| Home | Back | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
STANDARD LETTER OF OFFER FOR AN OPEN OFFER IN TERMS OF THE SEBI (SUBSTANTIAL ACQUISITION OF SHARES AND TAKEOVERS) REGULATIONS, 1997
AND SUBSEQUENT AMENDMENTS THEREOF Updated as on General Instructions: 1
The
purpose of this standard letter of offer for an open offer made in accordance
with Chapter III of the SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 1997 and subsequent amendments thereof is to provide the requisite
information about the acquirer(s) / offer so as to enable the shareholders to
make an informed decision of either continuing with the target company or to
exit from the target company.� Care shall
be taken by the Merchant Banker (MB) to ensure that the Letter of Offer may not
be technical in legal or financial jargons, but it shall be presented in
simple, clear, concise and easily understandable language. 2
This
standard Letter of Offer enumerates the minimum disclosure requirements to be
contained in the Letter of Offer of an open offer. The MB/ acquirer is free to
add any other disclosure(s) which in his opinion is material for the
shareholders, provided such disclosure(s) is not presented in an incomplete,
inaccurate or misleading manner and is made in accordance with the SEBI
(Substantial Acquisition of Shares and Takeovers) Regulations, 1997 and
subsequent amendments thereof. 3
The
standard Letter of Offer prescribes only the nature of the disclosures that
should be contained under various heads in the Letter of Offer and is not
intended to describe the language to be contained therein. 4
All
the financial data shall be in terms of Rupees Lacs unless required otherwise
(e.g. EPS).� When financial data pertains
to an overseas entity, the rupee equivalent shall be disclosed in terms of Rs.
Lacs and the basis of conversion shall also be disclosed. (If so desired, such
data may also be disclosed in terms of the monetary unit applicable for that
overseas entity). 5
Unless
otherwise specified 5.1
Reference
to shares (as defined in Regulations 2(1)(k)) shall mean reference to fully
paid up shares. 5.2
Information
contained in Letter Of Offer shall be as on the date of the Public Announcement
(PA). 5.3
The
�Regulations� shall mean SEBI (Substantial Acquisition of Shares and Takeovers)
Regulations, 1997 and subsequent amendments thereof. 5.4
The
Merchant Banker to the Offer (MB) would mean the Merchant Banker appointed by
the acquirer in terms of regulation 13. 5.5
The
Registrar to the Offer, if appointed, would mean an entity registered with SEBI
under SEBI (Registrar to Issue and Share Transfer Agents) Rules and
Regulations, 1993. 6
All
the requisite disclosures/statements in respect of� the acquirer(s), persons who are acting� in concert�
with the acquirer for the purpose of the offer (PACs) and persons who
are deemed to be acting in concert� with
the acquirers� for the purpose of� the offer (PACs)shall be made in the Letter
Of Offer. 7
The
Form of acceptance cum acknowledgement may be with a perforation. 8
The
source from which data / information is obtained should be mentioned in the relevant
pages of Letter Of Offer. 9
MB
shall ensure the following; 9.1
The Specified Date shall not be
later than 30th day from the PA date (Inclusive of PA date) 9.2
The
Offer closing Date shall be the 30th day from the Offer Opening Date
(inclusive of offer opening date). 9.3
The
Date by which the acceptance / rejection of the offer would be intimated and
the corresponding payment for the acquired shares and / or the share
certificate(s) for the rejected shares will be dispatched, shall be within a
period of 30 days from the offer closing date. 10) MB shall
submit the Due Diligence Certificate in terms of Regulations to SEBI along with
the draft Letter Of Offer as per the standardised format. Format of the Standard Letter Of Offer: The sequence of presentation in Letter
of Offer shall be as under: 1.
Cover
page 2.
Disclaimer
clause 3.
Details
of the offer 4.
Background
of the Acquirer(s) (including PACs, if any). 5.
Option
in terms of 21(3) 6.
Background
of the Target Company 7.
Offer
price and financial arrangements 8.
Terms
& Conditions of the offer 9.
Procedure
for acceptance and settlement of the offer. 10. Documents for inspection 11. Declaration by the Acquirer(s)
(including PACs, if any). 1) COVER PAGE Cover pages shall be white with no
patterns or pictures printed on it except emblems/ logo, if any, of the
acquirer company / MB / Registrar, if any. A)� Front outer cover page shall contain the
following details� : i)
On Top �This Document is important and requires
your immediate attention."
This Letter
of offer is sent to you as a shareholder(s) of (name of the target company).
