquirer may also
§§The explanatory statement to the notice for the
                                                                            decide to acquire the business of the target which
  general meeting should contain key disclosures
                                                                            could typically entail acquisitions of all or specific
    pertaining to the object of the issue, pricing of
                                                                            assets and liabilities of the business for a consideration.
    shares including the relevant date for calculation of
                                                                            Therefore, depending upon the commercial objective
    the price, shareholding pattern, change of control,
                                                                            and considerations, an acquirer may opt for (i) asset
    if any, and whether the promoters/directors/key
                                                                            purchase whereby one company purchases all of
    management persons propose to acquire shares as
                                                                            part of the assets of the other company; or (ii) slump
    part of such issuance.27
                                                                            sale whereby one company acquires the `business
                                                                            undertaking' of the other company as a going concern
                                                                            i.e. acquiring all assets and liabilities of such business.




22. Section 62 (1) (c)
23. Rule 13(2)(a) of the Companies (Share Capital and Debenture) Rules
    2014
24. Rule 13(2)(b) of the Companies (Share Capital and Debenture) Rules
    2014
25. Rule 13(1) of the Companies (Share Capital and Debenture) Rules
    2014
26. Rule 13(2)(f) of the Companies (Share Capital and Debenture) Rules
    2014
27. Rule 13(2)(d) of the Companies (Share Capital and Debenture) Rules      28. Section 42(6)
    2014                                                                    29. Rule 13(1) of the Companies (Share Capital and Debenture) Rules
                                                                                                                                           201432.


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Under CA 2013, the sale, lease or other disposition           ii.Lock-in
of the whole or substantially the whole of any
                                                              Securities issued to the acquirer (who is not
undertaking of a company requires the approval of
                                                              a promoter of the target) are locked-in for a period
the shareholders through a special resolution.30 The
                                                              of 1 year from the date of trading approval. The date
term "Undertaking" means an undertaking in which
                                                              of trading approval is the latest date when trading
the investment of the company exceeds 20% of its net
                                                              approval is granted by all stock exchanges on which
worth as per the audited balance sheet of the preceding
                                                              the securities of the company are listed. Further, if the
financial year, or an undertaking which generates 20%
                                                              acquirer holds any equity shares of the target prior to
of the total income of the company during the previous
                                                              such preferential allotment, then such prior holding
financial year. Further this requirement applies if 20%
                                                              will be locked in for a period of 6 months from the
or more of the undertaking referred to above is sought
                                                              date of the trading approval. If securities are allotted
to be sold, leased or disposed off.
                                                              on a preferential basis to promoters/ promoter group32,
An important consideration for these options                  they are locked in for 3 years from the date of trading
is the statutory costs involved i.e. stamp duty, tax          approval subject to a limit of 20% of the total capital
implications etc. We have delved into this                    of the company. The locked-in securities may be
in brief in our chapter on `Taxes and Duties'.                transferred amongst promoter/ promoter group or
                                                              any person in control of the company, subject to the
                                                              transferee being subject to the remaining period of the
II. Other Securities Laws                                     lock in.


A.Securities and Exchange Board                               iii.Exemption to court approved merger
  of India (Issue of Capital and                              The Preferential Allotment Regulations do not apply in
  Disclosure Requirements)                                    the case of a preferential allotment of shares pursuant
  Regulations, 2009                                           to merger / amalgamation approved by the Court under
                                                              the Merger Provisions discussed above.
If the acquisition of an Indian listed company involves
the issue of new equity shares or securities convertible
into equity shares ("Specified Securities") by the
                                                              B.Takeover Code
target to the acquirer, the provisions of Chapter VII
                                                              If an acquisition is contemplated by way of issue of new
("Preferential Allotment Regulations") contained
                                                              shares, or the acquisition of existing shares or voting
in ICDR Regulations will apply (in addition to company
                                                              rights, of a listed company, to or by an acquirer, the
law requirements mentioned above). We have
                                                              provisions of the Takeover
highlighted below some of the important provisions of
the Preferential Allotment Regulations.







i. Pricing of the Issue
The Preferential Allotment Regulations set a floor price
for an issuance. The floor price of shares is linked to the
average of the weekly high and low closing price of the
stock of the company over a 26 week period or a 2 week        32. The terms `promoter' and `promoter group' are defined in great
period preceding the relevant date.31                             detail by the Regulations, Generally speaking, promoters would be
                                                                  the persons in over-all control of the company or who are named
                                                                  as promoters in the prospectus of the company. The term promoter
                                                                  group has an even wider con- notation and would include immedi-
                                                                  ate relatives of the promoter. If the promoter is a company, it would
                                                                  include, a subsidiary or holding company of that company, any
30. Section 180 of the CA 2013                                    company in which the promoter holds 10% or more of the equity
31.-------------------------------------------------              capital or which holds 10% or more of the equity capital of the pro-
                                                                                                                                  moter,
                                                                                                                                 etc.


                                                                                                                                   9
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Code are applicable. The Takeover Code regulates both                            b. Creeping Acquisition
direct and indirect acquisitions of shares33 or voting
                                                                                 If the acquirer already holds 25% or more and less than
rights in, and control34 over a target company.35 The
                                                                                 75% of the shares or voting rights in the target, then any
key objectives of the Takeover Code are to provide
                                                                                 acquisition of additional shares or voting rights that entitles
the shareholders of a listed company with adequate
                                                                                 the acquirer along with PAC to exercise more than 5% of
information about an impending change in control
                                                                                 the voting rights in the target in any financial year.
of the company or substantial acquisition by an
acquirer, and provide them with an exit option (albeit
                                                                                 It is important to note that the five per cent (5%) limit is
a limited one) in case they do not wish to retain their
                                                                                 calculated on a gross basis i.e. aggregating all purchases
shareholding in the company.
                                                                                 and without factoring in any reduction in shareholding
                                                                                 or voting rights during that year or dilutions of holding
i. Mandatory offer                                                               on account of fresh issuances by the target company.
                                                                                 If an acquirer acquires shares along with other
Under the Takeover Code, an acquirer is mandatorily
                                                                                 subscribers in a new issuance by the company, then
required to make an offer to acquire shares from
                                                                                 the acquisition by the acquirer will be the difference
the other shareholders in order to provide an exit
                                                                                 between its shareholding pre and post such new
opportunity to them prior to consummating the
                                                                                 issuance.
acquisition, if the acquisition fulfils the conditions as
set out in Regulations 3, 4 and 5 of the Takeover Code.
                                                                                 It should be noted that an acquirer (along with PAC) is
Under the Takeover Code, the obligation to make
                                                                                 not permitted to make a creeping acquisition beyond
a mandatory open offer by the acquirer36 is triggered in
                                                                                 the statutory limit of non- public shareholding in a
the following events:
                                                                                 listed company37 i.e. seventy five per cent (75%).

a. Initial Trigger                                                               c. Acquisition of `Control'
If the acquisition of shares or voting rights in a target
                                                                                 If the acquirer acquires control over the target.
company entitles the acquirer along with the persons acting
in concert ("PAC") to exercise 25% or more of the voting                         Regardless of the level of shareholding, acquisition of
rights in the target company.                                                    `control' of a target company is not permitted, without
                                                                                 complying with the mandatory offer obligation under
                                                                                 the Takeover Code. What constitutes `control' is most
                                                                                 often a subjective test and is determined on a case-to-
                                                                                 case basis. For the purpose of Takeover Code, `control'
                                                                                 has been defined to include:

                                                                                 §§Right to appoint majority of the directors;
33. The term `shares' means shares in the equity share capital of a target
    company carrying voting rights and includes any security which
    would entitles the holder thereof to exercise voting rights. The term
    also includes all depository receipts carrying an entitlement to
    exercise voting rights in the target company. Therefore acquisition
    of depository receipts entitling the acquirer to exercise voting rights
    in the target company may trigger the open offer obligation.
34. The term `control' includes the right to appoint the majority of the
    directors or to control the management or policy decisions exercis-
    able by a person or persons acting individually or in concert, directly
    or indirectly, including by the virtue of their shareholding or man-         37. Maximum permissible non-public shareholding is derived based on
    agement rights or sharehold- ers agreements or voting agreements                 the minimum public shareholding requirement under the Securi-
    or in any other manner.                                                          ties Contracts (Regulations) Rules 1957 ("SCRR"). Rule 19A of SCRR
                                                                                     requires all listed companies (other than public sector companies)
35. A `Target Company' has been defined as a company and includes a                  to maintain public share- holding of at least 25% of share capital
    body corporate or corporation established by a Central Legislation,              of the company. Thus by deduction, the maximum number of
    State Legisla- tion or Provincial Legislation for the time being in              shares which can be held by promoters i.e. Maximum permissible
    force, whose shares are listed on a stock exchange.                              non-public shareholding) in a listed companies (other than public
36. See Annexure 2 for the meaning of persons acting in concert                      sector companies) is 75% of the share capital.




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                                                                                                                          Legal & Tax Issues




§§Right to control the management or policy                             the Takeover Code. This provision was included
  decisions exercisable by a person or PAC,                             to prevent situations where transactions could be
     directly or indirectly, including by virtue of                     structured in a manner that would side-step the
     their shareholding or management rights or                         obligations under Takeover Code. Further, if:
     shareholders agreements or voting agreements or
     in any other manner.                                               §§ the proportionate net asset value of the target
                                                                           company as a percentage of the consolidated
Over time, the definition of `control' has been subject                     net asset value of the entity or business being
to different assessments and has turned to be, quite                        acquired; or
evidently, a grey area under the Takeover Code. The
Supreme Court order in case of SEBI vs. Subhkam                         §§ the proportionate sales turnover of the target
                                                                           company as a percentage of the consolidated
Ventures Private Limited38, which accepted an
                                                                            sales turnover of the entity or business being
out-of-court settlement between the parties, had
                                                                            acquired; or
left open the legal question as to whether negative
control would amount to `control' under the
                                                                        §§ the proportionate market capitalisation of the
Takeover Code. In fact, the Supreme Court had ruled
                                                                           target company as a percentage of the enterprise
that SAT ruling in this case (against which SEBI had
                                                                            value for the entity or business being acquired;
appealed before the Supreme Court) which ruled
that `negative control' would not amount to `control'                   is in excess of eighty per cent, on the basis of the
for the purpose of Takeover Code, should not be                         most recent audited annual financial statements,
treated as precedent. With no clear jurisprudence on                    then an indirect acquisition would be regarded as
the subject-matter, each veto right would typically                     a direct acquisition under the Takeover Code for the
be reviewed from the commercial parameters                              purposes of the timing of the offer, pricing of the
underlying such right and its impact on the general                     offer etc.
management and policy decisions of the target
company. Given the Jet-Etihad deal39, SEBI, recently                    iii.Voluntary Open Offer
indicated, its plans to introduce new guidelines
                                                                        An acquirer who holds between 25% and 75%
to define `bright lines' to provide more clarity as
                                                                        of the shareholding/ voting rights in a company
regards `change in control' in cases of mergers and
                                                                        is permitted to voluntarily make a public
acquisitions.40
                                                                        announcement of an open offer for acquiring
                                                                        additional shares of the company subject to their
ii. Indirect Acquisition of Shares or
                                                                        aggregate shareholding after completion of the
    Voting Rights
                                                                        open offer not exceeding 75%.41 In the case of
                                                                        a voluntary offer, the offer must be for at least
For an indirect acquisition obligation to be triggered
                                                                        10% of the shares of the target company, but
under the Takeover Code, the acquirer must,
                                                                        the acquisition should not result in a breach of
pursuant to such indirect acquisition be able to direct
                                                                        the maximum non-public shareholding limit
the exercise of such percentage of voting rights or
                                                                        of 75%. As per SEBI's Takeover Code Frequently
control over the target company, as would otherwise
                                                                        Asked Questions, any person holding less than
attract the mandatory open offer obligations under
                                                                        25% shareholding/voting rights can also make a
                                                                        voluntary open offer for acquiring additional shares.
38. SAT Appeal No. 8 of 2009, Date of decision: January 15, 2010
39.http://www.nishithdesai.com/information/research-and-arti-
   cles/nda-hotline/nda-hotline-single-view/article/sebi-clears-jet-
   etihad-deal.html?no_cach e=1&cHash=fa0e90046247a7f4ea-
   1dad57cba60bad
40. M&A : Sebi mulls `bright line' rules to define control, available
    on http://ptinews.com/news/5935467_M-amp-A---Sebi-mulls---
    bright-line---rules-to- define-control-                             41. Regulation 6 (1) of the Takeover Code.




