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Hostile Takeover
Understanding key
Concepts
AMALGAMATION MERGER ACQUASITION
An acquisition, also
"blending together of Its an arrangement, known as a
two or more whereby the assets of
undertakings into one takeover, is the
two companies become
undertaking, the vested in, or under the buying of one
shareholders of each control of, one company company (the
blending company, (which may or may not ‘target’) by
becoming, substantially, be one of the original another. An
the shareholders of the two companies), which acquisition may be
blended undertakings. has as its shareholders friendly or hostile
There may be all, or substantially all, Acquisition usually
amalgamations, either by the shareholders of the
transfer of two or more
refers to a
two companies.
undertakings to a new purchase of a
company, or to the smaller firm by a
transfer of one or more larger one.
companies to an existing
company”.
Area of presentation
ʘUnderstanding Hostile Takeover
ʘmodus operandi of Hostile Takeover
ʘAvailable defenses
ʘSupporting legal provision
Understanding Takeover
The expression “takeover” implies acquisition of control of a company which is already
registered through the purchase or exchange of shares. Takeover takes place usually by
acquisition or purchase from the shareholders of a company their shares at a specified
price to the extent of at least controlling interest in order to gain control of the company .
In the context of
business
Horizontal Takeover- Takeover of one company by another
company in the same industry. The main purpose behind this kind of
takeover is achieving the economies of scale or increasing the market
share. E.g. takeover of Hutch by Vodafone.
Conglomerate takeover: Takeover of one company by another
company operating in totally different industries. The main purpose
of this kind of takeover is diversification
legal perspective.
Friendly or Negotiated
Takeover Bail Out Takeover Hostile takeover-
Friendly takeover means Takeover of a financially IT is a takeover where
takeover of one company sick company by a one company unilaterally
by change in its financially rich company pursues the acquisition of
management & control as per the provisions of shares of another
through negotiations Sick Industrial company without being
between the existing Companies (Special into the knowledge of
promoters and Provisions) Act, 1985 to that other company. The
prospective investor in a bail out the former from most dominant purpose
friendly manner. Thus it losses. which has forced most of
is also called Negotiated the companies to resort
Takeover. This kind of to this kind of takeover is
takeover is resorted to increase in market share.
further some common The hostile takeover
objectives of both the takes place as per the
parties. Generally, provisions of SEBI
friendly takeover takes (Substantial Acquisition
place as per the provisions of Shares and Takeover)
of Section 395 of the Regulations, 1997
Companies Act, 1956
Characteristics of
vulnerability to a takeover
• The firm seems to be undervalued
• Low Q-ratio
• Low P/EPS ratios
• Subsidiaries or properties that could be sold
off without significantly impairing cash flow
• Relatively small stockholdings under the
control of incumbent management
Hostile Takeovers
• most mergers are negotiated by the two firms‘ top
management and boards of directors
• if this fails, the acquirer can go over the heads of
the target firm‘s management
• and appeal directly to its stockholders
• „ hostile takeover“
Hostile Takeover
…the technique
• In general, three strategies for hostile
takeovers can be distinguished:
– Bear hug
Increasing
degree of
hostility
– Proxy fight
– Tender offer
• Mostly accompagnied by some preliminary
steps
Preliminary Takeover Steps
• Toehold
• Initial accumulation of target´s shares
• Reduces number of target shares that must
be purchased at a costly premium
• Casual pass
• Informal first contact to target
company to test reactions
• Could alert target
Takeover Strategies
• Bear Hug
• least aggressive of hostile takeovers
• works well when the target is not strongly opposed to the
merger
• contact the target‘s board with expression of interest in
acquiring the target
• sometimes accompanied by public announcement of
bidder‘s intent to make a tender offer
Proxy Fight
• the buyer doesn't attempt to buy stock. Instead, they try to
convince the shareholders to vote out current management
or the current board of directors in favour of a team that will
approve the takeover. The term "proxy" refers to the
shareholders' ability to let someone else make their vote for
them -- the buyer votes for the new board by proxy.
• target management actually or probably reluctant to merge
• acquirer seeks the support of target firm‘s shareholders at
next annual meeting in addition to own votes
• not very expensive, but in general not very successful in
mergers
Contd.
