The PIT regulations 2015 do not specifically apply to PIPE transactions and therefore for the purposes of this paper the various stages of a PIPE transaction have been pointed out in order to decipher the applicability of insider trading regulations to the same. The aim to explore the interplay between these regulations and the various stages discussed herewith is to observe whether or not their application succeeds or fails. Subsequently, certain suggestions for SEBI will be submitted that may be considered for a better application and enforcement of the regulations in PIPE transactions.
II. Stages of PIPE and Likewise Application of PIT Regulations 2015
In a PIPE transaction, a major risk that the investors may face is of insider trading, and steps from the very first stage itself should be taken to prevent the same. To successfully prevent insider trading, time is of significance. An investor company could directly or indirectly, qualify as a connected person, unless the contrary is established. It is uncertain how SEBI would view PIPE transactions from an insider trading perspective; however, from the very first stage both the target company and the investor must take due care that the investor agrees to treat UPSI shared as confidential and agrees not to deal in securities while in possession of such UPSI, until such UPSI is made public.
To ensure this compliance with the PIT regulations 2015, each company should be approached with the same disciplined process. The first step in documenting a PIPE transaction is a term sheet. A carefully negotiated term sheet can be beneficial and can facilitate the process of negotiation as the key business terms are already agreed upon in a term sheet. Once the target company decides that the investor company fits its model and preliminary due diligence is conducted, it makes sense to spend time and resources negotiating a term sheet that will be signed by both the parties.
i. Term sheet and UPSI
A term sheet, in general practice, is negotiated between the principals. Lawyers or other representatives are typically not included. Therefore, this stage could be prone to unintentional sharing of UPSI and thus may also result in an investor becoming an insider. A term sheet usually includes the name of parties to the transaction, the mechanism of the transaction, commercial rational of the investment, rights emerging from shareholding, closing conditions, non- compete, confidentiality, exclusivity, dispute resolution among other clauses.
After a term sheet is signed, UPSI could then be revealed, knowing that the investor has a vested interest in the deal. However, to prevent insider trading, a term sheet typically includes a confidentiality clause. Additionally, to prevent trading in securities, the issuer frequently requires that the investor contractually agree, in addition to the laws already in place, not to trade, in its common stocks, until the target company has publicly announced the PIPE deal or terminated negotiations.
ii. Significance if not binding?
A term sheet is mostly non-binding with the proposed transaction, except the clauses pertaining to (i) confidentiality and (ii) covenants by the target company to reimburse legal expenses. To prevent insider trading at succeeding stages, it is essential that the target company and the investor decide upon the legitimate purpose for that PIPE transaction, as that would be in accordance to the board of director’s policy.
The significance of this at the first stage, i.e., term sheet, is, that the investors are aware that they would become privy to UPSI. This would help clarify whether having shared knowledge of such information, falls under legitimate purpose and if they are required to notify the same to the target company and the manner in which such notification is to be conducted. Even though the term sheet is only the stage of preliminary contact and talks, it could be beneficial to discuss prohibition on trading in securities, while in possession of UPSI.
Often in PIPE transactions, the target company and the investor do not prepare a memorandum; rather use only a detailed term sheet. It is prudent to make investors alert that they would be privy to UPSI and obtain at least an oral confidentiality agreement, as they would be hesitant to sign an NDA at this early stage. Moreover, the investors could also discuss the possibility of entering into a non- traditional off-market agreement, in case they get privy to UPSI, other than what is communicated, provided, allowed access to by the board of directors in due course and under legitimate purpose. Thereupon, the insiders who have access to UPSI could still sell/purchase or generally trade in the company’s securities, in accordance with a pre-agreed agreement amongst themselves.
B. Due Diligence
i. Limited Parity of Information Theory
The stage of conducting due diligence is quintessential in investment transactions. It allows the investor to conduct a detailed inquiry into the target company’s affairs in order to be decisive whether or not to proceed with the proposed transaction. This essentially means that for conducting due diligence, the target company shares inside information with the investor, allowing asymmetry of information in the market and thus ostensibly, violating the very sacrosanct principle of insider trading.
