Thursday, October 3, 2013

[aaykarbhavan] Business standard news items 4-10-2013




Jet- Etihad deal gets Cabinet clearance


BS REPORTER

Mumbai, 3 October

The Cabinet Committee on Economic Affairs ( CCEA) on Thursday cleared Etihad Airways' 2,060- crore investment in Jet Airways. The approval comes five months after the two airlines concluded an agreement enabling Etihad to pick up 24 per cent stake in Jet and develop astrategic and commercial partnership with the Indian carrier.

With a host of concerns raised over the deal, the first stake buy by a foreign carrier in an operational Indian carrier, the proposal was deferred several times at the Foreign Investment Promotion Board ( FIPB) and clarifications were sought by various agencies, including the ministries of finance, civil aviation and corporate affairs, the department of industrial policy and promotion, and the Securities and Exchange Board of India ( Sebi). The airlines had hoped to conclude the deal by July 31 but the original agreement providing substantial concessions to Etihad and the near simultaneous enhancement of bilateral traffic rights to Abu Dhabi created a storm and delayed approvals. The second transaction closure deadline of September 30 too has lapsed.

"The deal is good for aviation and for passengers,'' Civil Aviation Minister Ajit Singh told the media after the CCEA meeting on Thursday. On July 29, the FIPB had approved the investment after the two airlines revised their agreement to ensure that management control did not shift to Etihad. The approval was granted after Jet agreed to meet 11 conditions.

Broadly, these pertained to the shareholder agreement and powers of the chairman.

The FIPB asked the airlines to rework the agreement to show that both parties could be held responsible for a default or breach of agreement terms.

Turn to Page 20 >

CCI approval being pending won't hamper deal, says aviation minister THE HICCUPS THAT WERE

>On control, as the Jet board would have four representatives from Naresh Goyal, who controls 51%, and three from Etihad with half the stake The board will now have two members from Etihad; FIPB insisted that Goyal have veto power as chairman >On the shareholder agreement that envisaged a cooperation board, which meant operational control of the company shifted to this board with 19 foreign members Jet said it is not a board but a framework for meetings between the parties . It does not undermine the role of the board >On network and revenue management functions located in Abu Dhabi at Jet's expense The intention is to establish centres of excellence either in India or Abu Dhabi >On the appointment and removal of independent directors that required approval of three- fourth votes, which was against Companies Act Agreement changed to address concern >On provisions such as Etihad would source management candidates and lead negotiations with suppliers Agreement changed to address concern >On a lack of clarity over whether the company has to make an open offer or Etihad can take equity through preferential allotment Sebi said no open offer needed NUTS & BOLTS OF THE DEAL

$379 mn

Equity investment

$150 mn

Investment in Jet's frequent- flyer programme

$150- mn loan

Assistance to be provided in securing debt

$70 mn

Sale and lease- back of Jet's Heathrow slots

 

Sebi permits put & call options in M& A deals


>MARKETS

BS REPORTER

Mumbai, 3 October

The Securities and Exchange Board of India ( Sebi) has permitted listed companies to use options, which give an entity the rights to sell or purchase a security at a future date, in M& A ( merger and acquisition) transactions. Sebi has also allowed use of other popular preferential clauses such as ' right of first refusal, tag along and drag along'.

The markets regulator on Thursday amended the Securities Contracts Regulation Act ( SCRA), which originally prohibited use of these clauses.

Sebi's move will permit India Inc's long- awaited wish to incorporate put and call options clauses in their share purchase agreements.

Put and call options are the most popular exit mechanism in M& A transactions.

Earlier, the use of such clauses was turned down by Sebi on the ground that they weren't perceived to be valid derivative contracts as they werent traded on the stock exchanges.

Some of the famous instances where Sebi had objected to the use of put and call options is the Cairn and Vedanta deal, MCX- SX and the recent deal between Diageo and United Spirits.

Earlier this year, the law ministry had cleared a proposal by Sebi to allow put and call options by listed firms.

"Not only have call and put options been made valid, pre- emption rights such as right of first refusal, tag along right or drag along rights are also made valid without any restriction on the minimum period after which these rights can be exercised like in the case of call and put option," said Lalit Kumar, partner, J Sagar Associates.

A right of first refusal in M& A deals give an entity the first right to purchase shares whenever they are offered for sale. Tag- along gives the right to a minority shareholder to sell if a majority stakeholder also sells its stake, while drag- along clause forces a minority shareholder sell stake with a majority shareholder. Experts have said the new norms will benefit both domestic and foreign corporates and institutional investors such as private equity ( PE) and foreign institutional investors ( FIIs). It will also ease the burden on IPO- bound companies. " These options were valid in private limited companies.

However, when these companies were taken for IPO, specially to provide an exit to a PE, Sebi used to insist deletion of such clauses from the shareholders' agreement. Now with this notification, these can continue and be enforced even after the company is listed after the IPO," said Kumar.

Sebi said the put and call options to be exercised will have to be held continuously for at least one year from the date of the contract. Also, the pricing of the options will have to be in compliance with all the rules.

Experts, however, have said there could be some uncertainty till the time the Reserve Bank of India ( RBI) also permits use of these clauses.

226 firms to march to a new accounting year


NSUNDARESHA SUBRAMANIAN & SUDIPTO DEY

New Delhi, 3 October

In 2012, infrastructure firm IVRCL was going through a restructuring process and awaiting a court nod for the merger/ demerger. " Hence, to avoid cumbersome accounting with respect to the merger/ demerger and to have the merged balance sheet in place", the company decided to extend the accounting year up to June 2012. For the next year, the company reverted to the usual AprilMarch period. Thus, while the FY12 profit and revenue numbers were for a15- month period, FY13 numbers were for a truncated, nine- month period.

