CHAPTER- I INTRODUCTION

Transcription

1 CHAPTER- I INTRODUCTION The financial system of a country is a complex and closely integrated set of sub systems of financial institutions, markets, instruments and financial services which facilitate the transfer and allocation of funds efficiently and effectively. The Indian financial system consists of both organized (formal) and unorganized (informal) segments. The formal financial system comes under the purview of Ministry of Finance, Reserve Bank of India, Securities and Exchange Board of India and other regulatory bodies. Financial institutions are the intermediaries who facilitate in mobilizing savings and allocation of funds in an efficient manner and include banking and non banking institutions. Financial markets provide the transmission mechanism whereby various participants demands and requirements interact to set a price for financial claims. The main financial markets in India include the market for short term securities (money market) and for long term securities (capital market). Financial markets are also classified as primary and secondary markets. While the primary market deals in new issue of securities, the secondary market is meant for trading in existing securities (stock exchange and over the counter market). Primary equity market includes public issues, right issues, offer for shares and private placement of shares. Financial instruments represent the claims against a person or an institution for the payment at a future date, a sum of money and/or a periodic payment in the form of interest or dividend. Financial securities are classified as primary (direct) and secondary (indirect) securities. The primary securities are issued by the ultimate borrower of funds to the ultimate investor as shares and debentures while secondary securities are issued by the financial intermediaries to the ultimate savers (bank deposits, insurance policies, mutual funds etc.). Financial services are the services which facilitate financial transactions of individuals and institutional investors resulting in the resource allocation activities through time. These services bridge the gap between lack of knowledge on the part of investors and increasing sophistication of financial instruments and markets. Since the liberalization and deregulation of Indian economy, the financial services have found more scope of growth serving the investors and corporates in a big way. The Indian 1

2 economy, as a matter of fact, has experienced the last decade of 20 th century as the decade of financial services. There has been a major shift from bank finance to capital market for meeting the financial requirements of the corporate sector during this period. The emergence of different financial institutions and regulatory agencies has transformed the financial service sector from being a conservative industry to a very dynamic one. The financial service today is emerging as a strong industry world over and is termed as a Sunrise industry. One of the oldest and specialized financial services in the Indian capital market has been merchant banking service. The merchant bankers have not only helped in promoting trade and commerce between nations, but have also served the financial needs of the Kings, Monarchs and State Governments engaged in the continental wars. 1.1 Origin of Merchant Banking The origin of merchant banking is traceable to the developments of foreign trade and finance during the 13 th century. During this period, a few firms engaged in coastal trade and finance spread throughout the European continent were engaged both in commercial activities and banking activities. These firms also acted as the bankers to the Kings of the European States, financial coastal trade among European nations, bore exchange risk and security risk in financing the Kings, Monarchs and Governments engaged in continental wars. The main centre for world trade and finance at that time was Amsterdam, where the Dutch traders relied upon the expertise of merchant bankers (then known as commission agents) for financing of trade. During the seventeenth and eighteenth century, the Italian grain merchants also started merchant banking activities in Italy and France. It comprised of merchant bankers who intermediated in financing the transactions of the traders and their own trade also. The Italian merchant bankers introduced into England not only the bill of exchange, but also all the institutions and techniques connected with the organized money market. Thus, the modern merchant banking started from London where the merchants started to finance the foreign trade through acceptance of bill of exchange. The industrial revolution in England gave further boost to the merchant banking due to the growth of the home industry. 2

3 1.2 Meaning of Merchant Banking The term merchant banking is easier to understand than to define because one can only make an attempt to identify the services and activities coming within its purview. Very commonly, the merchant banking has been defined as to what a merchant banker does. 1 As stated by Sir Edward Reid, the term merchant bank is sometimes applied to banks who are not merchants, sometimes to merchants who are not banks, and sometimes to houses who are neither merchants nor banks 2. According to Michael T. Skully, Merchant banking within the same country may cover wide range of financial activities and in process include a number of different financial institutions 3. John Dick was of the view that due to the dynamic nature of functions of merchant banks, the meaning and definition of merchant banking has been changing. He has stated, of its very nature as merchant banking is always evolving the definitions supplied today would perhaps not be the same as they were three or four years ago 4. Hans- Peter Bauer has suggested that merchant bank should contain some eleven characteristics: high portion of decision-makers as a percentage of total staff, quick decision process, high density of information, intense contact with the environment, loose organizational structure, concentration of short and medium term engagements, emphasis on fee and commission income, innovative instead of repetitive operation, sophistical services on national and international level, low rate of profit distribution and high liquidity ratio 5. In the Indian context, merchant bank has been defined by V. Gangadhar and M. Sunder as a service activity. Accordingly, banking departments rendering non-fund based services of arranging funds rather than providing them to the needing industrial concerns is called merchant banking 6. As per the Securities and Exchange Board of India (Merchant Banker) Regulation, 1992, a merchant banker has been defined as Any person who is engaged in the business of issue management either by making arrangements regarding selling, buying or subscribing to securities as manager, consultant, adviser or rendering corporate advisory services in relation to such issue management. It is not necessary that merchant banker should do all activities associated with a merchant banker. One merchant banker may specialize in one activity only, and take up other activities also, which may be complementary, supportive or specialized activity. 3

