M/s Daiichi Sankyo Company Vs Jayaram Chigurupati .

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7148 OF 2009

M/S DAIICHI SANKYO COMPANY LTD. …APPELLANT

VERSUS

JAYARAM CHIGURUPATI & ORS. ...RESPONDENTS

WITH

CIVIL APPEAL NO.7314 OF 2009

M/S DAIICHI SANKYO COMPANY LTD. ...APPELLANT

VERSUS

N. NARAYANAN & ANR. …RESPONDENTS

J U D G M E N T

AFTAB ALAM, J.

1. Whether the offer of rupees one hundred thirteen and paise sixty two

only (Rs.113.62) per share made by the appellant, M/s Daiichi Sankyo

Company Ltd. in its public announcement dated January 19, 2009 for

acquisition of the shares of Zenotech Laboratories Ltd. was fair and lawful

or whether the offer price could not be less than rupees one hundred and

sixty only (Rs.160.00) per share? This is the question that falls for

consideration in these two appeals. A correct answer to the question requires

a proper construction and understanding of certain provision of the

Securities and Exchange Board of India (Substantial Acquisition of Shares

and Takeovers) Regulations, 1997 (the SEBI Takeover Regulations or

Takeover Code).

2. The facts of the case are fairly simple and are admitted on all sides.

The two appeals arise from almost identical facts but in this judgment we

would be referring to the paper book of Civil Appeal No.7148 of 2009.

3. On October 3, 2007 Ranbaxy Laboratories Limited (respondent no.3),

a company incorporated and registered under the Indian Companies Act,

entered into a Share Purchase and Share Subscription Agreement jointly

with Zenotech (respondent no.4) and its promoter, Dr. Jairam Chigurupati

(respondent no.1 in Civil Appeal No.7148). The agreement provided for

Ranbaxy to purchase from Zenotech’s promoters a large block of equity

shares (78,78,906 in number), representing 27.35% of the company’s fully

paid-up equity share capital, at the negotiated price of rupees one hundred

and sixty (Rs.160.00) per equity share and to subscribe to 54,89,536 fully

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paid-up equity shares at the same price (rupees one hundred and sixty per

share) under a preferential allotment by Zenotech. Having entered into the

agreement to acquire shares that would entitle it to exercise voting rights in

Zenotech far in excess of the statutorily prescribed limit of fifteen percent

(and, in all likelihood, control over it) Ranbaxy was legally obliged to make

a public announcement to acquire shares of the company from the ordinary

shareholders. It did so on October 5, within four days of the agreement as

required by law. In the public announcement it sought to acquire from the

public shareholders, equity shares of Zenotech constituting twenty percent of

its expanded share capital. In the public announcement Ranbaxy quoted

offer price of rupees one hundred and sixty only (Rs.160.00) per equity

share as the negotiated price under the agreement (SPSSA) was the highest

of the prices arrived at by the different ways prescribed by law. On

November 8, 2007 the share purchase transaction between Ranbaxy and the

promoters of Zenotech (Dr. Chigurupati and his family) was completed and

at the annual general meeting of Zenotech held on the same day, the

shareholders of Zenotech approved the preferential allotment of shares to

Ranbaxy. On November 23, 2007 Zenotech duly allotted (by way of

preferential allotment) 54,89,536 fully paid-up shares to Ranbaxy. The ‘open

offer’ made by Ranbaxy for Zenotech shares, in terms of the Takeover

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Regulations, closed on November 15, 2008. Following the completion of the

open offer formalities, Ranbaxy issued a post offer announcement on

January 30, 2008. The announcement disclosed that though in the public

announcement it offered to purchase shares amounting to twenty percent of

Zenotech’s capital it actually received shares comprising only 2.2 percent of

the expanded share capital of the company and further that on completion of

all transactions Ranbaxy’s shareholding in Zenotech stood at 46.85% of the

latter’s share capital. It may be stated here that even after the sale in terms of

the agreement the promoters (Dr. Chigurupati and his family) retained a

large portion of their shareholding in Zenotech.

4. It needs to be stated here that up to this stage Daiichi was nowhere on

the scene. It is no one’s case that the acquisition of Zenotech’s shares and

control by Ranbaxy was at the instance of Daiichi or it was in furtherance of

some overt or covert understanding between the two.

5. On June 11, 2008 Daiichi (the appellant in these two appeals) entered

into a Share Purchase and Share Subscription Agreement (the ‘SPSSA’)

jointly with (i) Malvinder Singh and others, the promoters of Ranbaxy, and

(ii) Ranbaxy Laboratories Ltd. Under the agreement, Daiichi would acquire

30.91% of the fully paid-up equity share capital of Ranbaxy by buying a

sufficiently large block of shares from the company’s promoters. In addition,

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Daiichi would subscribe to (i) shares, representing in the aggregate 11% of

the fully paid-up equity share capital of Ranbaxy, and (ii) 2,38,34,333 share

warrants, each warrant exercisable for one equity share of Ranbaxy. On the

same day Ranbaxy informed the Stock Exchanges that in the meeting held

on that date its Board of Directors had ratified the terms of the SPSSA and

had decided to seek the approval of the company’s shareholders for issuance

of the shares and the warrants to Daiichi, on preferential basis, as stipulated

in the SPSSA. In this letter dated June 11, 2008, addressed to the Stock

Exchanges it was also stated that, since Ranbaxy was holding 46.85 percent

of the equity shares of Zenotech, the SPSSA “has also triggered an ‘Open

Offer’ to be made by ‘Daiichi Sankyo’ to the public shareholders of

‘Zenotech’ to acquire a minimum of 20% of the Equity Shares of ‘Zenotech’

at a price to be determined under the applicable SEBI Regulations”. In order

to complete its takeover of Ranbaxy as envisaged under the SPSSA, Daiichi

went through the gamut of the statutory prescriptions. On June 16, 2008 it

made a public announcement (‘open offer’) to the shareholders of Ranbaxy

(other than the Sellers under the SPSSA) to acquire in the aggregate 22.01%

of the fully paid-up equity share capital of Ranbaxy. The offer price in the

public announcement, was rupees seven hundred and thirty seven only

(Rs.737.00) for each share, which was the price Daiichi had paid to the

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company’s promoters for acquisition of the shares under the agreement and

which worked out to be the highest of the prices reckoned by the different

ways prescribed by the law. Daiichi’s control over Ranbaxy consummated

on October 20, 2008 when it acquired more than fifty percent of the share

capital of Ranbaxy (as it stood on that date) and on and from that date

Ranbaxy became a subsidiary of Daiichi. The relation in which Ranbaxy

came with Daiichi had another consequence, to which an allusion was made

in the letter that Ranbaxy had addressed to the Stock Exchanges on the date

of the SPSSA. Whether intended or not, as a result of its takeover (direct) of

Ranbaxy, Daiichi also (indirectly) acquired control of 46.85% of the equity

share capital in Zenotech, held by Ranbaxy. What on the date of the SPSSA

was an anticipated consequence, on October 20, 2008 became the reality and

this date became the starting point for reckoning the period during which the

“acquirer”, Daiichi must make the public announcement (open offer) to the

shareholders of Zenotech. Daiichi duly made the public announcement in

regard to Zenotech on January 19, 2009. In the public announcement,

Daiichi offered rupees one hundred thirteen and paise sixty two (Rs.113.62)

for each share of Zenotech. The offer price was based on the price of the

Zenotech shares quoted on the stock exchange.

