Public offering of securities India
Synopsis Introduction IPO Unlisted Companies General conditions for doing an IPO in India IPO Process Issues PIPEs & QIPs Listed Companies Overview of Investments & Acquisitions in Listed Companies Key Legislations Issues Issues - Insider Trading and Takeover Regulations Conclusion 2
Introduction 3
Introduction Present Market Condition 4
Key Regulations 5
Overview of Key Regulations Companies Act, 1956. Central enactment to regulate the formation, financing, functioning and winding up of companies (private as well as public) SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 To govern all public issues by listed and unlisted companies, offers for sale, rights issues, preferential allotment, qualified institutions placement by listed companies Securities Contracts (Regulation) Act, 1956 To prevent undesirable transactions in securities by regulating the business of dealing therein Securities Contracts (Regulation) Rules, 1957 Rules promulgated under the Securities Contracts (Regulation) Act, 1956 which provide for detailed compliances 6
IPO Unlisted Companies: SEBI (ICDR) Regulations 7
Types of offers Types of offers Rights Public Preferential Issue QIPs Initial public offering Further public offering Fresh issue Offer for sale 8
Initial Public Offering When an unlisted company makes: a fresh issue of securities; or an offer for sale of its existing securities; or both for the first time to the public This is the trigger point for listing and trading of the issuer s securities 9
Regulatory Considerations Companies seeking a listing must adhere to the SEBI (ICDR) Regulations, SCR Rules and the listing requirements/policies of the stock exchange they wish to list on SEBI (ICDR) Regulations/SCR Rules FDI/FII policy Regulatory Considerations Listing Exchange Requirements/ Policies 10
Eligibility criteria 11
Eligibility for Unlisted Companies Criteria Net Tangible Assets (NTA) of at least INR 30 million in each of the preceding 3 years of which not more than 50% is held in monetary assets. (50% Limit not apply if Public Offer is made entirely through an offer for sale.) Distributable profits on both stand-alone and consolidated basis (under section 205 of the Act) in at least 3 out of immediately preceding 5 years. Net Worth of at least INR 10 million in each of the preceding 3 years. In case of change in name within the last 1 year, then at least 50% of the revenue for preceding year should be earned under the new name Issue size does not exceed 5 times the pre issue net worth Nishith Desai Associates 12
Contd Alternative Criteria Issue shall be through Book Building Route, with at least 50% to be mandatorily allotted to the Qualified Institutional Buyers (QIBs) OR The Project has at least 15% participation by Financial Institutions (FIs)/Scheduled Commercial Banks (SBs) of which at least 10% comes from the appraisers of the Project. In addition, at least 10% of the issue shall be allotted to QIBs. Minimum post There shall be a issue face value compulsory market capital of the making for at least company shall be INR 100 million 2 years from the date of listing the AND OR shares subject to certain conditions. 13
Additional Requirements All existing partly paid up shares should have been fully paid or forfeited before the issue No outstanding financial instruments with option to convert into equity shares at a later date Firm arrangements of finance through verifiable means towards 75% of the stated means of finance excluding the amount to be raised through proposed issue has to be made Company should have at least 1,000 prospective allottees in its Issue 14
Minimum offer to public The Department of Economic Affairs, Ministry of Finance has amended the Securities Contracts (Regulation) Rules 1956 to increase the minimum non-promoter holdings in Indian companies from 10% to 25% on June 4, 2010. The minimum threshold level of public holding to 25% for all listed companies and atleast 10% of post issue capital of the public sector undertaking. Unlisted firms that go public with a post-issue market capitalization of more than Rs. 40 billion, may go public with a 10% float initially, but will have to have a public float of 25% by increasing its public float by at least 5% a year. A llocation in the net offer to public category shall be made as follows: (a) not less than 35% to retail individual investors; (b) not less than 15% to non-institutional investors; (c) not more than 55% to QIBs, 5%of which shall be allocated to mutual funds: Provided that in case of an issue made in terms of 26 (2)(a) (i), at least 50% of the net offer to public shall be allotted to QIBs.
