Allowed

(i) MacRitchie Investments Pte. Ltd. (“MacRitchie”); (ii) Fort Canning Investments Pte. Ltd. (“Fort Canning”); (iii) Mr. Bhavish Aggarwal (“Ola Founder”)

CCI13 Aug 2021C-2021/07/849

Case brief

AI extract

What is this about?

The Competition Commission of India considered a notice regarding multiple share purchase agreements between MacRitchie, Fort Canning, and Mr. Bhavish in relation to OLA. Assessing financial thresholds, interconnected steps, and potential overlaps with Temasek's portfolio companies, the Commission approved the combination as unlikely to cause appreciable adverse effect on competition.

What did the court decide?

The Commission approves the Proposed Combination as not likely to have any appreciable adverse effect on competition in India.

(i) MacRitchie Investments Pte. Ltd. (“MacRitchie”); (ii)… — Company and Corporate | CCI (2021)

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Non-Confidential Version

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COMPETITION COMMISSION OF INDIA (Combination Registration No. C-2021/07/849)

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13^th August 2021

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Notice under Section 6 (2) of the Competition Act, 2002 jointly given by MacRitchie Investments Pte. Ltd., Fort Canning Investments Pte. Ltd. and Mr. Bhavish Aggarwal

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CORAM:

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Mr. Ashok Kumar Gupta Chairperson

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Ms. Sangeeta Verma Member

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Mr. Bhagwant Singh Bishnoi Member

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Order under Section 31(1) of the Competition Act, 2002

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On 5^th July 2021, the Competition Commission of India ( Commission ) received a notice ( Notice ), under Section 6(2) of the Competition Act, 2002 ( Act ), jointly given by MacRitchie Investments Pte. Ltd. ( MacRitchie ), Fort Canning Investments Pte. Ltd. ( Fort Canning ) and Mr. Bhavish Aggarwal ( Mr. Bhavish ). The Notice was inter alia given pursuant to the execution of the following agreements on 25^th June 2021, 29^th June, 2021 and/ or 1^st July, 2021: (a) Share Purchase Agreement between MacRitchie, Sequoia Capital India Investments IV and ANI Technologies Private Limited ( OLA ) ( Sequoia MacRitchie SPA ); (b) the Share Purchase Agreement between MacRitchie, Matrix Partners India Investment Holdings II LLC ( Matrix ) and OLA ( Matrix MacRitchie SPA ); (c) the Share Purchase Agreement between MacRitchie, Internet Fund III Pte. Ltd. and OLA ( Tiger MacRitchie SPA ); (d) three other share purchase agreement between MacRitchie, OLA and its certain existing shareholders; (f) the Share Purchase Agreement

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(Combination Registration No. C-2021/07/849)

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between Fort Canning, Matrix and OLA on 1^st July 2021 ( Matrix Fort Canning SPA ); (g) two other share purchase agreement between Fort Canning, OLA and its certain existing shareholders.

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The Proposed Combination also envisages Agreement between MacRitchie and Mr. Bhavish executed on 25^th June 2021 ( MacRitchie Agreement ); Agreement between Fort Canning and Mr. Bhavish executed on 1^st July 2021 ( Fort Canning Agreement ); deed of accession to the existing Shareholders Agreement executed between OLA and certain existing shareholders of OLA executed on 15^th March 2019; and Co-Sale agreement executed between MacRitchie and Fort Canning executed on 1^st July 2021 ( Co-Sale Agreement )

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The Commission vide its letter dated 14^th July 2021, issued under Regulation 14(3) of the Competition Commission of India (Procedure in regard to transaction of business relating to combinations) Regulations, 2011 ( Combination Regulations ), required the notifying parties to remove defects in the Notice and furnish certain information relevant for the purpose of assessment of the Proposed Combination. In response, the Notifying Parties submitted their written submission dated 19^th July 2021.

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The Proposed Combination envisages:

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4.1. Acquisition of ~4.49 % shareholding in OLA by MacRitchie from some of its existing shareholders;

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4.2. Acquisition of ~1.15% shareholding in OLA by Fort Canning from some of its existing shareholders;

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4.3. Fort Canning and MacRitchie having certain contractual rights in relation to OLA;

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4.4. Authorisation to to exercise voting rights available under applicable

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(Combination Registration No. C-2021/07/849)

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law with respect to and

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certain contractual rights available to

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, as the case

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may be, as part of the Proposed Combination;

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4.5. Right of to receive from

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upon occurrence of certain events;

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4.6.

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right of , pursuant to which may require *

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, as the case may be, to transfer certain part of their shareholding under certain circumstances;

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4.7. Eligibility of to appoint director/observer on the board of directors of OLA, subject to an amendment to the SHA at a later time; and

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4.8. Tag along right of Fort Canning that if MacRitchie were to sell any of the shares in OLA acquired as a part of the Proposed Combination, Fort Canning will have the option to sell its shares in OLA.

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It has been submitted that pursuant to the share purchase agreements, acquisition of shares by Fort Canning is contingent upon closing of the acquisition by MacRitchie in OLA. However, under certain circumstances, Fort Canning shall have the option, to proceed with completion of the acquisitions. Further, MacRitchie and Fort Canning have entered into the Co-Sale Agreement for a tag-along right. It has been submitted that the acquisitions by MacRitchie and Fort Canning in OLA may be seen as being interconnected for the purpose of the Combination Regulations. Therefore, while the investments are separate and independent transactions, they are filed under a single notice in accordance with Regulation 9(4) of the Combination Regulations.