4 Merchant banks are known as Accepting and issuing houses in UK and as Investment banks in USA. However, the services provided by these institutions differ from country to country Merchant Banks and Investment Banks Merchant banking and investment banking are interchangeable terms, but the practices and procedures followed in USA for selling the securities distinguish it with the rest of the world. Merchant banking is the function of intermediation in the capital market and is purely a fee based activity (except underwriting), whereas, investment banking is both fee and fund based activity. Merchant bankers assist issuer to raise capital and are responsible for successful management of capital issues. They have also the responsibility towards investors. The regulatory authorities require the merchant banking firms to observe a code of conduct and ensure compliance with the law on account and on behalf of issuer. Investment banking, however, is wider term. It provides capital by buying whole issues of securities and distributing them to the public. Thus, they perform the function of a middleman as originator of new issues, wholesaler of securities and responsible for sharing risk through underwriting operations. Investment banks also provide a host of specialized corporate advisory services in the area of project counseling, business and financial counseling and merger and acquisitions. 1.3 Merchant Banking in India Agency houses were the traditional name given to the merchant trading in India and Far East. During 1813, trade and commerce developed in India through the agency houses based in London. John Palmer & Co. was the leading agency house during this period and it operated the banking activities from Calcutta. These agency houses had employed their growing capital in trade and commerce. Thomas Skinner s annual directories London Banks (1880) traces the origin and growth of merchant banking activities in India and Far East. An Anglo-American merchant bank (Baring Brothers) moved into the financing of India and Far Eastern trade during When the First World War broke out, there were as many as twenty one financial firms with considerable commitment in Central Europe and at least eighteen firms with major interest in India and Far East. 4

5 Crooper Benson & Co, the premier cotton importer of Europe was operating in India during 1820s and conducted major trade for about three generations through Calcutta. They were followed by Ogilvy Gillanden & Co. in 1824 and Hong-Kong & Shanghai Bank in The foreign merchant bankers operated in India through an agency house which was known as East India House. It was representing a group that produced several merchant bankers during the 19 th century; two of them, that is, Gladstone and the Arbuthnot remained in East India trade. But the merchant bankers had to face stiff competition from Persian Finance House and ultimately failed. In the late 1860s, East India merchants had enough capital to invest in trade and they floated joint stock banks with their own investments. Despite the opposition from East India Company, some new banks were founded which included: Orient Bank in 1845, Chartered Bank of India and Chartered bank of Asia in 1853, Chartered Mercantile Bank of India, London; and Agra & United Provinces Bank in These banks were operating not only in the area of banking, but were also financing trade transactions. London based merchant bankers had full control over the management of these banks through their Managing Agents. The managing agency system devised by these merchant bankers gave major fillip to trading and banking activities of foreign merchants in India. The managing agency system enabled a single firm to look after a number of firms in complimentary industries 7. As a result, the banking industry developed in India on the full support of London based merchant bankers Managing Agency System as Merchant Banking The London based merchants and merchant bankers entered into manufacturing and trading activities through managing agents and they owned large proportions of securities of the companies floated by them. They also distributed a large number of securities amongst their friends and relatives. Merchant banking did not develop in India because of the monopoly of these managing agents and managing agency houses performed the functions to be performed by merchant bankers in India. They acted as issue houses of securities, planning for long term investment, providing risk capital and undertook preliminary investigation of projects. In 1951, more than 600 industrial establishments were managed under the managing agency system out of which 200 establishments were controlled and 5

6 managed by nine leading British managing agency houses, namely, Andrew Yule, Meleods, Martin Bird, Jardine, Henderson, Duncan, Octavins, Gillanders and British India Corporation. In the pre world war-ii era, Indian managing agency houses were established on the British pattern and started as family business but later on, these converted into partnership and public limited companies. These managing agency houses included Tatas, Birlas, Dalmias, Singhanias, Thapars, Bhadanis, Narangs, Ruias Podders and JKs 8. With a view to provide adequate information to investors, an amendment was made in Indian Companies Act, 1936 which made it obligatory to include in the prospectus, the names of the underwriters, commission payable to them and a statement by the directors that underwriters have requisite financial resources. The contracts between the company and the underwriters were also made accessible to the shareholders 9. As a result, capital market in India witnessed the emergence of increasing number of stock brokers in post world war-ii period. Companies Act was further amended to streamline the procedure for capital issues and it further facilitated the growth of capital market in India Merchant Banking in Post Independence Period India inherited an underdeveloped capital market from the British rulers. Managing agency system was more driven by their personal gains rather than being helpful in the development of capital market in the economy. After independence, Government of India adopted the model of planned economic development for the country and a need was felt to have a strong industrial base in the economy. Growth of Indian capital market was considered as one of the key areas for accelerating the pace of economic development by mobilising savings from household and business sector into the channel of investment for trade and industry. Drastic amendments were made in the legislative framework relating to growth of corporate sector, viz, Companies Act, Capital Issues (Control) Act, Banking Companies Act etc. The managing agency system was sought to be abolished. Post independence period up to the year 1969 saw the emergence of All India financial institutions like IFCI, ICICI, IDBI, LIC, UTI and commercial banks playing, in one way or other, the role of merchant banking in the Indian financial system. They had a significant role in underwriting the capital issues besides lending support to 6

