| Home | Back |
|
GAZETTE OF EXTRA-ORDINARY PART II - SECTION 3- SUB-SECTION (ii) PUBLISHED BY AUTHORITY SECURITIES AND EXCHANGE BOARD OF NOTIFICATION Mumbai, SECURITIES AND EXCHANGE BOARD OF
(SUBSTANTIAL ACQUISITION OF SHARES AND TAKEOVERS) (SECOND AMENDMENT) REGULATIONS, 2004 S.O. 5(E).In exercise of the powers conferred
by Section 30 of the Securities and
Exchange Board of India Act, 1992 (15 of 1992), the Board hereby makes the
following regulations to amend the Securities and Exchange Board of India
(Substantial Acquisition of Shares and Takeovers) Regulations, 1997, namely:-
1. (i) These
regulations may be called the Securities and Exchange Board of
(ii) These regulations shall
come into force on the date of their publication in the Official Gazette. 2. In the Securities and Exchange Board
of (i)
in
regulation 2, in sub-regulation (1), (a) for
clause (h) the following shall be substituted, namely:- “(h) “promoter”, unless
otherwise provided elsewhere, means- (i) any person who is directly or indirectly in control of the company; or (ii)
any person named as promoter in any document for offer of securities to the
public or existing shareholders or in the shareholding pattern
disclosed by the company under the
provisions of the Listing Agreement,
whichever is later; or (iii)
any person named as person
acting in concert with the promoter in any disclosure made in terms of the
Listing Agreement with the stock exchange or any other regulations or
guidelines made or issued by the Board under the Act. and
includes, (a)
where such person is an individual, (i)
his spouse ,
parents, brothers, sisters or children; (ii)
any company in which twenty six per cent.(26%) or more
of the equity share capital is held by him or by the persons mentioned in
sub-clause (i) or any firm or Hindu Undivided Family
in which he or any of the persons mentioned in sub-clause (i)
is a partner or member; (iii)
any company in which a company specified in sub-clause
(ii), holds more than fifty per cent.(50%) of the equity share capital; (iv)
any firm in which the
aggregate of his holding and the holdings of the persons mentioned in
sub-clause (i) is
more than fifty per cent.(50%) . (b)
where such person is a body corporate, (i)
a subsidiary or holding
company of that body corporate; (ii)
any company in which the said body corporate holds twenty
six per cent.(26%) or more of the equity share capital; (iii)
any company which holds twenty six per cent.(26%) or more of the equity share capital of the
said body corporate; (iv)
any company in which persons acting in concert hold twenty
six per cent.(26%) or more of the equity share capital and those persons acting
in concert also hold twenty six per cent.(26%)
or more of the equity share capital in such body corporate; (v)
any
other body corporate under the same management as the said body corporate
within the meaning of sub-section (1B) of section 370 of the Companies Act,
1956; Explanation I: A financial institution,
scheduled commercial bank, foreign institutional investor, mutual fund and a venture
capital fund shall not be deemed to be a promoter merely by virtue of its
shareholding. Explanation II: A financial
institution, scheduled commercial bank, foreign institutional investor or a
venture capital fund shall be deemed to be a promoter of its subsidiary and of
the mutual fund sponsored by it, as applicable. (b)
for clause (j), the following shall be
substituted, namely - “(j) “public
shareholding” means shareholding held by persons other than promoters as
defined under clause (h).” (ii) in
regulation 3, (a) in
sub-regulation (1), (1) in
clause (e), in sub-clause (iii), after the proviso, the following Explanation shall be inserted,
namely - : “Explanation:
For the purpose of the exemption under sub-clause (iii) the term
“promoter" means - (i)
any person who is directly or indirectly in control of
the company; or (ii)
any person named as promoter in any document for offer of securities to the
public or existing shareholders or in the shareholding pattern
disclosed by the company under the
provisions of the Listing Agreement,
whichever is later; and
includes, (a) where the promoter is an individual, - (1) a relative of the promoter within the
meaning of section 6 of the Companies Act, 1956 (1 of 1956); (2) any firm or company, directly or
indirectly, controlled by the promoter or a relative of the promoter or a firm
or Hindu undivided family in which the promoter or his relative is a partner or
a coparcener or a combination thereof: Provided that, in case of a
partnership firm, the share of the promoter or his relative, as the case may
be, in such firm should not be less than fifty per cent.(50%)"; (b) where the promoter is a body corporate,- (1) a
subsidiary or holding company of that body; or (2) any firm or company,
directly or indirectly, controlled by the promoter of that body corporate or by
his relative or a firm or Hindu undivided family in which the promoter or his
relative is a partner or coparcener or a combination thereof: Provided that, in case of a partnership firm, the share of such promoter
