JUNE 2020 JUNE 2020 | ISSUE 4 THE PE & M&A QUARTERLY Quarterly News, Trends and Developments Off the Record “The COVID-19 pandemic has adversely affected all sectors in India and across the globe, except a few. Though initially it was expected that the pandemic would end in a few months, it appears that it will continue for a longer period. Many PE firms and strategic investors have paused or deferred or slowed down their investment plans for the next 6 to 8 months. However, there are exceptions in case of a few. The deal making activity in India appears uncertain for the remainder of this year. On the M&A side, domestic deals are being evaluated. It is getting harder to close transactions in view of mismatch in expectations of the seller and buyer. The present situation has forced them to realign their objectives and expectations. In signed deals, material adverse change clauses are being evaluated, and in new deals it is being made as exhaustive as possible to ensure possible exit in case of change in environment. The overall structure of doing deals is going through a change and the focus is shifting to value creation and sustainability. There is a reasonable possibility that towards the end of the year, if we return to some sense of normalcy, there will be a significant increase in M&A and PE activity.” Satish Kishanchandani, Managing Partner FEATURED JUDGEMENT Banyan Tree Growth Capital vs Axiom Cordages Limited and Ors. 1 ISSUE 4 JUNE 2020 LEGAL UPDATES NON-FATF MEMBERS ALLOWED TO REGISTER AS CATEGORY I-FPI SEBI Updates April 07, 2020: The Securities and Exchange Board of India (“SEBI”) has relaxed the rules with respect to SNAPSHOT offshore funds seeking to get registered under the • For all relevant COVID-19 relaxations in “properly regulated” Foreign Portfolio Investor (“FPI”) compliances permitted by SEBI, visit our category. At present, funds from jurisdictions that are resource centre by clicking here. Financial Action Task Force (“FATF”) compliant are • Non-FATF Members allowed to register as permitted to get a licence under properly regulated Category I-FPI category or Category-I. • Relaxations under SEBI (LODR) Regulations: By amending the FPI Regulations, 2019, SEBI has ➢ Prior intimation of board meetings (for allowed entities from any country specified by the consideration of financial results) to stock exchanges reduced from 5 days to 2 days, Central Government by an order or by way of an till July 31, 2020. agreement or treaty with other sovereign ➢ Allowed top 100 listed companies to delay governments to be eligible to be registered as a AGMs. Category I – FPI. ➢ No need to dispatch annual reports to Link here. investors; Banks and insurance companies exempted from filing consolidated EASE IN PUBLIC MARKETS FUND RAISING NORMS financials. • Ease in Public Markets Fund Raising Norms. April 21, 2020: SEBI has extended the validity of regulatory approval for launching IPOs and rights issue • Relaxations from certain provisions of SEBI (ICDR) Regulations, 2018. by 6 months due to COVID-19. The validity of SEBI's observations, where the same have expired or will • Companies allowed to raise funds after 6 expire between March 01, 2020 and September 30, months of making a buyback offer. 2020, has been extended by 6 months from the date • Relaxations on non-compliance with the of expiry of such observation subject to an undertaking Minimum Public Shareholding requirements. from lead manager of the issue confirming compliance • Relaxations in the procedural matter with Schedule XVI of the ICDR Regulations while pertaining to takeovers and buy-back. submitting the updated offer document to the Board. 2 ISSUE 4 JUNE 2020 The notification also provided that an issuer whose buyback offer and any fund-raising activity by a listed offer document for IPO, followed by public offer and company. rights issue is pending receipt of its observation, will be permitted to increase or decrease the fresh issue Link here. size by up to 50% of the estimated issue size without requiring to file a fresh draft offer document with SEBI. RELAXATIONS ON NON-COMPLIANCE WITH THE The relaxation on change in fresh issue size will be MINIMUM PUBLIC SHAREHOLDING REQUIREMENTS applicable for offer documents pending receipt of SEBI observations until December 31, 2020. May 14, 2020: SEBI relaxed the stipulations with respect to Minimum Public Shareholding (“MPS”) non- Link here. compliant listed entities, their promoters and RELAXATIONS FROM CERTAIN PROVISIONS OF SEBI directors, including levy of fines, freeze of promoter (ICDR) REGULATIONS, 2018 (“SEBI ICDR Regulations”) holding etc. SEBI vide its Circular IN RESPECT OF RIGHTS ISSUE No. CFD/CMD/CIR/P/2017/115 dated October 10, 2017 laid down the procedure of non-compliance with April 21, 2020: SEBI has provided certain temporary the MPS requirements. SEBI had received relaxations with respect to the eligibility conditions representations from listed entities and industry related to fast track issue of shares. The