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(i) in the production, supply, distribution or control of any goods that are produced, supplied, distributed or controlled in India or any substantial part thereof by that dominant undertaking, or
(ii) in the provision or control of any services that are rendered in India or any substantial part thereof by that dominant undertaking; or
(b) would be, as a result of such acquisition or transfer of shares or share capital, the owner of a dominant undertaking; or
(c) is, in case of transfer of shares or share capital, the owner in relation to a dominant undertaking.
The SEBI Takeover Code brought in several new features into acquisition law which were not present in Clause 40A and 40B. The basic theme of the code is to provide for fair play and transparency in acquisition and takeover but at the same time to ensure that they are not stifled into extinction.
2.2 并购的分化 ——2.2 Differentiation of Merger and Acquisition
In general Mergers and Acquisitions are used interchangeably, but they have a subtle differentiation in there meaning. Weston and Copeland (1992) distinguished merger and acquisition: merger as a transaction between more or less equal partners, while acquisitions are used to denote a transaction where a substantially bigger firm takes over a smaller firm. Their basis of distinguish was the size. But there are other factors apart from size that denotes the differences between merger and acquisition.
Asquith & Mullins (1986) define mergers and acquisitions on basis of share distribution. When two firms merge, shares of both are surrendered and new shares in name of the new firm will be issued. Unlike in merger, shares of the acquiring firm are not surrendered but traded in the market prior to the acquisition and continue to be traded by the public after the acquisition. The shares of the target firm cease to exist publicly.
并购背后的动机——Motives behind Merger and Acquisition
There are three major motives for the mergers and takeovers: Synergy, Agency, Hubris
Synergy motive means that the sum total return/value from the integration of two or more companies should be greater than that from the individual company. Elazar Berkovitch (1993) suggests that the takeovers occur because of economic gains that results by merging the resources of the two firms. They even concluded that total gains from M&A are always positive and thus can say that synergy appears.
The agency motive suggests that takeovers occur because they enhance the acquirer management’s welfare at the expense of acquirer shareholders.
Elazar Berkovitch and M. P. Narayanan (1993) suggested three major motives for mergers and acquisitions: synergy, agency and hubris. The synergy motive suggests that the takeovers occur because of economic gains that results by merging the resources of the two firms. The agency motive suggests that takeovers occur because they enhance the acquirer management’s welfare at the expense of acquirer shareholders. The hubris hypothesis suggests that managers make mistakes in evaluating target firms, and engaged in acquisitions even when there is no synergy.
Khemani (1991) states that there are multiple reasons, motives, economic forces and institutional factors that can be taken together or in isolation, which influence corporate decisions to engage in M&As. It can be assumed that these reasons and motivations have enhanced corporate profitability as the ultimate, long-term objective. It seems reasonable to assume that, even if this is not always the case, the ultimate concern of corporate managers who make acquisitions, regardless of their motives at the outset, is increasing long-term profit. However, this is affected by so many other factors that it can become very difficult to make isolated statistical measurements of the effect of M&A’s on profit.
The "free cash flow" theory developed by Jensen (1988) provides a good example of intermediate objectives that can lead to greater profitability in the long run. This theory assumes that corporate shareholders do not necessarily share the same objectives as the managers. The conflicts between these differing objectives may well intensify when corporations are profitable enough to generate "free cash flow," i.e., profit that cannot be profitably re-invested in the corporations. Under these circumstances, the corporations may decide to make acquisitions in order to use these liquidities. It is therefore higher debt levels that induce managers to take new measures to increase the efficiency of corporate operations. According to Jensen, long-term profit comes from the re-organization and restructuring made necessary by takeovers.
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