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6. In regard to the offer price of rupees one hundred thirteen and paise

sixty two (Rs.113.62) made in the public announcement by Daiichi, N.

Narayanan respondent no.1 in Civil Appeal No.7314 of 2009, who was

holding 63000 shares in Zenotech made a complaint to the Securities and

Exchange Board of India (SEBI) (vide. letters dated January 19, March 5,

April 1, April 15, and May 7, 2009). He claimed that the offer price for

Zenotech shares could not be less than rupees one hundred and sixty

(Rs.160.00) per share and requested the SEBI to direct Daiichi to revise the

offer price accordingly and also to pay interest @ 15% for the delay in

coming out with the public announcement.

7. Respondent no.1 in Civil Appeal No.7148 of 2009, Dr. Chigurupati

who was the Director, founder and promoter of Zenotech and who along

with his wife was holding 26% equity shares in Zenotech made a similar

complaint to SEBI through a detailed representation dated January 27, 2009.

The SEBI after due consideration of the matter turned down the claim of the

respondents (vide letter dated June 18, 2009 in the case of N. Narayanan’s

complaint and letter dated June 22, 2009 in the case of the complaint of Dr.

Chigurupati).

8. Against the decision of the SEBI, Dr. Chigurupati and N. Narayanan

preferred separate appeals, being Appeal Nos.137 and 139 respectively of

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2009 before the Security Appellate Tribunal. The Security Appellate

Tribunal upheld the claim of the respondents and by order dated October 7,

2009 allowed the appeals, reversed the decision of the SEBI, modified the

letter of offer (sic) issued by Daiichi and directed Daiichi to offer rupees one

hundred and sixty (Rs.160.00) per share to the shareholders of Zenotech.

Daiichi has now brought the matter in appeal before this Court.

9. Since the offer price for the Zenotech shares quoted in the public

announcement is the bone of contention between the parties, we need to see

some clauses in the public offer in some detail. In paragraph 1.2 it was stated

as follows:

“1.2 There are no ‘Persons Acting in Concert’ within the meaning of Regulation 2(1)(e)(1) of the Regulations in relation to this offer. However, due to the applicability of Regulation 2(1)(e)(2) of the Regulations, there could be certain entities deemed to be Persons Acting in Concert with the Acquirer.”

Paragraph 4 was about “Reason for Acquisition and Offer and Future Plan

about the Target Company” and in paragraph 4.1 it was stated as follows:

“4.1 As stated in Para(s) 1.4 and 1.5 above, as a result of the acquisition of its stake in RLL, together with the acquisition of control in RLL, the Acquirer has indirectly acquired 46.85% of the fully paid up equity share capital of the Target Company held by RLL, which in turn has resulted in an indirect substantial acquisition of shares and voting rights in the Target Company by the Acquirer for the purposes of Regulation 10 and 12 of the Regulations. Accordingly, this Offer is being made pursuant to Regulations 10 and 12 of the Regulations.”

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And the offer price was calculated and quoted in paragraph 1.9 as follows:

“1.9 The shares of the Target Company are frequently traded on the BSE within the meaning of Regulation 20(5) of the Regulations. The Offer price of Rs.113.62 per equity share is justified in terms of Regulation 20(4) of the Regulations as it is the higher of the following:”

i. The negotiated price under the SPSSA# N.A. ii. Highest price paid by Acquirer for any

acquisition (including by way of allotment in a public or rights or preferential issue) during the 26 weeks prior to the date of the public announcement to shareholders of RLL

N.A.

iii. The average of the weekly high and low of the closing prices of shares of the Target Company on BSE during the 26 weeks period preceding the date of public announcement to shareholders of RLL.

Rs. 113.62

iv. The average of the daily high and low prices of the shares of the Target Company on BSE during the 2 week period preceding the date of public announcement to shareholders of RLL

Rs. 103.51

v. Highest price paid by Acquirer for any acquisition (including by way of allotment in a public or rights or preferential issue) during the 26 weeks prior to the date of the P.A.

N.A.

vi. The average of the weekly high and low of the closing prices of shares of target company on BSE during the 26 weeks period preceding the date of the P.A.

Rs.106.03

vii The average of the daily high and low prices of shares of target company on BSE during the 2 weeks period preceding the date of the P.A.

Rs.109.52

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10. Now is the time to take a look at the statutory provisions controlling

and regulating such transactions and to see how far the steps taken by

Daiichi/Ranbaxy were in conformity with the mandates of the law. The

relevant provisions are to be found in the Securities And Exchange Board of

India (Substantial Acquisition Of Shares And Takeover) Regulations, 1997

(the Takeover Code or the Takeover Regulations) framed under section 30

of the Securities Exchange Board of India Act, 1992. The Takeover Code

was first notified by SEBI in November 1994. This was replaced by the

1997 Takeover Code after undergoing a number of amendments made in

light of the recommendations of the first Bhagwati Committee’s report of

January 18, 1997. The 1997 Takeover Code provided for the regulatory

mechanism for indirect acquisition of the kind we see in the present case.

The 1997 Takeover Code underwent further amendments by the SEBI

(Substantial Acquisition of Shares and Takeovers) (Second Amendment)

Regulations, 2002, with effect from September 9, 2002 in light of the

recommendations made by the second Bhagwati Committee’s report

submitted in May 2002.

11. Now, to the relevant provisions of the Takeover Code: regulation 2

has the definition clauses and sub-regulation (b) defines acquirer as follows:

“2(b) “acquirer” means any person who, directly or indirectly, acquires or agrees to acquire shares or voting rights in the target

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company, or acquires or agrees to acquire control over the target company, either by himself or with any person acting in concert with the acquirer;”

12. Thus, in terms of the definition, on entering into the SPSSA on June

11, 2008 Daiichi became the acquirer (directly) of Ranbaxy and also of

Zenotech (indirectly, through the acquisition of Ranbaxy).

13. Regulation 2(c) defines control and regulation 2(e) defines “Person

acting in concert” which is as follows:

“2 (e) “person acting in concert” comprises,— (1) persons who, for a common objective or purpose of substantial acquisition of shares or voting rights or gaining control over the target company, pursuant to an agreement or understanding (formal or informal), directly or indirectly co- operate by acquiring or agreeing to acquire shares or voting rights in the target company or control over the target company. (2) Without prejudice to the generality of this definition, the following persons will be deemed to be persons acting in concert with other persons in the same category, unless the contrary is established : (i) a company, its holding company, or subsidiary or such company or company under the same management either individually or together with each other; (ii) a company with any of its directors, or any person entrusted with the management of the funds of the company; (iii) directors of companies referred to in sub-clause (i) of clause (2) and their associates; (iv) mutual fund with sponsor or trustee or asset management company; (v) foreign institutional investors with sub-account(s); (vi) merchant bankers with their client(s) as acquirer; (vii) portfolio managers with their client(s) as acquirer; (viii) venture capital funds with sponsors; (ix) banks with financial advisers, stock brokers of the acquirer, or any company which is a holding company, subsidiary or relative of the acquirer :

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Provided that sub-clause (ix) shall not apply to a bank whose sole relationship with the acquirer or with any company, which is a holding company or a subsidiary of the acquirer or with a relative of the acquirer, is by way of providing normal commercial banking services or such activities in connection with the offer such as confirming availability of funds, handling acceptances and other registration work; (x) any investment company with any person who has an interest as director, fund manager, trustee, or as a shareholder having not less than 2 per cent of the paid-up capital of that company or with any other investment company in which such person or his associate holds not less than 2 per cent of the paid-up capital of the latter company. Note : For the purposes of this clause “associate” means,— (a) any relative of that person within the meaning of section 6 of the Companies Act, 1956 (1 of 1956); and (b) family trusts and Hindu undivided families; ”

14. We shall presently examine the provisions of regulation 2(e) in greater

detail as the result of the case would depend a good deal on how we

understand the meaning of “persons acting in concert” and what meaning is

put to regulation 2(e)(1) and especially 2(e)(2)(i).