7 broking houses for placing the issue through prospectus before the public for subscription. But the growth of the capital market remained limited during this period. So the need for broad based merchant banking services was felt to meet the growing need for capital. The formal merchant banking service in Indian capital market was initiated in 1967, when Reserve Bank of India (RBI) granted licence to The National Grindlays Bank to perform the services relating to issue management. The Bank started merchant banking services by opening merchant banking Division within the bank in The First National City Bank followed the Grindlays Bank by opening a Management Consultant Division in Both these banks acted as managers to the issues. In 1971, Stock Exchange Division under the Ministry of Finance examined the merchant banking role of these foreign banks vis-à-vis the old existing organization of stock brokers. It came to the conclusion that the services rendered by these foreign merchant bankers were not different from those what the Indian investment broking firms have been extending to new issues. These banks did not handle any issue promoted by new entrepreneurs or any small issues during this period. Also, they could not provide any new skill and expertise in the area of merchant banking activities. With a view to end monopoly of these foreign banks in merchant banking activities, the Govt. traced out the possibility of commercial banks to undertake the management and underwriting of public issues. Banking Commission 1972, in its report considered the need for specialized financial institutions and banks which could provide facilities like backing the issue, underwriting and distribution of capital issues. The Commission suggested not only the commercial banks, but also other institutions may also be allowed to set up merchant banking institutions subject to proper safeguards to ensure integrity to the operations. On the recommendations of Banking Commission, State Bank of India (SBI) became the first Indian bank to start with the merchant banking activities in by opening Merchant Banking Division at its head office in Bombay and sub offices as management banking bureau at the other major cities. The other commercial banks that followed the SBI were Central Bank of India, Bank of India and Syndicate Bank who started merchant banking services in 1977; Bank of Baroda, Chartered Bank and Mercantile Bank in 1978; Union Bank of India, UCO Bank, Punjab 7

8 National Bank, Canara Bank and Indian Overseas Bank undertook merchant banking activities in late 1970s and the early 1980s. Among the development banks, ICICI started merchant banking activities in 1973, followed by IFCI (1986) and IDBI (1991). Merchant banking divisions of commercial banks have been active in a narrow range of traditional merchant banking services, which mainly included issue management, underwriting and syndication of loans and provision of advisory services to corporate clients on fund raising and other financial aspects. Corresponding to the growth of capital market, the development of merchant bank scenario has been significant. Following the notification under section 6(1) (o) of the Banking Regulation Act, 1949, commercial banks were permitted during 1984 to set up subsidiaries for undertaking equipment leasing or investments in shares within the limits specified in section 19(2) of the above Act. The notification provided the real impetus to commercial banks and consequently a number of subsidiaries were established by them to undertake merchant banking activities. On August 1, 1986, State Bank of India established a wholly owned subsidiary namely, SBI Capital Market Ltd. to handle the merchant banking activities of the bank hitherto handled by its merchant banking division. The lead taken by SBI in launching a subsidiary exclusively for performing the merchant banking services has attracted the attention of other leading commercial banks in India. At the end of June 1992, there were nine merchant banking subsidiaries set up by commercial banks with prior approval of RBI Merchant Banking under SEBI Regulations SEBI, in exercise of the powers conferred under section 30 of the SEBI Act, 1992 has made the different regulations for almost all aspects of capital market. For regulating the activities of merchant bankers, the Board has enacted SEBI (Merchant Bankers) Regulations, The objectives of the merchant banking regulations has been stated by H.R.Machiraju 11 as follows: The merchant bankers regulations which seek to regulate the raising of funds in the primary market would assure for the issuer a market for raising resources at low cost, effectively and easily, ensure a high degree of protection of the interest of the investors and provide for the merchant bankers dynamic and competitive market with high standard of professional competence, honesty, integrity and solvency. The 8