                                                                                                                                    11
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iv.Minimum Offer Size                                      bid, by a public announcement, for the shares of the
                                                           target company. This bid must be made within 15
a. Mandatory Offer42                                       working days from the date of the detailed public
                                                           announcement of the first bidder. The competitive
The open offer for acquiring shares must be for at
                                                           bid must be for at least the number of shares held or
least 26% of the shares of the target company. It is
                                                           agreed to be acquired by the first bidder (along with
also possible for the acquirer to provide that the offer
                                                           PAC), plus the number of shares that the first bidder
to acquire shares is subject to a minimum level of
                                                           has bid for. Each bidder (whether a competitive bid is
acceptance.43
                                                           made or not) is permitted to revise his bid, provided
b. Voluntary Open         Offer44                          such revised terms are more favourable to the
                                                           shareholders of the target company.45 The revision
In case of a voluntary open offer by an acquirer
                                                           can be made up to three working days prior to the
holding 25% or more of the shares/voting rights,
                                                           commencement of the tendering period.
the offer must be for at least 10% of the total
shares of the target company. While there is no
                                                           vii.Take Private Mechanism
maximum limit, the shareholding of the acquirer
post acquisition should not exceed 75%. In case of         The SEBI regulations on delisting prescribe the
a voluntary offer made by a shareholder holding            method and conditions for delisting a company,
less than 25% of shares or voting rights of the target     which earlier could only be undertaken by the
company, the minimum offer size is 26% of the              promoter of the company. Recently, the SEBI notified
total shares of the company.                               the SEBI (Delisting of Equity Shares) (Amendment)
                                                           Regulations, 2015 ("Amended Delisting
v. Pricing of the offer.                                   Regulations"). The Amended Delisting Regulations
                                                           now allow an acquirer46 to initiate delisting of the
Regulation 8 of the Takeover Code sets out the
                                                           target.
parameters to determine offer price to be paid to
the public shareholders, which is the same for a           Further, SEBI has also amended the Takeover Code47
mandatory open offer as well as a voluntary open           wherein it inserted Regulation 5A to incorporate
offer. There are certain additional parameters             the changes introduced in the Amended Delisting
prescribed for determining the offer price when            Regulation. Pursuant to Regulation 5A, now an
the open offer is made pursuant to an indirect             acquirer may delist the company pursuant to
acquisition. Please see Annexure 2 for the                 an open offer in accordance with the Delisting
parameters as prescribed under Regulation 8                Regulations provided that the acquirer declares
of the Takeover Code. It is important to note that an      upfront his intention to delist. Prior to the inclusion
acquirer is not permitted to reduce the offer price        of Regulation 5A, an open offer under the Takeover
but an upward revision of offer price is permitted,        Regulations could not be clubbed with a delisting
subject to certain conditions.                             offer, making it burdensome for acquirers to delist
                                                           the company in the future.
vi.Competitive Bid/ Revision of offer/
                                                           The Takeover Code provided for a one year cooling
   bid.
                                                           off period between the completion of an open offer
                                                           under the Takeover Regulations and a delisting
The Takeover Code also permits a person other than
                                                           offer in situations where on account of the open
the acquirer (the first bidder) to make a competitive

42. Regulation 7 (1) of the Takeover Code                  45. As defined under Takeover Code
43. Regulation 19                                          46. Securities and Exchange Board of India (Substantial Acquisition
    Regulation 7 (2) of the Takeover Code                      of Shares and Takeovers) (Amendment) Regulations, 2015
44. Regulation 20.                                         47. Regulation 7(5) of the Takeover Code




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                                                                                                                                   Legal & Tax Issues




offer the shareholding of the promoters exceeded
                                                                       IV. Insider Trading
the maximum permissible non-public shareholding
of 75% as provided under the Securities Contract
Regulation Rules.48 This restriction is not affected
                                                                       A.Securities and Exchange
by Clause 5A in that the acquirer will continue to                       Board of India Act, 1992
be bound by this restriction if the acquirer's intent                    read with SEBI (Prohibition of
to delist the company is not declared upfront at the                     Insider Trading) Regulations,
time of making the detailed public statement.
                                                                         1992, now replaced with
                                                                         SEBI (Prohibition of Insider
III.Listing Regulations                                                  Trading) Regulations, 2015
On September 2, 2015, the Listing Regulations were                     Under the SEBI Act, 1992, the penalty for insider
notified and have been effective from December 1,                      trading is at least INR 10, 00,000 and may extend
2015. The Listing Regulations provide for                              to INR 25, 00, 00, 000 or three times the amount of
a comprehensive framework governing various                            profits made out of insider trading, whichever is
types of listed securities.                                            higher.49 Recently, SEBI replaced the two-decade old
                                                                       SEBI (Prohibition of Insider Trading) Regulations,
Regulation 30 of Listing Regulations deals with
                                                                       1992 with the SEBI (Prohibition of Insider Trading)
disclosure of material events by the listed entity
                                                                       Regulation, 2015 ("PIT Regulations") which are
whose equity and convertibles securities are listed.
                                                                       much more extensive in their outreach and scope.
Such entity is required to make disclosure of events
                                                                       In respect of a listed company (or a company that is
specified under Part A of Schedule III of the Listing
                                                                       proposed to be listed), the PIT Regulations prohibit:
Regulations. The Listing Regulations divide the
events that need to be disclosed broadly in two                          i.   an insider from communicating unpublished
categories. The events that have to be necessarily                            price sensitive information ("UPSI"),
disclosed without applying any test of materiality
                                                                         ii. any person from procuring UPSI from an insider,
are indicated in Para A of Part A of Schedule III of
                                                                              and
the Listing Regulation. Para B of Part A of Schedule
III indicates the events that should be disclosed by
                                                                         iii.an insider from trading in securities50 when in
the listed entity, if considered material.
                                                                              possession of UPSI. Therefore the PIT prohibit,
                                                                              the provision as well as the receipt of UPSI.




                                                                       49. For the purpose of these Regulations the term `securities' does
48. We refer to the Listing Agreement of the Bombay Stock Ex-              not include units of mutual funds
    change as a standard since it is India's largest Stock Exchange.   50. Regulation 2(g) of the PIT Regulations




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i. Who is an Insider?                                                          ii. What is Unpublished Price Sensitive
                                                                                   Information?53
Under the PIT Regulations, an `insider'51 is a person
who is (i) a connected person; or (ii) in possession of or
                                                                               UPSI means any information relating to a company or
having access to UPSI.
                                                                               its securities, directly or indirectly, that is not generally
                                                                               available, and which upon becoming available is likely
Connected Person: A connected person is one who is
                                                                               to materially affect the price of the securities. It includes:
directly or indirectly associated with the company (i) by
                                                                               financial results; dividends; change in capital structure;
reason of frequent communication with its officers; or
                                                                               mergers, demergers, acquisitions, delistings, disposals
(ii) by being in a contractual, fiduciary or employment
                                                                               and expansion of business and such other transactions;
relationship; or (iii) by holding any position including
                                                                               changes in key managerial personnel; and material
a professional or business relationship with the
                                                                               events in accordance with the Listing Agreement. The
company whether temporary or permanent that allows
                                                                               term `generally available'54 means information that is
such person, directly or indirectly, access to UPSI or is
                                                                               accessible to the public on a non-discriminatory basis.
reasonably expected to allow such access.

Therefore, any person who has any connection with the                          iii. Defenses/ Exceptions
company that is expected to put him
                                                                               The communication of UPSI by an Insider and the
in possession of UPSI is connected. Persons who do
                                                                               procurement of UPSI by a person from an insider is
not seemingly occupy any position in a company but
                                                                               permitted if such communication, procurement is in
are in regular touch with the company will also be
                                                                               furtherance of legitimate purposes, performance of
covered. Certain categories of persons are all deemed to
                                                                               duties or discharge of legal obligations.
be connected, such as `immediate relatives'52, a holding,
associate or subsidiary company, etc.
                                                                               The following are valid defenses available to a person
                                                                               who trades in securities when in possession of UPSI:55


 General                           An off-market transaction between promoters who

                                    were in possession of the same UPSI
                                   §§
                                      (without being in breach of Regulation 3) and

                                    both counterparties made a conscious and informed trade decision.
                                   §§
 Specifically for non-indi-         Individuals
                                   §§           who executed the trade were different from individuals in
 vidual insiders
                                    possession of UPSI and were not in possession of such UPSI; or
                                   §§
                                    Chinese wall arrangements were in place and there was no leakage of information and the
                                   §§
                                      Regulations were not violated; or

                                    Trades were made pursuant a trading plan.
                                   §§




51. Regulation 2(f) of the PIT Regulations, a spouse of a person, parent,
    sibling, and child of such person or of the spouse, any of whom is
    dependent financially on such person, or consults such person in           53. Regulation 2 of PIT Regulations
    taking decisions relating to trading in securities                         54. Regulation 4(1) of PIT Regulations
52. Regulation 2(n) of the PIT Regulations                                     55. Regulation 3 (3) of PIT Regulations




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iv. Trading Plans                                                              under the Regulations has amply clarified that the
                                                                                communication or procurement of UPSI for the
A key change in the framework of insider trading
                                                                               purpose of due-diligence shall be permitted, subject
regulations is the introduction of trading plans.
                                                                                to the conditions set out in the Regulations.
Typically, `insiders' who are liable to possess UPSI
round the year are permitted to formulate trading plans
                                                                               vi. Disclosures
with appropriate safeguards. Every trading plan must
cover a period of at least year, must be reviewed and                          A significant aspect of the insider trading norms is
approved by the compliance officer of the company and                           disclosure requirements for different categories of
then publicly disclosed. Trading cannot begin for                              persons involved in the affairs of the company. It is
a period of 6 months after the plan is publicly disclosed.                      important to bear in mind that going forward, every
Trading plans are a defense and do not provide                                 promoter, key managerial personnel and director of
absolute immunity from investigation under the PIT                              a company would be required to disclose to the
Regulations.                                                                    company his holding of securities of the company as
                                                                                on date of appointment/date of notification of the PIT
v. Due-Diligence Carve-Out                                                     Regulations i.e. May 15, 2015. More importantly, every
                                                                               promoter, employee or director would be required to
The PIT Regulations contain a specific carve-out for
                                                                                make continual disclosures (within 2 trading days of
communication and procurement of information (due-
                                                                                such transaction) in case the traded value of securities
diligence conducted) in connection with transactions
                                                                                over a calendar quarter exceeds the monetary threshold
involving mergers and acquisitions.56 Therefore, based
                                                                                of INR 10,00,000 or such other value as may be specified.
on whether or not a transaction entails making an open
                                                                               The Company is required to notify the stock exchanges
offer under SEBI (Substantial Acquisition of Shares
                                                                                in case such transactions by the pro-
and Takeovers) Regulations, 2011 ("Takeover Code"),
information may be communicated, provided, allowed
access to or procured on the following conditions:

 Open Offer Obligation                 Where the board of directors of the company is of the informed opinion that the proposed transaction
 under TakeoverCode                    is in the best interest of the company.
 No Open Offer Obligation              Where the board of directors of the company is of the informed opinion that the proposed transaction
 under Takeover Code                   is in the best interest of the company. Information that constitutes UPSI is disseminated to be made
                                       generally available at least 2 trading days prior to the proposed transaction being effected in such form
                                       as the board of directors may determine.