Pricing Fixed Price Offers Allowed to freely price the issue. Price is disclosed in the Offer document along with the detailed qualitative and quantitative factors justifying the price Book Building Price Red Herring Prospectus is filed which contains either the floor price or a price band along with the range within which the bids can move. Institutional Buyers and Underwriters then quote the price and quality at which they bid. Allotment is then finalized. The final prospectus with all the details including the final issue price is filed with ROC, completing the issue process 16
Promoter and Promoter Group 17
Promoters Promoter means a person or persons who are in over all control of the company who are instrumental in the formulation of a plan or programme pursuant to which securities are offered to the public; persons who are named in the prospectus as promoter. But does not include a director or officer of the issuer or a person, if acting as such merely in his/her professional capacity: a financial institution, scheduled bank, FII and MF merely by virtue of the fact that it holds ten per cent or more of the equity share capital of the issuer; 18
Promoter Group Promoter group includes Promoter and his/her immediate relative, In case promoter is a company any company in which promoter holds 10% or more or which holds 10% or more in promoter or any company in which 20% of equity capital is held by group of individuals or companies who holds 20% or more of the equity capital of the Issuer In case promoter is an individual any company in which 10% or more is held by promoter or an immediate relative of promoter or a firm or HUF in which promoter or immediate relative is a member and any company in which the above company holds 10% or more. Any HUF or firm in which the aggregate share of the promoter and his immediate relatives is equal to or more than 10% All persons whose shareholding is aggregated for the purpose of disclosing in the prospectus 19
Promoters Contribution and Lock-in 20
Minimum Promoter s Requirement In case of an unlisted company, the promoter shall contribute not less than 20% in the post-issue capital In case of listed company, the promoter shall participate either to the extent of 20% of the proposed issue or ensure post issue shareholding to the extent of 20% of the post issue share capital Promoters Contribution is required to be brought in before the issue opens 21
Exemption from Promoters Contribution In case of further issue of securities by a company which has been listed on a stock exchange for at least 3 years and has a track record of dividend payment for at least 3 immediately preceding years In case of company where no identifiable promoter or promoter group exists In case of right issues 22
What is not eligible as Promoters Contribution? The equity acquired during preceding 3 years before the offer documents are filed with the Board if it is: acquired for consideration than cash and revaluation of assets or capitalization of intangible assets is involved or resulting from a bonus issue, out of revaluation reserves or reserves created without accrual of cash resources Pledged securities held by Promoters Securities issued to the promoter during preceding 1 year, at a price lower than the price at which the equity is offered to the public shall not be eligible for computation of promoters contribution* *not applicable for unlisted government company/corporation/ SPV set up by any of them engaged in the infrastructure sector 23
Lock in Lock-in essentially means a freeze on the shares Necessary to ensure that Promoters have some interest in the Company after the issue of securities to the public Minimum Promoter Contribution is locked for a period of 3 years Excess Promoter s Contribution shall be locked-in for a period of 1 year 24
Lock in Entire pre issue capital other than promoter s contribution shall be locked in for a period of 1 year. Except: Held by VCFs or FVCI only if: Shares have been held by them for at least 1 year as on the date of filing the draft prospectus Held for a period of at least 1 year at the time of filing draft offer document with SEBI and being offered to the public though offer for sale* c) Pre-IPO shares held by employees other than promoters, which were issued under employee stock option or stock purchase scheme of the issuer company before the IPO * not applicable for unlisted govt. company/corporation engaged in the infrastructure sector 25
What is the process of an IPO? 26
Intermediaries to the Issue Book Running Lead Manager (s)/merchant Banker Registrar to the Issue Auditors Underwriters Legal counsels Syndicate members Escrow Bankers Bankers to the Issue IPO grading agency Monitoring Agency Printers Advertisement Agency 27
IPO Process 28
What kind of disclosures are made in the offer document? 29
Disclosure Requirements Definitions and Abbreviations Summary Risk Factors (internal and external) Capital structure of the Issuer Objects of the Issue Basis for Issue Price Business details of the Issuer Corporate structure and History of the Issuer Directors and Key Managerial Personnel Promoter and Promoter Group details Outstanding Litigations Regulations and Policies Financial Statements of the Issuer (restated) Management Discussion and Analysis Terms of the Issue Issue procedure Terms of Articles of Association of the Issuer Material contracts and documents of the Issuer Declaration 30
Changes from DIP to ICDR Key changes from the DIP Guidelines to the ICDR Regulations: Removal of the concept of Firm Allotments Preconditions to the Issue Amendment to the Eligibility Requirements Amendment of provisions regarding Promoters Contribution Restriction on transferability (lock-in) of promoters contribution Amendment to the provisions regarding the Disclosures to be made by the Issuer. Amendment of the provisions regarding Advertisement of the Issues Amendment of the provisions regarding Preferential Allotment Amendment to the provisions regarding QIPs Amendment to the provisions regarding Bonus Issues 31