If you require any clarifications about the action to be taken, you may consult
your stock broker or investment consultant or MB / Registrar to the offer (the
latter only if appointed).� In case you
have recently sold your shares in the Company, please hand over this Letter Of
Offer and the accompanying Form of Acceptance cum acknowledgement, Form of
withdrawal and Transfer Deed to the Member of Stock Exchange through whom the
said sale was effected.� ii)��
In middle in a box
A.� �If there is competitive bid : 1. The public offers under all the subsisting bids shall close on the same
date. 2. As the offer price can not be
revised during 7 working days prior to the closing date of the offers / bids,
it would, therefore, be in the interest of shareholders to wait till the
commencement of that period to know the final offer price of each bid and
tender their acceptance� accordingly� �����
B. If there is no competitive bid: A statement confirming that there
was no competitive bid.
iii)�
At the bottom�
B)�� Front inside cover page shall contain the
following i)��� Risk factors relating to the transaction,
the proposed offer and the probable��
risk involved in associating with the acquirer(s). ii)
On
top An index as follows:
����� iii)��� At the Bottom Definitions of the
specialized terms used in the Letter Of Offer for easy understanding by the
shareholders viz Target company, Acquirers, PACs, Regulations, etc. No other
terms should be used in the Letter Of Offer for entities defined as such in the
Regulations. (eg. the word offeror(s) should be not used to refer the term
acquirer(s)). 2.�
DISCLAIMER CLAUSE The following on the first
page of Letter of Offer: �IT IS TO BE DISTINCTLY
UNDERSTOOD THAT FILING OF DRAFT LETTER OF OFFER WITH SEBI SHOULD NOT IN ANY WAY
BE DEEMED OR CONSTRUED THAT THE SAME HAS BEEN CLEARED, VETTED OR APPROVED BY
SEBI.� THE DRAFT LETTER OF OFFER HAS BEEN
SUBMITTED TO SEBI FOR A LIMITED PURPOSE OF OVERSEEEING WHETHER THE DISCLOSURES
CONTAINED THEREIN ARE GENERALLY ADEQUATE AND ARE IN CONFORMITY WITH THE
REGULATIONS. THIS REQUIREMENT IS TO FACILITATE THE SHAREHOLDERS OF (NAME OF THE
TARGET CO.) TO TAKE AN INFORMED DECISION WITH REGARD TO THE OFFER. SEBI DOES
NOT TAKE ANY RESPONSIBILITY EITHER FOR FINANCIAL SOUNDNESS OF THE ACQUIRER(S),
PACs OR THE COMPANY WHOSE SHARES/CONTROL IS PROPOSED TO BE ACQUIRED OR FOR THE
CORRECTNESS OF THE STATEMENTS MADE OR OPINIONS EXPRESSED IN THE LETTER OF
OFFER.� IT SHOULD ALSO BE CLEARLY
UNDERSTOOD THAT WHILE ACQUIRER(S) IS PRIMARILY RESPONSIBLE FOR THE CORRECTNESS,
ADEQUACY AND DISCLOSURE OF ALL RELEVANT INFORMATION IN THIS LETTER OF OFFER,
THE MERCHANT BANKER IS EXPECTED TO EXERCISE DUE DILIGENCE TO ENSURE THAT
ACQUIRER(S) DULY DISCHARGES ITS RESPONSIBILITY ADEQUATELY.� IN THIS BEHALF, AND TOWARDS THIS PURPOSE, THE
MERCHANT BANKER (INDICATE NAME) HAS SUBMITTED A DUE DILIGENCE CERTIFICATE DATED
......................... TO SEBI IN ACCORDANCE WITH THE SEBI (SUBSTANTIAL
ACQUISITION OF SHARES AND TAKEOVER) REGULATIONS 1997 AND SUBSEQUENT
AMENDEMENT(S) THEREOF . THE FILING OF THE LETTER OF OFFER DOES NOT , HOWEVER,
ABSOLVE THE ACQUIRER(S) FROM THE REQUIREMENT OF OBTAINING SUCH A STATUTORY
CLEARANCES AS MAYBE REQUIRED FOR THE PURPOSE OF THE OFFER..� 3.��� DETAILS OF THE OFFER 3.1 Background of the offer 3.1.1
Mention the Regulation (10,11(1), 11(2), 12, 25(1) & 33) in
accordance with which the offer is made i.e. mention whether the offer is made
for substantial acquisition of shares or Consolidation of holdings and/or
Change in Control or competitive Bid� or
is towards Bail out Takeover. 3.1.2
Details of the proposed acquisition (substantial acquisition of
shares/voting rights or change in control or both) which triggered the open
offer such as name(s) of acquirer(s) and of PACs, their existing share holding
in the Target company, whether it was a negotiated deal or open market
purchase(s) or whether offer is as a result of global acquisition resulting in
indirect acquisition of the target company, acquisition price per share
(highest and average), number and percentage of shares acquired,� etc. 3.1.3
In case there is any agreement, mention�
important features of the agreement(s)�
including those pertaining to Regulation 22(16), acquisition price per
share (highest and average as well as separately for fully paid and partly paid
up), number and percentage of shares to be acquired under the agreement,� name of the seller(s), complete addresses of
sellers (including phone number/ fax number etc),� names of parties to the agreement,� date of agreement, manner of payment of
consideration, proposed change in control, if any, 3.1.4
Whether the proposed change in control is through an arrangement.� Give salient features of the arrangement. 3.1.5
Whether any of acquirer(s), sellers or the Target Company has been
prohibited by SEBI from dealing in securities, in terms of direction issued u/s
11B of SEBI Act or under any of the regulations made under the SEBI Act. 3.1.6
Proposed change, if any, in Board of Directors after the offer, mentioning
names of the Directors representing acquirers. 3.2 Details of the proposed offer 3.2.1
Mention names, dates and editions of
the newspapers where the public announcement made in accordance with Regulation
15 appeared. Disclose the public announcement is also available on the Sebi
website at www.sebi.gov.in. 3.2.2
Indicate the number and percentage
of shares proposed to be acquired by the acquirers from the existing
shareholders and the mode of payment of consideration, if it is in cash, then
the offer price per share shall be mentioned, if by way of exchange of shares/
secured instruments, then, inter-alia, the exchange ratio to be disclosed in
terms of Regulation 20(9). 3.2.3
In case, there are fully paid up and
partly paid up shares, offer price for both shall be mentioned separately.� 3.2.4
Differential price if any, in
accordance with explanation (iii) to regulation 20 (11). 3.2.5
In case of competitive bids, the
competitive bidder shall also disclose the following details: 3.2.5.a.
