🤔🤓IS SEBI REQUIRED TO AMEND THE DEFINITION OF “UNDERTAKING/ SUBSTANTIAL UNDERTAKING” – REGULATION 37A OF ITS LODR REGULATIONS 2015 ?
In this case , the proposed sale of the undertaking by Siemens was sought by means of an ordinary resolution because it is a material related party transaction under the CA 2013 as well as the SEBI LODR. If not a material RPT , the board of the company itself would have carried out the sale without the need for it to approach the shareholders u/s 188 of CA 2013 or R 23 of SEBI LODR . ( The deal was agreed upon at a value of Rs 2,200 crore, which was a bone of contention with minority shareholders.)
SEBI in its newly introduced R37A has prescribed that sale of undertaking by listed entities outside the Scheme of Arrangement would require the approval of the shareholders by a special resolution. However, for the definitions of the terms “undertaking” and “Substantially the whole of the undertaking “ it has adopted the same definition as given in S 180(1) (a) of the CA 2013. .
Siemens in its Notice for postal ballot , while seeking the shareholders’ approval has clarified that the proposed sale does not attract the provisions of S 180 of CA 2013 or the provisions of R 37 A of the LODR Regulations, which call for approval by special resolution. ( R37A additionally requires that the votes cast by the public shareholders in its favour shall exceed the votes cast by them against the resolution)
SHOULD SEBI AMEND THE REGULATIONS TO PRESCRIBE A LOWER THRESHOLD -THAN PRESCRBIED IN THE CA 2013 FOR “UNDERTAKING / SUBSTANTIALLY THE WHOLE OF THE UNDERTAKING” ( which is at least - 20% of the company’s investment in the undertaking / 20% of its turnover is thro the undertaking / 20% the value of the undertaking ) – SAY, 10% SO THAT SHAREHOLDER’S CONSENT THROUGH SPEICAL RESOLUTION BECOMES MANDATORY IN MOST OF THE CASES ?
Excerpts from the PB Notice of Siemens :
“THE PROPOSED SALE AND TRANSFER of the Business DOES NOT REQUIRE APPROVAL OF THE MEMBERS BY WAY OF SPECIAL RESOLUTION, IN TERMS OF SECTION 180 OF THE ACT OR REGULATION 37A OF THE LISTING REGULATIONS.
Since the consideration for the Proposed Transaction is above Rs. 11,527 million (i.e. 10% of the Company’s net worth as per audited financial statement of FY 2022), Members approval by way of ordinary resolution would be required as per Section 188 of the Act (and relevant rules thereunder). The Proposed Transaction and the transactions which are to be conducted in ordinary course of business and at arm’s length basis between the Company and SLDIPL would be material related party transactions as per Regulation 23 of the Listing Regulations since the consideration for the same would be above Rs. 10,000 million (i.e. the threshold arrived as lower of: Rs. 10,000 million or 10% of the Company’s consolidated turnover for the previous financial year (i.e. FY 2021-22))"
JULY30 1256 HRS
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