Therefore, as long as the board is of the informed
                                                                                moter, employee or director exceeds this monetary
opinion that the transaction is in the best interest of the
                                                                                threshold or in case of any incremental changes after
company, due ­diligence may be lawfully conducted.
                                                                                such disclosure within two days of receipt of such
In case, a particular transaction does not entail making
                                                                                information. These records will be required to be
an open offer to the public shareholders, the board of
                                                                                maintained by the company for at least five years.
directors would be required to cause public disclosures
of the UPSI prior to the proposed transaction to
                                                                               vii.Code of Conduct and Fair Disclosures
rule out any information asymmetry in the market.
Additionally, a duty has been cast on the board of the                         The Board of every company is required to formulate
company to cause the parties to execute confidentiality                         and publish a code of practices and procedures to be
and non-disclosure agreements for the purpose of this                           followed for fair disclosure of UPSI in accordance with
provision. Therefore, introduction of this provision                            the principles set out in Schedule A to the Regulations.
                                                                                Schedule A of the Regulations sets out certain
                                                                                minimum standards such as equality of access to
56.---------------------------------




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information, publication of policies such as those on             xi. Chinese Walls
dividend, inorganic growth pursuits, calls and meetings
                                                                  To prevent the misuse of confidential information
with analysts, publication of transcripts of such calls
                                                                  the organization / firm shall adopt a `Chinese Wall'
and meetings etc. Additionally, the Board of directors
                                                                  policy which separates those areas of the organization
of every listed company and market intermediary shall
                                                                  / firm which routinely have access to confidential
formulate a code of conduct to regulate, monitor and
                                                                  information, from those areas which deal with sale /
report trading by its employees and other connected
                                                                  marketing / investment advice or other departments
persons.
                                                                  providing support services.

viii.Compliance Officer                                           In order to monitor Chinese Wall procedures and trading
                                                                  in client securities based on UPSI, the organization/ firm
The PIT Regulations have enhanced the role of a
                                                                  shall restrict trading in certain securities and designate
compliance officer's role with respect to monitoring and
                                                                  such list as restricted / grey list. Securities of a listed
regulating trading by employees and connected persons,
                                                                  company shall be put on the restricted / grey list if the
in particular monitoring and approving trading plans.
                                                                  organization / firm is handling any assignment for the
The PIT Regulations prescribe specific qualification
                                                                  listed company and is privy to PSI.
criteria have been set for a compliance officer who shall
report to the board of directors of the company or the
head of the organization, as the case may be.
                                                                  V. CA 2013
ix. Pre clearance of trades                                       Section 195 of the CA 2013 prohibits all persons
                                                                  including any director or key managerial personnel of
A condition may be imposed on the insiders that they
                                                                  a company from engaging in insider trading.
can deal in the securities of the company only after
obtaining a prior approval in accordance with the
                                                                  However, communications required in the ordinary
procedure and policy prescribed by the company in
                                                                  course of business or profession or employment or
that regard. In addition, it may also be prescribed that
                                                                  under any law are an exception. This section does not
a pre-approved trade will have to be undertaken within
                                                                  distinguish between a listed or unlisted company or
the stipulated time period, failing which the approval
                                                                  even between a private or a public company whereas
would lapse.
                                                                  SEBI Insider Regulations are applicable only on the
                                                                  listed public companies. It will be interesting to see how
x. Notional trading windows                                       this section will be applied to a private company, which
                                                                  is usually run by the founders/shareholders and where
Usually, trading is closed during the trading windows
                                                                  there is no market determined price readily available.
are closed to eliminate any risk of insider trading and
monitor compliant trading within a company during ­
(i) declaration of financial results (quarterly, half-yearly
and annually) (ii) declaration of dividends (interim and
final) (iii) issue of securities by way of public/rights/
bonus etc. (iv) any major expansion plans or execution
of new projects (v) amalgamation, mergers, takeovers
and buy-back (vi) Disposal of whole or substantially
whole of the undertaking (vii) Any changes in policies,
plans or operations of the company. The time-frame
for such re-opening of trading windows has been set
to 48 hours (which was earlier 24 hours) after the UPSI
becomes generally available.



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4. Competition Law
The Competition Act, 2002("Competition Act")                On the other hand, vertical agreements, such as tie-
replaced the Monopolies and Restrictive Trade               in arrangements57, exclusive supply or distribution
Practices Act, 1969, and takes a new look at competition    agreements, etc., are anti-competitive only if they cause
altogether. The Competition Act primarily covers (i)        or are likely to cause an appreciable adverse effect on
anti-competitive agreements (Section 3), (ii) abuse of      competition in India.
dominance (Section 4), and (iii) combinations (Section
5, 6, 20, 29, 30 and 31).
                                                            II. Abuse of Dominant
The Competition Commission of India (Procedure
in regard to the transaction of business relating to
                                                                Position
combinations) Regulations, 2011 ("Combination
                                                            An entity is considered to be in a dominant position
Regulations") govern the manner in which the
                                                            if it is able to operate independently of competitive
Competition Commission of India (CCI) will regulate
                                                            forces in India, or is able to affect its competitors or
combinations which have caused or are likely to cause
                                                            consumers or the relevant market in India in its favor.
an appreciable adverse effect on competition ("AAEC")
                                                            The Competition Act prohibits an entity from abusing
in India.
                                                            its dominant position. Abuse of dominance would
                                                            include imposing unfair or discriminatory conditions
I. Anti - Competitive                                       or prices in purchase/sale of goods or services and

   Agreements                                               predatory pricing, limiting or restricting production
                                                            / provision of goods/services, technical or scientific
                                                            development, indulging in practices resulting in denial
The Competition Act essentially contemplates two
                                                            of market access etc.
kinds of anti-competitive agreements ­ horizontal
agreements i.e. agreements between entities engaged
in similar trade of goods or provisions of services, and    III.Regulation of
vertical agreements i.e. agreements between entities
in different stages / levels of the chain of production,
                                                                Combinations
in respect of production, supply, distribution, storage,
                                                            The Combination Regulations are the key regulations
sale or price of goods or services. Anti-competitive
                                                            through which the CCI regulates combinations such
agreements that cause or are likely to cause an
                                                            as mergers and acquisitions. Under Section 32 of the
AAEC within India are void under the provisions of
                                                            Competition Act, the CCI has been conferred with
the Competition Act. A horizontal agreement that
                                                            extra-territorial jurisdiction. This means that any
(i) determines purchase / sale prices, or (ii) limits
                                                            acquisition where assets / turnover are in India (and
or controls production supply, markets, technical
                                                            exceed specified limits) would be subject to the scrutiny
development, investment or provision of services,
                                                            of the CCI, even if the acquirer and target are located
or (iii) shares the market or source of production or
                                                            outside India.
provision of services, by allocation of geographical
areas/type of goods or services or number of customers
in the market, or (iv) results in bid rigging / collusive
bidding, are presumed to have an AAEC.
                                                            57. A tie-in arrangement would include any agreement requiring a
                                                                purchaser of goods, as condition of such purchase to purchase some
                                                                other goods. A classic example of this on a global scale may be Mi-
                                                                crosoft's bundling of its web browser Internet Explorer along with
                                                                the Windows operating system, limiting Netscape's web browser,
                                                                Navigator, from having a significant presence in the market.




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A "Combination", for the purposes of the Competition            The acquirer group58 would have ­
Act means:
                                                                §§Test 1: India Asset Test and India Turnover Test - in
§§ an acquisition of control, shares or voting rights or          India (i) assets higher than INR 8, 000 crores; or (ii)
   assets by a person;                                               turnover higher than INR 24,000 crores; or

§§ an acquisition of control of an enterprise where the         §§Test 2: Global Asset Test and Global Turnover Test -
   acquirer already has direct or indirect control of             (i) Total assets in India or outside higher than USD 4
     another engaged in similar or identical business; or            billion of which assets in India are higher than INR
                                                                    1,000 crores; or (ii) total turnover in India or outside
§§ a merger or amalgamation between or among                         is higher than USD 12 billion of which turnover in
   enterprises; that exceed the `financial thresholds'
                                                                     India should be higher than INR 3,000 crores.
     prescribed under the Competition Act.

                                                                B.Small Company Exemption
A.Financial thresholds
                                                                On March 4, 2016 vide a notification, the CCI has
Competition Act prescribes financial thresholds linked
                                                                increased the de-minimis thresholds for small
with assets / turnover for the purposes
                                                                companies. Now an exemption has been granted to
of determining whether a transaction is a `combination',
                                                                companies which have assets of less than INR 350
and CCI approval is required only for combinations.
                                                                crores or turnover of less than INR 1,000 crores in India
                                                                ("SME Exemption"). However, this exemption is only
Recently, vide notification dated March 4, 2016, the CCI
                                                                valid for a period of five years and is available until
has increased the thresholds for the purposes of section
                                                                March 04, 2021.
5 of the Competition Act. A transaction that satisfies any
of the following tests is a combination:-
                                                                C.Pre-Filing Consultation
An acquisition where the parties to the acquisition, i.e.
the acquirer and the target, jointly have:                      Any enterprise which proposes to enter into
                                                                a combination may request in writing to the CCI, for an
§§Test 1: India Asset Test and India Turnover Test - in         informal and verbal consultation with the officials of
  India (i) assets higher than INR 2,000 crore; or (ii)
                                                                the CCI about filing such proposed `combination' with
     turnover higher than INR 6,000 crore; or
                                                                CCI. Advice provided by the CCI during such pre-filing
                                                                consultation is not binding on the CCI.
§§Test 2: Global Asset Test and Global Turnover
  Test - Total assets in India or outside higher than
     USD 1 billion of which assets in India should be           D.Mandatory Reporting
     higher than INR 1,000 crores; or (ii) total turnover
                                                                Section 6 makes void any combination which causes
     in India or outside is higher than USD 3 billion
                                                                or is likely to cause an AAEC within India. Accordingly,
     of which turnover in India should be higher than
                                                                Section 6 of the Act requires every acquirer to notify the
     INR3,000crores; OR
                                                                CCI of a combination within 30 days of the decision of
                                                                the combination or the execution of any agreement or


                                                                58. A `group' for the above purposes would mean two or more enterpris-
                                                                    es which, directly or indirectly, are in position to ­

                                                                 i Exercise of not less than 50% or more of the voting rights in the other
                                                                       enterprise; or

                                                                 ii Appoint more than fifty per cent of the members of the board of
                                                                       directors in the other enterprise, or iii Control the management or
                                                                       affairs of the other enterprise




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other document for acquisition and seek its approval           acquirer directly or indirectly is less than 25% of the
prior to effectuating the same.                                total shares or voting rights of the company, and as
                                                               long as control is not acquired.
The CCI must form a prima facie opinion on whether a
combination has caused or is likely to cause an AAEC        §§Acquisition of not more than 5% shares or voting
within the relevant market in India, within 30 days of        rights in any financial year (on a gross basis) by an
filing. The combination will become effective only after       acquirer or its group, if (a) the acquirer or its group
the expiry of 210 days from the date on which notice           already hold 25% or more of the shares or voting
is given to the CCI, or after the CCI has passed an order      rights of the acquired enterprise but do not hold
approving the combination.                                     50% or more shares of voting rights of the acquired
                                                               enterprise either prior to or after such acquisition

E.Multiple tranches                                            and (b) joint or sole control is not acquired.


In order to ensure that all the combinations arising        §§Acquisition by an acquirer who already had 50% or
                                                              more shares or voting rights except in cases where
from small individual transactions which otherwise
                                                               the transaction results in a transfer from joint
in isolation may not qualify the financial thresholds
                                                               control to sole control.
but along with inter-connected or inter-dependent
transactions may qualify the financial thresholds are
                                                            §§An acquisition of assets unrelated to the business
notified to CCI, Combinations Regulations provide that
                                                              of the acquirer, or acquired solely as an investment
in a situation where the ultimate intended effect of
                                                               or in the ordinary course of business, other than an
a business transaction is achieved by way of a series of
                                                               acquisition of a substantial business operation.
steps or smaller individual transactions which are inter-
connected or inter-dependent on each other, one or          §§Acquisitions of stock-in-trade, raw materials, stores
more of which may amount to a combination,                    and spares, trade receivables and other similar
a single notice, covering all these transactions, may          current assets (in the ordinary course of business).
be filed by the parties to the combination.59 Further,
Combinations Regulations were amended in 2014,              §§Acquisitions of shares or voting rights pursuant to
                                                              a bonus or rights issues, or buyback of shares, not
wherein a provision was inserted which mandates
                                                               leading to acquisition of control.
companies to notify CCI if the substance of the
transaction and any structure of the transaction(s),
                                                            §§Acquisition of shares or voting rights or assets
comprises a combination, and that has the effect of
                                                              within the same group, except where the acquired
avoiding notice in respect of the whole or a part of the
                                                               enterprise is jointly controlled by enterprises that
combination shall be disregarded.
                                                               are not part of the same group.