relaxations bodies to grant relaxation from the applicability of the inter alia include (i) relaxation in the pre-condition October 10, 2017 circular. with respect to listing of equity shares from 3 years to 18 months; (ii) companies with a market size of atleast Relaxations have been granted for listed entities for INR 100 crore are permitted to enter the fast track whom the deadline falls between the period from issue route; (iii) companies wherein its promoters or March 01, 2020 to August 31, 2020. The Stock whole time directors have been have been issued with Exchanges are advised not to take any penal action show cause notices or prosecution proceedings will be against such entities in case of non-compliance during eligible for the rights issue provided the adjudication the said period. The penal actions, if any, initiated by proceedings or the prosecution proceedings have Stock Exchanges from March 01, 2020 till date for non- been adequately disclosed and its adverse impact has compliance of MPS requirements by such listed been mentioned in the letter of offer. Further, the entities may be withdrawn. The said circular shall minimum subscription to be received in the issue has come into force with immediate effect. been reduced from 90% to 75%. Lastly, the circular has Link here. provided that the conditions prescribed in Chapter III of the SEBI ICDR Regulations will not apply in case of a RELAXATIONS IN RESPECT TO FURTHER PUBLIC OFFER rights issue carrying an issue size of less than INR UNDER SEBI ICDR REGULATIONS 25,00,00,000. June 09, 2020: SEBI decided to provide relaxations in Link here. certain provisions under the SEBI ICDR Regulations with respect to further public offer. Due to the COVID- RELAXATIONS UNDER REGULATION 24 (I) (F) OF THE 19 pandemic SEBI has given certain relaxations for fast SEBI (BUY-BACK) REGULATIONS, 2018 track rights issue. In addition to this, SEBI provided the April 23, 2020: SEBI has allowed listed companies to following relaxations in the eligibility conditions for raise funds after 6 months of making a buyback offer. the fast track further public offering: While the relaxation will come into force with • In Regulation 155 (c) related to ‘eligibility immediate effect, it will be applicable until December conditions for fast track route’ in case of public 31, 2020. Under normal circumstances, SEBI norms issue now requires the average market stipulate a minimum gap of 12 months between a 3 ISSUE 4 JUNE 2020 capitalisation of public shareholding of the issuer to be at least INR 500 crore instead of INR 1,000 SNAPSHOT crore. • Relaxations under SEBI (ILDS) and SEBI (NCRPS) Regulations. • The amended Regulation 155 (h) now requires the issuer to specifically represent that no show cause • Relaxations under ICDR Regulations in case of further Public Offer through fast track route. notices, excluding under adjudication proceedings, have been issued by the Board and • Significant amendments made under SEBI (Substantial Acquisition of Shares and Takeovers) pending against the issuer or its promoters or Regulations, 2011. whole-time directors as on the reference date, in the offer documents. In the event such a notice • Introduction of an operational framework for transactions in default debt securities under SEBI has been issued to the issuer or its promoters/ (Issue and Listing of Debt Securities) Regulations, directors/ group companies, the issuer is required 2008. to make necessary disclosures in respect of such • Relaxation of time gap between 2 board or audit actions along-with its potential adverse impact on committee meetings for the listed entities. the issuer in the offer documents. • Relaxations in timelines for compliance with regulatory requirements for Depository Participants • The amended Regulation 155 (i) now requires the and Registrars to an Issue & Share Transfer Agents. issuer to specifically represent that the issuer or promoter or promoter group or director of the SEBI (SUBSTANTIAL ACQUISITION OF SHARES AND issuer has fulfilled the settlement terms or TAKEOVERS) (AMENDMENT) REGULATIONS, 2020 adhered to directions of the settlement order(s) in cases where it has settled any alleged violation of June 16, 2020: SEBI issued the SEBI (Substantial securities laws through the consent or settlement Acquisition of Shares and Takeovers) (Amendment) mechanism with the board. Regulations, 2020 to further amend the SEBI (Substantial Acquisition of Shares and Takeovers) • The amended Regulation 155(l) now requires that Regulations, 2011, in the following manner: any impact of audit qualifications, where quantifiable, on the audited accounts of the issuer • Under Regulation 3 related to “Substantial in respect of those financial years (“FY”) for which acquisition of shares or voting rights” a proviso such accounts are disclosed, shall be appropriately has been inserted, stating that the acquisition disclosed and accounts accordingly restated, in beyond 5% but up to 10% of the voting rights in the offer documents.