or his relative, as the case may be, in such firm should not be less than fifty
per cent.(50%).” (2) after clause (k), the following shall be inserted, namely – “(ka)
acquisition of shares in terms of guidelines or regulations regarding delisting
of securities specified or framed by the Board”. (b) after
sub-regulation (1) the following sub-regulation shall be inserted, namely: “(1A) The
benefit of availing exemption under the relevant clauses of sub-regulation (1),
shall be subject to compliance with requirement specified in sub-regulation
(2A) of regulation 11.” (iii)
in regulation 7, in sub-regulation (1), after the
words “fourteen per cent.” the words “or fifty four per cent. or seventy four
per cent.” shall be inserted; (iv)
in
regulation 10, the following proviso shall be inserted, namely- “Provided that no acquirer shall acquire shares
or voting rights, through market purchases and preferential allotment pursuant
to a resolution passed under section 81 of the Companies Act, 1956 or any other
applicable law, which (taken together with shares or voting rights, if any,
held by him or by persons acting in concert with him), entitle such acquirer to
exercise more than fifty five per cent. of the voting
rights in the company;
Provided further that if the acquirer has acquired shares or voting rights
through such market purchases or preferential allotment beyond fifty five per
cent. of the voting rights in the company, he shall
forthwith disinvest the shares acquired in excess of fifty five per cent. and shall be liable for action under these Regulations and
the Act. Explanation : In case of acquisition through preferential
allotment the limit of fifty five per cent. voting
rights as provided under this regulation shall be reckoned with reference to
the increased share capital pursuant to such preferential allotment.” (v) in regulation 11, (a) in
sub-regulation (1), for the figure and words “75 per cent.” the words and
figure “fifty five per cent.(55%)” shall be substituted; (b)
for
sub-regulation (2), the following shall be substituted, namely – “(2) An acquirer, who together
with persons acting in concert with him has acquired, in accordance with the
provisions of law, fifty five
per cent.(55%) or more but less than seventy five per
cent. (75%) of the shares or voting rights in a target company, may acquire
either by himself or through persons acting in concert with him any additional
share or voting right, only if he makes a public announcement to acquire shares
or voting rights in accordance with these regulations:
Provided that no acquirer shall acquire shares or voting rights, through
market purchases and preferential allotment pursuant to a resolution passed
under section 81 of the Companies Act, 1956 or any other applicable law, which
(taken together with shares or voting rights, if any, held by him or by persons
acting in concert with him), entitle such acquirer to exercise more than fifty
five per cent. of the voting rights in the company;
Provided further that if the acquirer has acquired shares or voting
rights through such market purchases or preferential allotment beyond fifty
five per cent. of the voting rights in the company, he
shall forthwith disinvest the shares acquired in excess of fifty five per cent.
and shall be liable for action under these Regulations
and the Act. Explanation : In case of acquisition through preferential
allotment the limit of fifty five per cent. voting
rights as provided under sub - regulation (ii) shall be reckoned with reference
to the increased share capital pursuant to such preferential allotment.” (c) after
sub-regulation (2), the following shall be inserted, namely - “(2A) Unless otherwise provided in
these regulations, an acquirer, who seeks to acquire any shares or voting
rights whereby the public shareholding in the target company may be reduced to
a level below the limit specified in the Listing Agreement with the stock
exchange for the purpose of listing on continuous basis, may acquire such shares
or voting rights, only in accordance with the of guidelines or regulations
regarding delisting of securities specified by the Board:
Provided that, the provisions of this sub-regulation shall not apply in
case of acquisition by virtue of global arrangement which may result in
indirect acquisition of shares or voting rights or control of the target
company.” (vi). in regulation 20, in sub-regulation
(7), after the proviso, the following shall be inserted, namely – “Provided further that the shares or voting
rights so acquired taken together with the acquisition under the public offer
and shares or voting rights, if any, held by him or by persons acting in
concert with him, do not result in public shareholding in the target company
being reduced to a level below the limit specified in the Listing Agreement
with the stock exchange for the purpose of listing on continuous basis.” (vii). in
regulation 21, (a). in sub-regulation (1), the following
proviso shall be inserted, namely – “Provided that where any public