F.Exceptions to Filing                                      §§Merger or amalgamation: (i) of holding and
                                                              subsidiary company and/ or (ii) of companies which
Schedule I to the Combination Regulations specifies            are majority held by the same group. However,
certain categories of transactions which are ordinarily        the merger or amalgamation must not lead to the
not likely to have an AAEC and therefore would not             transfer of joint control to sole control. A share
normally require to be notified to the CCI which inter         subscription, financing facility or any acquisition by
alia include:                                                  a public financial institution, foreign institutional
                                                               investor, bank or venture capital fund pursuant
§§Acquisitions of shares or voting rights as an                to any loan or investment agreement, would not
  investment or in the ordinary course of business as
                                                               qualify as a combination that will be regulated by
    long as the total shares or voting rights held by the
                                                               the CCI, and such transactions are exempt from
                                                               the Combination related provisions under the
59. Regulation 9(4)




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     Competition Act. However, the public financial                CCI is not received within the statutory time period
                                                                   required to complete the open offer as prescribed
     institution, FII, bank or venture capital fund is
                                                                   under the Takeover Regulations, then as per the
     required to notify the CCI of the details of the              Takeover Code, SEBI may direct the acquirer to pay
     acquisition within 7 day of completion of the                 interest to shareholders for the delay beyond the
     acquisition.                                                  maximum period within which the tendering share-
                                                                   holders are required to be paid.

§§Impact on transactions involving listed companies.
  In combination involving listed companies,
     a primary transaction may trigger notification with
     CCI and subsequent open offer obligation under the
     Takeover Code. In cases where clearance from the




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                                                                                                                                Legal & Tax Issues




5. Exchange Control
                                                                           approval of the Foreign Investment Promotion Board
I.Foreign Direct Investment                                                ("FIPB") of the Government of India, which is granted
                                                                           on a case to case basis. As per Press Note 6 of 2015, any
India's story with respect to exchange control is one of
                                                                           foreign equity inflow that requires prior FIPB approval
a gradual, deliberate and carefully monitored advance
                                                                           and is above INR 3,000 crores requires a prior approval
towards full capital account convertibility. Though
                                                                           of the Cabinet Committee on Economic Affairs.
significant controls have been removed and foreign
companies can freely acquire Indian companies
across most sectors, these are subject to strict pricing
                                                                           B.Portfolio Investment Scheme
and reporting requirements imposed by the central
                                                                           Foreign portfolio investors registered with the SEBI as
bank, the Reserve Bank of India ("RBI"). Investments
                                                                           per the SEBI (Foreign Portfolio Investment) Regulations,
in, and acquisitions (complete and partial) of, Indian
                                                                           2014 and non-resident Indians ("NRI"), are permitted
companies by foreign entities, are governed by the
                                                                           to invest in shares / convertible debentures under the
terms of the Foreign Exchange Management (Transfer
                                                                           portfolio investment scheme. This scheme permits
or Issue of Security by a Person Resident outside
                                                                           investment in listed securities through the stock
India) Regulations, 2000 (the "FI Regulations") and
                                                                           exchange.
the provisions of the Industrial Policy and Procedures
issued by the Secretariat for Industrial Assistance (SIA)
in the Ministry of Commerce and Industry,
                                                                           C.Foreign venture capital
Government of India.                                                         investors ("FVCI")
The FI Regulations segregate foreign investments into                      An FVCI registered with the SEBI can invest in Indian
various types: foreign direct investments (FDI), foreign                   venture capital undertakings, venture capital funds
portfolio investments (FPI), investments by non-                           or in schemes floated by venture capital funds under
resident Indians (NRI) on portfolio basis, or on non-                      the terms of Schedule 6 of the FI Regulations. One
repatriation basis, foreign venture capital investments.                   of the important benefits of investing as an FVCI is
                                                                           that an FVCI is not required to adhere to the pricing

A.Foreign Direct Investment (FDI)                                          requirements that are otherwise required to be met by
                                                                           a foreign investor under the automatic route61 when
                                                                           purchasing or subscribing to shares or when selling
Schedule 1 of the FI Regulations contains the Foreign
                                                                           such shares.
Direct Investment Scheme ("FDI Scheme"), and sets
out the conditions for foreign direct investments in
India. Annex A of the FDI Scheme sets out the sectors in
                                                                           II. Indirect Foreign Invest-
which FDI is prohibited. This list includes sectors such
as lottery, gambling , defence etc. A foreign investor                         ment
can acquire shares or convertible debentures60 in an
Indian company upto the investment (or sectoral)                           Foreign investment may be direct or indirect. Generally
caps for each sector provided in Annexure B to the FDI                     speaking (and subject to certain exceptions) if an Indian
Scheme. Investment in certain sectors requires the prior


60. A foreign investor may also subscribe to preference shares. However,
    in order to fall under the automatic route, the preference shares /
    debentures must be compulsorily convertible into equity, failing
    which the investment will be treated as a debt and the External        61. The `automatic route' generally means that investments do not need
    Commercial Borrowings (ECB) policy will be applicable.                     to any permissions / approvals under the FDI Scheme.




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investing company is "owned"62or "controlled"63by                              by an Indian court, provided that the sectoral caps
"non-resident entities"64, then the entire investment by                       mentioned above are not exceeded.
the investing company into the subject downstream
Indian investee company would be considered as
                                                                               C.Issue of shares against import
indirect foreign investment.
                                                                                 of capital goods and pre-
                                                                                 operative/pre- incorporation
III.Investment in a holding                                                      expenses
    company                                                                    Indian companies can issue and allot equity shares/
                                                                               preference shares to a person resident outside India
Foreign investment, whether direct or indirect, into
                                                                               under the automatic route against import of capital
a non-operational company, including a holding
                                                                               goods/ machineries / equipment (including second-
company, requires prior approval of the FIPB.
                                                                               hand machineries) and pre-operative/pre- incorporation
                                                                               expenses (including payments of rent, etc.) subject
A.Acquisition of rights shares/                                                to compliance with the conditions prescribed.65
  bonus shares                                                                 Further, equity shares/ convertible preference shares/
                                                                               convertible debentures can be issued by a company
A non-resident may subscribe to shares issued on                               against any other funds payable by it provided that: (i)
a rights basis by an Indian company provided that                              such shares/ debentures should be issued in accordance
the offer of shares does not result in increase in                             with the foreign exchange laws, and (ii) the shares
the percentage of foreign equity permitted for such                            issued shall be subject to the applicable tax laws and the
company, and the price at which the shares are offered                         conversion to equity should be net of applicable taxes.
to the non-resident is not less than the price offered
to the resident shareholders. A non- resident may also
                                                                               D.Issue of partly-paid up shares,
acquire bonus shares under the FI Regulations. The
rights/bonus shares will however be subject to the same
                                                                                 warrants and other optionally
conditions as those applicable to the original shares.                           convertible instruments
                                                                               Currently, only equity shares, compulsorily convertible
B.Issue of Shares under merger/                                                preference shares and compulsorily convertible
  amalgamation / demerger                                                      debentures and warrants are permitted under the
                                                                               FDI route as eligible instruments. As per the Budget
A transferee company may issue shares to the                                   Speech of 2016, it has been proposed to expand the
shareholders of a transferor company under                                     scope of permitted eligible instruments. While such
a scheme of merger or amalgamation approved                                    additional instruments have not been detailed, it
                                                                               seems that optionally convertible instruments
                                                                               (preference shares and/ or debentures) or redeemable
                                                                               instruments (preference shares and/ or debentures)
                                                                               may be permitted under the FDI route. This is likely
62. A company is considered to be owned by resident Indian citizens            to be a major shot in the arm for FDI investments into
    and Indian companies, if more than 50% of the equity interest in it        India, since it provides further flexibility in terms
    is beneficially owned by resident Indian citizens and Indian compa-
    nies(which are owned and controlled by resident Indian citizens).          of structuring of investments in a manner which is
63. A company is considered to be controlled by resident Indian citizens       optimized for the investor and the investee from
    and Indian companies, , if resident Indian citizens and Indian com-
    panies, (which are owned and controlled by resident Indian citizens),      a regulatory perspective.
    have the power to appoint a majority of its directors.
64. "Non-resident entity" means a `person resident outside India' as
    defined under FEMA 1999.                                                   65.http://rbidocs.rbi.org.in/rdocs/notification/PDFs/1CAP74300611.pdf




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                                                                                                                          Legal & Tax Issues




As per the current exchange control regulations, partly                 F.Foreign Technology
paid shares66 can be issued to non-residents if (i) pricing               Collaborations
of partly paid shares is determined up front and at least
25% of the total consideration amount is paid up front;                 Payments for foreign technology collaboration by
and (ii) the remaining amount is invested within a                      Indian companies are allowed under the automatic
period of 12 months of issuance. As regards the issuance                route subject to compliance without any limits.
of share warrants, the following conditions must be
complied with: (i) pricing and conversion formula /
                                                                        G.ADR/GDR
price is required to be determined up front and 25% of
the total consideration is required to be paid up front;                An Indian company may also issue American
and (ii) the remaining amount is required to be brought                 Depositary Receipts / Global Depositary Receipts
in within a period of 18 months. Further, the price at                  to foreign investors in accordance with the new
the time of conversion should not be less than the fair                 Depository Receipts Scheme, 2014 ("DR Scheme").
value of the shares as calculated at the time of issuance               For a comprehensive analysis of the above- mentioned
of such warrants.                                                       scheme.67

It must also be noted that only companies in which
investment can be made under the automatic route                        IV.Overseas Direct
can issue partly paid shares or warrants. For companies
under the approval route, prior FIPB approval will be
                                                                           Investment
required to issue partly paid shares or warrants.
                                                                        An Indian company that wishes to acquire or invest in
                                                                        a foreign company outside India must comply with
E.Pricing under the automatic                                           the Foreign Exchange Management (Transfer or Issue
  route                                                                 of any Foreign Security) Regulations, 2004 (the "ODI
                                                                        Regulations").
Acquisition of shares of an Indian company
by a person resident outside India under the automatic                  The ODI Regulations are an extension of the process of
route may only be made in accordance with the pricing                   liberalization initiated by the Government of India in
requirements provided in the FDI Regulations. The                       the 1990s. The regulations contain detailed provisions
price of shares issued to non- residents cannot be less                 governing investments made by an Indian company
than the fair value of shares as determined as per any                  in a foreign company by grant of `general permission'
internationally accepted pricing methodology for                        to make a `direct investment outside India' in bona
valuation of shares on arm's length basis, or if the                    fide business activities, subject to compliance with the
Indian company is listed, the price cannot be less                      regulations. The term `direct investment outside India'
than the price calculated in accordance with the SEBI                   has been defined as `investment by way of contribution
guidelines.                                                             to the capitalor subscription to the Memorandum of
                                                                        Association of a foreign entity or by way of purchase of
                                                                        existing shares of a foreign entity either by market purchase
                                                                        or private placement, or through stock exchange,
                                                                        but does not include portfolio investment'.




                                                                        67.http://www.nishithdesai.com/information/research-and-articles/
66. Only equity shares can be issued on partly paid basis, preference      nda-hotline/nda-hotline-single-view/newsid/2682/html/1.html?no_
    shares debentures must be fully paid.                                  cache=1




                                                                                                                                    23
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The Indian party may choose to fund the aforesaid                             A special case is carved out for a software exporter
investment out of balances held in Exchange Earner's                          who wishes to start a software company overseas ­ the
Foreign Currency account, by drawing funds from an                            Indian exporter is permitted to receive shares upto 25%
authorized dealer subject to certain limits, or using the                     of the value of exports in the overseas company
proceeds of an ADR/GDR issue.                                                 by filing an application with the authorized dealer.


