Regulation 9 - Mode of payment - Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011

Mode of payment. 9. (1) The offer price may be paid, - (a) in cash; (b) by issue, exchange or transfer of listed shares in the equity share capital of the acquirer or of any person acting in concert; (c) by issue, exchange or transfer of listed secured debt instruments issued by the acquirer or any person acting in concert with a rating not inferior to investment grade as rated by a credit rating agency registered with the Board; (d) by issue, exchange or transfer of convertible debt securities entitling the holder thereof to acquire listed shares in the equity share capital of the acquirer or of any person acting in concert; or (e) a combination of the mode of payment of consideration stated in clause (a), clause (b), clause (c) and clause (d): Provided that where any shares have been acquired or agreed to be acquired by the acquirer and persons acting in concert with him during the fifty-two weeks immediately preceding the date of public announcement constitute more than ten per cent of the voting rights in the target company and has been paid for in cash, the open offer shall entail an option to the shareholders to require payment of the offer price in cash, and a shareholder who has not exercised an option in his acceptance shall be deemed to have opted for receiving the offer price in cash: Provided further that in case of revision in offer price the mode of payment of consideration may be altered subject to the condition that the component of the offer price to be paid in cash prior to such revision is not reduced. (2) For the purposes of clause (b), clause (d) and clause (e) of sub-regulation (1), the shares sought to be issued or exchanged or transferred or the shares to be issued upon conversion of other securities, towards payment of the offer price, shall conform to the following requirements, - (a) such class of shares are listed on a stock exchange and frequently traded at the time of the public announcement; (b) such class of shares have been listed for a period of at least two years preceding the date of the public announcement; (c) the issuer of such class of shares has redressed at least ninety five per cent. of the complaints received from investors by the end of the calendar quarter immediately preceding the calendar month in which the public announcement is made; (d) the issuer of such class of shares has been in material compliance with the 1 [listing regulations] for a period of at least two years immediately preceding the date of the public announcement: Provided that in case where the Board is of the view that a company has not been materially compliant with the provisions of the 2 [listing regulations], the offer price shall be paid in cash only; (e) the impact of auditors qualifications, if any, on the audited accounts of the issuer of such shares for three immediately preceding financial years does not exceed five per cent. of the net profit or loss after tax of such issuer for the respective years; and (f) the Board has not issued any direction against the issuer of such shares not to access the capital market or to issue fresh shares. (3) Where the shareholders have been provided with options to accept payment in cash or by way of securities, or a combination thereof, the pricing for the open offer may be different for each option subject to compliance with minimum offer price requirements under regulation 8 : Provided that the detailed public statement and the letter of offer shall contain justification for such differential pricing. (4) In the event the offer price consists of consideration to be paid by issuance of securities, which requires compliance with any applicable law, the acquirer shall ensure that such compliance is completed not later than the commencement of the tendering period: Provided that in case the requisite compliance is not made by such date, the acquirer shall pay the entire consideration in cash. (5) Where listed securities are offered as consideration, the value of such securities shall be higher of: (a) the average of the weekly high and low of the closing prices of such securities quoted on the stock exchange during the six months preceding the relevant date; (b) the average of the weekly high and low of the closing prices of such securities quoted on the stock exchange during the two weeks preceding the relevant date; and (c) the volume-weighted average market price for a period of sixty trading days preceding the date of the public announcement, as traded on the stock exchange where the maximum volume of trading in the shares of the company whose securities are being offered as consideration, are recorded during the six-month period prior to relevant date and the ratio of exchange of shares shall be duly certified by an independent merchant banker (other than the manager to the open offer) or an independent chartered accountant having a minimum experience of ten years. Explanation.- For the purposes of this sub-regulation, the relevant date shall be the thirtieth day prior to the date on which the meeting of shareholders is held to consider the proposed issue of shares under sub-section (1A) of Section 81 of the 3 [ Companies Act, 2013 (18 of 2013) ]. 4 [ (6) The effect on the price of the listed equity shares, which are offered as consideration, due to material price movement and confirmation of reported event or information may be excluded as per the framework specified under sub-regulation (11) of regulation 30 of the listing regulations for determination of the price of such equity shares under this regulation. ] **************** NOTES:- 1 Substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2018, w.e.f. 11-09-2018. Prior to this, it read as listing agreement . 2 Ibid 3 Substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2018, w.e.f. 11-09-2018. Prior to this, it read as Companies Act, 1956 (1 of 1956) . 4. Inserted vide Notification No. SEBI/LAD-NRO/GN/2024/179 dated 17-05-2024