Amendments to ICDR Amendment to add a new chapter that provides for separate and reduced thresholds for listing of securities of small and medium enterprises, notably provisions in relation to paidup capital threshold, filing of the offer document, underwriting, application size migration to and from a SME Exchange and Market-making. Reduction in the timeline between closure of an issue and subsequent listing of shares for public issues from 22 days to 12 days. Amendment requires a mandatory allotment of 30% of the total IDR issue, to the retail individual investors. 32
PIPEs and QIPs - Listed Companies 33
Overview of Key Legislations Companies Act, 1956. Central enactment to regulate the formation, financing, functioning and winding up of companies (private as well as public) SEBI (Issue of Capital and Disclosure Requirements) Regulation, 2009 To govern all public issues by listed and unlisted companies, offers for sale and rights issues by listed companies. SEBI (Prohibition of Insider Trading) Regulations, 1992 To prohibit persons from dealing in securities while in possession of unpublished price sensitive information SEBI (Substantial Acquisition and Takeover) Regulations, 2011 To ensure that the incumbent management of the target company is aware of the substantial acquisition, To ensure that in the process of substantial acquisition the security market is not distorted, and To ensure that the small investors are offered a choice to either sell their shares at a price generally higher than the prevailing market price or to continue as shareholders under the new dispensation. 34
ICDR Regulation Preferential Issues Types of Instruments - equity shares, fully or partly convertible debentures, fully or partly convertible preference shares, warrants or any other financial instrument convertible into or exchangeable for equity shares at a later date Eligibility Issuer is in compliance with the conditions for continuous listing of equity shares as specified in the listing agreement; Issuer shall not make preferential issue of specified securities to any person who has sold any equity shares of the issuer during the six months preceding the relevant date Person belonging to promoter(s) or the promoter group has previously subscribed to warrants of an issuer but failed to exercise the warrants, ineligible for one year from date of expiry of the tenure of the warrants or date of cancellation of warrants. A special resolution has been passed by its shareholders. 35
Preferential Allotment (Cont ) Pricing of the Issue - higher of the average of the weekly high and low of the closing prices of the related shares quoted on the stock exchange during the (a) six months or (b) two weeks preceding the relevant date. Relevant date would mean: Equity shares, the date 30 days prior to the date on which the meeting of shareholders is held to consider the proposed preferential issue:. Convertible securities, either the relevant date referred to in above or a date 30 days prior to the date on which the holders of the convertible securities become entitled to apply for the equity shares. Term of financial instruments - financial instruments that are convertible or exchangeable for equity shares at a future date can be converted at any time within 18 months from the date of issue of the relevant instrument Lock in of instruments Specified securities allotted to promoter or promoter group shall be locked-in for a period of 3 years from the date of allotment. Not more than 20% of the total capital of the issuer shall be locked-in for 3 years from the date of allotment. Any other person (including promoters/ promoters group) instruments allotted locked in for a period of 1 year from the date of allotment. The entire pre-preferential allotment shareholding of the allottees, if any, shall be locked-in from the relevant date upto a period of 6 months from the date of preferential allotment 36
SEBI ICDR Regulations Qualified Institutional Placement Types of Instruments - equity shares, fully or partly convertible debentures, fully or partly convertible preference shares, NCDs attached to warrants or any other financial instrument that are convertible into or exchangeable for equity shares at a later date Eligibility - a special resolution approving the qualified institutions placement and specifically stating that he allotment is proposed to be made through qualified institutions placement on the specified date. the equity shares of the same class, proposed to be allotted through qualified institutions placement have been listed on a recognised stock exchange having nation wide trading terminal for a period of at least one year prior to the date of issuance of notice to its shareholders for meeting to pass the special resolution. in compliance with the requirement of minimum public shareholding. no allotment shall be made, either directly or indirectly, to any qualified institutional buyer who is a promoter or any person related to promoters of the issue. 37
QIB (Cont.) Pricing of the Issue - higher of the average of the weekly high and low of the closing prices of the related shares quoted on the stock exchange during the two weeks preceding the relevant date. Term of financial instruments - financial instruments that are convertible or exchangeable for equity shares at a future date can be converted at any time within 60 months from the date of issue of the relevant instrument. Lock in - securities allotted under a QIP cannot be sold for 1 year from the date of allotment, except on the stock exchange. Minimum Number of Allottees: 2 where the issue size is < Rs. 250 crores 5 where the issue size is > Rs. 250 crores No single allottee shall be allotted more than fifty per cent. of the issue size. Minimum of 10% of eligible securities shall be allotted to mutual funds: 38
Insider Trading Regulations 39