The Indian law employs the parity of information theory in insider trading i.e., everyone having equal information with respect to the specific transaction at hand. A strict application of the parity of information theory would adversely affect the execution of due diligence and therefore it is essential that the same is mitigated so as to be able to conduct due diligence. A question may arise with respect to the essentiality of conducting due diligence for PIPE transactions given that quite a significant amount of information regarding public companies is available in the public domain. Despite this, it is understandable that, to infuse funds is an important business decision, given that such investments have monetary significance. Regulations allow disclosures of insider information to the investor, however, such inside information would have to be made public “…atleast two days before the proposed transaction…” Thus, such pre-transaction disclosures employ the limited parity of information theory.
ii. Due Diligence v. Insider Trading
The regulations allow for communication and access of UPSI when made in specified situations in the manner provided. It envisages situations wherein the Takeover Code is not triggered and therefore no open offer is required to be made. Therefore, a PIPE transaction could be governed thereunder. The first half of the relevant regulation allows for inside information to be communicated when –
“…board of directors of the [listed company] is of the informed opinion [that sharing of such information] is in the best interests of the company…”.
It can be argued that this in a way destroys the purpose of conducting due diligence in the very first place. This is because even though due diligence is conducted in order to decide the fate of the transaction, it also gives an upper-hand to the investor to use resources to assess the information so as to be able to take the best decision possible. The purpose of allowing the communication essentially fails in principle because the information shared with the investor is eventually disclosed to the public before the proposed transaction.
iii. Sufficiency of Disclosure Period
The second half of the regulation prevents insider trading from being violated in principle –
“…and the information that constitute unpublished price sensitive information is disseminated to be made generally available at least two trading days prior to the proposed transaction…”.
The fact that UPSI is mandated to be disclosed before the proposed transaction is completed shows, that the sacrosanct principle of maintaining symmetry in the market is principally being upheld. However, the investor employs resources to access the information shared during due diligence for a longer duration of time as compared to the public at large and therefore, even though technically insider trading does not take place, yet, the fact that the investor gets an upper hand in the time granted to access the situation, itself creates asymmetry in the market as the investor’s position unavoidably becomes preferential.
Some may argue that this was essentially the purpose of creating an exception however it is submitted that the exception itself is neither absolute in nature nor does it entirely safeguard market symmetry. On one hand, it neither creates an exception that would allow communication of inside information to the investor only and selectively over and above everyone else for the transaction in question, as it eventually discloses UPSI before the completion of the proposed transaction. On the other hand, nor does it safeguard market symmetry in its entirety as the variance in the time granted to access the UPSI between the investor and public is significant therefore showcasing preferential treatment towards the investor.
iv. Board’s Discretion
The aforementioned regulation mandates only UPSI to be disclosed and not all non-disclosed information and understandably so, given that, detailed commercial information would place the target company at risk before its competitors. However, this disclosure requirement, as well as deciding the form of such disclosure, offers immense scope with the board of the target company. Therefore, SEBI may be required to monitor the manner in which companies interpret this requirement in order to ensure that the purpose of this regulation is upheld. Therefore it is submitted that this provision lacks regulatory clarity in its entirety
The regulation grants flexibility to the Board in deciding the nature and form of UPSI that has to be disclosed. Given that, the decision regarding disclosure of information is within the powers of the board however, simultaneously it inevitably grants the investor, who may be privy to the non-disclosed information, to be better equipped to make potential investments in the target company at a future date, unless a subsequent cleansing announcement nullifies the same. This assumption is subject to the non-disclosed information becoming UPSI or being of irrelevance at a later stage. There is no clarity if such an eventuality occurs.
A. Confidentiality Agreements
It is imperative that the confidentiality agreements entail (a) non-disclosure and (b) standstill obligations. This is because in the absence of standstill obligations, only communication offences can be punished and not trading. Indian law in this context provides clarity as both are mandated under the regulations. Therefore in cases of PIPE transactions also this regulation would be effective and of significance given that non-disclosure, non-use and non-trading based on UPSI would be prohibited explicitly in law.
B.Negotiations and Discussions
The next stage is when negotiations and discussions begin between the investor and target company. This is step further towards executing the PIPE transaction after having conducted due diligence and preparing the term sheet. Negotiations and discussions typically take place between the target (and its counsel) and the lead investor (and its counsel). At this stage, definitive documents such as Share Purchase Agreement, agreements setting forth rights and obligations of the parties are framed.