The fact that his offer is competitive offer made pursuant to the open offer
made by the original bidder. The competitive bid is as per sub Regulation (1)
& (3) of regulation 25. 3.2.5.b.
Details of the original offer such as name of the original acquirer(s), name of
the Merchant Banker, number and % of shares bid for, offer price, mode of
payment, opening date. 3.2.5.c.
Any other relevant information 3.2.6
In case of the conditional offer,
specify the following : 3.2.6.a.
Minimum level of acceptance (no. and %�
of shares) 3.2.6.b.
Differential price, if any, in accordance with Explanation (iv) to Regulation
20 (11). 3.2.7
Disclose details of further
acquisition(s), if any, by acquirer(s)/ PACs�
after the date of P.A� and upto
the date of Letter of Offer� viz., no.
and % of shares acquired, mode and acquisition price etc. 3.2.8
Details of the competitive bids, if
any. 3.3 Object of the acquisition/ offer 3.3.1
Disclose in details the reasons of acquiring shares or control over the
Target Company and/or consolidation of share holding in the target company. 3.3.2
In case the acquirer and target company are in similar line of
Business/Operations, disclose as to how the position of the acquirer would
change in terms of Market positioning, Capacity utilization etc.� 4
BACKGROUND OF THE ACQUIRER
(INCLUDING PACs, IF ANY) (In case, the open offer is for the change in control of the Target
Company or is an offer where the offer price is payable in terms of exchange of
securities, details under this heading shall�
be given as per Annexure I. In all other cases, the following details
shall be furnished) 4.1 If acquirer(s) (including PACs) is a
company 4.1.1
Name, address (registered and corporate office) and phone no. of the
company(ies). 4.1.2
The relationship, if any, existing between them 4.1.3
Salient features of the agreement,
if any, entered between them with regard to the offer/ acquisition of shares. 4.1.4
Brief History & Major areas of
operations. 4.1.5
Identity of the promoters and /or persons having control over such
companies and the group, if any, to which such companies belong to. 4.1.6
Confirm and disclose as to whether the applicable provisions of chapter
II of SEBI Takeover Regulations has been complied with by acquirer/ PACs within
the time specified in the Regulations. Delay or non-compliance with these
provisions if any, may be disclosed in the letter of offer. Further the extent
of compliance by the acquirers/ PACs with the applicable provisions of chapter
II should be furnished under a separate annexure to SEBI along with the draft
letter of offer as per the format at Annexure III of the standard letter of
offer. 4.1.7
Names and residential addresses of Board of directors of acquirer(s).
Confirm whether any of such director(s) is already on the Board of Directors of
Target Company. If so, disclosures in terms of Regulation 22(9). 4.1.8
Details of the experience, qualifications, date of appointment of the
Board of Directors. 4.1.9
Brief audited financial details for a period of last three years. The
subsequent certified financial data should also be disclosed so that the
financials are not older than six months from the P.A. date. (Amount Rs.