9 regulations would promote a primary market which is fair, efficient, flexible and inspire confidence SEBI (Merchant Bankers) Regulations, 1992 SEBI (Merchant Bankers) Regulations, 1992 have provided five chapters. Chapter first states the definitions relating to the subject, chapter II contains the provisions for compulsory registration of merchant bankers with SEBI, capital adequacy requirements, renewal of certificate and fee payable to SEBI. Chapter III deals with the general obligations and responsibilities of merchant bankers including code of conduct to be observed while performing merchant banking activities. In chapter IV, procedure for inspection of books of accounts, records and documents of the merchant bankers by SEBI has been specified. Chapter V states the procedure for action against merchant bankers in case of default: suspension or cancellation of registration of merchant bankers by SEBI. Important provisions of the above regulations have been explained below:- (i) Classification of Merchant Bankers The SEBI has classified merchant bankers under four categories for the purpose of registration. Category-I can act as issue manager, advisor, consultant, underwriter and portfolio manager. Category-II can act as advisor, consultant, underwriter and portfolio manager. Category-III can act as underwriter, advisor and consultant only. Category-IV can act as consultant or advisor to the issue of capital. Thus, only Category-I merchant bankers could act as lead managers to an issue. However, with effect from December 9, 1997, different categories of merchant bankers were abolished and only Category-I merchant bankers are registered by the SEBI. (ii) Capital Adequacy Norms For registration of merchant bankers of various categories, SEBI has prescribed capital adequacy norms. Minimum net worth of category I was fixed at Rs crore which was further raised to Rs crore by an amendment in the regulations in For category II, the minimum net worth was fixed as Rs lakhs, while for category III, this amount was Rs lakhs. Category IV was not required to have any capital or net worth. 9

10 (iii) Restriction on Appointment of Lead Managers The regulations state that the number of lead merchant bankers (issue manager to the issue) may not exceed in the case of any issue of Size of the issue No. of lead managers (a) Less than Rs. 50 crore Two (b) Rs. 50 crore but less than Rs. 100 crore Three (c) Rs. Rs. 100 crore but less than Rs. 200 crore Four (d) Rs. 200 crore but less than Rs. 400 crore Five (e) Above Rs. 400 crore Five or more as may be agreed by the board. This restriction on the number of lead managers for an issue was omitted by an amendment in regulations on April 19, (iv) Responsibilities of Lead Managers The Regulations state that no lead manager shall agree to manage or be associated with any issue unless his responsibilities relating to issue mainly those of disclosures, allotment and refund are clearly defined, allocated and determined and a statement specifying such responsibilities is furnished to the Board at least one month before the opening of the issue for subscription: Provided that where there are more than one lead merchant bankers to the issue, the responsibilities of each of such lead merchant banker shall clearly be demarcated and a statement specifying such responsibilities shall be furnished to the Board at least one month before opening of the issue for subscription. (v) Underwriting Obligations In respect of every issue to be managed, the lead merchant banker holding a certificate under category I shall accept a minimum underwriting obligation of five percent of the total underwriting commitment or rupees twenty five lakhs, whichever is less: Provided that, if the lead merchant banker is unable to accept the minimum underwriting obligation, that lead merchant banker shall make arrangement for having the issue underwritten to that extent by a merchant banker associated with the issue, shall keep the Board informed of such arrangement. 10

11 (vi) Appointment of Compliance Officer (a) Every merchant banker shall appoint a compliance officer who shall be responsible for monitoring the compliance of the Act, rules and regulations, notifications, guidelines, instructions etc., issued by SEBI or the Central Government and for redressal of investors grievances. (b) The compliance officer shall immediately and independently report to SEBI any non-compliance observed by him and ensure that the observations made or deficiencies pointed out by SEBI on/in the draft prospectus or the letter of offer as the case may be, do not recur. However, during the period from , there was mushrooming of merchant bankers registered with SEBI. This was due to low entry barriers (i.e. minimum net worth of Rs crore for category I merchant bankers up to 1995). The number of merchant bankers in was only 74. However, the number of merchant bankers registered with SEBI rose to 422 in , 790 in , 1012 in and 1163 at the end of Out of the total 1163 merchant bankers at the end of , as many as 720 did not handle any assignment in any capacity and only 234 category I merchant bankers out of 435, were active in business of issue management. 130 merchant bankers were also issued show cause notice for their failure to meet underwriting commitments during During this period, merchant bankers in India were involved in many malpractices and they did not bother about the quality of issue, connived with promoters in floating bad issues and also in cheating investors through price rigging. Due to intense competition, merchant bankers vied with one another to attract issuing companies by assuring a good public response to even overpriced issues. There was a lack of proper appraisal of the issues by the merchant bankers SEBI (Merchant Bankers) (Amendment) Regulations, 1997 CRB Scam in the capital market in 1997 led to the amendment in the SEBI (Merchant Bankers) Regulations, CRB Capital Market, which was registered with SEBI as category-i merchant banker and had also obtained licence to act as non banking financial company from RBI collapsed in May 1997 due to bouncing of cheques issued by the company in favour of its fixed deposit investors. Then came the end of CRB group, which had floated around 133 subsidiaries and unlisted companies and had managed to raise around Rs. 900 crore from the public. Then came to light 11