The Share Purchase agreement in a PIPE transaction typically include provisions such as the number of shares that the investor intends to purchase, the negotiated price at which shares will be purchased, lock-in period, the manner in which the investor can exit its investment, other rights such as right to first offer, right to first refusal etc. Besides negotiating carve-outs to representations and warranties, a few other negotiation points in PIPE include discussions on whether blackout period would be included and the length of same.
i. Privileged information with insiders
At this stage, there is an asymmetry of information. Certain individuals such as directors, lawyers entering into negotiations on behalf of the parties involved, employees having direct or indirect knowledge to undergoing PIPE deal become connected persons by virtue of Section 2(d) of PIT Rules and thus an insider under the rules. Additionally, a person who gets access to UPSI directly or indirectly also qualifies as an insider and is prohibited from communicating such information or trading into securities based on such UPSI.
ii. Negotiations and Discussions v. Insider Trading
The PIT regulations entail both communication and trading offence based on UPSI. Insider bears a duty not to communicate any information shared at this stage, such as the discounted price at which the PIPE transaction will get executed or the provisions on re-selling agreed upon between the investor and the target company. This is because any such information forms part of privileged information regarding the company, is not yet available in the public domain and comprises of UPSI, the disclosure of which would materially affect the price of company’s securities in stock market. A contravention of such obligation by an insider will amount to ‘communication offence’ under Regulation 3 of the Rules.
When a PIPE transaction takes place and new securities are issued, there is a dilution of shareholding in the stock market. In a situation where a PIPE investment is made on an exceptionally discounted price and the target company allows short selling of shares by the investor, the share price of the target company would see an ever-increasing devaluation. In such a case, a shareholder, especially a minority shareholder, having information about the likelihood of execution of such transaction will make an unfair benefit to himself/ herself and sell off the shares even before the securities are sold to the investor in a PIPE. Thus, the person upon receiving such material information becomes an insider under Regulation 2 (g) and commits a trading offence in contravention to Regulation 4(1) of the Rules.
At this stage, it is pertinent to note that insiders can trade amongst themselves through an off-market transaction or a block window mechanism, as has already been pointed out in the stage of preparing a term sheet, without being in contravention of the regulation.
C. Cleansing Announcement
i. Market Sounding – Insider Information?
It is submitted that the stage of market sounding i.e., target company approaching investors, itself is a concern for insider trading as it involves information sharing about a potential investment. Information with respect to (a) the target company raising funds and (b) the reputation of the investor, both qualify as UPSI. If the proposed transaction is successful, eventually UPSI is disclosed prior to the main announcement. However, there are no regulations specifically governing the information at this stage, nor is it clarified whether the aforementioned information at the market sounding stage demands confidentiality obligations by law. The target company itself on its own premise may ensure non-disclosure by the approached investors.
ii. Unsuccessful Transactions
The regulations have not dealt with a scenario wherein the proposed transaction either does not come through or is halted for an indefinite period of time. Ideally investors would be able to trade in securities of the target company, only when the target company makes a cleansing announcement, or when the UPSI that they are privy to is no longer of significance due to a subsequent cleansing announcement(s). However, companies usually are not in practice to make public announcements regarding aborted or postponed transactions. Ideally it is unlikely that potential investors would agree to a restriction in trading unless otherwise provided under the regulations as a cleansing strategy. Therefore SEBI needs to clarify this rather complicated scenario.
D.Signing and Closing
This is the last stage in PIPEs. The transaction can be structured in a way where signing and closing occur simultaneously or where there is a time gap between closing and signing.
i. Traditional or Delayed PIPEs
In case of a traditional or delayed PIPE transaction, no money is paid or securities issued at the stage of signing. This happens at closing which occurs only after the securities issued in PIPE are registered. Traditional transactions are relatively risky for the investor who is required to make payment for the securities despite having risks around the effectiveness of registration statement.
ii. Standard PIPEs
In a standard PIPE transaction, the target company enters into a purchase agreement with the investor for sale of unregistered securities. In this manner, closing and funding occur simultaneously to signing of the agreement. In standard PIPEs, the target company undertakes to register the already issued unregistered securities shortly after the closing so as to enable the investor to resell the same after the lock-in period.
iii. Duty upon insiders
Until the deal is signed and closed, insiders are prohibited to communicate or trade upon securities of the company, as the same would stand in violation of the regulations. Once the transaction is signed and closed and the information is out in public domain, the information asymmetry around the issue of securities to private investor does not remain.