Insider Trading Regulations Prohibit insiders / companies from dealing in securities while in possession of unpublished price sensitive information. insider - any person who (i) is or was connected with the co or is deemed to have been connected with the co, & who is reasonably expected to have access to unpublished price sensitive information in respect of securities of a co or (b) who has received or has had access to such unpublished price sensitive information; dealing in securities - an act of subscribing, buying, selling or agreeing to subscribe, to buy, sell or deal in any securities by any person either as principal or agent; person deemed to be a connected person" (i) a co under same mgmt or group or any subsidiary; (ii) an intermediary, (iii) merchant banker, STA, registrar to an issue, debenture trustee, broker, portfolio manager, Investment Advisor, sub- broker, Investment Company etc or an employee thereof who has a fiduciary relationship with the co;(iv) a member of BoD, or an employee, of a PFI; (v) an official or employee of a SRO recognised or authorised by Board of a regulatory body; (vi) a relative of any of the above; (vii) banker of co; (viii) relatives of the connected person; (ix) a concern, firm, etc in which certain connected persons have more than 10% of the holding or interest. Unpublished - information which is not published by the co or its agents and is not specific in nature. price sensitive information - any information which relates directly or indirectly to a co and which if published is likely to materially affect the price of securities of co. 40
Insider Trading : Due Diligence On the one hand, Insider Trading Regulations prohibit persons from dealing in securities while in possession of unpublished price sensitive information. On the other hand, investments are seldom made without the satisfactory completion of a legal, business and financial due diligence on investee companies. Pursuant to such diligence exercises, it is likely for a potential investor to discover material non-public information. Safeguards to avoid triggering the Insider Trading Regulations for investments in listed companies: Hiring a third party law firm to conduct necessary due diligence. This arrangement would limit the investor or its advisor/agent/ affiliate/representative receiving or having access to any unpublished price sensitive information. Providing a cooling off period between the due diligence and actual dealing in securities (on the assumption that any unpublished price sensitive information would be made public by the investee company during such cooling off period). 41
Takeover Code 42
Applicability of the Takeover Code Person (Acquirer) + Persons Acting in Concert (PAC) Shares means shares carrying voting rights, and includes any security which entitles the holder to exercise voting rights. Will include all depository receipts carrying entitlement to exercise voting rights. XYZ Shares, Voting Rights, Control Target Company control shall include: a. the right to appoint majority of the directors or b. to control the management or policy decisions exercisable by a person or persons acting individually or in concert, directly or indirectly including by virtue of their shareholding or management rights, shareholders agreement or voting agreement or in any other manner. An acquirer means any person who directly or indirectly acquires or agrees to acquire: a. shares b. voting rights c. control in a company either by himself or with Persons acting in concert ( PAC ) Target Company means a company and includes 1. Company established under legislation - central, state or provincial and 2. Whose shares are listed on a stock exchange. 43
Takeover Code Key Issues Who are PACs? Trigger Events for Disclosures and Public Announcements Change in Control Indirect Acquisitions & Conditional Offers Exempted Transactions Minimum Public Shareholding Non-Compete Fees 44
PACs & Deemed PACs "person acting in concert " (PAC) persons who, for a common objective or purpose of substantial acquisition of shares or voting rights, or, for gaining control over the target company, pursuant to an agreement or understanding (formal or informal), directly or indirectly co-operate by acquiring or agreeing to acquire shares or voting rights in the target company or control over the target company. Deemed PACs company + its holding company + its subsidiary or company under the same management directors of aforesaid companies and their associates company + its directors, or any person entrusted with the management of the funds of the company Promoters, members of promoter group and immediate relatives. mutual fund with sponsor or trustee or asset management company FII + sub accounts Merchant bankers with their clients who are acquirers portfolio managers with their clients as acquirers VCFs + sponsors banks, financial advisors, stock brokers of acquirers o Banks, financial advisors, stock brokers of a company which is a subsidiary or holding of the acquirer or relative of the acquirer (bank providing normal commercial banking services are excluded) Investment company with a person (as a director, fund manager, trustee or shareholder) having > 2% of the paid up capital of that company 45
Disclosures Trigger Events The acquirer should make necessary disclosures to the target company AND to each of the stock exchanges on which the target company s shares are listed wwithin 2 days of: (a) receipt of allotment intimation; or (b) acquisition of shares / voting rights, when such acquisition exceeds the following thresholds: 75% 74% 25% Every purchase or sale of 5% or more of the target company s share capital by an acquirer holding between 25% and the maximum permissible non-public Shareholding requires disclosure. 5% Any creeping acquisition entitling the acquirer to more than 25% or 75% shares or voting rights in the target company requires disclosure. 46
Public Announcement Trigger Events Public Announcement to purchase shares = minimum 26% of the voting capital of the company Creeping Acquisition: can acquire upto 5% every FY without making a PA Any acquisition of 5% or more of the voting rights in a compan Any acquisition entitling the acquirer to 25% or more of the voting rights in a company 47
Questions? 48
Disclaimer The information provided in this presentation is for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of this presentation, clients or otherwise, should act or refrain from acting on the basis of any content included in this presentation without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this presentation contains general information and may not be accurate or reflect current legal developments, verdicts or settlements. Nishith Desai Associates expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this presentation. 49
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