15. Regulation 2(o) defines “Target Company” as follows:

“2(o) “target company” means a listed company whose shares or voting rights or control is directly or indirectly acquired or is being acquired;”

16. Thus, on the date of the SPSSA both Ranbaxy and Zenotech became

“Target Companies” for Daiichi, the acquirer, the former directly and the

latter indirectly.

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17. Chapter II of the Takeover Code deals with “Disclosures Of

Shareholding And Control In A Listed Company” and Chapter III contains

provisions dealing with “Substantial Acquisition Of Shares Or Voting

Rights In And Acquisition Of Control Over A Listed Company”. Chapter III

begins with regulation 10 that makes it obligatory for an “acquirer”

acquiring, in aggregate, fifteen percent or more of the voting rights in a

company whether by acquisition of shares or voting rights to make a public

announcement to acquire shares of that company in accordance with the

provisions of the Takeover Regulations. Regulation 10, along with its

marginal heading, reads as follows:

“Acquisition of [fifteen] per cent or more of the shares or voting rights of any company. 10. No acquirer shall acquire shares or voting rights 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 fifteen per cent or more of the voting rights in a company, unless such acquirer makes a public announcement to acquire shares of such company in accordance with the regulations.”

18. Regulation 11 has the marginal heading, “Consolidation of

holdings” and it lays down the obligations of an “acquirer” who, together

with persons acting in concert with him, has acquired, in accordance with

the provisions of law, fifteen percent or more but less than fifty five percent

of the shares or voting rights in a company. At the end of regulation 11 there

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is an explanation that applies both to regulations 10 and 11. The explanation

is relevant for our purpose and it reads as follows:

“Explanation. — For the purposes of regulation 10 and regulation 11, acquisition shall mean and include,— (a) direct acquisition in a listed company to which the regulations apply; (b) indirect acquisition by virtue of acquisition of companies, whether listed or unlisted, whether in India or abroad.”

19. Regulation 10, as seen above makes it obligatory for an “acquirer”

acquiring fifteen per cent or more of shares or voting rights in a listed

company to make a public announcement to acquire shares of that company.

Regulation 14 prescribes the time limit within which the public

announcement stipulated in regulation 10 is to be made. Regulation 14 along

with its marginal heading reads as follows:

“Timing of the public announcement of offer. 14. (1) The public announcement referred to in regulation 10 or regulation 11 shall be made by the merchant banker not later than four working days of entering into an agreement for acquisition of shares or voting rights or deciding to acquire shares or voting rights exceeding the respective percentage specified therein:

Provided that in case of disinvestment of a Public Sector Undertaking, the public announcement shall be made by the merchant banker not later than 4 working days of the acquirer executing the Share Purchase Agreement or Shareholders Agreement with the Central Government or the State Government as the case may be for the acquisition of shares or voting rights exceeding the percentage of shareholding referred

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to in regulation 10 or regulation 11 or the transfer of control over a target Public Sector Undertaking.

(2) In the case of an acquirer acquiring securities, including Global Depository Receipts or American Depository Receipts which, when taken together with the voting rights, if any already held by him or persons acting in concert with him, would entitle him to voting rights, exceeding the percentage specified in regulation 10 or regulation 11, the public announcement referred to in sub-regulation (1) shall be made not later than four working days before he acquires voting rights on such securities upon conversion, or exercise of option, as the case may be. Provided that in case of American Depository Receipts or Global Depository Receipts entitling the holder thereof to exercise voting rights in excess of percentage specified in regulation 10 or regulation 11, on the shares underlying such depository receipts, public announcement shall be made within four working days of acquisition of such depository receipts.

(3) The public announcement referred to in regulation 12 shall be made by the merchant banker not later than four working days after any such change or changes are decided to be made as would result in the acquisition of control over the target company by the acquirer.

(4) In case of indirect acquisition or change in control, a public announcement shall be made by the acquirer within three months of consummation of such acquisition or change in control or restructuring of the parent or the company holding shares of or control over the target company in India.” (emphasis added)

20. It is noted above that on the date Daiichi entered into the SPSSA with

Ranbaxy, it became the “acquirer” both in relation to Ranbaxy and

Zenotech, directly in case of the former and indirectly in case of the latter.

The period of time within which Daiichi was required to make the public

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announcement in respect of the two target companies (the former directly

and the latter indirectly) were prescribed in sub-regulation (1) (not later than

four working days of entering into an agreement for acquisition of shares or

voting rights) and sub-regulation (4) (within three months of consummation

of such acquisition or change in control……) respectively of regulation 14.

21. It needs to be stated here that sub-regulation (4) was inserted in

regulation 14 by the Second Amendment Regulation 2002 with effect from

September 9, 2002 and before that date regulation 14 ended at sub-

regulation (3). This means that before September 9, 2002 the Takeover Code

in regulation 14(1), allowed only four days time for making the public

announcement as required under regulation 10 for both direct and indirect

acquisitions. In other words, in case the direct acquisition of a company

would lead to the indirect acquisition of another target company the acquirer

would be obliged to make the public announcements for both the target

companies (direct and indirect) not later than four working days of entering

into the agreement for acquisition of shares or voting rights in the directly

targeted company. This would sometimes give rise to a number of practical

difficulties. The problem was considered by the second Bhagwati

Committee and in its report submitted in May 2002, the Committee made

the following observations and recommendation:

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“21. Indirect acquisition of a company through chain principle. The Committee was of the opinion that the public offer

for the company which gets acquired as a consequence of the takeover of the target company is triggered only upon the successful completion of the acquisition of the target. At the time of making the offer for the target company, such a takeover or rather its success is contingent and prospective and in the event of its failure, the consequent offer does not arise. Though the public announcement for the consequent offer could be made simultaneously, it would be conditional upon the successful completion of the first offer. Such conditional offer has its own impact on the market and is not without practical and procedural difficulties. Hence the public announcement for the consequent offer can be allowed to be made within a pre- specified time period of say three months from the date of closure of the first offer. The Committee recommended that: 1. The offer for a company which gets acquired as a result of acquisition of a target company can be subsequent to the successful completion of the takeover of the target by the acquirer. It should be made within 3 months of consummation of restructuring or arrangement by parent or holding company.”