III. Takeaways from other Jurisdictions
A. European Union – Netherlands
PIPEs in the European Union seem more prevalent in Netherlands than other countries such as, Germany and France where rigid regulations act as barriers to PIPEs. Unlike England, where PIPEs are not so popular due to issues involving disapplication of pre-emptive rights and mandatory takeover rules, the regulatory framework in Netherland are relatively less burdensome. The framework in Netherlands is much relaxed, as the mandatory takeover, under the recently adopted takeover code, does not apply to issue of securities in PIPE transactions. This allows undertaking of PIPE investment much easier and speedier than other European countries.
i. Pre-emptive Rights
An interesting aspect of regulatory framework in Netherlands is that shareholders can enjoy pre-emptive rights over the new issuance of such class of shares as they already hold. This means that existing shareholders cannot exercise pre-emptive rights when the company issues a different class of security. Once shareholders have authorized an increase in share capital, the management has the power to issue new shares without observing pre-emptive rights of the existing shareholders, unless otherwise provided in the AOA. Such authorization is important as it allows companies to bypass the shareholder approval process while making a PIPE transaction thereby allowing them to initiate and execute such transaction with less complexities involved.
ii. Insider Trading Regulations
The law on insider trading in Netherlands requires an insider to notify a transaction not only in securities of immediate company but also in those where the value is dependent on the aforementioned company’s stock’s value.
The investor in PIPE is in constant need to find exit channels for their investments. It is possible that while various stages of PIPE are in process, the investor has already found a potential buyer to purchase the securities purchased under the immediate PIPE transaction. In case such potential buyer is a company and an insider gets this information, SEBI must make sure that such insider does not trade in the security of such potential buyer based upon access to UPSI and take an unfair advantage of the information asymmetry.
PIPEs have historically been less common in the UK, although they are now being increasingly used. There are a number of regulatory requirements, market principles, and EU directives that govern securities offerings in the UK, which also affect the way in which PIPEs are usually structured. However these requirements are not highly restrictive and could still accommodate certain PIPE structures.
i. Shareholder’s approval
The specific legal and regulatory framework that governs PIPE transactions also encapsulates the core principal that govern UK market in general, i.e. protection of existing shareholder’s rights such: preemptive rights and limitation on the maximum discounts at which new shares may be issued.. The UK Companies Act 2006 and Listing Rules, require the companies listed on the UK markets to obtain shareholders approvals for matters that affect them, including issuance of new shares for the Company. Such emphasis on shareholder’s approval would necessitate the production of a shareholder circular and the convening of a general meeting of the company’s shareholders. This would have an effect on the timetable of the deal however taking public approvals reduces the risk of insider trading to an extent, considering that the information that the issuer is contemplating a PIPE transaction is also UPSI.
ii. NDA Agreements
Investors in a PIPE transaction would want to obtain as much information as possible about the target company. In several jurisdictions the investor and the target company enter into an oral confidentiality agreement, as the investors are usually hesitant and moreover the negotiating and signing is time consuming. However, the companies in UK are obligated to provide UPSI only once such revelation is subject to a valid confidentiality agreement or non-disclosure agreement. They are also required to limit the number of persons to whom such selective disclosure is made. Moreover, the PIPE investors likewise are given an opportunity to consider whether they wish to receive UPSI from the target company. A similar approach of strict emphasis on signing an NDA before UPSI is revealed could be adopted by SEBI, which could help prevent insider trading at least to a certain extent. The signing of a standstill agreement in addition, as already discussed could make it more robust and help in prohibiting insider trading effectively.
There is still a long way to go, for proper application of insider trading regulations to PIPE transactions. As discussed, several provisions of the PIT regulations 2015 have effective application on PIPEs, even if presently employed without any amendments. However, there also exist significant loopholes. Therefore, the suggested modifications including inspiration from other jurisdictions (having effective regulations in place) can be of immense help and therefore could be considered by the SEBI to suitably revise the PIT regulations 2015.
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 See Confidential Agreements under I.C on pp-7 of this document.
 As defined under Regulation 2(i), SEBI (Prohibition of Insider Trading) Regulations 2015.
 As defined under Regulation 2(l), SEBI (Prohibition of Insider Trading) Regulations 2015.
 Supra at Note 3, at pp-212.
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 Supra at Note 12.
 Supra at Note 24.
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 Securities in a PIPE transaction cannot be issued without first being offered to the existing SH unless the existing SH waive off their pre-emptive rights under Section 561 of Companies Act, 2006.
 In case the investor triggers the City Code on Takeovers and Mergers in PIPE transaction, a general offer needs to be made to the public.
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 Supra at Note 3, at pp-65.
 Ibid, at pp-72.
 Ibid, at pp-76.
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