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It is observed that acquisition of shares, voting rights and/or control would require notice to the Commission under Section 6(2) of the Act, if the parties to the transaction meet the financial thresholds specified in Section 5 of the Act unless the notification

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(Combination Registration No. C-2021/07/849)

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requirement is dispensed with pursuant to the Combination Regulations or the notification issued under Section 54 of the Act. In a company, equity shareholders would ordinarily have right to vote on the matters placed for consideration in the general meeting. The extent of voting rights is largely synchronised with the extent of equity shareholding. However, a person could acquire voting rights pursuant to a contractual arrangement with shareholder(s) such as the right of to exercise the voting rights of . The said acquisition by is an inter-

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connected step to the other steps of the Proposed Combination and has been notified to the Commission. It is observed that even if such transaction is entered into on a standalone basis, it would qualify as a combination and accordingly, require notice to the Commission under Section 6(2) of the Act.

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It has been submitted that the economic benefit arising from an agreement envisaging right of upon occurrence

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of certain events is not an acquisition / merger / amalgamation under the scheme of the Section 5 of the Act. In this regard, it may be noted that any inter-connected step of a combination cannot be seen in isolation for the purpose of appreciating the scope of combination, its purpose, effect on markets as well as exemption(s). It may be relevant to state that sub-regulations (4) and (5) read with Item 5.1.2 and 5.1.3 of Form I of Schedule II to the Combination Regulations clarifies such position.

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beyond the specified extent. It is observed that such right to accrues only upon the to

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the specified extent. Therefore, the Commission observed that the requirement to give notice in terms of Section 6(2) of the Act regarding such potential acquisition shall be determined at the time when the right to exercise has accrued.

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MacRitchie is an investment holding company. It is an indirect wholly owned subsidiary

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of Temasek Holdings (Private) Limited ( Temasek ).

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Fort Canning is an investment holding company wholly owned by Broad Peak Master Fund II Ltd.

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Mr. Bhavish is founder and executive director of OLA.

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OLA is inter alia engaged in providing an online platform for the facilitation of transportation services and the creation of technologies, designs, and development of solutions, to facilitate transportation services. OLA is also engaged in other activities through other entities ( OLA Entities ).

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The Proposed Combination inter alia envisages acquisition of in OLA by Mr. Bhavish. Thus, the same merit assessment considering the interest of Mr. Bhavish in entities other than OLA. It has been submitted that such entities do not exhibit horizontal overlaps, vertical relationships or complementary overlap with the business activities of OLA.

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It has been submitted there are no overlaps between Fort Canning and OLA. Further, none of the its affiliates are engaged in activities which exhibit any horizontal, vertical or complementarity overlap with the activities of OLA.

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Devyani International Limited ( Devyani ), a portfolio company of Temasek, operates stores for the brands “KFC”, “Pizza Hut”, and “Costa Coffee” “Vaango” and “The Food Street”. Further, Temasek has stake in Curefit Healthcare Private Limited ( CureFit ) that operates a health and fitness mobile application. As part of its digital health services through Eat.fit cloud kitchens, it also offers Indian food to customers in Bangalore and Coimbatore. OLA operates certain quick service restaurant(s). Thus, the activities of Temasek and OLA exhibit horizontal overlap.

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Temasek, through Singapore Telecommunications Limited ( Singtel ), has an interest in

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Bharati Airtel Limited ( Bharati Airtel ), which inter alia operates a mobile wallet viz . Airtel Money. Activities of Airtel Money are similar to mobile wallet of Ola Financial Services Private Limited ( OFS ), one of the Entities, viz. OlaMoney . Further, Fullerton Financials Holdings Pte. Limited, a portfolio company of Temasek, and Ola Financial are active distribution of insurance policies.

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Further, OlaMoney could serve as a mode of payment at restaurants of Devyani. Thus, the business activities of Devyani exhibit a vertical/ complementary interface with payments activities OLA. Further, ANI has a non-exclusive subsisting arrangement with two portfolio entities of Temasek viz. Qwikcilver Solutions Private imited ( Qwikcilver ); and IndiaIdeas.com Limited ( Billdesk ). Qwikcilver is engaged in provision of gift card and corporate rewards solutions. OLA procures gift cards / vouchers from Qwikcilver to gift / distribute to its consumers. Consumers of OLA may subsequently redeem these gift cards/ vouchers on a third-party website. Billdesk is inter alia engaged in provision of services, which assist utility companies and businesses to receive payments from their customers. OFS has a “wallet at merchant channel services” arrangement with Billdesk for provision of payment gateway services. This arrangement enables Billdesk to facilitate payments made by customers through “OlaMoney” on the websites / point-ofsales of billing companies and merchants.

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It is observed that the presence of parties and/or their affiliates in the above-mentioned business activities or the incremental market share as result of the Proposed Combination, as the case may be, is not likely to raise any competition concern.

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Considering the facts on record including details provided in the Notice given under Section 6(2) of the Act and assessment of the Proposed Combination based on the factors stated in Section 20(4) of the Act, the Commission is of the opinion that the Proposed Combination is not likely to have any appreciable adverse effect on competition in India in any of the relevant market(s) and therefore, the Commission hereby approves the same under Section 31(1) of the Act.

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