offer is made in pursuance of sub-regulation (2) of regulation 11, such public
offer shall be for such percentage of voting capital of the target company so that
the acquisition does not result in the public shareholding in such company
being reduced to a level below the limit specified in the Listing Agreement
with the stock exchange for the purpose of listing on continuous basis.” (b)
after sub-regulation (1), the following sub-regulation
shall be inserted, namely – “(2) Where an
acquirer acquires more than fifty five per cent. (55%) shares or voting rights
in the target company through an agreement or memorandum of understanding and
the public offer made under regulation 10 or sub-regulation (1) of regulation 11 to acquire minimum percentage of voting
capital as specified in sub regulation (1) of regulation 21 results in public shareholding being reduced to
a level below the limit specified in the Listing Agreement with the stock
exchange for the purpose of listing on continuous basis, the acquirer
shall acquire only such number of shares under the agreement or the memorandum
of understanding so as to maintain the minimum specified public shareholding in the target
company;” (c) for
sub-regulation (3), the following shall be substituted, namely – “(3) If consequent to
the public offer made in pursuance of global arrangement referred to in proviso
to sub regulation (2A) of regulation 11, the public shareholding falls to a
level below the limit specified in the Listing Agreement with the stock exchange
for the purpose of listing on continuous basis, the acquirer shall undertake to
raise the level of public shareholding to the levels specified for continuous
listing specified in the Listing Agreement with the stock exchange, within a
period of twelve months from the date of closure of the public offer, by (i) issue of new
shares by the company in compliance with the provisions of the Companies Act,
1956 and the Securities and Exchange Board of India (Disclosure and Investor
Protection) Guidelines, 2000; or (ii) disinvestment
through an offer for sale in compliance with the provisions of the Companies
Act, 1956 and the Securities and Exchange Board of India (Disclosure and
Investor Protection) Guidelines, 2000, of such number of shares held by him so
as to satisfy the listing requirements; or (iii) sale of his holdings through the stock
exchange.
Provided that in case of acquisition of shares or voting rights or
control in a target company where the public shareholding is below the limit
specified for the purpose of listing on continuous basis in terms of the
Listing Agreement with the stock exchange, the acquirer shall undertake to
raise the level of public shareholding to the levels specified for continuous
listing in terms of the listing conditions specified in the Listing Agreement
with the stock exchange, within the period specified under the Listing
Agreement.” (viii). in regulation 45, in
sub-regulation 6, after clause (c), the following shall be inserted, namely – “(d) directions under section 11(4) of the Act; (e) cease and desist
order in proceedings under section 11D of the Act; (f) adjudication
proceedings under section 15HB of the Act.” [F. No. SEBI/LAD/ 29278 /2004] G.N. BAJPAI
CHAIRMAN Securities and
Exchange Board of Footnote: The SEBI (Substantial Acquisition of
Shares and Takeovers) Regulations, 1997 (the said Regulations) were published
in the Gazette of India on Subsequently
a Corrigendum was published in the Gazette of India, Extra- Ordinary on The said Regulations were subsequently
amended by – 1. SEBI (Substantial
Acquisition of Shares and Takeovers)(Amendment)
Regulations, 1998 published in the Official Gazette vide S.O. 930(E) dated 2. SEBI (Appeal to the Securities
Appellate Tribunal) (Amendment) Regulations, 2000, published in the Official
Gazette vide S.O.278(E) dated 3. SEBI (Substantial Acquisition of Shares and
Takeovers) (Amendment) Regulations, 2000 published in the Official Gazette vide S.O. 1178 (E) dated 4. SEBI (Substantial Acquisition of Shares and
Takeovers) (Amendment) Regulations, 2001 published
in the Official Gazette
vide S.O. 791 (E) dated 5. SEBI
(Substantial Acquisition of Shares and Takeovers) (Second Amendment)
Regulations, 2001 published
in the Official Gazette
vide S.O. 875 (E) dated 6.
SEBI (Substantial Acquisition of Shares and Takeovers) (Third Amendment)
Regulations, 2001 published in the Official
Gazette vide S.O. 1058
(E) dated 7. SEBI (Substantial Acquisition
of Shares and Takeovers) (Amendment) Regulations, 2002 published in the Official
Gazette vide S.O.
127(E) dated 8. SEBI (Substantial Acquisition
of Shares and Takeovers) (Second Amendment) Regulations, 2002 published in the Official
Gazette vide S.O.
954(E) dated 9. SEBI (Substantial Acquisition
of Shares and Takeovers) (Third Amendment) Regulations, 2002 published in the Official
Gazette vide S.O.1328
(E) dated 10. SEBI (Substantial Acquisition
of Shares and Takeovers) (Amendment) Regulations, 2004 published in the Official
Gazette vide S.O. 982 (E) dated *********** |
|