Part I|Part II|Part III|Part IV
In exercise of the powers conferred by section 30 of the Securities and Exchange Board of India
Act, 1992 (15 of 1992), the Board hereby makes the following regulations, namely:-
CHAPTER I PRELIMINARY
Short title and commencement.
1. (1) These regulations may be called the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
(2) They shall come into force on the date of their publication in the Official Gazette.
Definitions.
2. (1) In these regulations, unless the context otherwise requires:
(a) “Act” means the Securities and Exchange Board of India Act, 1992 (15 of 1992);
(b) “advertisement” includes notices, brochures, pamphlets, show cards, catalogues, hoardings, placards, posters, insertions in newspaper, cover pages of offer documents, pictures and films in any print media or electronic media, radio, television programme;
(c) “anchor investor” means a qualified institutional buyer 1 [who makes] an application for a value of ten crore rupees or more in a public issue made through the book building process in accordance with these regulations;
(d) “Application Supported by Blocked Amount (ASBA)” means an application for subscribing to a public issue or rights issue, along with an authorisation to Self Certified Syndicate Bank to block the application money in a bank account;
(e) “Board” means the Securities and Exchange Board of India established under section 3 of the Act;
(f) “book building” means a process undertaken to elicit demand and to assess the price for determination of the quantum or value of specified securities or Indian Depository Receipts, as the case may be, in accordance with these regulations;
(g) “book runner” means a merchant banker appointed by the issuer to undertake the book building process;
(h) “composite issue” means an issue of specified securities by a listed issuer on publiccum-rights basis, wherein the allotment in both public issue and rights issue is proposed to be made simultaneously;
(i) “control” shall have the same meaning as assigned to it under clause (c) of subregulation (1) of regulation 2 of the Securities and Exchange Board of India (Substantial Acquisitions of Shares and Takeovers) Regulations, 1997;
(j) “convertible debt instrument” means an instrument which creates or acknowledges indebtedness and is convertible into equity shares of the issuer at a later date at or without the option of the holder of the instrument, whether constituting a charge on the assets of the issuer or not;
(k) 2 [“convertible security” means a security which is convertible into or exchangeable with equity shares of the issuer at a later date, with or without the option of the holder of the security and includes convertible debt instrument and convertible preference shares;]
(l) “designated stock exchange” means a recognised stock exchange in which securities of an issuer are listed or proposed to be listed and which is chosen by the issuer as a designated stock exchange for the purpose of a particular issue of specified securities under these regulations:
Provided that where one or more of such stock exchanges have nationwide trading terminals, the issuer shall choose one of them as the designated stock exchange: Provided further that subject to the provisions of this clause, the issuer may choose a different recognised stock exchange as a designated stock exchange for any subsequent issue of specified securities under these regulations;
(m) 3 [(m) “employee” means a permanent and full-time employee, working in India or abroad, of the issuer or of the holding company or subsidiary company or of that material associate(s) of the issuer whose financial statements are consolidated with the issuer‘s financial statements as per Accounting Standard 21, or a director of the issuer, whether whole time or part time and does not include promoters and an immediate relative of the promoter (i.e., any spouse of that person, or any parent, brother, sister or child of that person or of the spouse);]
(n) “further public offer” means an offer of specified securities by a listed issuer to the public for subscription and includes an offer for sale of specified securities to the public by any existing holders of such securities in a listed issuer;
4 [(na) “General Corporate Purposes” include such identified purposes for which no specific amount is allocated or any amount so specified towards General Corporate Purpose or any such purpose by whatever name called, in the draft offer document filed with the Board:
Provided that any issue related expenses shall not be considered as a part of General Corporate Purpose merely because no specific amount has been allocated for such expenses in the draft offer document filed with the Board.]