A.Direct Investment in a Joint                                                C.Transfer of shares
  Venture/ Wholly Owned
  Subsidiary                                                                  An Indian company may sell the securities of an
                                                                              overseas JV/WOS which has been in operation for a year
                                                                              provided that the following conditions, inter alia, are
An Indian company is permitted to invest in
                                                                              fulfilled:
a joint venture ("JV") or a wholly owned subsidiary
("WOS") upto 400 %68of the net worth of the Indian
                                                                              §§The sale does not result in any write off of the
company as on the date of the last audited balance sheet
                                                                                investment made;
without seeking the prior approval of the RBI, subject to
the following conditions being fulfilled:                                     §§The sale should be through the stock exchange on
                                                                                which the securities of the overseas JV/WOS are
§§The Indian company is not on the RBI's caution                                   listed. Where the shares of the JV/WOS company are
  list or under investigation by the Enforcement
                                                                                   not listed, the sale price of the shares should not be
     Directorate.
                                                                                   less than the fair value of the shares as determined
                                                                                   by a certified Chartered Accountant or Certified
§§The Indian company routes all the transactions
                                                                                   Public Accountant;
  relating to the investment in the JV or the WOS
     through only one branch of an authorized dealer to
                                                                              §§The exiting Indian seller does not have any dues
     be designated by it.
                                                                                from the JV/WOS.

Overseas direct investment cannot be made
                                                                              The securities of the JV/WOS may also be pledged by
in the real estate business or banking business.
                                                                              the Indian company as security, to avail of fund/ non-
Further, investment in the financial services
                                                                              fund based credit facilities for itself or for the JV/ WOS.
sector is subject to special requirements.

                                                                              D.Guarantee by Indian party
B.Investment by way of
  capitalization of exports, or                                               Loan and guarantee can be extended to an overseas
  fees royalties etc., due to the                                             entity only if there is already existing equity / CCPS
  Indian company                                                              participation by way of direct investment.

                                                                              In case, however, the overseas entity is a first level
The ODI Regulations permit a company to invest in
                                                                              step down operating subsidiary of the Indian party,
an entity outside India by way of capitalization of
                                                                              guarantee may be issued by the Indian party on behalf
amounts due to it from the investee company, for
                                                                              of such step down operating subsidiary provided such
sale of plant, machinery, equipment and other goods/
                                                                              guarantee is reckoned for the purpose of computing the
software, or any fees, royalty, commissions or other
                                                                              total financial commitment of the Indian party.
entitlements due to it for transfer of technical know-
how, consultancy, managerial or other services.
                                                                              In case, the overseas entity is a second or subsequent
                                                                              level step down operating subsidiary of the Indian party,
68. This ceiling is not applicable where the investment is funded out of
                                                                              guarantee may be issued by the
    balances held by the Indian party in its Exchange Earners' Foreign
    Currency (EEFC) account.




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                                                                                                      Legal & Tax Issues




Indian party on behalf of such step down operating        §§ if they represent qualification shares for becoming
subsidiary with prior approval of the RBI provided           a director of a company outside India not exceeding
such Indian party holds indirect stake of not less 51%       1 % of the paid up capital of the overseas company ,
in the step down operating subsidiary and guarantee          provided the consideration for the acquisition does
is reckoned for the purpose of computing the financial       not exceed USD 20,000 in a calendar year;
commitment of the Indian party.69
                                                          §§ as part/full consideration of the professional services
                                                             rendered to the foreign entity or lieu of director's
E. Investment by Individuals                                 remuneration; and

Under the ODI Regulations, there are limits on
                                                          §§ if they are rights shares.
individuals owning shares in foreign companies. An
individual may inter-alia invest in equity and in rated   Any person intending to make any investments
bonds / fixed income securities of overseas companies     other than those specifically covered under the ODI
as permitted in terms of the limits and conditions        Regulations must obtain the prior approval of the RBI.
specified under the Liberalized Remittance Scheme
                                                          Further, a resident individual (single or in association
(upto a maximum amount of USD 2,50,000 per annum).
                                                          with another resident individual) can make overseas
The Liberalized Remittance Scheme was introduced
                                                          direct investment in the equity shares and compulsorily
in 2004 to simplify and liberalize the foreign
                                                          convertible preference shares of a JV/WOS outside India
exchange facilities available to resident individuals.
                                                          subject to certain conditions. Some of these conditions
Remittance under the Scheme is permitted for any
                                                          are listed below:
permitted current or capital account transactions
or a combination of both. The funds remitted can be
                                                          §§The JV or WOS abroad should be engaged
used for various purposes such as purchasing objects,
                                                            in a bona fide business and should not be engaged in
making gifts and donations, acquisition of employee
                                                             the real estate, banking business
stock options and units of Mutual Funds, Venture
                                                             or financial services activities.
Funds, unrated debt securities, promissory notes, etc.,
under this Scheme. Further, general permission has        §§The JV/WOS should be an operating entity only
been granted to individuals under the ODI Regulations       and not a step down subsidiary. Further, resident
to acquire foreign securities:                               individuals cannot acquire a step down subsidiary.

§§ as a gift from any person resident outside India;      §§Resident individuals will have to get the valuation
                                                            certificate from a certified valuer registered with the
§§under Cashless Employees Stock Option Scheme               appropriate valuation authority in host country.
  issued by a company outside India, provided it does
    not involve any remittance from India;                §§At the time of investments, the permissible ceiling
                                                            shall be overall ceiling prescribed from the resident
§§by way of inheritance from a person whether                individual under the Liberalized Remittance
  resident in or outside India;
                                                             Scheme.

§§under ESOP Schemes, if he is an employee, or,
  a director of an Indian office or branch of a foreign
    company, or, of a subsidiary in India of a foreign
    company, or, an Indian company in which foreign
    equity holding, either direct or through a holding
    company/Special Purpose Vehicle (SPV), is not less
    than 51 per cent;


69.https://rbi.org.in/Scripts/FAQView.aspx?Id=32




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6. Taxes and Duties
                                                                            ii. The sale, exchange or relinquishment of the
I.Income Tax Act, 1961.                                                          asset; or

The ITA contemplates and recognizes the following                           iii.The extinguishment of any rights therein; or
types of mergers and acquisitions activities:
                                                                            iv. The compulsory acquisition thereof under any

§§Amalgamation (i.e. a merger which satisfies the                                law; or
  conditions mentioned below70 )
                                                                            v.   In a case where the asset is converted by the
§§Demerger or spin-off;                                                          owner thereof into, or is treated by him as, stock­
                                                                                 in­trade of a business carried on by him, such
§§ Slump sale/asset sale; and                                                    conversion or treatment; or

§§Transfer of shares.                                                       vi.Any transaction involving the allowing of the
                                                                                 possession of any immovable property to be
The ITA defines an `amalgamation' as the merger of
                                                                                 taken or retained in part performance of
one or more companies with another company, or
                                                                                 a contract of the nature referred to in section 53A
the merger of two or more companies to form one
                                                                                 of the Transfer of Property Act, 1882; or
company. The ITA also requires that the following
conditions must be met by virtue of the merger, for
                                                                               Any transaction (whether by way of becoming
                                                                            vii.
such merger to qualify as an `amalgamation' under
                                                                                 a member of, or acquiring shares in, a co-opera-
the ITA:
                                                                                 tive society, company or other association of per-
                                                                                 sons or by way of any agreement or any arrange-
§§ all the property of the amalgamating
                                                                                 ment or in any other manner whatsoever),
   company(ies) becomes the property of the
                                                                                 which has the effect of transferring, or enabling
       amalgamated company;
                                                                                 the enjoyment of, any immovable property.
§§ all the liabilities of the amalgamating
                                                                           viii. Further, under Section 9(1)(i) of the ITA, capital
   company(ies) become the liabilities of the
                                                                                 gains arising to a non-resident is considered
       amalgamated company; and
                                                                                 taxable in India if they are earned directly or
§§ shareholders holding not less than 75% of the                                 indirectly through the transfer of a capital asset
  value of the shares of the amalgamating company                                situated in India.
       become shareholders of the amalgamated
                                                                          If a merger or any other kind of restructuring results
       company.
                                                                          in a transfer of a capital asset (as defined above) for
                                                                          a resident or a capital asset that is situated in India for
A.Tax on Capital Gains                                                    a non-resident, it would lead to a taxable event.72


  i.   Section 45 of the ITA levies tax on capital gains
       arising on the transfer of a capital asset . Section                (a) stock in trade, consumable stores or raw materials held for the
                                                                               purposes of his business or profession, (b) personal effects, i.e.
       2(47) of the ITA defines the term `transfer' in                         movable property held for personal use, and (c) certain agricul-
                                                                               tural land.
       relation to a capital asset71 to include:
                                                                          72. Capital gains characterization under the ITA also depends on
                                                                              accounting treatment of the transferred asset as `capital asset',
70. Section 2(1B)
                                                                              frequency of sale, period of holding etc. In case the asset is held
71. Section 2 (14) defines `capital asset' as property of any kind held       as a trading asset and is transferred as part of business, income
    by an assessee whether or not connected with his business or              arising may also be categorized as `business income' under the
    profession, but excludes                                                  ITA.




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i. Capital Gains Tax Implications for                                  shareholders of the amalgamating foreign company
   Mergers                                                             continue to be the shareholders of the amalgamated
                                                                       foreign company, and (b) such transfer does not
Section 47 of the ITA sets out certain transfers that                  attract capital gains tax in the country where the
are exempt from the provisions of Section 45 (the                      amalgamating company is incorporated. It may be
charging provision for tax on capital gains) and such                  noted that while the definition of `amalgamation'
transfers are exempt from tax on capital gains. The                    under Section 2(1B) requires that 75% (in terms
relevant exemptions are provided below:                                of value of shares) of the shareholders of the
                                                                       amalgamating company should become the
                                                                       shareholders in the amalgamated company, this
                                                                       section specifies 25% of the number of shareholders
  - for an amalgamating company (transferor)
                                                                       as the corresponding figure. The above provisions
                                                                       also indicate that an Indian company may not
Section 47(vi): The transfer of a capital asset in                     amalgamate into a foreign company without
a scheme of amalgamation by the amalgamating                           attracting capital gains tax liability in India.
company to the amalgamated company is exempt
from tax on capital gains, provided the amalgamated
company is an Indian company.73 Please note that
                                                                         - shareholders of the amalgamating company
for this exemption to be applicable to a merger,
it is essential that the merger falls within the
definition of `amalgamation' provided above. Special
                                                                       Section 47(vii): Transfer by the shareholders
exemptions have also been included in case of
                                                                       of amalgamating company, in a scheme of
amalgamations involving banking companies.74
                                                                       amalgamation, of shares of the amalgamating
                                                                       company (the capital asset) as consideration for the
                                                                       allotment of shares of the amalgamated company, is
 - for a foreign amalgamating company (transferor)                     exempt from tax on capital gains, provided that the
     in connection with transfer of shares in an Indian                amalgamated company is an Indian company.75 The
     company                                                           exemption from tax on capital gains would only be
                                                                       to the extent that the transfer is for the consideration
                                                                       for shares of the amalgamated company. If any
Section 47(via): When a foreign holding company
                                                                       consideration other than shares of the amalgamated
transfers its shareholding in an Indian company to
                                                                       company, such as cash or bonds, was paid to the
another foreign company as a result of a scheme
                                                                       shareholders of the amalgamating company, it may
of amalgamation, such a transfer of the capital
                                                                       be considered liable to tax on capital gains.76
asset i.e. shares in the Indian company, would be
                                                                       If any of the conditions specified above are not
exempt from tax on capital gains in India for the
                                                                       satisfied (including the conditions specified in the
foreign amalgamating company, if it satisfies
the following conditions: (a) At least 25% of the
                                                                       75.   In this scenario, the shareholders get shares of the amalgamated
                                                                             company in exchange for their shareholding in the amalgam-
73. This section only requires that the amalgamated (or the surviv-          ating company, and the amalgamating company is dissolved. It
     ing) company must be an Indian company. The amalgamating                should be noted that the term transfer is used here in the con-
     company may be an In- dian company or a foreign company.                text of the definition of this term under the ITA, which includes
     In this connection it is useful to note that the meaning of the         the extinguishment of any right in a capital asset. So if the rights
     term `company' under the Companies Act differs considerably             of the shareholders in the shares of the amalgamating company
     from the meaning under the ITA. Under the Companies Act,                are extinguished, it would amount to a transfer (which is
    `company' would generally refer to an Indian company (unless             exempt from capital gains tax if the conditions specified are
     specifically provided otherwise). Under the ITA, the term               complied with).
    `company' has a much broader meaning and inter alia includes       76. The Gujarat High Court, in CIT v. Gautam Sarabhai Trust, [1988]
     an Indian company and a foreign body corporate (i.e. including        173 ITR 216( Guj) had held that a shareholder receiving any
     a foreign company).                                                   other property other than shares by virtue of a marger would
74. Sections 47(viaa), 47(vica), 47(vicb) of the ITA                       not qualify for the exemption under Section 47(vii).