IVRCL was not alone. Several Indian companies made such changes. So far, these had the leeway to alter the accounting year, depending on internal factors such as profitability and external events such as court orders. However, the Companies Act, 2013, has clamped down on this. It has removed the provision that allowed companies to cut or extend financial years as they pleased, paving way for uniform reporting by corporate India.

The Act has defined financial year as " the period ending on the 31st day of March every year, and where it has been incorporated on or after the first day of January of a year, the period ending on the 31st day of March of the following year, in respect whereof financial statement of the company or corporate body is made up". It said all existing companies should, within a period of two years, align their financial year with the provisions of this clause. This means a number of companies, including large ones such as HCL Technologies (which follows the year ending June) and Ranbaxy Laboratories ( which follows the calendar year) have to adjust their accounting cycles in coming days.

According to data provided by advisory firm Corporate Professionals, as many as 226 listed companies don't follow financial years ending March. Of these, 74 follow the calendar year for accounting; 58 follow the year ending September, while 89 follow the JulytoJune financial year. A few listed companies follow the financial year ending April ( 2), August ( 2) and October ( 1).

One of the primary reasons for different accounting years is the cyclicality of the business. Saurabh Agarwal, director, Kennis Consultancy, cites the example of the sugar industry. " Most companies in the sugar industry follow the JulyJune year because typically, the sugar season starts in September. In March, most of these have stocks in their books. By June, all the stocks are sold and the books look very good. This practice would come to an end." The Ministry of Corporate Affairs' move to bring uniformity in the corporate sector could be the first step towards harmonising different sectors in the economy, said Pavan Kumar Vijay, managing director, Corporate Professionals.

Today, different accounting years are followed within different government agencies. While the Union government continues to follow the April- March year, the Reserve Bank of India ( RBI) follows the July- June year. Agricultural commodities such as sugar, paddy and wheat have different crop years, aligned to their respective harvest seasons.

A few years ago, the government had considered the July- June financial year so that while making the Union Budget, the finance minister had a better idea of the monsoons, a major factor influencing the agriculturebased economy. Pranab Mukherjee, in his first stint as finance minister, had even set up a committee under former RBI governor L K Jha to study and make recommendations in this regard. However, the idea was dropped.

Another reason for following different accounting years is consolidation of accounts with a foreign parent or a subsidiary. Several multination company arms operating in India follow the calendar year or the July- June year for accounting. Nestle India, Ambuja Cements, Bosch, Glaxo Smithkline, Thomas Cook are among the 74 companies that follow the calendar year.

Siemens closed its books in September, while Procter and Gamble and Gillette ended the financial year in June.

The Companies Act, 2013, however, provides for such companies to move the Company Law Tribunal and seek an exemption. According to Madhavan Menon, managing director, Thomas Cook ( India), the new Act provides for certain exceptions for a company that is a subsidiary of a company incorporated outside India.

"If the Indian company is required to follow a certain financial year for consolidation of the parent company accounts outside India, the Indian company may apply to the tribunal to retain the same financial year as its holding company, i. e.

January- December, and if the tribunal is satisfied, it may allow so," he says. Further, the Act also allows a two- year period for the company to align its accounting year to the AprilMarch accounting period. " If at all Thomas Cook ( India) Ltd decides to change its accounting year, it would take the necessary steps during 2015; it could have a 15- month period from January 2015 to March 2016," adds Menon.

Experts say convincing the tribunal would take time. Vijay of Corporate Professionals said, " While it may be easy for a company following the calendar year to extend the period by three months, this may not be possible for companies that follow the year ending June. These companies may go for truncation of the period. Analysts doing comparisons and calculating earning per share for listing companies will have to be very careful." Companies have to give comparative numbers under each head of accounts such as sales, overheads and operating profit for the previous period. " The comparative situation is eroded for two consecutive years--the year you make the adjustment and the following one," said Rajesh Mittal, managing director, Alamak Capital, a consultancy.

But the move is in line with the bigger picture. Agarwal says, " The new provision will bring more transparency and uniformity and will be in harmony with other steps such as implementation of IFRS ( international financial reporting standards) and XBRL ( extensible business reporting language)." IFRS is the globally applicable common reporting norms issued by international accounting body International Accounting Standards Board, while XBRL is a machine- readable reporting format developed for financial reporting.

Officials in companies that don't follow the year ending March said their jobs would now be easier, as they had to maintain separate books for tax purposes, as cording to the country's tax rules the date of year closure is March 31. An IVRCL spokesperson recalled how the company had to prepare two sets of accounts. " We had to prepare yearly financials i. e. April to March in case of both these years for income tax purposes. It has definitely increased the work pressure in terms of accounts/ audit."

New Companies Act gives two years for all firms to shift to year ending March 31

The Act has defined financial year as " the period ending on the 31st day of March every year, and where it has been incorporated on or after the first day of January of ayear, the period ending on the 31st day of March of the following year, in respect whereof financial statement of the company or corporate body is made up" INDIA: ONE COUNTRYMANY YEARS GLOBALLY… COMPANIES WITH ACCOUNTING YEARS ENDING..

Government accounts

March 31 Tax department

March 31 Reserve Bank of India:

June 30 Different crop years depending on harvest season Corporate Agriculture

OLD: Different periods NEW: March 31 US govt

September 30 UK govt & corporations

March 31 UK personal tax

April 5 Pakistan govt

June 30 Japan govt

March 31 Hong Kong

March 31 France, Mexico, Ireland Russia, Spain

December 31

June 30 89 December 31 74 September 58 April 30 2 August 31 2 October 31 1

Source: Govt websites, news reports Source: Corporate Professionals

 

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CS A Rengarajan
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