In lacs)
4.1.10 Ensure that the un-audited financial
results, if any disclosed, should be certified by statutory auditors. 4.1.11 Disclose the major contingent
liabilities and the reasons for fall/rise in total income and PAT in the
relevant years, if applicable. 4.1.12 Disclose the details of the earlier
acquisitions, if any made in the target company including acquisition made
through open offers. Change in shareholding pursuant to the said
acquisition/offers and thereafter, if any. Furthers in this regard, disclose
status of compliance with the applicable provisions of the SEBI (SAST)
Regulations/other applicable Regulations under the SEBI Act, 1992 and other
statutory requirements, as applicable. 4.1.13 Significant Accounting policies of
the acquirer. 4.1.14 In case of acquirer being a listed
company, disclose: 4.1.14.a. The status
of Corporate Governance and pending Litigation matters, if any. 4.1.14.b. The name and other details
of the Compliance Officer. 4.1.14.c. Give
relevant details of any merger/demerger, spin off during last 3 years involving
the acquirer.� Change in name since
incorporation/listing and dates thereof.���
4.1.14.d. Shareholding pattern of
the company as on date of PA. 4.2
If Acquirer(s) (including PACs, if
any) is an individual 4.2.1
Name (s), address(es) and phone no. of each individual 4.2.2
The relationship, if any, existing between them 4.2.3
Salient features of the agreement, if any, entered between them with
regard to the offer/ acquisition of shares. 4.2.4
Principal areas of business and relevant experience 4.2.5
Net Worth duly certified by a Chartered Accountant 4.2.6
Confirm and disclose as to whether the applicable provisions of chapter
II of SEBI Takeover Regulations has been complied with by acquirer/ PACs within
the time specified in the Regulations. Delay or non-compliance with these
provisions if any, may be disclosed in the letter of offer. Further the extent
of compliance by the acquirers/ PACs with the applicable provisions of chapter
II should be furnished under a separate annexure to SEBI along with the draft letter
of offer as per the format at Annexure III of the standard letter of offer. 4.2.7
Positions held on the Board of directors of any listed company (ies) 4.2.8
Name (s) of the company where individual is a full time director. 4.2.9
Disclose the details of the earlier acquisitions, if any made in the
target company including acquisition made through open offers. Change in
shareholding pursuant to the said acquisition/offers and thereafter, if any.
Furthers in this regard, disclose status of compliance with the applicable provisions
of the SEBI (SAST) Regulations/other applicable Regulations under the SEBI Act,
1992 and other statutory requirements, as applicable. 4.3 Disclosure in terms of� Regulation 16(ix) 4.4 Future plans/strategies of the
acquirer with regard to the target company. 5.��
Option in terms of Regulation 21(3), if applicable 5.1 If
the public offer results in public shareholding being reduced to 10% or less of
the voting capital of the company or if the public offer is in respect of a
company which has public shareholding of less than 10% of the voting capital,
disclose the option which the acquirer would exercise in terms of Regulation
21(3). In case, acquirer intends to exercise the delisting option provided in
the Regulations, give all relevant disclosure as required under the guidelines specified by the
Board in respect of delisting of securities. 6. ��BACKGROUND OF THE TARGET COMPANY 6.1 Address
of corporate and registered office with phone no. 6.2 Brief
history & main areas of operations. 6.3 Disclose
the locations and other details of the manufacturing facilities of the target
company. 6.4 Share
capital structure of the target company
6.5 Disclose (as per the table given
below) as to how the current capital structure of the company has been build up
since inception. In this regard, disclose status of compliance with the
applicable provisions of the SEBI (SAST) Regulations/other applicable
Regulations under the SEBI Act, 1992 and other statutory requirements, as
applicable.
6.6 Disclose the reasons of suspension
of trading of the shares in any Stock Exchange(s), as applicable. What steps
has been taken by the target company to resume/ regularize the trading. 6.7 Disclose the detailed reasons of
non-listing of some and/or all shares of the company at any Stock Exchange(s),
as applicable. What steps has been taken by the company to regularize the
listing. 6.8 Indicate
whether there are any outstanding convertible instruments (warrants /FCDs/PCDs)
etc. and whether the same have been taken into account for calculating voting
rights of target company and reasons therefore. In case there are partly paid
up shares, disclose about status of their voting rights. 6.9 Confirm and disclose as to whether
the applicable provisions of chapter II of SEBI Takeover Regulations has been
complied with by target company as well as sellers, promoters and other major
shareholders within the time specified in the Regulations. Delay or
non-compliance with these provisions if any, may be disclosed. The extent of
compliance by target company as well as sellers, promoters and other major
shareholders with the applicable provisions of chapter II should be furnished
under a separate annexure to SEBI along with the draft letter of offer as per
the format at Annexure III & IV of the standard letter of offer. In case of
delay or non compliance disclose the complete address along with phone/fax
numbers and individual holding a separate annexure while filing the draft
letter of offer. 6.10
Indicate
compliance status with the listing requirements and the penal actions, if any,
taken by the Stock Exchanges.� In the
absence of any punitive action, make a specific statement to such effect. 6.11
Present composition of the Board of
Directors (BOD) as on the date of public announcement.� Indicate the names of director(s), if any,
representing the acquirer on the BOD of the Target Company and their dates of
appointment. 6.12
Disclose
details of the experience, qualifications, date of appointment of the Board of
Directors. 6.13
Relevant details of any merger/de-merger,
spin off during last 3 years involving the target company. Change of name since
incorporation/listing and dates thereof. 6.14
Brief audited financial details for
a period of last three years. The subsequent certified financial data should
also be disclosed so that the financials are not older than six months from the
P.A. date. (Amount �Rs. In lacs)
6.15 ���Ensure that the un-audited financial results,
if any disclosed, should be certified by statutory auditors. 6.16 ���Disclose the reasons for fall/rise in total
income and PAT in the relevant years, if applicable. 6.17
Pre and Post- Offer share holding pattern
of the target company as per the following table As on the
date of letter of offer
** If more than one acquirer /
PACs, details shall be given for each separately. @ Also include shares of
target company, purchased by acquirers and PACs, if any, after the Public
announcement till the date of letter of offer. 6.18
Disclose
the details of the change in shareholding of the promoters as and when it
happened in the target company. In this regard, disclose status of compliance
with the applicable provisions of the SEBI (SAST) Regulations/other applicable
Regulations under the SEBI Act, 1992 and other statutory requirements, as
applicable. 6.19
Disclose
the status of Corporate Governance and pending Litigation matters, if any. 6.20
Disclose
the name and other details of the Compliance Officer.