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definition of `amalgamation'), the transfer of capital                    §§All the liabilities79 relatable to the undertaking,
assets in a merger would be subject to tax on capital                       being transferred by the demerged company,
gains.                                                                         immediately before the demerger, become the
                                                                              liabilities of the resulting company by virtue of
                                                                               the demerger;

 - for the shareholders/interest holders of a foreign
                                                                          §§The property & the liabilities of the undertaking/
     amalgamating company in relation to indirect
                                                                            undertakings being transferred by the demerged
     transfer tax
                                                                               company are transferred at values appearing
                                                                               in its books of account immediately before the
                                                                               demerger;
The Finance Act, 2015 has added Sections 47(viab)
and 47(vicc) to the ITA by which transfer by the
                                                                          §§The resulting company issues, in consideration of
shareholders, in a scheme of amalgamation, of
                                                                            the demerger, its shares to the shareholders of the
shares/interests of a foreign amalgamating
                                                                               demerged company
company (the capital asset) that derive their value
                                                                               on a proportionate basis;
`substantially' from Indian assets77 as consideration
for the allotment of shares of the amalgamated                            §§The shareholders holding not less than 3/4ths
company, is exempt from tax on capital gains, if it                         in value of the shares in the demerged company
satisfies the following conditions: (a) At least 25%                          (other than shares already held therein
of the shareholders of the amalgamating foreign                                immediately before the demerger, or by
company continue to be the shareholders of the                                a nominee for, the resulting company or its
amalgamated foreign company, and (b) such transfer                             subsidiary) become shareholders of the resulting
does not attract capital gains tax in the country                              company(ies) by virtue of the demerger,
where the amalgamating company is incorporated.                                otherwise than as a result of the acquisition of
                                                                               the property or assets of the demerged company
Capital gains tax implications for demergers. The
                                                                               or any undertaking thereof by the resulting
term `demerger' in relation to companies is defined
                                                                               company;
by Section 2(19AA) of the ITA to mean the transfer,
pursuant to a scheme of arrangement under the                             §§The transfer of the undertaking is on a going
Merger Provisions by a demerged company of                                  concern basis;
its one or more undertakings, to any resulting
company, in such a manner that:                                           §§The demerger is in accordance with the
                                                                            conditions, if any, notified under subsection (5)
§§All the property of the undertaking78, being                                 of section 72A by the Central Government
  transferred by the demerged company,                                         in this behalf.
     immediately before the demerger becomes the
                                                                          Section 2(19AAA) of the ITA defines the term
     property of the resulting company by virtue of
                                                                          "demerged company" to mean a company, whose
     the demerger;
                                                                          undertaking is transferred, pursuant to a demerger,
                                                                          to a resulting company. Section 2(41A) defines a
                                                                          "resulting company" to mean one or more companies
                                                                          (including a wholly owned subsidiary thereof) to
                                                                          which the undertaking of the demerged company is
77. Explanation 6 proposed to be added to Section 9(1)(i) of the
    ITA by the Finance Bill, 2015 clarifies that the term `substantial'
    would mean the foreign shares/interest would need to derive at
    least 50% of their value from Indian assets.                          79. The term `liabilities' would include liabilities and specific loans/
78. The term `undertaking' would include any part of an undertak-             borrowings incurred or raised for the specific business activity
    ing, any unit or division of an undertaking or a business activity        of the undertaking. In case of a multipurpose loan, such value of
    as whole, but does not include individual assets or liabilities           the loan will be included, that bears the same proportion as the
    which do not constitute a business activity.                              value of the demerged assets to the total assets of the company.




28                                                                        ©Nishith Desai Associates 2016
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                                                                                                           Legal & Tax Issues




transferred in a demerger and, the resulting company          of the resulting foreign company; and Such
in consideration of such transfer of undertaking,             transfer does not attract tax on capital gains
issues shares to the shareholders of the demerged             in the country, in which the demerged foreign
company.                                                      company is incorporated.

The ITA contains certain tax beneficial provisions
                                                          ii. Computation of Capital Gains Tax
in the case of a demerger. If the demerger fulfills the
conditions listed above, the transfer of assets by the    Income chargeable to tax as capital gains is
demerged company to a resulting company, which            computed by deducting the following from the
must be an Indian company, is exempted from               value of the consideration received ­ (a) expenditure
capital gains tax under Section 47(vib) of the ITA.       incurred wholly and exclusively with such transfer,
                                                          and (b) cost of acquisition of the capital asset and
Further, in case of a demerger of a foreign company,
                                                          any cost of improvement of the capital asset. Section
whereby both the demerged and resulting
                                                          49(1) (e) provides that the cost of acquisition of assets
companies are foreign, but the assets demerged
                                                          transferred by way of a scheme of amalgamation
include or consist of shares in an Indian company,
                                                          that are covered by the exemptions under Section
the transfer of these shares is exempt from capital
                                                          47 mentioned above would be deemed to be the cost
gains tax in the hands of the demerged company
                                                          of acquisition of the assets by the amalgamating
under Section 47(vic) of the IT Act,
                                                          company. Similarly, Section 49 (2) provides that the
if the following conditions are satisfied:
                                                          cost of acquisition for a shareholder, of shares of the
                                                          amalgamated company, is deemed to be the
§§The shareholders holding at least three fourths
                                                          cost of acquisition of the shares of the amalgamating
  in value of the shares of the demerged foreign
                                                          company.
    company continue to remain shareholders of the
    resulting foreign company; and
                                                          B.Capital gains tax implications
§§ Such transfer does not attract tax on capital gains
   in the country, in which the demerged foreign
                                                            on transfer of shares
    company is incorporated.
                                                          i. Long Term and Short Term Capital
However, since both the demerged and the resulting           Gains
companies in the aforesaid example are based
                                                          If a capital asset is held by an assessee for not more
outside India, hence the provisions of the CA 1956/
                                                          than 3 years immediately prior to the transfer, such
CA 2013 (as the case may be) would not be applicable.
                                                          capital asset would be a short term capital asset.
As in the case of a merger, a specific exemption          If the capital asset is held for more than 3 years, then
provision covering demergers in an `indirect              it is a long term capital asset. Any other capital asset
transfer' situation i.e. Section 47(vicc) has been        would be a short term capital asset. However, vide
added by the Finance Act, 2015 whereby any                the Budget Speech of 2016, it has been proposed that
transfer of a foreign company's shares, that derive       in case of sale of shares of unlisted companies, the
their value `substantially' from Indian assets, as part   holding period for an investment to qualify as long
of a demerger would be exempt from capital gains          term capital asset be reduced to 2 years from the
tax in the hands of the demerged company if the           earlier qualifying period of 3 years. Further, in case
following conditions are satisfied:                       of shares of a company/ security listed on a stock
                                                          exchange, it would be a short term capital asset if it is
§§The shareholders holding at least three fourths         held by the assessee for a period not exceeding 1 year.
  in value of the shares of the demerged foreign
                                                          This distinction
    company continue to remain shareholders




                                                                                                                     29
©Nishith Desai Associates 2016
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is important as the rate of capital gains tax on          Further, India has entered into tax treaties with
transfer of short term capital assets and long term       several jurisdictions that allow for allocation of
capital assets differs. In the example mentioned in       taxation rights in a cross-border situation.
the paragraph above, if X sold the shares of B-Co,        In case where a non-resident is resident of
the period of holding of such shares for X would          a jurisdiction with a beneficial tax treaty with
commence on the date X acquired shares in A-Co,           India (such as Mauritius or Singapore), subject to
and not the date of allotment of shares in B-Co.          fulfillment of other requirements, they may claim
                                                          benefits under the tax treaty to neutralize capital
Long-term capital gains realized on the transfer of
                                                          gains tax exposure in India.
listed shares of Indian companies on the floor of
a recognized stock exchange in India are exempt           Moreover, in case shares of any company are
from taxation in India, provided such transaction         transferred to a resident company or partnership
is subject to securities transaction tax ("STT")          firm or if shares of an Indian company are
as further discussed below. Long-term capital             transferred to a non-resident company or partnership
gains arising on transfer of listed shares of Indian      firm at a price which is below the `fair market
companies off the recognized stock exchange               value'80 , the transferee would be subject to tax under
in India or arising to a non-resident on transfer         the head `income from other sources' under the ITA
of shares of an unlisted public company will be           and the difference between the consideration and the
chargeable to tax at a rate of 10% (excluding             fair market value would be added to its gross total
surcharge and education cess                              income and taxed at applicable rates.81

but without indexation benefits). The Finance Bill,
                                                          ii. Capital Gains Tax Implications for
2016 has reduced the long-term capital gains tax
                                                              a Slump Sale
with respect to shares of private companies by non-
residents to 10% (excluding surcharge and education
                                                          A slump sale is a transaction by way of `sale' as
cess). Please note that capital gains arising to a non-
                                                          a result of which the transferor transfers one or
resident from the transfer of shares or debentures
                                                          more of its undertakings on a going concern basis
in an Indian company would not have indexation
                                                          for a lump sum consideration, without assigning
benefits, but such gains would be computed in the
                                                          values to the individual assets and liabilities of the
applicable foreign currency denomination.
                                                          undertaking.82 For the purpose of computing capital
                                                          gains, the cost of acquisition would be the `net worth'
Short-term capital gains realized on the transfer of
                                                          of the undertaking on the date of the transfer.83 The
listed shares of Indian companies on the floor of
                                                          `net worth' of the undertaking shall be determined
a recognized stock exchange in India are subject
                                                          by calculating the difference between the aggregate
to tax at a rate of 15% (excluding surcharge and
                                                          value of total assets and aggregate value of total
education cess), provided such transaction is subject
                                                          liabilities as per the books of accounts of the seller.
to STT. Short-term capital gains on the transfer of an
                                                          Further, for the purpose of such calculation,
Indian security that is listed but not subject to STT,
                                                          the aggregate value of total assets shall be,--
or is unlisted are added to the gross total income are
subject to tax at applicable rates.

All transactions entered into on a recognized stock
exchange in India will be subject to STT, which is
levied on the transaction value. In the case of sale      80. Calaculated on the basis of `net asset value' under the Income
                                                              Tax Rules, 1962.
of equity shares on a delivery basis, STT is generally
                                                          81. However, this liability may be neutralized for a non-resident if it
levied at the rate of 0.125% on the value of the              is resident in a jurisdiction with which India has entered into a
                                                              beneficial tax treaty.
transaction on both the buyer and seller of the equity
                                                          82. Section 2(42C) of the ITA.
shares.                                                   83. Section 50B of the ITA




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                                                                                                                                     Legal & Tax Issues




§§ in the case of depreciable assets, the written                       concern and specific values are attributed to each of
   down value of the block of assets determined in                      the assets. The capital gains tax payable by the seller
    accordance with the ITA;                                            will depend on the period that the seller has held
                                                                        each of the assets that are transferred. This method of
§§ in the case of capital assets in respect of which                    acquisition is usually used where the acquirer does
   the whole of the expenditure has been allowed or
                                                                        not want to acquire the liabilities of the seller, and
    is allowable as a deduction under section 35AD,
                                                                        more so if the acquirer believes that the seller has
    nil; and
                                                                        not disclosed certain liabilities or there is a distinct
                                                                        possibility that unforeseen liabilities could arise in
§§ in the case of other assets, the book value of such
                                                                        the future.
   assets.