Sub-regulation (4) thus got inserted in regulation 14 in pursuance of the

recommendation of the second Bhagwati Committee’s report. The

introduction of sub-regulation (4) in regulation 14 led to further

consequential additions/ amendments in the Takeover Regulation that we

shall see presently.

22. Regulation 16 deals with the “Contents of the public announcement of

offer” and clause (ix) provides as follows:

“(ix) the object and purpose of the acquisition of the shares and future plans, if any, of the acquirer for the target company, including disclosures whether the acquirer proposes to dispose

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of or otherwise encumber any assets of the target company in the succeeding two years except in the ordinary course of business of the target company:

Provided that where the future plans are set out, the public announcement shall also set out how the acquirers propose to implement such future plans:

Provided further that the acquirer shall not sell, dispose of or otherwise encumber any substantial asset of the target company except with the prior approval of the shareholders;”

23. Then comes regulation 20 which deals with the “offer price” and is

very important for our purpose. In so far as relevant for the present it is

reproduced below:

“Offer price. 20.(1) The offer to acquire shares under regulation 10, 11 or 12 shall be made at a price not lower than the price determined as per sub-regulations (4) and (5).

(2) The offer price shall be payable— (a) in cash; (b) by issue, exchange and/transfer of shares (other than preference shares) of acquirer company, if the person seeking to acquire the shares is a listed body corporate; or (c) by issue, exchange and, or transfer of secured instruments of acquirer company with a minimum ‘A’ grade rating from a credit rating agency registered with the Board; (d) a combination of clause (a), (b) or (c) : Provided that where the payment has been made in cash to any class of shareholders for acquiring their shares under any agreement or pursuant to any acquisition in the open market or in any other manner during the immediately preceding twelve months from the date of public announcement, the letter of offer shall provide an option to the shareholders to accept payment either in cash or by exchange of shares or other secured instruments referred to above:

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Provided further that the mode of payment of consideration may be altered in case of revision in offer price or size subject to the condition that the amount to be paid in cash as mentioned in any announcement or the letter of offer is not reduced.

(3) In case the offer price consists of consideration payable in the form of securities issuance of which requires approval of the shareholders, such approval shall be obtained by the acquirer within [seven] days from the date of closure of the offer: Provided that in case the requisite approval is not obtained, the acquirer shall pay the entire consideration in cash.

(4) For the purposes of sub-regulation (1), the offer price shall be the highest of— (a) the negotiated price under the agreement referred to in sub- regulation (1) of regulation 14; (b) 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, whichever is higher; (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 of the 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: Provided that the requirement of average of the daily high and low of the closing 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, shall not be applicable in case of disinvestment of a Public Sector Undertaking. Explanation.—In case of disinvestment of a Public Sector Undertaking, the relevant date for the calculation of the average of the weekly prices of the shares of the Public Sector Undertaking, as quoted on the stock exchange where its shares

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are most frequently traded, shall be the date preceding the date when the Central Government or the State Government opens the financial bid.

(5) Where the shares of the target company are infrequently traded, the offer price shall be determined by the acquirer and the merchant banker taking into account the following factors: (a) the negotiated price under the agreement referred to in sub- regulation (1) of regulation 14; (b) the highest price paid by the acquirer or persons acting in concert with him for acquisitions, 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; (c) other parameters including return on net worth, book value of the shares of the target company, earning per share, price earning multiple vis-à-vis the industry average : Provided that where considered necessary, the Board may require valuation of such infrequently traded shares by an independent merchant banker (other than the manager to the offer) or an independent chartered accountant of minimum ten years’ standing or a public financial institution. Explanation.— (i) For the purpose of sub-regulation (5), shares shall be deemed to be infrequently traded if on the stock exchange, the annualised trading turnover in that share during the preceding six calendar months prior to the month in which the public announcement is made is less than five per cent (by number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the said six months period may be taken. (ii) In case of disinvestment of a Public Sector Undertaking, the shares of such an undertaking shall be deemed to be infrequently traded, if on the stock exchange, the annualised trading turnover in the shares during the preceding six calendar months prior to the month, in which the Central Government or the State Government as the case may be opens the financial bid, is less than five per cent (by the number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the six months period may be taken.

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(iii) In case of shares which have been listed within six months preceding the public announcement, the trading turnover may be annualised with reference to the actual number of days for which the shares have been listed.

(6) xxxxxxxxxxxx

(7) xxxxxxxxxxxx

(8) xxxxxxxxxxxx

(9) xxxxxxxxxxxx

(10) xxxxxxxxxxx

(11) The letter of offer shall contain justification or the basis on which the price has been determined. Explanation.─ (i) The highest price under clause (b) or the average price under clause (c) of sub-regulation (4) may be adjusted for quotations, if any, on cum-rights or cum-bonus or cum-dividend basis during the said period. (ii) Where the public announcement of offer is pursuant to acquisition by way of firm allotment in a public issue or preferential allotment, the average price under clause (c) of sub- regulation (4) shall be calculated with reference to twenty-six week period preceding the date of the board resolution which authorised the firm allotment or preferential allotment. (iii) Where the shareholders have been provided with an option to accept payment either in cash or by way of exchange of security, the pricing for the cash offer could be different from that of a share exchange offer or offer for exchange with secured instruments provided that the disclosures in the letter of offer contains suitable justification for such differential pricing and the pricing is subject to other provisions of this regulation. (iv) Where the offer is subject to a minimum level of acceptance, the acquirer may, subject to the other provisions of this regulation, indicate a lower price for the minimum acceptance up to twenty per cent, should be the offer not receive full acceptance.

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(12) 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).

24. In order to clearly understand the ways in which the offer price is to

be determined in the case of an indirect takeover of a company, as in the

present case, it would be useful to examine regulation 20 from the rear end,

that is to say starting from sub-regulation (12). This may sound a little

strange but it is because sub-regulation (12) was introduced in the Takeover

Code later, along with and as a consequence of insertion of sub-regulation

(4) of regulation 14 to deal specifically with the offer pricing of the shares of

a target company the acquisition of which takes place as a result of the direct

takeover of some other company. We have seen above that the second

Bhagwati Committee had, for good reasons, recommended for a separate

and extended time period for making the public offer for a company that gets

taken over following the acquisition of a target company. While making the

recommendation, the Committee took care to see that the extended period

for making the public offer does not act to the detriment of the ordinary

shareholders of the company that gets taken over as a result of acquisition of

a target company. It, accordingly, went on to observe and recommend as

follows:

22

“However, the investors of the 2nd company should get benefit of the best price available and for the purpose the reference dates of the public announcement for the first as well as the second offer may be taken for determining the offer price.”

The Committee recommended that:

“The price shall be determined as highest of the two prices determined as per the provisions of the Regulations, with reference to the date of the public announcement for the target company and the date of public announcement for the company which is consequently acquired.”