12 the various irregularities on the part of RBI and loopholes in the regulatory frame work in context of merchant bankers functioning as a non banking financial institutions also. There was a lack of co-ordination between RBI and SEBI as in case of Non banking financial company performing fund based activities (Leasing, hire-purchase etc.) are controlled by RBI and their fee based activities ( merchant banking activities and underwriting) are regulated by SEBI. Consequently, SEBI (Merchant bankers) Amendment Regulations, 1997 was enacted w.e.f. 9 th December, Under this amendment, only body corporate was allowed to function as merchant bankers and multiple categories of merchant bankers were abolished. The new entity (merchant banker) was allowed to undertake only those activities which were related to securities market including issue management activities and was prohibited from carrying on fund based activities other than those related exclusively to the capital market. The SEBI regulations required that the applicant for the regulations of merchant banker should be a fit and proper person. In USA, The Glass-Steagall Act, 1933 separated commercial banking (i.e. deposit taking and loan granting functions) from investment banking (i.e. underwriting and trading functions). It prohibited any institution from having both the business. The main purpose behind the segregation was to prevent commercial banks from taking an extra-ordinary risk. However, this Act was repealed in November, With the enactment of SEBI ( Merchant Bankers) Amendment Regulation in 1997, the number of merchant bankers registered with SEBI also declined due to segregation of fund based and fee based activities, tightening regulations, increase in the requirement of net worth to rupees five crore and eligibility of only body corporate to be the merchant bankers. The number of merchant bankers declined from 802 in to 415 in and further to 186 in From onward, the number of SEBI registered merchant bankers varied from 145 to 150. On March 31, 2008, their number stood at 155 which increased to 164 at the end of March As a result, there has been a quantitative and qualitative change in merchant banking scenario in India and only professional merchant bankers, committed to the profession remained in the field due to tight control of SEBI. After the above amendments, measures like more transparency in disclosure requirements in offer documents, submission of prospectus to SEBI for approval, size 12

13 of the issue, its firm allotment to different categories of investors, free pricing through book building process and mandatory underwriting by lead managers have been introduced. 1.4 Functions/ Service of Merchant Bankers Merchant banking is dynamic in nature and so are the services provided by merchant bankers. Starting from meeting the financial requirements of the merchants engaged in overseas trade, the services provided by merchant bankers have increased manifold and are continuously changing. Changes in the types of services performed by merchant bankers can be attributed partly due to the changing economic environment and partly due to changing regulatory measures by the regulators. With the SEBI (Merchant Bankers) Amendment Regulations, 1997, the fee based and fund based services of merchant bankers have been segregated and merchant bankers are allowed to carry on the fee based services only. So now-a-days, the functions performed by merchaqnt bankers in India can be broadly classified as follows: i. Management of capital issues. ii. Consultant, adviser of the capital issues. iii. Corporate counseling iv. Project counseling. v. Underwriting of capital issues. vi. Capital restructuring services. vii. Portfolio management. viii. Loan/Credit syndication ix. Arranging working capital finance x. Arranging foreign currency finance. xi. Investment services to non-indian residents. xii. Merger and acquisition services xiii. Arranging venture capital xiv. Private placement of shares xv. Issue manager for PSUs divestment. xvi. Financial engineering. 13

14 1.4.1 Issue Management Activities of Merchant Bankers Mobilisation of resources from the capital market by way of public issues\offers for sale etc. calls an expert study and proper evaluation of the prevailing market conditions for which the companies seek the advice of merchant banks. Management of capital issues constitutes the most important aspect of the services of the merchant bankers in India. The managing agents for a particular corporate house used to manage public issues and raise capital from the market with the help of stock brokers. With the abolition of management agency system, this function has been taken over by the merchant bankers. From 1969 onwards, The National Grindlays Bank and Citi Bank introduced new procedures and techniques in the issue management services. They made the merchant banking as professional institution in the area of issue management through separate divisions in their banks known as Merchant Banking Division in Grindlays Bank and Investment Banking Division in Citi Bank. From 1969 to 1992, merchant bankers performed issue management activities under the legislative framework of Capital Issues (Control) Act, Under the SEBI (Merchant Bankers) Regulations, 1992, SEBI has made it mandatory for every public issue to be managed only by a registered merchant banker. The public issue of corporate securities involves basically three functions, namely (1) origination of the issue (2) risk bearing and risk averting and (3) marketing of the securities. The public issues are managed by the involvement of various intermediaries like underwriters, registrar to the issue, bankers to the issue, brokers, advertising agency, printers and legal advisers. Merchant banker as issue manager to the public issue plan, coordinate and control the entire issue activities and direct different intermediaries to contribute to the success of the issue. As merchant bankers play the role of apex intermediary in the issue management process, they are called lead manager(s) or lead merchant banker. In case of book building mechanism, the merchant banker has the primary responsibility of preparing and maintaining records of book building process. So, merchant banker is called book runner lead manager (BRLM). The issuer company can appoint more than one merchant banker as lead manager/brlm for its issue. Presently, public issue management activities by merchant bankers are regulated and monitored by SEBI through the guidelines and clarifications thereto; 14