                                                                        If the asset, which is being sold was held by the
If the undertaking, which is being sold under slump
                                                                        transferor Indian company for more than 36
sale was held by the transferor Indian company for
                                                                        months, the capital gains realized on such sale
more than 36 months, the capital gains realized on
                                                                        would be taxed as long term capital gains,
such sale would be taxed as long term capital gains,
                                                                        i.e. at the rate of 20% (exclusive of surcharge and
i.e. at the rate of 20% (exclusive of surcharge and
                                                                        education cess). If however, the asset was to be
education cess). If however, the undertaking were to
                                                                        held for 36 months or less by the transferor Indian
be held for 36 months or less by the transferor Indian
                                                                        company, the capital gains realized would be taxed
company, the capital gains realized would be taxed
                                                                        as short term capital gains,
as short term capital gains, i.e. at the rate of 30%
                                                                        i.e. at the rate of 30% (exclusive of surcharge and
(exclusive of surcharge and education cess).
                                                                        education cess).
A slump sale is useful in situations when it
                                                                        Further, if shares of an Indian unlisted company are
would not be feasible to go through the process
                                                                        transferred to a resident or to a non-resident at less
of amalgamation or demerger under the Merger
                                                                        than its `fair market value'86 , the transferee would
Provisions. Further, it is also a useful restructuring
                                                                        be subject to tax under the head `income from other
tool in case of transactions such as externalizations
                                                                        sources' under the ITA and the difference between
as an undertaking may be transferred by an Indian
                                                                        the consideration and the fair market value would
company at `net worth' to another Indian company
                                                                        be added to its gross total income and taxed at
in a tax neutral manner. Time taken for a slump sale
                                                                        applicable rates in the hands of transferee.87
is substantially less than the time taken for merger.

                                                                        Applicable surcharge on companies would be 5%
It would also be useful to note that the definition
                                                                        if income is between INR 1-10 crores and 10% if
of `slump sale' under the ITA uses the term `sale'84
                                                                        income exceeds INR 10 crores. Further, an education
specifically and excludes any other type of transfer as
                                                                        cess of 3% would be applicable after surcharge.
defined under the ITA. Therefore, the transfer of an
undertaking in consideration for issue of securities of
                                                                        Please note that any cross-border transaction
the transferee or any other property other than cash
                                                                        between related parties that is liable to tax under
should be tax neutral in India.85
                                                                        the ITA would also be subject to `transfer pricing'
                                                                        requirements under Indian law, mandating the
Capital gains tax implications for an asset sale
                                                                        transaction to be undertaken at an `arm's length
(itemized sale). In an asset sale, the acquirer only
                                                                        price' and other documentation requirements.
purchases the assets of the seller. This does not
amount to the transfer of the business as a going

84. The term `sale' is defined as a transfer of property in consider-   86. Computable under the Income Tax Rules, 1962.
    ation for cash under the Sale of Goods Act, 1930.                   87. However, this liability may be neutralized for a non-resident if it
85. Upheld by the Bombay High Court in CIT v. Bharat Bijlee Limit-          is resident in a jurisdiction with which India has entered into a
    ed, [2014] 364 ITR 581 (Bombay).                                        beneficial tax treaty.




                                                                                                                                               31
©Nishith Desai Associates 2016
                                                                                                             Provided upon request only




C.Tax on Business Income -                                               §§has held continuously, on the date of
  Carry Forward of Losses.                                                 amalgamation, at least 3/4ths of the book value of
                                                                             the fixed assets held by it 2 years prior to the date
Section 72A of the ITA provides that in case of                              of amalgamation.
amalgamation of a company owning an industrial
                                                                         Section 72 A (4) of the ITA provides a similar benefit
undertaking88 with another company, the
                                                                         for demergers. However, in the case of a demerger,
accumulated loss and the unabsorbed depreciation
                                                                         the company does not need to satisfy any conditions
of the amalgamating company is deemed to
                                                                         similar to those applicable to mergers. In the case of
be the loss / allowance for depreciation, of the
                                                                         a demerger, the accumulated loss and the allowance
amalgamated company. The amalgamated company
                                                                         for unabsorbed depreciation of the demerged
would then be entitled to carry forward such loss
                                                                         company shall:
and depreciation, and set off such amounts against
its future profits.
                                                                         §§where such loss or unabsorbed depreciation is
                                                                           directly relatable to the undertakings transferred
However for this entitlement, the following
                                                                             to the resulting company, be allowed to be
conditions must be satisfied:
                                                                             carried forward and set off in the hands of the
The amalgamated company:                                                     resulting company;

§§Holds 3/4ths of the book value of the fixed                            §§where such loss or unabsorbed depreciation
  assets which it acquired from the amalgamating                           is not directly relatable to the undertakings
     company continuously for a period of five (5)                           transferred to the resulting company,
     years from the date of amalgamation;                                    be apportioned between the demerged
                                                                             company and the resulting company in the
§§Continues to carry on the business of the                                  same proportion in which the assets of the
  amalgamating company for a minimum
                                                                             undertakings have been retained by the
     period of five (5) years from the date of
                                                                             demerged company and transferred to the
     amalgamation. This would imply that if the
                                                                             resulting company, and be allowed to be carried
     amalgamating company were engaged in more
                                                                             forward and set off in the hands of the demerged
     than one business prior to amalgamation, the
                                                                             company or the resulting company, as the case
     amalgamated company would be required to
                                                                             may be.
     carry on all of those businesses; and
                                                                         In a case where these conditions are not met, the
§§Fulfills such other conditions as may be                               ITA provides for a disallowance for carry-forward
  prescribed to ensure the revival of the business of
                                                                         and set-off of losses where there is a substantial
     the amalgamating company or to ensure that the
                                                                         change in ownership. Section 79 of the ITA provides
     amalgamation is for genuine business purpose.
                                                                         that in order for a company to claim carry-forward
                                                                         and set-off of losses for a particular assessment year,
Further, the amalgamating company:
                                                                         51% of the voting power of the company must be
§§has been engaged in the business, in which                             beneficially held during that assessment year by
  the loss occurred or depreciation remained                             the same shareholders who held such voting right
     unabsorbed, for 3 or more years; and                                during the year in which loss was incurred. However,
                                                                         this provision shall not be applicable in a case
                                                                         where there is a change in shareholding of an Indian
                                                                         company, that is a subsidiary of a foreign company,
88. Industrial undertaking means an undertaking engaged in               as a result of amalgamation or demerger of a foreign
    manufacture or processing of good, manufacture of computer
    software, generation/dis- tribution of electricity/power, telecom-   company, subject to the condition that fifty-one per
    munications services etc. This does not cover undertakings in
    the software service sector and certain other service sectors.
                                                                         cent shareholders of the amalgamating or demerged



32                                                                       ©Nishith Desai Associates 2016
                                                                                                      Mergers & Acquisitions in India
                                                                                                                                  Legal & Tax Issues




foreign company continue to be the shareholders of
                                                                        III.Value Added Tax /
the amalgamated or the resulting foreign company.89
                                                                            Sales Tax
Further, domestic transfer pricing rules have also
been introduced under the ITA by which expenses
                                                                        Value added tax ("VAT") or sales tax, as the case may
may be disallowed in case of transactions between
                                                                        be, may be payable on a purchase of movable assets
related parties.
                                                                        or goods of the target by the acquirer. Most Indian
                                                                        states have in the last few years replaced their state
D.Transfers declared void under                                         sales tax laws with laws levying VAT on the sale
  Section 281                                                           of goods. We have analyzed some of the relevant
                                                                        provisions of the Karnataka Value Added Tax Act,
Where there are assessment proceedings or tax                           2003 ("KVAT"), in connection with the sale of goods
litigations under the ITA pending on any person,                        in an asset purchase.
including a company, any charge created on or
                                                                        Under the KVAT, VAT is payable on a `sale' of
transfer envisaged of any assets of such person shall
                                                                        goods.90 The term `sale' is defined to inter alia
be considered void as per Section 281 of the ITA ­
                                                                        include a transfer of property in goods by one person
 1.   if it is not made for adequate consideration                      to another in the course of trade or business for cash,
      and there is a notice of the pendency of such                     deferred payment or other valuable consideration
      proceeding or, as the case may be, with a notice                  etc. Therefore, the sale must be in the course of trade
      of such tax or other sum payable by such person;                  or business in order to attract VAT. Since the seller
      or                                                                would usually not be in the business of buying or
                                                                        selling the assets proposed to be acquired, and the
 2.   if it is not made with the previous permission of
                                                                        sale of a business does not amount to a sale of goods,
      the Assessing Officer.
                                                                        it could be said that a transfer of goods in connection
                                                                        with the sale of the business of the seller, is not
A certificate under Section 281 is key in a merger or
                                                                        a sale attracting VAT under the KVAT. However this
acquisition situation in a case where the transferor
                                                                        argument may be applied only in the case of a slump
has pending tax litigations under the ITA at any level.
                                                                        sale where the business is transferred as whole and
                                                                        not in the case of an itemized sale of assets.
II. Service Tax
                                                                        The law pertaining to VAT is state specific and the
                                                                        argument stated above regarding non-applicability
In an asset purchase or a slump sale, where the
                                                                        of the VAT law to an asset sale, may not be applicable
object is to acquire the business of the seller, there
                                                                        in other Indian States. For example, the Maharashtra
may be a covenant in the asset purchase agreement
that the seller will procure that its employees
                                                                        Value Added Tax Act, 2002 defines the term `business'
accept offers of employment with the acquirer. Part
                                                                        to include any transaction in connection with the
of the consideration payable to the seller may be
                                                                        commencement or closure of business.
contingent on the number of employees who join
the acquirer. It is possible that such a covenant could
                                                                        Therefore, a slump sale of a business could attract
amount to the provision of manpower recruitment
                                                                        VAT. However an argument can be raised that
services by the seller on which service tax at the rate
                                                                        a slump sale transaction would not attract VAT.
of 15% (including surcharge and education cess)
may be payable as per Finance Bill, 2016..



89. Special exemptions are also provided in case of death of a share-   90. The term `goods' generally includes all kinds of movable proper-
    holder, gift of shares to relatives.                                    ty (other than actionable claims, stocks, shares and securities)




                                                                                                                                            33
©Nishith Desai Associates 2016
                                                                                         Provided upon request only




IV.Stamp Duty                                          D.Stamp duty on share
                                                         purchase agreements
Stamp duty is a duty payable on certain specified
                                                       Stamp duty may be payable on an agreement that
instruments / documents. Broadly speaking, when
                                                       records the purchase of shares/debentures of a
there is a conveyance or transfer of any movable or
                                                       company. This stamp duty is payable in addition to
immovable property, the instrument or document
                                                       the stamp duty on the share transfer form.
effecting the transfer is liable to payment of stamp
duty.
                                                       E.Transaction costs for asset
A.Stamp duty on court order                              purchase vs. share purchase
  for mergers/demergers                                Transaction related costs, are generally higher
                                                       in the case of an asset purchase as compared to
Since the order of the Court merging two or more
                                                       a share purchase. This is primarily because
companies, or approving a demerger, has the effect
                                                       in a share purchase, there would usually be no
of transferring property to the surviving /resulting
                                                       incidence of sales tax/value added tax/service tax,
company, the order of the Court may be required to
                                                       which may be levied on different aspects
be stamped. The stamp laws of most states require
                                                       of an asset purchase.
the stamping of such orders. The amount of the
stamp duty payable would depend on the state
                                                       Further, the rate stamp duty is also usually higher
specific stamp law.
                                                       in an asset purchase, and as discussed above is
                                                       dependent on the nature of the assets transferred.
B.Stamp duty on share
                                                       The stamp duty on a transfer of shares is 0.25% of the
  transfers                                            consideration payable for the shares, which rate is
                                                       usually far less than the stamp duty rates applicable
The stamp duty payable on a share transfer form
                                                       for transfer of movable/immovable assets.
executed in connection with a transfer of shares
is 0.25% of the value of, or the consideration
paid for, the shares. However, if the shares are in
dematerialised form, the abovementioned stamp
duty is not applicable.


C.Stamp duty on shareholder
  agreements/joint venture
  agreements
Stamp duty will be payable as per the state specific
stamp law.