25. Thus came sub-regulation (12) of regulation 20. Now, if we read

regulation 20(12), it plainly says that the offer price for the shares of a

company being taken over indirectly and as a consequence of the acquisition

of the primary target, would be determined with reference to two dates, one

when the public offer was made in regard to the “Parent company” (that is,

the company, the acquisition of which resulted in the takeover of the

secondary target company) and the other when the public offer is made for

the secondary target company and the higher of the two will be taken as the

offer price. In terms of sub-regulation (12) of regulation 20, therefore, the

share price of Zenotech was required to be determined as on June 16, 2008

(the date of the public announcement for Ranbaxy, the parent company) and

as on January 19, 2009 (the date of the public announcement for Zenotech,

the indirectly target company). Regulation 20(12) tells us the dates with

reference to which the offer price is to be determined but it does not tell us

23

how the offer price is to be determined. For that it refers us back to sub-

regulations (4) and (5). It needs to be stated here that sub-regulations (4) and

(5) remained unchanged and did not undergo any amendments following the

introduction of sub-regulation (4) in regulation 14 and sub-regulation (12) in

regulation 20. This is to say that the provisions of sub-regulations (4) and (5)

apply both to cases of direct and indirect takeover; they were not designed

only for cases of indirect takeover.

26 Sub-regulation (5) of regulation 20 lays down the method for

determining the offer price for a company the shares of which are

infrequently traded. That is not the case with Zenotech; hence, we may leave

out sub-regulation (5). This takes us to sub-regulation (4) of regulation 20.

Sub-regulation (4) prescribes three ways for determining the share price with

the stipulation that the highest among them would be the offer price. Clause

(a) of sub-regulation (4) refers to the negotiated price under the agreement.

This would clearly apply to a case of direct takeover and shall have no

application to a case of indirect takeover like the present one. Clause (b) is

based on the price paid by the acquirer or persons acting in concert with

him for acquisition of shares of the target company within the period of

twenty six weeks prior the date of the public announcement and clause (c) is

24

based on the price of the shares of the target company as quoted on the stock

exchange.

27. According to Daiichi, the appellant in these two appeals, regulation

20(4)(a) had no application in determining the offer price of Zenotech as

there was no negotiated price under any agreement; its takeover of that

company was indirect being a consequence and a fall out of its takeover of

Ranbaxy. Regulation 20(4)(b) had similarly no application because neither

Daiichi nor anyone acting in concert with it had purchased any shares of

Zenotech within the period of twenty six weeks prior to the dates of the two

public announcements, first for the shares of Ranbaxy and the second for the

Zenotech shares. The only provisions, therefore, applicable in the case were

those contained in clause (c) of regulation 20(4) under which the offer price

was required to be determined on the basis of prices of the shares of

Zenotech, the target company as quoted on the stock exchange. The

appellant worked out the share price of Zenotech as on June 16, 2008 and

January 19, 2009, following the different modes provided under regulation

20(4)(c) and, in the public announcement, offered rupees one hundred

thirteen and paise sixty two (Rs.113.62) per share, that being the highest

among all.

25

28. Here the respondents join issue with the appellant. According to the

respondents, the provisions of regulation 20(4)(b) are fully applicable to the

case and the appellants were completely wrong in disregarding it. The

respondents contend that Daiichi and Ranbaxy came together as “persons

acting in concert” on June 11, 2008 when the SPSSA was signed between

the two companies or, in any event, on October 20, 2008 when Ranbaxy

finally became a subsidiary of Daiichi. They continued in that relationship

on January 19, 2009 when Daiichi made the public announcement for the

shares of Zenotech. Further, Ranbaxy had paid rupees one hundred and sixty

(Rs.160.00) per share for the Zenotech shares in January 2009 which falls

within the period of twenty six weeks looking back from June 16, 2008, the

date on which Daiichi had made the public announcement for Ranbaxy

shares. In terms of regulation 20(12) the date of the public announcement for

the parent company (June 16, 2008) is one of two relevant dates with

reference to which the offer price for acquisition of the shares of the target

company (Zenotech) is to be determined. Thus, according to the

respondents, clause (b) of regulation 20(4) was clearly attracted and the

price (Rs.160.00) under that clause being higher than the price (Rs.113.62)

worked out in terms clause (c) that alone could form the offer price in the

public announcement.

26

29. The Securities Appellate Tribunal accepted the respondents’

contention observing and holding as follows:

“It is Daiichi’s own case, as is clear from the public announcement made to the shareholders of the target company, that Ranbaxy became its subsidiary on October 20, 2008 when the acquisition of Ranbaxy got completed. Being a subsidiary, Ranbaxy shall be deemed to be acting in concert with Daiichi with effect from that date as per Regulation 2(1)(e)(2)(i) of the Takeover Code. According to this Regulation, “person acting in concert” comprises a company, its holding company or subsidiary unless the contrary is established. There is no question of the contrary being established in the instant case because Daiichi itself had made it known in the public announcement to the shareholders of the target company that Ranbaxy had become its subsidiary on October 20, 2008. It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under the Ranbaxy-Zenotech deal which period falls within twenty-six weeks prior to June 16, 2008. In other words, Ranbaxy, a person acting in concert with Daiichi on January 19, 2009, had paid during twenty-six weeks prior to June 16, 2008, Rs.160 per share to the shareholders of the target company. In this view of the matter, the price paid by Ranbaxy to the shareholders of the target company has to be reckoned with in terms of sub- regulation 4(b) read with sub-regulation (12) of Regulation 20 while determining the offer price for the indirect acquisition of the target company.”

30. Mr. F. S. Nariman, learned senior counsel appearing on behalf of the

appellant, contended that the Appellate Tribunal grossly erred in holding that

since Ranbaxy was a “person acting in concert” with Daiichi on the date of

27

the public offer for acquisition of the shares of Zenotech, the price paid by it

for acquisition of Zenotech shares in the past when the two companies were

indisputably not in the relationship of “persons acting in concert” would be

relevant for determining the offer price for Zenotech shares in terms of

regulation 20(4)(b) read with regulation 20(12). Ranbaxy indeed became a

subsidiary of Daiichi from October 20, 2009 but it did not acquire any share

of Zenotech after that date or, even before that, after entering into the

SPSSA with Daiichi on June 11, 2008. Any acquisition of Zenotech shares

made by Ranbaxy earlier at a time when it was not a “person acting in

concert” with Daiichi was of no consequence and the price paid by Ranbaxy

for Zenotech shares at that time would certainly not attract sub-regulation (b)

of regulation 20 (4) of the Takeover Regulations.

31. Mr. Ashok Desai, senior counsel appearing on behalf Ranbaxy fully

supported the appellant’s case.

32. The SEBI, though itself not in appeal against the judgment of the

Appellate Tribunal and only impleaded as respondent in the two appeals,

strongly defended its stand in rejecting the complaints made by the

respondents before it. The learned Attorney General appearing for the SEBI

submitted that the judgment of the Appellate Tribunal coming under appeal

was based on a complete misinterpretation of the expression “person acting

28

in concert” as defined in regulation 2(e) of the Takeover Regulations.

Taking a position even more forthright than the appellant, the learned

Attorney General contended that the Daiichi and Ranbaxy never came

within the definition of “person acting in concert”. He submitted that the

Appellate Tribunal erred in assuming that “being a subsidiary, Ranbaxy

shall be deemed to be acting in concert with Daiichi as per regulation

2(e)(2)(i) of the Takeover Code”. The Appellate Tribunal also missed the

true import of the words “unless the contrary is established” at the

conclusion of regulation 2(e)(2). The Attorney General submitted that the

deeming provision under regulation 2(e)(2) needs to be read and understood

in context and as part of the whole definition of “person acting in concert”.