• The most famous recent proxy fight was Hewlett-
Packard's takeover of Compaq. The deal was valued
at $25 billion, but Hewlett-Packard reportedly spent
huge sums on advertising to sway shareholders. HP
wasn't fighting Compaq -- they were fighting a
group of investors that included founding members
of the company who opposed the merge. About 51
percent of shareholders voted in favour of the
merger. Despite attempts to halt the deal on legal
grounds, it went as planned.
Tender Offer
• the most unfriendly
• offer directly to shareholders of target firm
• two-tiered offers (also: front end-loaded tender offer)
provide superior compensation for a first-step purchase
(often cash)
• inferior compensation for second-step purchase
• exerts pressure on shareholders to be in the first tier
• two-tiered takeover bids. Note that a two-tiered takeover bid
occurs when an acquirer offers a higher price during the first
tender, with a built-in threat of a lower bid targeting
shareholders who do not vote favourably right away.
Preoffer and Postoffer
Defenses
• Preoffer defenses • Post offer defenses
(preventative (active antitakeover
antitakeover measures )
measures)
• take its place after the
• much more effective takeover attempt is
started
Preoffer Defenses
• Poison Pills
• A poison pill can take many forms, but it basically
refers to anything the target company does to make
itself less valuable or less desirable as an
acquisition. There are two common types of poison
pills:
• the flip-in pill and
• flip-over pill.
Flip-in poison pill
• The common poison pill is a provision that allows
current shareholders to buy more stocks at a steep
discount in the event of a takeover attempt. The
provision is often triggered whenever any one
shareholder reaches a certain percentage of total
shares (usually 20 to 40 percent). The flow of
additional cheap shares into the total pool of shares
for the company makes all previously existing
shares worth less. The shareholders are also less
powerful in terms of voting, because now each share
is a smaller percentage of the total.
The flip-out poison pill
• works in the opposite direction, whereby the target
• company’s shareholders have the right to buy shares
in the acquirer, also significantly below their market
price.
• There is also something referred to as the
“dead-hand” provision, where target company’s
board of directors holds the ultimate right to allow
or cancel a poison pill. In essence, without the board’s
prior approval, the takeover of a target company could
become prohibitively expensive for an acquirer technique
Poison Puts
• existing bond holders can demand repayment
if there is a change of control as a result of a
hostile takeover
• The bond’s put price usually above par
• cashing of the bonds creates large cash
demands for the merged firm - makes the
takeover prospects unattractive
Contd.
• Dual-class stock:
• allows company owners to hold onto voting stock, while the
company issues stock with little or no voting rights to the
public. Investors can purchase stocks, but they can't have
control of the company.
• The Power of Supermajority Vote:
Many target companies, sensing that predators might be circling
the wagons, change their charters and by-laws to include
supermajority voting provisions. These provisions usually
require that at least 80% of voting shareholders approve of the
takeover, as opposed to a simple 51% majority. Such a
requirement can make it nearly impossible for an acquirer to
obtain enough votes approving the takeover.
Contd.
• Fair Price Amendments: This type of amendment to a
target company’s charter provides for some minimum
threshold below which an offer of a takeover is
automatically rejected without even being presented before
the target company’s shareholders. By establishing a floor
value bid, target companies are effectively protected against
temporary price volatilities, as well as against two-tiered
takeover bids. Note that a two-tiered takeover bid occurs
when an acquirer offers a higher price during the first
tender, with a built-in threat of a lower bid targeting
shareholders who do not vote favourably right away.
• Waiting Period
• unwelcome acquirers must wait for a specified
number of years before they can complete the
merger
• Golden Parachutes
• special - lucrative - compensation agreements
that the target company provides to upper
management
• provides payments on termination of
employment
Post offer Ddefenses
• Greenmail
• Greenmail involves a target company buying back its
own shares from the acquirer, but typically above the
stock’s market price. Sometimes this repurchase can
be quite costly, but at least there is an agreement that
the acquirer would not go for another takeover offer.
Note that greenmail was very popular during the fourth
wave of the M&A activity during the 1980s. However,
an amendment to the U.S. Internal Revenue Code
effectively put a stop to it when acquirers were
slapped with a 50% tax on greenmail profits.