15 circulars containing instructions to merchant bankers, stock exchanges and other constituents of the capital market. The procedure of the managing of public issue by a merchant banker is divided into two phases: 1. Pre Issue Management 2. Post Issue Management Pre Issue Management Steps required to be undertaken for pre issue management are as follows: i. Memorandum of Understanding with the issuer. ii. Obtaining stock exchange approval. iii. Acting as per SEBI guidelines. iv. Appointment of other intermediaries like Registrar to the issue, Bankers to the issue, Underwriter, Advertising agency and Printers etc. v. Drafting the prospectus and application from. vi. Obtaining approvals of draft prospectus from the company s legal advisers, underwriters, financial institutions/banks. vii. Appointment of Compliance Officer. viii. Filing the draft prospectus with SEBI. ix. Incorporating the suggestions/ comments of SEBI in the prospectus. x. Finalisation of prospectus. xi. Filing the final prospectus with SEBI and Registrar of Companies. xii. Agreement with Depositories for dematerialization of securities. xiii. Grading the IPO from credit rating agency. xiv. Publicity of the issue with road shows and advertisement. xv. Due diligence certificate. xvi. Fixing the dates for opening and closing the issue. xvii. Dispatch of issue material. xviii. Filing no complaints certificate with SEBI xix. Opening the subscription list. 15

16 Post Issue Management Post issue management activities of merchant bankers can be stated as follows: i. Confirmation of minimum subscription (90% of total issue amount) including devolvement from underwriters. ii. Supervision and co-ordination of allotment procedure. iii. Ensuring dispatch of allotment letters and refund order. iv. Listing of securities with stock exchange(s). v. To attend to the investors grievances regarding public issue. vi. Submission of post issue monitoring reports to SEBI. 1.5 Primary Capital Market in India Primary market is that constituent of capital market that deals with the issue of new securities such as equity shares, preference shares, debentures and bonds by the companies, governments or public sector institutions to the investors. This market is also called new issue market (NIM) and is composed of institutions through which funds can be obtained directly or indirectly. Primary market can be classified in various ways. The first category of new issues is by new companies and old companies. This classification was first suggested by R.F. Henderson. 12 The securities issued by companies for the first time either after the incorporation or conversion from private to public companies are designated as initial public offerings (IPOs), while those issued by listed companies which already have stock exchange quotation, either by public issue or by way of rights to existing shareholders, are referred as further public offers (FPOs). Public issue of securities dilutes the ownership stake and corporate control as it provides ownership to investors in the form of equity shares. It can be used as finance strategy or as exit strategy. As a finance strategy, its main purpose is to raise funds for the company for additional capital investment. It contributes towards economic development of the country. When used as an exit strategy, the existing shareholders (promoters, government. holding company etc.) can offload their equity holdings to the public. Govt. of India has been using the exit strategy in case of offer for sale of public sector undertakings shares to public (PSUs disinvestment). From the operational point of view, three types of services are performed in the functioning of primary market for channeling the investible funds into industrial 16

17 enterprises. These are origination, underwriting and distribution. The term origination refers to the work of investigation, and analysis and processing of new proposals. It includes the advice to the issuing company for determining the class of security and its price, timing and size of issue, method of flotation of security and so on. Underwriting in primary market is in the form of guarantee to the issuer to subscribe for the shares in case of under subscription by the public. The sale of securities to the ultimate investors is referred to as distribution. SEBI registered merchant banker(s) is appointed by the issuer company as lead manager (issue manager) to co-ordinate the performing of all these services in the primary market Methods of Issue of Securities in Primary Market Under the SEBI guidelines, the securities can be offered for sale in the primary market in different ways. Each method of issue has got its own procedure and mechanism. The various methods by which new issues are made include: (i) Public Issue through Prospectus It is a common method followed by corporate bodies to raise capital through the issue of securities. Under this method, a prospectus is issued to investing public for inviting subscription of securities. The issuing companies themselves offer directly to the general public, a fixed number of shares at the stated price. The shares may be issued at par, at premium or at discount. The prospectus, which is prepared as per the requirements of chapter VI of the SEBI guidelines, 2000 and the Companies Act, 1956 contains the details of all material information of the company and the issue. SEBI guidelines provide for and ensure through lead merchant banker, the full disclosure and transparency in the prospectus. The application forms together with a copy of prospectus are distributed among the public investors, who offer to buy a specific number of securities being issued by the companies. Now-a-days, a copy of prospectus is also put on the websites of SEBI, issuing company, designated stock exchange and lead merchant banker. A serious drawback of this method is that, it is very expensive. A high cost of floatation including underwriting expenses, brokerage and fee to other intermediaries and the administrative expenses are involved under this method. (ii) Offer through Book Building Method Public issue of securities through the book building process is relatively new concept in Indian capital market. It is a process of price discovery. As defined under 17