He submitted that there may be two companies, one being the subsidiary of

the other and yet no occasion may arise where they can be said to comprise

“persons acting in concert” within the meaning of the Takeover Code. He

submitted that the definition of a “person acting in concert” required

something more than the mere relationship of a parent company and a

subsidiary company.

33. Mr. C. A. Sundaram, and Mr. Shyam Divan, senior advocates

representing respondent no.1 in Civil Appeal No.7148 of 2009 and

respondent no.1 in Civil Appeal No.7314 respectively, strongly defended the

29

judgment of the Appellate Tribunal. Mr. Sundaram submitted that though

according to the Tribunal, Daiichi and Ranbaxy came within the relationship

of “persons acting in concert” [in terms of regulation 2(e)(2)(i)] on October

19, 2008 when Ranbaxy became a subsidiary of Daiichi, as a matter of fact

the two companies comprised “persons acting in concert” within the

meaning of regulation 2(e)(1) itself on signing the SPSSA on June 11, 2008.

On signing the SPSSA Daiichi “agreed” to takeover Zenotech through the

acquisition of Ranbaxy and the fact was further acknowledged in the letter

sent by Ranbaxy to the Stock Exchanges on the same day. Referring to the

definitions of “acquirer” [regulation 2(b)] and “persons acting in concert”

[regulation 2(e)(1)] Mr. Sundaram contended that the mere agreement for

acquisition of Zenotech would bring the two companies within the

relationship of “persons acting in concert”. Thus, Daiichi and Ranbaxy

comprised “persons acting in concert” in terms of regulation 2(e)(1) from the

date of the SPSSA itself even without taking the aid of the deeming

provision in regulation 2(e)(2). Mr. Sundaram further submitted that the

period from January 16 to 28, 2008 fell well within twenty six weeks from

June 11, 2008 and hence, the price paid by Ranbaxy for acquisition of

Zenotech shares in January 2008 must be taken into reckoning for

determining the offer price in the public offer made for its shares by Daiichi.

30

34. The submission, which Mr. Sundaram called his alternate submission,

does not need much discussion to be rejected. This is for the simple reason

that regulation 20(4)(b) uses the words “….during the twenty six week

period prior to the date of public announcement,…”. It does not say

“prior to date on which the acquirer and the purchaser came into the

relationship of persons acting in concert”.

35. The main argument of Mr. Sundaram, however, was that the

expression ‘persons acting in concert” used in regulation 20(4)(b) refers to a

person who is in praesenti, that is, at the time of the public announcement

acting in concert with the acquirer. This is exactly the basis of the Appellate

Tribunal’s judgment and if that is accepted the conclusion arrived at by the

Tribunal simply follows. Ranbaxy was a person acting in concert with

Daiichi on January 19, 2008, the date of the public announcement made by

the latter for the Zenotech shares. Ranbaxy had purchased Zenotech shares

during the period January 16 to 28, 2008 that fell within the twenty six

weeks period from June 16, 2008, the date of the public announcement made

by Daiichi for Ranbaxy shares. Hence, attracting regulation 20(4)(b).

36. Mr. Divan made additional submissions in support of the view taken

by the Appellate Tribunal upholding the respondents’ claim. He submitted

that regulation 2(1)(e)(1) expressly contemplates a situation where the

31

parties agree to acquire shares or voting rights in the future. Hence, an

agreement was sufficient to comprise “persons acting in concert” and no

actual acquisition was necessary. He further pointed out that the definition of

“persons acting in concert” in regulation 2(1)(e)(1) applies not only to

acquisition of shares but also extends to voting rights. Hence, even an

agreement between two parties to exercise the existing voting rights in

cooperation with each other would bring them under the definition of

“persons acting in concert” without any subsequent acquisition of shares.

Mr. Divan contended that in the facts of this case, by virtue of the agreement

dated June 11, 2008, Daiichi agreed to acquire voting rights to the extent of

46.85% in Zenotech, already held by Ranbaxy. On June 11, 2008, Daiichi

might not have held any power over any voting rights in Zenotech but

starting with October 20, 2008, Daiichi acquired absolute power over

46.85% voting rights in Zenotech. Thus, even if the requirement of a

subsequent acquisition of voting rights was necessary, as argued on behalf of

SEBI, it was satisfied on October 20, 2008.

37. Countering the submission made on behalf of the appellant and SEBI

that for a holding company and its subsidiary to fulfil the test of “persons

acting in concert’ there must be an acquisition of shares subsequent to the

32

holding-subsidiary relationship coming into existence. Mr. Divan gave an

interesting example that may be noted here:

38. In Mr. Divan’s example 3 persons, A, B and C, strangers to each

other, make purchases of blocks of shares of a certain company X (which is

listed and whose shares are frequently traded on the stock exchange), on

different dates at different prices. The purchase by each of them (A: 4%, B:

4% and C: 4.5%) being below 5%, the threshold for disclosure, none of them

is obliged to make any disclosure of their acquisitions. Further, since the

purchases were not by persons acting in concert, the acquisitions cannot be

aggregated and there would be no obligation on any one to make an open

offer for the shares of company X. Later on, all the three persons come

together. They agree to pool the benefits of their shares with one another and

to takeover company X, and they further agree that they would vote together

going forward. C, having the largest stake, is nominated as the lead investor

and all three enter into a shareholders’ agreement on how to acquire more

shares and make a public announcement under the takeover regulation.

Following the agreement between them, C enters into an agreement with a

financial institution to acquire another 5% block of shares of the company X

at a price much lower than the price paid by A or B for their earlier

33

acquisitions. Mr. Divan submitted that if the submission of the appellant and

the SEBI are accepted than the result would be as follows:

1. Since there is no fresh acquisition and C has only

entered into an agreement with the financial

institution for the acquisition of shares, the three

persons are not yet in concert.

2. Since the earlier purchases were made before A, B or

C came together as “persons acting in concert” their

earlier acquisitions (4%+4%+4.5%) cannot be

aggregated with the proposed fresh acquisition of 5%

by them after having entered into the agreement.

Consequently, Regulation 10 of the Takeover Code

would not come into play and there would be no

requirement to make a public announcement.

39. He contended that such a simple ploy would defeat the whole object

and purpose of the Takeover Code. We shall presently consider the

illustration given by Mr. Divan and the validity of the inferences drawn by

him on that basis.

40. From the rival contentions it is clear that the real controversy among

the parties is about the applicability of regulation 20(4)(b) to determine the

offer price for Zenotech shares in the public announcement made by Daiichi.

Regulation 20(4)(b) speaks of the price paid by the acquirer or persons

34

acting in concert with him for acquisition of shares , if any, during the

twenty six weeks period prior to date of public announcement. It does not

speak of any agreement to acquire shares or of any voting rights or control

over the target company but the actual price paid for acquisition of its

shares. Here a question arises, to what point in time does the expression

“person acting in concert” used in regulation 20(4)(b) refer? Should the

person be acting in concert with the acquirer at the time of the public

announcement or at the time of acquisition of shares of the target company?