Litigation
One of the options available to target companies is to file a
lawsuit and allege violations of securities and/or antitrust
legislation. However, unless there are serious
grounds/evidence indicating such violations, litigation rarely
succeeds in preventing a takeover. On the plus side, lawsuits
buy time needed to develop a plan B, although, truth be told,
more often than not, there is no plan B. Lawsuits alleging
securities violations are usually taken care of with additional
disclosures. And, as for lawsuits alleging violations of
antitrust laws, these typically work better if initiated by
antitrust regulators, rather than by target companies.
White Knight and White Squire
Techniques:
•
• Employing a white knight defence is often the best solution available
to target companies. It involves finding a third party, a white knight,
that a target company can partner with and which is considered a good
strategic fit with the target. Finding such a white knight can result in
justifying higher market capitalization of the target and making it
more difficult/expensive for an acquirer to go through with the bid
• White Squire
• modified form of white knight
• a firm that consents to purchase a large block of the target´s stock
• white squire will not sale to hostile bidder
Pac Man
• target makes an offer to buy the acquirer
• very costly and can have serious financial effects for both players
• Buying Back
• Instead of negotiating a greenmail deal, target companies could
address other shareholders and start buying back their own shares not
held by an acquirer.
• For instance, a target company could announce a cash tender offer of
its own outstanding shares, the consequence of which could
potentially increase the target's stock market price and/or force the
acquirer to increase its own bid.
• Another option is to effect a leveraged buyout, whereby a target
company obtains debt funding from a private equity firm, buys out all
of its shares, and effects a
• Selling the “Crown Jewel”:
• In certain instances, a target company may employ a tactic
that can be summarized as, “if I can’t have it, no one can.”
• In other words, in an effort to avert a hostile takeover bid,
the target company could sell one or more of its highly
successful subsidiaries that is/are considered its crown
jewel(s) and that is/are likely the reason for the takeover to
begin with.
• Without the crown jewel(s) in the “crown,” an acquirer may
very well withdraw its offer. However, courts are also quite
likely to deem this strategy illegal and disallow the sale
and/or hold the target company legally accountable.
Legal Framework
Clause 40 of SEBI (Substantial
listing Agreement Acquisition of Shares &
Takeovers)
Regulations, 1997
Companies
Act !956
Listing Agreement Clause 40:
• The first attempt to regulate take over were made in a limited way by
incorporating a clause, (viz., clause 40) in the listing agreement
• which provided for the public offer to the share holder of a company by
any person who sought to acquire 25% for more of the voting rights in a
public company.
• But the clause used to be easily circumvented and its basic purpose were,
often been frustrated by the acquire , simply by acquiring a little below of
the 25% rider, Further in India it was possible acquire control only by
holding 10% of the voting rights.
• Thus an Amendment was inhabitable, via this:
• Lowering level to 10% form 25% was done
• Minimum of 20% has to be acquired from shareholder.
• Stipulation as to minimum price.
• Mandatory discloser requirement.
• These changes helped in making the process of acquisition of shares and
takeovers transparent. Amendment to clause 40 of Listing Agreement 1990
Companies act 1956
• Part IV chapter (v) of the act deals scheme of arrangement and
reconstruction, sec 394 to 396 A lays down foundation for it.
• But sec 395 which clearly envisages scheme of takeover shares of
one company by other, the effect of this section is to dilution of class
holding less than 10%, it require following to be complied with:
• 1. Scheme should be approved by the holder of 9/10th of the value of
shares transferor company with in 4 month
• 2.Notice to be served to the dissenting share holder(DSH) with in two
month of the above mention period
• 3. DSH after receiving the notice within one can apply to the court
for cancellation of scheme, failing compulsory acquire
• In case no such restriction transferee company can acquire share
and pay for the same.
SEBI (Substantial Acquisition of Shares & Takeovers)
Regulations, 1997
• The term ‘takeover’ nor the term ‘hostile’ has been expressly defined under
the said Regulations, the term basically envisages the concept of an:
• Acquirer: taking over the control or management of the target company
• acquires substantial quantity of shares or voting rights of the target company.
• The term ‘substantial acquisition of shares’ attains a very vital importance,
irrespective whether the corporate restructuring is through merger /
acquisition / takeover.