18 SEBI guidelines, book building means a process undertaken by which a demand for securities proposed to be issued by a body corporate is elicited as built up and the price for such securities is assessed for the determination of a quantum of such securities to be issued by means of a notice, circular, advertisement, document or information memoranda or offer document. So, issue price is not determined at the time of issue of securities under this process. Instead, price band (minimum and maximum limit of price) is determined. Bids are invited from prospective buyers stating the price as well as the number of shares, the investors are ready to buy. On the basis of bids received from the investors, the issue price is determined by the issuing company in consultation with book runner lead manager (merchant banker). So the issue price is fixed after the closure of the book. The order book remains open for a minimum period of five days. Specific guidelines have been issued by the SEBI in respect of book building process. Companies issuing securities through this process are required to issue red herring prospectus. On the recommendations of Malegam Committee, SEBI introduced the option of book building in October Initially this option of book building was available only for issues exceeding Rs. 100 crore. However, the requirement of Rs. 100 crore issue size was removed in November On the basis of recommendations made by the Informal Group on Primary Market, SEBI introduced 100 percent book building in respect of issues of Rs. 25 crore and above in So book building is a fair, transparent and market driven way of pricing and allocation of securities. (iii) Private Placement Method Another method to float new issues of capital is the placing method defined by London Stock Exchange as, sale by an issue house or broker or their own clients of securities which have been previously purchased or subscribed 13. Under this method, securities are purchased by the issue houses and are placed with the clients of issue houses, both individuals and institutional investors. Thus, the floatation of the securities involves two stages; at the first stage, shares are acquired by the issuing houses and at the second stage these are made available to their investor clients. The issue houses place the securities at a higher price than the price they pay and the difference, called the turn, is their remuneration. 18

19 Alternatively the issuing houses may arrange the placing of securities in return for a fee and act merely as an agent and not principal. Placing the securities that are unquoted is known as private placement. The securities are usually of small companies, but these may occasionally be of large companies as well. When the securities to be placed are newly quoted, the market is officially known as stock exchange placing 14. (iv) Offer for Sale Under this method, the issuing companies do not offer the securities directly to the public. Instead, the securities are issued to an issue house\merchant banker\investment bank or firms of stockbrokers, who will subsequently offer the securities for sale to the public. Sometimes, the existing shareholders (a holding company, government, promoters) may offer to offload their holding to the investors. This offer is made to the general public through offer for sale. The difference between the issue price by the company and the offer price by the issue house is the gain to the latter. Disinvestment of shares in PSUs by the government is offer for sale. This method is similar to public issue method in that the prospectus with strictly prescribed minimum contents which constitutes the foundation for the sale of securities and a known quantity of shares are distributed to the applicants in a non discriminatory manner. Contents of the letter of offer are given in chapter VI (section- III) of the SEBI guidelines, (v) Rights Issue The shares offered to the existing shareholders of a company are called rights issue. Under this method of capital issue, the existing shareholders are offered the right to subscribe shares in proportion to the number of shares they already hold. Section 81 of the Companies Act, 1956 provides that where a company increases its subscribed capital by the issue of new shares, either after two years of its formation or after one year of first issue of shares, whichever is earlier, these have to be first offered to the existing shareholders with a right to renounce them in favour of a nominee. A company can, however, dispense with this requirement by passing a special resolution to the same effect. Rights issues are normally not underwritten. This method of capital issues is comparably inexpensive than public issues through prospectus. 19