7.1 Justification of Offer price 7.1.1
Names of all the Stock exchanges
(SEs) where shares of the target company are listed and also where it is traded
under permitted category. 7.1.2
The annualized trading turnover� during the preceding 6 calendar months prior
to the month in which the P.A. is made in terms of number & % of total
listed shares, in each stock exchange stated at (i ) above, shall be given as
under. (Accordingly, disclose as to on which of the Stock Exchanges the shares
are not infrequently/infrequently traded in terms of explanation(i) to
regulation 20(5).)
Note
: Trading volume data should be taken from the respective SEs official quotations. 7.1.3
In respect of SEs where shares are
not infrequently traded in terms of Regulations, ensure and disclose that
minimum offer price is highest of all the following prices: 7.1.3.a. The negotiated price under
the agreement referred to in clause (a) of sub-�
regulation (4) of regulation 20; 7.1.3.b. Highest price paid by the
acquirer or persons acting in concert with him for acquisition, if any,
including by way of allotment in a public or rights or preferential issue
during the twenty six week period prior to the date of public announcement,
referred to in clause (b) of sub-�
regulation (4) of regulation 20; 7.1.3.c. the average of the weekly
high and low of the closing prices of the shares of the target company as
quoted on the stock exchange where the shares of the company are most
frequently traded during the twenty six weeks or the average of the daily high
and low prices of the shares as quoted on the stock exchange where the shares
of the company are most frequently traded during the two weeks preceding the
date of public announcement, whichever is higher referred to in clause (c) of
sub-� regulation (4) of regulation 20. 7.1.4
Please note that for calculating
average price as per Regulation 20(4)(c), the denominator should contain the
number of weeks for which quotes are considered. The price and volume data
should be disclosed in the following�
format: 26 weeks weekly high/ low
����������������������� 2
weeks daily high/ low
7.1.5
If the shares are infrequently
traded on a particular Stock exchange, give required disclosures in accordance
with each clause of Regulation 20(5).�
Ensure that calculations of parameters set out in 20(5)(c) are based on
the latest audited data of the Target Company.�
If subsequent financial data is available for a period of 6 months or
more, calculation in terms of Regulation 20(5)(c) based on such data shall also
be disclosed.� 7.1.6
In case of partly paid shares, the offer
price shall be calculated
as the difference between the offer price and the amount due towards
calls-in-arrears or calls remaining unpaid together with interest, if any,
payable on the amount called up but remaining unpaid. 7.1.7
The
offer price for indirect acquisition or control shall be determined with
reference to the date of the public announcement for the parent company and the
date of the public announcement for acquisition of shares of the target
company, whichever is higher, in accordance with sub-regulation (4) or
sub-regulation (5)} of Regulation 20.�� 7.1.8
Non
Compete fee 7.1.9.a. In case of non-compete
agreement for payment to any person other than the target company, disclose the
names of the parties to the agreement, reasons for the agreement and the amount
paid. 7.1.9.b. In case the payment is more
than 25% of the offer price arrived in terms of Reg. 20(4), 20(5) or 20(6),
disclose how the same has been factored into the offer price. 7.1.9.c. In the absence of any
non-compete agreement, give a specific negative statement in this regard. 7.1.9
In terms of Reg. 20(11) give a
specific statement that the offer price is justified. � 7.1.10 Also
ensure and disclose that the offer price shall not be less than the highest
price paid by the acquirers (including PACs) for any acquisition of shares of
target company from the date of PA upto 7 working days prior to the closure of
the offer. 7.2 Financial arrangements : 7.2.1
Disclose the total amount of funds
required to make the payment of consideration for the shares tendered during
the open offer (assuming full acceptances) and at the highest price, if the
offer is subject to differential pricing. � 7.2.2
Disclosures about the amount
deposited in escrow account in terms of Regulation 28(2).� 7.2.3
In case, the escrow account consists
of cash deposit, disclose the name and address of the bank, where cash amount
as required under Regulation 28(1) has been deposited. Also ensure and disclose
that the MB has been empowered to operate the escrow account in accordance with
the Regulations.�� 7.2.4
In case the escrow account consists
of a Bank guarantee, disclose the name and address of the bank. Also disclose
that bank guarantee is valid at least for a period commencing from the date of
PA until 30 days after the closure of the offer. Also ensure that bank
guarantee is sought from a bank who is not associate of or group of the
acquirer or target company.� Disclose
that the Bank Guarantee is in favour of Merchant Banker.� 7.2.5
In case, the escrow account consists
of a deposit of securities in terms of Regulation 28(4)(c), give the following
details: 7.2.5.a. Disclose the Name,
quantity, face value, paid up value, market price on the date of creation of
escrow account, the margin etc. �� 7.2.5.b.