34                                                     ©Nishith Desai Associates 2016
                                                                                      Mergers & Acquisitions in India
                                                                                                                   Legal & Tax Issues




7. Conclusion
As Dale Carnegie91 said "Flaming enthusiasm,            The recommendations of the JJ Irani Report are of
backed by horse sense and persistence, is the quality   particular significance in this regard. The Report has
that most frequently makes for success". A quote        recommended that legal recognition to `contractual
that holds good for M&A in India, and a credo to        merger' (i.e., mergers without the intervention of
which Indian companies seem to subscribe given          the court) can go a long way in eliminating the
their successes to date in completing acquisitions.     obstructions to mergers in India. The report also
There is little to stop Indian companies that desire    recommended that the right to object to a scheme
to be global names for playing the merger and           of merger/ acquisition should only be available to
amalgamation game globally. With a plethora of          persons holding a substantial stake in the company.
financing options, this aspiration has become a
                                                        As George Bernard Shaw92 is reputed to have said
reality for many corporate houses, who can now
                                                        "we are made wise not by the recollection of our past,
boast of having the best in the industry under their
                                                        but by the responsibility for our future", and the
wings. Indian companies have often surpassed their
                                                        future of India is bright indeed.
foreign counterparts in corporate restructuring both
within and beyond the national frontiers. Mergers
and acquisitions are powerful indicators of a robust
                                                        Team M&A
and growing economy. The legal framework for such
corporate restructuring must be easy and facilitative
and not restrictive and mired in bureaucratic and
regulatory hurdles. The biggest obstacle in the way
of completing a merger or an amalgamation remains
the often long drawn out court procedure required
for the sanction of a scheme of arrangement.




                                                        92. July 26, 1856 ­ November 2, 1950, Nobel Prize for Literature
91. November 24, 1888 ­ November 1, 1955.                   1925.




                                                                                                                             35
©Nishith Desai Associates 2016
                                                                                                  Provided upon request only




                                              Annexure 1
                                                             ix. a foreign institutional investor and its sub-
I.Meaning of `Persons                                              accounts;
  Acting in Concert'                                         x. a merchant banker and its client, who is an
                                                                   acquirer;
Regulation 2(1) (q) "person acting in concert" means, -
persons who, with a common objective or purpose of           xi. a portfolio manager and its client, who is an
acquisition of shares or voting rights in, or exercising           acquirer;
control over a target company, pursuant to an
                                                             xii. banks, financial advisors and stock brokers
agreement or understanding, formal or informal,
                                                                   of the acquirer, or of any company which is
directly or indirectly co-operate for acquisition of
                                                                   a holding company or subsidiary of the acquirer,
shares or voting rights in, or exercise of control over
                                                                   and where the acquirer is an individual, of the
the target company.
                                                                   immediate relative of such individual:
Without prejudice to the generality of the foregoing,
                                                                   Provided that this sub-clause shall not apply to
the persons falling within the following categories
                                                                   a bank whose sole role is that of providing
shall be deemed to be persons acting in concert with
                                                                   normal commercial banking services or
other persons within the same category, unless the
                                                                   activities in relation to an open offer under these
contrary is established,--
                                                                   regulations;
i.   a company, its holding company, subsidiary
                                                             xiii.an investment company or fund and any
     company and any company under the same
                                                                   person who has an interest in such investment
     management or control;
                                                                   company or fund as a shareholder or unit holder
ii. a company, its directors, and any person                       having not less than 10 per cent of the paid-up
     entrusted with the management of the                          capital of the investment company or unit
     company;                                                      capital of the fund, and any other investment
                                                                   company or fund in which such person or his
iii. directors of companies referred to in item (i) and
                                                                   associate holds not less than 10 per cent of the
     (ii) of this sub-clause and associates of such direc-
                                                                   paid-up capital of that investment company or
     tors;
                                                                   unit capital of that fund:

iv. promoters and members of the promoter group;
                                                                                                   ` ssociate'
                                                             Note: For the purposes of this clause a
v. immediate relatives;                                      means:

vi. a mutual fund, its sponsor, trustees, trustee
                                                              i.   any immediate relative of such person;
     company, and asset management company;
                                                              ii. trusts of which such person or his immediate
vii. a collective investment scheme and its collective
                                                                   relative is a trustee;
     investment management company, trustees and
     trustee company;                                         iii.partnership firm in which such person or his
                                                                   immediate relative is a partner; and
viii.a venture capital fund and its sponsor, trustees,
     trustee company and asset management                     iv. members of Hindu undivided families of which
     company;                                                      such person is a coparcener.




36                                                           ©Nishith Desai Associates 2016
                                                                                Mergers & Acquisitions in India
                                                                                                        Legal & Tax Issues




II. Qualifying Persons                                    iv.persons acting in concert for not less than three
                                                            years prior to the proposed acquisition, and
    under the Takeover                                      disclosed as such pursuant to filings under the

    Code include                                            listing agreement; and

                                                          v. shareholders of a target company who have
 i. immediate relatives;
                                                            been persons acting in concert for a period of
                                                            not less than three years prior to the proposed
 ii.persons named as promoters in the shareholding
                                                            acquisition and are disclosed as such pursuant
    pattern filed by the target company in terms of
                                                            to filings under the listing agreement, and
    the listing agreement or these regulations for
                                                            any company in which the entire equity share
    not less than three years prior to the proposed
                                                            capital is owned by such shareholders in the
    acquisition;
                                                            same proportion as their holdings in the target
iii. a company, its subsidiaries, its holding company,      company without any differential entitlement to
     other subsidiaries of such holding company,            exercise voting rights in such company.
     persons holding not less than fifty per cent
     of the equity shares of such company, other
     companies in which such persons hold not
     less than fifty per cent of the equity shares, and
     their subsidiaries subject to control over such
     qualifying persons being exclusively held by the
     same persons;




                                                                                                                  37
©Nishith Desai Associates 2016
                                                                                                   Provided upon request only




                                              Annexure 2
                                                             iv. In case of indirect acquisition the sixty trading
I. Regulation 8                                                   days immediately preceding the earlier of,
                                                                  the date on which the primary acquisition is
                                                                  contracted, and the date on which the intention
The highest negotiated price per share of the target
                                                                  or the decision to make the primary acquisition
company under the agreement triggering the open
                                                                  is announced in the public domain shall be
offer;
                                                                  considered; the per share value computed for
                                                                  any indirectly acquired target company in
 i.   The volume-weighted average price paid or
                                                                  cases where the proportionate net asset value,
      payable for acquisitions, by the acquirer or
                                                                  proportionate sales turnover and proportionate
      person acting in concert with him, during the
                                                                  market capitalization of the indirectly acquired
      fifty-two weeks immediately preceding the date
                                                                  target company as a percentage respectively, of
      of the public announcement;
                                                                  the consolidated net asset value consolidated
      In case of indirect acquisition the fifty-two weeks         sales turnover and the enterprise value entity or
      immediately preceding the earlier of, the date on           business being directly acquired is in excess of
      which the primary acquisition is contracted, and            fifteen per cent, on the basis of the most recent
      the date on which the intention or the decision             audited annual financial statements.
      to make the primary acquisition is announced in
                                                             v.   where the shares are not frequently traded, the
      the public domain is considered;
                                                                  price determined by the acquirer and the man-
 ii. the highest price paid or payable for any                    ager to the open offer taking into account valua-
      acquisition, by the acquirer or by any person               tion parameters including, book value, compara-
      acting in concert with him, during the twenty-              ble trading multiples, and such other parameters
      six weeks immediately preceding the date of the             as are customary for valuation of shares of such
      public announcement;                                        companies; and

      In case of indirect acquisition the twenty-six              In case of indirect acquisition, (f) above shall
      weeks immediately preceding the earlier of,                 not be considered to determine the offer price
      the date on which the primary acquisition is                and instead the following parameter will be
      contracted, and the date on which the intention             considered:
      or the decision to make the primary acquisition
      is announced in the public domain shall be               "the highest price paid or payable for any acquisition,
      considered;                                                 whether by the acquirer or by any person acting in
                                                                  concert with him, between the earlier of, the date on
 iii.the volume-weighted average market price of                  which the primary acquisition is contracted, and the
      such shares for a period of sixty trading days              date on which the intention or the decision to make
      immediately preceding the date of the public                the primary acquisition is announced in the public
      announcement as traded on the stock exchange                domain, and the date of the public announcement of
      where the maximum volume of trading in the                  the open offer for shares of the target company made
      shares of the target company are recorded during            under these regulations".
      such period, provided such shares are frequently
      traded;




38                                                          ©Nishith Desai Associates 2016
                                                                                                   Provided upon request only




The following research papers and much more are available on our Knowledge Site: www.nishithdesai.com


               Fund Structuring                  E-Commerce in                                The Curious Case
               and Operations                    India                                        of the Indian
                                                                                              Gaming Laws




               July 2016                                                                      September 2015
                                                 July 2015


               Corporate Social                  Joint-Ventures in                            Outbound
               Responsibility &                  India                                        Acquisitions by
               Social Business                                                                India-Inc
               Models in India




               March 2016                        November 2014                                September 2014



               Internet of Things                Doing Business in                            Private Equity
                                                 India                                        and Private Debt
                                                                                              Investments in
                                                                                              India




               April 2016                        June 2016                                    June 2015




NDA Insights
TITLE                                                                   TYPE                         DATE
Thomas Cook ­ Sterling Holiday Buyout                                   M&A Lab               December 2014
Reliance tunes into Network18!                                          M&A Lab               December 2014
Sun Pharma ­Ranbaxy, A Panacea for Ranbaxy's ills?                      M&A Lab               December 2014
Jet Etihad Jet Gets a Co-Pilot                                          M&A Lab                   May 2014
Apollo's Bumpy Ride in Pursuit of Cooper                                M&A Lab                   May 2014
Diageo-USL- `King of Good Times; Hands over Crown Jewel to
                                                                        M&A Lab                     May 2014
Diageo
Copyright Amendment Bill 2012 receives Indian Parliament's
                                                                        IP Lab                September 2013
assent
Public M&A's in India: Takeover Code Dissected                          M&A Lab                  August 2013
File Foreign Application Prosecution History With Indian Patent
                                                                IP Lab                             April 2013
Office
Warburg - Future Capital - Deal Dissected                               M&A Lab                 January 2013
Real Financing - Onshore and Offshore Debt Funding Realty in
                                                                        Realty Check                May 2012
India
Pharma Patent Case Study                                                IP Lab                    March 2012
Patni plays to iGate's tunes                                            M&A Lab                  January 2012
Vedanta Acquires Control Over Cairn India                               M&A Lab                  January 2012
Corporate Citizenry in the face of Corruption                           Yes, Govern-          September 2011
                                                                        ance Matters!
Funding Real Estate Projects - Exit Challenges                          Realty Check               April 2011




40                                                           ©Nishith Desai Associates 2016
                                                                                      Mergers & Acquisitions in India




Research@NDA
Research is the DNA of NDA. In early 1980s, our firm emerged from an extensive, and then pioneering,
research by Nishith M. Desai on the taxation of cross-border transactions. The research book written by him
provided the foundation for our international tax practice. Since then, we have relied upon research to be the
cornerstone of our practice development. Today, research is fully ingrained in the firm's culture.

Research has offered us the way to create thought leadership in various areas of law and public policy. Through
research, we discover new thinking, approaches, skills, reflections on jurisprudence,
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Over the years, we have produced some outstanding research papers, reports and articles. Almost on
a daily basis, we analyze and offer our perspective on latest legal developments through our "Hotlines". These
Hotlines provide immediate awareness and quick reference, and have been eagerly received. We also provide
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We regularly write extensive research papers and disseminate them through our website. Although we invest
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Our research has also contributed to public policy discourse, helped state and central governments
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As we continue to grow through our research-based approach, we are now in the second phase
of establishing a four-acre, state-of-the-art research center, just a 45-minute ferry ride from Mumbai
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research activities involving our own associates as well as legal and tax researchers from world over.
It will also provide the platform to internationally renowned professionals to share their expertise
and experience with our associates and select clients.



We would love to hear from you about any suggestions you may have on our research reports.

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