Amendment to SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (Takeover Regulations, 2011)

The SEBI Board took note of the concerns raised during the implementation of Takeover Regulations, 2011 and approved the following:

1. Relevant date for making Public Announcement and determination of offer price in cases of combined modes of acquisition shall be the earliest date on which obligations are triggered. This will, however, not be applicable if the subsequent trigger is on account of willful and deliberate act on the part of the acquirer.
2. Relevant date for making Public Announcement and determination of offer price in cases of preferential allotment shall be the date of board resolution authorizing the preferential allotment instead of the date on which special resolution is passed under Section 81(1A) of the Companies Act, 1956.
3. Aligning disclosure requirements under Takeover Regulations with SEBI (Prohibition of Insider Trading) Regulations, 1992
4. Clarification on reckoning the period of ninety days in case of increase of voting rights due to buyback by target company - In such a case, the period of ninety days will be reckoned from the date of closure of the buyback offer.
5. Norms for completion of market purchase of shares made during the offer period - It has been decided that market purchases made during the open offer period can be completed during the open offer period subject to such shares being kept in an escrow account. Further, these shares can be transferred from the escrow account to the name of the acquirer after the expiry of 21 working days from the date of the detailed public statement, provided the acquirer deposits 100 percent of the consideration payable in cash in the escrow account.

ESOP TRUSTS DISALLOWED FROM BUYING CO. SHARES FROM SECONDARY MARKETS

SEBI, vide its Circular dated January 17th 2013 has come out with an amendment to the SEBI (Employee Stock Option Scheme and Employee Stock Purchase Scheme) Guidelines, 1999 and a consequent amendment to the Equity Listing Agreement as well.

SEBI through SEBI (Employee Stock Option Scheme and Employee Stock Purchase Scheme) Guidelines, 1999 provides an orderly framework for the listed companies to reward their employees through stock option schemes and stock purchase schemes. These regulations contain detailed provisions, with regard to any ESOP/ ESPS scheme of a listed entity. Whereas it was observed by SEBI that some listed entities, while framing their ESOP Schemes had created the Trusts to deal in their own securities in the secondary market, which was not envisaged within the purview of SEBI (ESOS and ESPS) Guidelines 1999. Thus, it has been decided to prohibit the listed entities from framing any employee benefit schemes involving acquisition of own securities from the secondary market. Also clause 35C has been inserted in the Equity Listing Agreement for the same.

As Corporates are aware that ESOPs can be issued either under the Direct Allotment Route or through the Trust Route. Under the Direct Allotment route, as the name suggests, direct fresh allotments are made to employees, as and when they exercise the Options. As against this, in the Trust Route, the Companies were either making fresh allotments to the Trusts or the Trusts were authorized to acquire/ buy the shares from the market as and when deemed appropriate, to be ultimately transferred to the concerned employees, as and when they exercise the options.

The amendment is with reference to the latter type of transactions, involving acquisitions by the Trusts from the secondary markets.

The said amendment has been brought out with the obvious apprehension that such Schemes/ Trusts might have been created with the object of inflating, depressing, maintaining or causing fluctuation in the price of the securities by engaging in fraudulent and unfair trade practices. Such dealings also raise various regulatory concerns regarding compliance SEBI (FUTP) Regulations as well as Insider Trading Regulations.

It has also been mandated that those companies, which have already framed and implemented before the date of this circular any employee benefit schemes involving dealing in the securities of the company, which are not in accordance with the SEBI Guidelines, such companies will be required to inform the details of their schemes to the Stock exchanges within 30 days from date of the circular (in the prescribed format) and shall also align any existing employee benefit schemes with SEBI (ESOS and ESPS) Guidelines on or before 30th June 2013.

It can thus be inferred that from now on, the Employee Welfare Trusts will not be allowed to acquire any shares from the Secondary Market and can only be issued fresh shares, for being transferred to the Employees, as and when they exercise the Options vested to them. Furthermore, any such Schemes/ Trusts in existence, will have to be accordingly amended to be in consonance with the SEBI Guidelines, by 30th June 2013.