• SEBI Regulations have discuss the aspect of ‘substantial quantity of shares
or voting rights’ separately for two different purposes:
• (I) For the purpose of disclosures to be made by acquirer(s)
• (II) For the purpose of making an open offer by the acquirer
(I) For the purpose of disclosures to be made by
acquirer(s)
• A. 5% or more shares or • B. More than 15% shares or voting
rights:
voting rights:
• An acquirer, who holds more than 15%
• A person who, along with ‘persons
shares or voting rights of the target
acting in concert’ (PAC), if any,
company,
acquires shares or voting rights
(which when taken together with his • Shall within 21 days from the financial
existing holding) would entitle him to year ending March 31 make yearly
more than 5% or 10% or 14% shares disclosures to the company in respect
or voting rights of target company, of his holdings
• is required to disclose the aggregate • The target company is, in turn, required
of his shareholding or voting rights to to pass on such information to all stock
the target company and the Stock exchanges where the shares of the
Exchanges where the shares of the target company are listed, within 30
target company are traded days from the financial year ending
March 31 as well as the record date
• within 2 days of receipt of intimation
fixed for the purpose of dividend
of allotment of shares or acquisition
declaration.
of shares.
(II) For the purpose of making an open offer by the
acquirer
• A. 15% shares or voting rights: An acquirer, who intends
to acquire shares which along with his existing shareholding
would entitle him to more than 15% voting rights, can
acquire such additional shares only after making a public
announcement (“PA”) to acquire at least additional 20% of
the voting capital of the target company from the
shareholders through an open offer.
• B. Creeping limit of 5%: An acquirer, who is having 15%
or more but less than 75% of shares or voting rights of a
target company can consolidate his holding up to 5% of the
voting rights in any financial year ending 31st March.
However, any additional acquisition over and above 5% can
be made only after making a public announcement.
Contd.
• However in pursuance of Reg. 7(1A) any purchase or sale
aggregating to 2% or more of the share capital of the target
company are to be disclosed to the Target Company and the
Stock Exchange where the shares of the Target company are
listed within 2 days of such purchase or sale along with the
aggregate shareholding after such acquisition / sale. An acquirer
who has made a public offer and seeks to acquire further shares
under Reg. 11(1) shall not acquire such shares during the period
of 6 months from the date of closure of the public offer at a price
higher than the offer price.
• C. Consolidation of holding: An acquirer who is having 75%
shares or voting rights of a target company can acquire further
shares or voting rights only after making a public announcement
specifying the number of shares to be acquired through open
offer from the shareholders of a target company.
Public offer provision will not apply:
• Allotment in pursuance of an application made to a public
issue;
• Allotment pursuant to an application made by the
shareholder for rights issue, subject to such rights issue not
resulting in change in control and management of the
company;
• Sick company;
• Preferential allotment of shares, subject to the condition that
at least 75% of the shareholders of the company shall have
approved the preferential allotment and that sufficient
disclosures relating to the post-allotment shareholding
pattern, offer price etc., have been made to the shareholder
• Allotment to the underwriters pursuant to any
underwriting agreement;
• Issue of American Depository Receipts and
Global Depository Receipts or Foreign
Currency Convertible Bonds, till such time as
they are not converted into equity shares;
• Shares held by banks and financial institutions
by way of security against loans
SEBI(Takeover Code Amendment (II)
2009)
Amendment Impact on Satyam Case
• Amendment has empowered SEBI to • Now Satyam can apply for
exemption application from
Regulation 10 to 29A (Discloser exemption from discloser norms
norms ). subject to certain condition. previously no such leverage was
• These are there
• A) central govt., State Govt. ,or any
other Regulatory Body has remove the
BoD and appointed other person to
hold the office Same has happened with Syatam
• Such persons has devised a plan which
provides transparency in the operation
process and benefit for the stake New Board is moving in
holders, and is not gave advantage to a consonance with the objective.
particular accquir.
Cond.
• Condition and requirement of • Working on it
competitive process is fair. • Thus SEBI has exempted
• The process provides details Syatam from :
regarding time of Public Offer
and manner in which the • A) Discloser requirement
change ion control will be done • B) Public announcement
• for competitive bid.
• Amendment as Regulation • C) and Public offer.
25(2B):
• No Public announcement for
competitive bid ( previously, a
bid made under 21 days of
public announcement for equal
number of share)