Disclose whether they are free of lien/encumbrances. 7.2.5.c. Disclose whether they are carrying voting rights and if so,
details about the suspension or freeze of voting rights, if any.� 7.2.5.d. Disclose who is holding the securities and whether NOC has been
obtained from the holder for depositing the same in the escrow account. 7.2.5.e. Disclose that Merchant
Banker has been empowered by acquirer to realise the value of such escrow
account by sale or otherwise.� 7.2.5.f. Disclose that if there is
any deficit on realisation of value of the securities, the Merchant Banker
shall make good any such deficit in accordance with Regulation� 28(7).�
7.2.6
In case the escrow account consists
of a Bank guarantee or deposit of approved securities, disclose the name and
address of bank where cash deposit of at least 1% of the total consideration
payable, is made in accordance with Regulation 28(10).� 7.2.7
Ensure and disclose that the
acquirer has adequate and firm financial resources to fulfil the obligations
under the open offer. Disclosures regarding sources of funds should be made in
terms of Regulation 16 (xiv).� 7.2.8
Disclose the date of certificate,
name, complete address (including telephone, Fax number) and membership number
of the Chartered Accountant certifying the adequacy of financial resources of
acquirer for fulfilling all the obligations under the offer.� 7.2.9
Ensure and disclose that MB has
satisfied himself about the ability of the acquirer to implement the offer in
accordance with the Regulations.� 7.2.10 In
case the acquirer is a foreign body, disclose the details of the escrow account
opened abroad, pending RBI permission for opening the same in 8.
TERMS
AND CONDITIONS OF THE OFFER 8.1 All
the operational terms and conditions subject to which acquirer(s) would accept
the offer should be disclosed. The conditions mentioned in the letter of offer
should not be in violation of the provisions contained in the Regulations. 8.2 Locked in shares:
Regarding acceptance of locked-in shares, whether acquired pursuant to the
agreement or the offer, the same can be transferred to the acquirer subject to
the continuation of the residual lock -in period in the hands of the acquirer.
MB shall ensure that there shall be no discrimination in the acceptance of
locked-in and non locked-in shares 8.3 Eligibility for accepting the offer:
Disclose that the� offer is made to all
the� remaining shareholders (except the
acquirers, the persons acting in concert with acquirers and parties to
agreements, if applicable) whose names appeared in the register of� shareholders�
on (mention the specified date) and also to those persons (except the
acquirers, the persons acting in concert with acquirers and parties to
agreements, if applicable) who own the shares any time prior to the closure
of� the offer,� but are not the registered shareholder(s). 8.4 Statutory approvals:
Mention the nature of statutory approvals required for the offer. Disclose the
current status of such approval.� A
statement that no approval other than those mentioned is required for the
purpose of this offer shall be incorporated. 9.
PROCEDURE
FOR ACCEPTANCE AND SETTLEMENT 9.1 Procedure
for accepting the offer by eligible persons shall be mentioned�� indicating
9.1.2
Mention all the relevant documents
viz. Form of Acceptance cum acknowledgement, Original share Certificate, valid
transfer deed required to be tendered.�� 9.1.3
Disclose that shares and other
relevant documents should not be sent to the acquirer/PACs/ Target Company. 9.2 Procedure for acceptance of the
offer by unregistered shareholders, owners of shares who have sent them for
transfer or those who did not receive the Letter of Offer 9.2.1
Procedure
for said persons shall be specified. The option of applying on plain paper
giving all relevant details and forwarding relevant documents along with it,
shall necessarily be given to such shareholders. Alternatively, such
shareholders, if they so desire, may apply on the form of acceptance cum
acknowledgement obtained from the website (www.sebi.gov.in) .� It shall be noted that no indemnity is needed
from the unregistered shareholders. 9.3 In terms of Regulation 21(6),
disclose the relevant provisions pertaining to acceptance of shares when shares
offered under the offer by the shareholders are more than the shares agreed to
be acquired by the acquirer(s). 9.4 Disclosure in line with
Sub-regulation (12) of Regulation (22) about extension of time for payment of
consideration and payment of interest should be made. 9.5 Ensure and disclose that the
unaccepted shares / documents shall be returned by Registered Post to the
shareholders. 9.6 Ensure and disclose that the share
certificates would be held in trust by the Manager to the offer / registrar to
the offer, as the case may be, till the acquirer completes the offer
obligations in terms of Regulations. 9.7 In case, the shares of Target
company are dematerialized, MB should ensure to specify all the requisite
procedural requirements in the Letter Of Offer. 9.8 Specify categorically that the
shareholders who are desirous of withdrawing their acceptances tendered in the
offer can do so up to three working days prior to the date of closure of the
offer, in terms of Regulation 22(5A). 9.9 Further specify that the withdrawal
option can be exercised by submitting the document as per the instruction
below, so as to reach the Manager to the offer on or before three working days
prior to the date of closure of the offer. The withdrawal option can be
exercised by submitting the form of withdrawal. The MB may devise a suitable
form of withdrawal.�� 9.10
In
case of non-receipt of the form of withdrawal, the withdrawal option can be
exercised by making an application on plain paper along with the following
details: a.