20 1.5.2 Regulatory Framework of Primary Market in India Primary securities market is regulated by the following governing bodies:- (i) Securities & Exchange Board of India (ii) Department of Economic Affairs (iii) Department of Company Affairs (iv) Stock Exchanges The significant legislations for the securities market are as follow:- (i) The Companies Act, It deals with issue, allotment and transfer of securities and various aspects relating to company management. It provides norms for disclosures in the public issues, regulations for underwriting and the issues pertaining to use of premium and discount on various issues. Powers under this Act are exercised by SEBI in case of listed companies. (ii) The Securities Contract (Regulation) Act, It provides regulation for direct and indirect control over stock exchanges. It aims at prevention of undesirable transactions in securities. The Act mainly governs the recognized stock exchanges, contracts in securities and listing of securities by public companies. Most of the powers under this Act are exercised by Department of Economic Affairs and SEBI. (iii) The SEBI Act, The Act empowers SEBI to protect the interest of investors in the securities market and to regulate the securities market. SEBI regulates the business of stock exchange and the intermediaries working in primary and secondary market. (iv) The Depositories Act, It provides for electronic maintenance and transfer of ownership of dematerialized securities. SEBI administers the regulations of this Act Growth and Development of Public Issue Market in India Under the Capital Issues (Control) Act, 1947, companies were required to obtain prior approval from the Controller of Capital Issues (CCI) for raising capital. CCI s permission was required with regard to the timing of the issue, size of the issue and the determination of price at which the securities were to be issued. New companies were allowed to issue shares only at par. Only existing companies with substantial reserves could issue shares at a premium, which had to be calculated in accordance with CCI norms which were based on the estimate of fair value and not 20

21 on the prevailing market price. This often led to extreme under pricing and heavy over subscription. This extent of under pricing of public issues deterred firms from going public. Debt played a major role in financing projects. The total amount of capital raised during 1961 was only Rs. 74 crore which increased to Rs crore during 1971 and further to Rs crore in The new issue market received an encouraging response in 1976 in the form of a number of issues and amount raised due to dilution of foreign equity holding to Indian investors under Foreign Exchange Regulation Act (FERA) Liberalization of industrial policy in gave a boost to the securities market in India. Further the relaxation of norms relating to foreign investment and incentives provided by the government helped to sustain the impetus of growth in the capital market. The total amount of capital raised by non government public companies rose to Rs crore in 1984, Rs crore in 1985 and further Rs core in As a part of liberalization and privatization policy in 1992, Government of India emphasized the need for a developed capital market and decided to have a separate statutory authority to regulate the capital market. Consequently, SEBI Act, 1992 was passed in Parliament and SEBI was made a statutory authority. The Capital Issues (Control) Act, 1947 was repealed and the office of CCI was abolished in May, As a result, government s control over the determination of issue size, time and price of securities ceased and the market was allowed to allocate resources on competitive basis. The initial set of guidelines issued by SEBI allowed almost all firms to freely price their issues and decide on the size of the issue in consultation with merchant bankers. Only firms without a three year track record of profitability and not belonging to a group with existing profitable firms were subject to price controls. The easing of norms made it easier for firms to access the capital market leading to a boom in Indian capital market. The period to saw a high increase in the number of public issues in India. During these five years, the total number of public issues floated was 4,822 with an annual average of 964 issues. The total amount offered through prospectus during this period stood at Rs. 56,286 crore with an annual average of Rs. 11,257 crore. The year saw a highest number of public issues (1428) raising an amount of Rs. 11,822 crore from the market. On the other hand, the highest amount of Rs. 13,443 crore was raised from 770 public issues in the year

22 However, the easy market entry norms were widely misused by the companies during this period. Many companies entered the market with issues at sky-high prices. Instead of business opportunities driving the IPO market, IPO became a business itself. It led to mushrooming of merchant bankers and other market intermediaries. So, when the stock market crashed, a number of companies vanished from the scene and consequently, the investors lost heavily on their investments. A study conducted by Prime Database revealed that out of 3,872 issues made during the four year period ending on March 31, 1996, as many as 205 issues were not traded at all and 118 issuing companies vanished from the scene. On the other hand, 2,987 issues were traded below offer price as on January 14, Prices of only 562 issues were quoted above the offer price. As per a report of the Informal Group on Primary Market headed by Dr. Shankar Acharya, Chief Economic Adviser in the Finance Ministry, Indian investors suffered an erosion of nearly Rs. 15,000 crore on their investment in subscription to the public and rights issues since The group has found that select Indian companies raised an amount of Rs. 45,264 crore through a combination of public and rights issues in the primary market. On the other hand, the market value of these shares as assessed at Rs. 30,787 crore in February 1998 translated into a loss of Rs. 14,475 crore to the investors since the time of subscription to these issues. As per the report, overpricing of issues in the past has contributed to the depressed state of primary market. Investors, who had subscribed to primary market offerings were struck with their holdings as there was no easy exit route Public Issue Market during the Period of Study Primary capital market during the period under review started with a dismal note. While a total of 753 public issues were floated mobilizing a total amount of Rs. 11,648 crore during , it suddenly fell to 62 issues with an aggregate amount of just Rs. 3,061 crore in Various factors which adversely affected the primary market included declining industrial growth rate, lack of demand for investment goods, decline in investors confidence in the market and above all the stringent entry barriers imposed by SEBI. A line of demarcation was drawn in the services provided by merchant bankers and they were prohibited from carrying on fund based activities other than those related exclusively to the capital market. The main focus of reforms in the 22