To make the matter more explicit, assuming that Daiichi and Ranbaxy

together comprised “persons acting in concert” on the date Daiichi made the

public announcement for Zenotech shares, was it sufficient that they were in

that relationship on that date or for the application of regulation 20(4)(b) it

was necessary that Daiichi and Ranbaxy should have been in that

relationship when Ranbaxy had made acquisition of Zenotech shares. The

Appellate Tribunal has of course proceeded on the basis that since Daiichi

and Ranbaxy were “persons acting in concert” on the date of the public

announcement made by Daiichi for Zenotech shares sub-regulation (b) of

regulation 20(4) would be attracted regardless of the fact that the two were

not in that relationship on the dates of purchase of Zenotech shares by

Ranbaxy.

35

41. On behalf of the respondents much argument was made to show that

even before Ranbaxy became a subsidiary of Daiichi the two were covered

by the definition of “persons acting in concert” on signing the SPSSA.

Whether Ranbaxy became a persons acting in concert with Daiichi on

signing the SPSSA or on becoming its subsidiary is one aspect of the matter

but if the basis on which the Appellate Tribunal has proceeded is correct

then it hardly matters if Ranbaxy was acting in concert with Daiichi on

signing the SPSSA or on becoming its subsidiary, as long as it was in that

relationship with Daiichi when Daiichi made the public announcement for

Zenotech shares.

42. We now proceed to examine the question whether Daiichi and

Ranbaxy came together in the relationship of “persons acting in concert” as

claimed by the respondents and connected with it the larger question as to

the stage when the relationship of “persons acting in concert” must be in

existence for the applicability of regulation 20(4)(b) of the Takeover Code.

For this, we must first understand what is the true meaning of “persons

acting in concert” as defined in regulation 2(e).

43. To begin with, the concept of “person acting in concert” under

regulation 2(e)(1) is based on a target company on the one side, and on the

other side two or more persons coming together with the shared common

36

objective or purpose of substantial acquisition of shares etc. of the target

company. Unless there is a target company, substantial acquisition of

whose shares etc. is the common objective or purpose of two or more

persons coming together there can be no “persons acting in concert”. For,

dehors the target company the idea of “persons acting in concert” is as

irrelevant as a cheat with no one as victim of his deception. Two or more

persons may join hands together with the shared common objective or

purpose of any kind but so long as the common object and purpose is not of

substantial acquisition of shares of a target company they would not

comprise “persons acting in concert”.

44. The other limb of the concept requires two or more persons joining

together with the shared common objective and purpose of substantial

acquisition of shares etc. of a certain target company. There can be no

“persons acting in concert” unless there is a shared common objective or

purpose between two or more persons of substantial acquisition of shares

etc. of the target company. For, dehors the element of the shared common

objective or purpose the idea of “person acting in concert” is as

meaningless as criminal conspiracy without any agreement to commit a

criminal offence. The idea of “persons acting in concert” is not about a

fortuitous relationship coming into existence by accident or chance. The

37

relationship can come into being only by design, by meeting of minds

between two or more persons leading to the shared common objective or

purpose of acquisition of substantial acquisition of shares etc. of the target

company. It is another matter that the common objective or purpose may be

in pursuance of an agreement or an understanding, formal or informal; the

acquisition of shares etc. may be direct or indirect or the persons acting in

concert may cooperate in actual acquisition of shares etc. or they may agree

to cooperate in such acquisition. Nonetheless, the element of the shared

common objective or purpose is the sin qua non for the relationship of

“persons acting in concert” to come into being.

45. The submission made on behalf of the respondents that on signing the

SPSSA Ranbaxy became a person acting in concert with Daiichi overlooks

this basic precondition and ingredient of the relationship. The consequential

takeover of Zenotech and its acknowledgment are not same thing as the

shared common objective or purpose of substantial acquisition of shares

or voting rights or gaining control over Zenotech. As stated above, the

relationship of “persons acting in concert” is not a fortuitous relationship. It

can come into being only by design. Hence, unless it is shown that Daiichi

and Ranbaxy entered into the SPSSA for the common objective or purpose

of substantial acquisition of shares or voting rights or control over Zenotech

38

they can not be said to have come in the relationship of “persons acting in

concert”. This is not even the case of the respondents. The inevitable

conclusion, therefore, is that on signing the SPSSA Daiichi and Ranbaxy did

not come within the relationship of persons acting in concert within the

meaning of regulation 2(e)(1) of the Takeover Code.

46. We may now proceed to the deeming provision as contained in sub

clause (2) of regulation 2(e). Here, it would be better to restate the obvious

that the deeming provision can not do away either with the target company

or the common objective or purpose of substantial acquisition of shares

etc. of the target company shared by two or more persons because to do so

would be destructive of the very idea of “persons acting in concert” as

defined in sub-clause (1) of regulation 2(e). We, therefore, see no merit in

the submission, as urged at one stage, on behalf of the respondents that sub-

regulation (2) of regulation 2(e) containing the deeming clause should be

seen as a ‘stand alone’ provision, independent of sub-regulation (1) of

regulation 2(e). The deeming provision under sub-regulation (2) operates

only within the larger framework of sub-regulation (1) of regulation 2(e).

47. Then what does the deeming provision do? The deeming provision

simply says that in case of nine specified kinds of relationships, in each

category, the person paired with the other would be deemed to be acting in

39

concert with him/it. What it means is that if one partner in the pair makes or

agrees to make substantial acquisition of shares etc. in a company it would

be presumed that he/it was acting in pursuance of a common objective or

purpose shared with the other partner of the pair. For example, if a company

or its holding company makes or agrees to make a move for substantial

acquisition of shares etc. of a certain target company then it would be

presumed that the move is in pursuance of a common objective and purpose

jointly shared by the holding company and the subsidiary company. But the

mere fact that two companies are in the relationship of a holding company

and a subsidiary company, without any thing else, is not sufficient to

comprise “persons acting in concert”. The Attorney General is quite right in

his submission that something more is required to comprise “persons acting

in concert” than the mere relationship of a holding company and a subsidiary

company. There may be hundreds of instances of a company having a

subsidiary company but to dub them as “persons acting in concert” would be

quite ridiculous unless another company is identified as the target company

and either the holding company or the subsidiary make some positive move

or show some definite inclination for substantial acquisition of shares etc. of

the target company.

40

48. It needs further to be noted that the presumption created by virtue of

the deeming provision is expressly left open to rebuttal as indicated by the

concluding words “unless the contrary is established” occurring in sub-

regulation (2). It is important to point this out here because the Appellate

Tribunal has clearly misunderstood the nature and scope of the provision of

rebuttal in observing as follows:

“There is no question of the contrary being established in the instant case because Daiichi itself had made it known in the public announcement to the shareholders of the target company that Ranbaxy had become its subsidiary on October 20, 2008.”

Regulation 2(1)(e)(2) defines “person acting in concert”. It is a

deeming provision. It has to be read in conjunction with regulation

2(1)(e)(1) which states that person acting in concert comprises of persons

who in furtherance of a common objective or purpose of substantial

acquisition of shares or voting rights or gaining control over the target

company, pursuant to an agreement or understanding (formal or informal),

directly or indirectly cooperate by acquiring or agreeing to acquire shares or

voting rights in the target company or to acquire control over the target

company. The word “comprises” in regulation 2(1)(e) is significant. It

applies to regulation 2(1)(e)(2) as much as to regulation 2(1)(e)(1). A

fortiori, a person deemed to be acting in concert with others is also a person

41

acting in concert. In other words, persons who are deemed to be acting in

concert must have the intention or the aim of acquisition of shares of a target

company. It is the conduct of the parties that determines their identity.