In
case of physical shares: Name, address, distinctive numbers, folio nos. number
of shares tendered/withdrawn. b.
In
case of dematerialized shares: Name, address, number of shares
tendered/withdrawn, DP name, DP ID, Beneficiary account no. and a photocopy of
delivery instruction in "off market" mode or counterfoil of the
delivery instruction in "off market" mode, duly acknowledged by the
DP in favour of the Depository Escrow Account. 9.11 Disclose
the marketable lot of the shares of the target company. 10.
DOCUMENTS FOR INSPECTION 10.1 For
inspection of material documents by public disclose the addresses of the places
and timings. Such documents shall include: 10.1.1
Certificate of incorporation,
Memorandum and Articles of Association of the Acquirer, in case Acquirer is a
company;� 10.1.2
A C.A's certificate certifying the
net worth of Acquirer(s) in case Acquirer is a individual.� 10.1.3
A C.A�s certificate certifying the
adequacy of financial resources with acquirers to fulfil the open offer
obligations.� 10.1.4
Audited annual reports of the
Acquirer and Target company for the last three years.�� 10.1.5
A letter from the Bank confirming
the amount kept in the escrow account and a lien in favour of MB.� 10.1.6
A Copy of the agreement, if any ,
which triggered the open offer. 10.1.7
A published copy of Public
announcement.�� 10.1.8
A copy of the letter from SEBI in
terms of proviso to Regulation 18(2).�� 10.1.9
When Escrow Account consists of
approved securities, details of securities such as name, quantity, face value,
paid up value, market price on the date of creation of escrow. etc. 10.1.10 A
copy of the agreement into
with Depository participant for opening a special depository account for the
purpose of the offer. 10.1.11 A
copy of the non-compete agreement, if any. 10.1.12 Any
other relevant document(s). 11. �DECLARATION BY THE ACQUIRERS (INCLUDING PACs,
IF ANY) 11.1
Statements
in terms of Regulation 22(6) regarding the Acquirers responsibility for the
information contained in the Letter Of Offer. 11.2
A
statement to the effect that each of the acquirers (including� PACs, if any) would be severally and jointly
responsible for ensuring compliance with the Regulations shall be incorporated
in the Letter Of Offer. 11.3
Letter
Of Offer shall be signed by the acquirer(s)/owner of Attorney holders on their
behalf� giving date and place. MB to
ensure and disclose that person(s) signing the Letter Of Offer is duly and
legally authorised by Acquirers (including PACs, if any). Encl.: ANNEXURE I (Applicable in case open offer is for the change in control of the
Target Company or is an offer where the offer price is payable in terms of
exchange of securities.) 4.1 If acquirer(s) (including PACs, if any) is a
company 1.
Name and address of the company
(ies). 2.
Relationship, if any, existing
between them 3.
Salient features of the agreement,
if any, entered between them with regard to the offer/acquisition of shares 4.
Brief History & Major areas of
operations. 5.
Identity of the promoters and /or
persons having control over such companies and the group, if any, to which such
companies belong to. 6.
Confirm
and disclose as to whether the applicable�
provisions of chapter II of SEBI Takeover Regulations has been complied
with by acquirer/ PACs within the time specified in the Regulations. Delay or
non-compliance with these provisions if any, may be disclosed in the letter of
offer. Further the extent of compliance by the acquirers/ PACs with the applicable� provisions of chapter II should be furnished
under a separate annexure to SEBI along with the draft letter of offer as per
the format at Annexure III of the standard letter of offer. 7.
Share holding pattern as under.
8.
Names and residential addresses of
Board of directors of acquirer(s). Confirm whether any of such director(s) is
already on the Board of Directors of Target Company. If so, disclosures in
terms of Regulation 22(9). 9.
Name of the stock exchanges where
the shares of acquirer are listed/traded in the permitted category, if acquirer
is a listed company. 10.
Total Paid up capital, Face Value of
shares and Market Price of shares. 11.