Whether a person is or is not acting in concert with the acquirer would

depend upon the facts of each case. In order to hold that a person is acting

in concert with the acquirer or with another person it must be established

that the two share the common intention of acquisition of shares of some

target company. For example, there is no hard and fast rule that every

foreign institutional investor (FII) would share with the sub-account(s) the

common objective of acquiring substantial stakes or control in some target

company. Whether in a given case an FII and his sub-account(s) have a

common objective of making investment in India to earn profits in unit

holders or whether they have a common objective of acquiring substantial

stakes or control in some target company would depend on the facts of each

case. In the former case regulation 2(1)(e)(2)(v) would not apply whereas in

the latter case the said sub-regulation would apply. The above illustration

brings out the true purport of the expression “unless the contrary is

established” which expression finds place in regulation 2(1)(e)(2).

49. Something else that is of utmost importance is to understand that the

deeming fiction under sub-regulation (2) can only operate prospectively and

42

not retrospectively. That is to say the deeming provision would give rise to

the presumption, as explained above, only from the date two or more

persons come together in one of the specified relationships and not from any

earlier date. Thus, in the case in hand, the deeming provision under sub-

regulation (2) would give rise to the presumption that Daiichi and Ranbaxy

were “persons acting in concert”, provided of course the other conditions as

explained above were also satisfied, only from October 20, 2008, the date on

which Ranbaxy became a subsidiary of Daiichi and not before that. Hence,

the purchase of Zenotech shares by Ranbaxy in January 2008 cannot be said

to be by a “person acting in concert” with Daiichi.

50. In light of the discussion made above, we are of the view, that the

Appellate Tribunal was in error in proceeding on the basis that the material

date for Ranbaxy and Daiichi to be acting in concert was the date of the

public announcement for the Zenotech shares. The Tribunal Observed:

“It is, thus, clear that on January 19, 2009, the material date on which the offer price for indirect acquisition is being worked out, Ranbaxy, being a subsidiary, was acting in concert with the Daiichi and that it (Ranbaxy) had paid Rs.160 per share to the shareholders of the target company during January 16 and January 28, 2008 when it acquired their shares under the Ranbaxy-Zenotech deal which period falls within twenty-six weeks prior to June 16, 2008.”

43

51. The Appellate Tribunal’s error is the result of mixing up the

provisions of sub-regulations (12) and (4) of regulation 20. As explained

earlier sub-regulation (12) came to be introduced in regulation 20 as a

consequence of extension of time for making public announcement for the

secondary and indirectly targeted company by insertion of sub-regulation (4)

in regulation 14. Sub-regulation (12) of regulation 20 obliges the acquirer to

work out the best value for the shares of the indirectly targeted company as

obtaining on the date of the public announcement for the parent target

company as well as on the date of the public announcement for the

concerned indirectly targeted company and then to offer the shareholders the

better of the two values. This is for the simple reason that the extension

allowed for making the public announcement for the indirectly targeted

company should not cause any prejudice to its shareholders. Sub-regulation

(12) does not in any way affect sub-regulation (4) which remains unamended

and it certainly does not alter the meaning of “person acting in concert” as

used in that sub-section.

52. We are clearly of the view that for the application of regulation

20(4)(b) it is not relevant or material that the acquirer and the other person,

who had acquired the shares of the target company on an earlier date, should

be acting in concert at the time of the public announcement for the target

44

company. What is material is that the other person was acting in concert

with the acquirer at the time of purchase of shares of the target company.

53. The true meaning of the idea of “persons acting in concert”, as

explained above will also clear all the doubts sought to be created by Mr.

Divan’s illustration as noted above. In that illustration, persons A, B and C

earlier purchased shares of company A separately and as strangers. Those

purchases were, therefore naturally not by “persons acting in concert”. But

later on, all the three persons came together. They agreed to pool the

benefits of their share with one another and to takeover company X,

and they further agreed that they would vote together going forward. Thus

the earlier purchases were brought within the concept subsequently by an

express agreement between the three persons even though at the time of

purchase the purchasers were not acting in concert. Hence, the earlier

purchases too would fully attract the regulatory provisions of the Takeover

Code.

54. This is how we are able to follow the correct meaning of the

expression “person acting in concert” as defined in regulation 2(e) and as

used in regulation 20(4)(b) of the Takeover Code.

55. In light of the discussion made above the inevitable conclusions are

that in so far as Zenotech is concerned Ranbaxy was not acting in concert

45

with Daiichi either from the date of the SPSSA or even after becoming a

subsidiary of Daiichi and the acquisition of Zenotech shares by Ranbaxy in

the month of January 2008 did not come within the ambit of regulation

20(4)(b). The offer price in the public announcement for Zenotech shares

made by the appellant was correctly worked out. It follows that the judgment

of the Appellate Tribunal is unsustainable and it has to be set aside.

56. It was submitted on behalf of the respondents that the Takeover Code

was meant to safeguard and protect the interests of the shareholders.

Therefore, in case there were two possible views of the matter the court

should lean in favour of the one supporting the shareholders. The Attorney

General strongly refuted the submission that the Takeover Code was

intended solely to protect the shareholders interests. We, however, need not

go into that question because in light of the above discussion, we find that

the controversy is completely free from any confusion and the view

canvassed on behalf of the respondents is not even a remotely possible view

of the matter.

57. Before parting with the records of the case we would like to say that

in arriving at the correct meaning of the provisions of the Takeover Code

specially regulation 14(4) and 20(12) we were greatly helped by the reports

of the two Committees headed by Justice Bhagwati. We mention the fact

46

especially because as per the legislative practice in this country, unlike an

Act, a regulation or any amendments introduced in it are not preceded by the

“Object and Purpose” clause. The absence of the object and purpose in the

regulation or the later amendments introduced in it only adds to the

difficulties of the court in properly construing the provisions of regulations

dealing with complex issues. The court, so to say, has to work in complete

darkness without so much as a glimpse into the mind of the maker of the

regulation. In this case, it was quite apparent that the 1997 Takeover Code

and the later amendments introduced in it were intended to give effect to the

recommendations of the two Committees headed by Justice Bhagwati. We

were, thus, in a position to refer to the relevant portions of the two reports

that provided us with the raison d'être for the amendment(s) or the

introduction of a new provision and thus helped us in understanding the

correct import of certain provisions. But this is not the case with many other

regulations framed under different Acts. Regulations are brought in and later

subjected to amendments without being preceded by any reports of any

expert committees. Now that we have more and more of the regulatory

regime where highly important and complex and specialised spheres of

human activity are governed by regulatory mechanisms framed under

delegated legislation it is high time to change the old practice and to add at

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the beginning the “object and purpose” clause to the delegated legislations

as in the case of the primary legislations.

58. In the result, the appeals are allowed but with no order as to costs.

..…….…………………….CJI.

...……………………………..J. (AFTAB ALAM)

...……………………………..J. (SWATANTER KUMAR)

New Delhi, July 8, 2010

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M/S DAIICHI SANKYO COMPANY Vs JAYARAM CHIGURUPATI .

M/S DAIICHI SANKYO COMPANY Vs JAYARAM CHIGURUPATI .