Brief audited financial details
indicated at 4.1.12 below shall also be disclosed after making the following
adjustments in the audited financial statements wherever quantification is
possible. a. Adjustments
/ rectification for all incorrect accounting policies or failures to make
provisions or other adjustments which resulted in audit qualifications; b. Material
amounts relating to adjustments for last three years shall be identified and
adjusted in arriving at the profits of the years to which they relate c.
Where there has been a change in
accounting policy during the last three years, the profits or losses of those
years shall be re-computed to reflect what the profits or losses of those years
would have been if a uniform accounting policy was followed in each of these
years.� However, if an incorrect
accounting policy is being followed, the re-computation of the financial
statements would be in accordance with correct accounting policies; d. Statement of profit or loss shall
disclose both the profit or loss arrived at before considering extraordinary
items and after considering the profit or loss from extraordinary items. e. The statement of assets and
liabilities shall be prepared after deducting the balance outstanding on
revaluation reserve account from both fixed assets and reserves and the net
worth arrived at after such deductions 12.
Brief audited financial details
shall be given for a period of last three years. The subsequent certified
financial data should also be disclosed so that the financials are not older
than six months from the P.A. date. Amount Rs.
In lacs)
13.
The following information in respect of all the companies
promoted by the acquirer (PACs, if any) for the last three years based on the
audited statements a.
Name of Company, b.
�Date of
incorporation, c.
Nature of Business, d.
Equity capital, Reserves (excluding revaluation reserves), e.
Total Income, f.
Profit After Tax (PAT), g.
Earnings Per Shares (EPS), h.
Net Asset Value (NAV). i.
Mention if any of the companies stated above is a sick industrial
company. 4.2
If Acquirer(s) (including PACs, if any)is an individual, the
following details shall be given: 1.
Name and residential addresses of each individual(s) 2.
Relationship, if any existing between them 3.
Salient features of the agreement, if any entered between
them with regard to the offer/acquisition of shares. 4.
Principal areas of business�
and relevant experience 5.
Net worth duly certified by a Chartered Accountant 6.
Confirm and disclose as to whether the applicable� provisions of chapter II of SEBI Takeover
Regulations has been complied with by acquirer/ PACs within the time specified
in the Regulations. Delay or non-compliance with these provisions if any, may
be disclosed in the letter of offer. Further the extent of compliance by the
acquirers/ PACs with the applicable�
provisions of chapter II should be furnished under a separate annexure
to SEBI along with the draft letter of offer as per the format at Annexure III
of the standard letter of offer. 7.
Positions held on the Board of Directors of any listed
company(ies) 8.
Name of the company (ies) where individual is a full time
director, Brief financial of those listed company(ies) where the individual
along with persons acting in concert with him, has a controlling stake 9.
The information stated at 4.1.13 above, in respect of all
companies promoted by acquirer(s) (PACs, if any). 4.3
Disclosure in terms of�
Regulation 16(ix) 5
Option in terms of
Regulation 21(3), if applicable 5.1 If the public offer
results in public shareholding being reduced to 10% or less of the voting
capital of the company or if the public offer is in respect of a company which
has public shareholding of less than 10% of the voting capital, disclose the
option which the acquirer would exercise in terms of Regulation 21(3). In case,
acquirer intends to exercise the delisting option provided in the Regulations,
give all relevant disclosure as required under the guidelines specified by the
Board in respect of delisting of securities. 6
Additional Disclosures in
case where consideration is to be paid by the acquirer(s) in terms of exchange
of instruments in terms of Regulation 20(2). 6.1 Nature of instruments of
Acquirer company which are offered such as NCDs, FCDs, PCDs, Shares etc. 6.2 In case, the instruments
are convertible into equity shares or have rights to subscribe for equity
shares, give details such as exercise period, price & date of conversion,
Pre and Post equity capital assuming full conversion etc. 6.3 In case consideration is
paid by way of secured instruments, all the features of such instruments such
as face value, interest rate, redemption period, redemption amount, details of
security created, name of the debenture trustee, etc. 6.4 If the issue / allotment
of instruments requires any approval from shareholders, whether the same has
already been obtained / to be obtained, if yes disclose all the relevant
details of the approval which shall include the amount of instruments issued /
proposed to be issued, price of instruments, date when resolution passed /
proposed to be passed, validity of the resolution etc.� If the approval is yet to be obtained status
its off. In case, the resolution in this regard is not approved by the
shareholders, disclose as to how the acquirer proposes to fulfil the offer
obligations. 6.5 Ensure and disclose the
value of such instruments determined in terms of regulation 20(5). ANNEXURE II {All disclosures in terms of
guidelines for �Delisting of securities� issued by SEBI} ANNEXURE III STATUS OF COMPLIANCE WITH THE
PROVISIONS OF CHAPTER II OF THE TAKEOVER REGUALTIONS (as applicable) By the promoters/Sellers/major
shareholders/Acquirers, separately (as may be applicable)
The data must be furnished
separately for each of the 3 category of shareholders referred to above. ANNEXURE IV By the target company
� |
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 | Printer Friendly page |  | Email this page |