(o) “green shoe option” means an option of allotting equity shares in excess of the equity shares offered in the public issue as a post-listing price stabilizing mechanism;
(p) “initial public offer” means an offer of specified securities by an unlisted issuer to the public for subscription and includes an offer for sale of specified securities to the public by any existing holders of such securities in an unlisted issuer;
(q) “issue size” includes offer through offer document and promoters‘ contribution;
(r) “issuer” means any person making an offer of specified securities;
(s) “key management personnel” means the officers vested with executive powers and the officers at the level immediately below the board of directors of the issuer and includes any other person whom the issuer may declare as a key management personnel;
(t) “listed issuer” means an issuer whose equity shares are listed in a recognised stock exchange;
(u) “net offer to public” means an offer of specified securities to the public but does not include reservations;
(v) “net worth” means the aggregate of the paid up share capital, share premium account, and reserves and surplus (excluding revaluation reserve) as reduced by the aggregate of miscellaneous expenditure (to the extent not adjusted or written off) and the debit balance of the profit and loss account;
(w) “non institutional investor” means an investor other than a retail individual investor and qualified institutional buyer;
(x) “offer document” means a red herring prospectus, prospectus or shelf prospectus and information memorandum in terms of section 60A of the Companies Act, 1956 in case of a public issue and letter of offer in case of a rights issue;
(y) “offer through offer document” means net offer to public and reservations;
(z) “preferential issue” means an issue of specified securities by a listed issuer to any select person or group of persons on a private placement basis and does not include an offer of specified securities made through a public issue, rights issue, bonus issue, employee stock option scheme, employee stock purchase scheme or qualified institutions placement or an issue of sweat equity shares or depository receipts issued in a country outside India or foreign securities;
(za) “promoter” includes:
(i) the person or persons who are in control of the issuer;
(ii) the person or persons who are instrumental in the formulation of a plan or programme pursuant to which specified securities are offered to public;
(iii)the person or persons named in the offer document as promoters: Provided that a director or officer of the issuer or a person, if acting as such merely in his professional capacity, shall not be deemed as a promoter: Provided further that a financial institution, scheduled bank, 5 [foreign portfolio investor other than Category III foreign portfolio investor] and mutual fund shall not be deemed to be a promoter merely by virtue of the fact that ten per cent. or more of the equity share capital of the issuer is held by such person; Provided further that such financial institution, scheduled bank and 6 [foreign portfolio investor other than Category III foreign portfolio investor] shall be treated as promoter for the subsidiaries or companies promoted by them or for the mutual fund sponsored by them;
(zb) “promoter group” includes:
(i) the promoter;
(ii) an immediate relative of the promoter (i.e., any spouse of that person, or any parent, brother, sister or child of the person or of the spouse); and
(iii) in case promoter is a body corporate:
(A) a subsidiary or holding company of such body corporate;
(B) any body corporate in which the promoter holds ten per cent. or more of the equity share capital or which holds ten per cent. or more of the equity share capital of the promoter;
(C) any body corporate in which a group of individuals or companies or combinations thereof which hold twenty per cent. or more of the equity share capital in that body corporate also holds twenty per cent. or more of the equity share capital of the issuer; and
(iv) in case the promoter is an individual:
(A) any body corporate in which ten per cent. or more of the equity share capital is held by the promoter or an immediate relative of the promoter or a firm or Hindu Undivided Family in which the promoter or any one or more of his immediate relative is a member;
(B) any body corporate in which a body corporate as provided in (A) above holds ten per cent. or more, of the equity share capital;
(C) any Hindu Undivided Family or firm in which the aggregate shareholding of the promoter and his immediate relatives is equal to or more than ten per cent. of the total; and
(v) all persons whose shareholding is aggregated for the purpose of disclosing in the prospectus under the heading “shareholding of the promoter group”: Provided that a financial institution, scheduled bank, 7 [foreign portfolio investor other than Category III foreign portfolio investor] and mutual fund shall not be deemed to be promoter group merely by virtue of the fact that ten per cent. or more of the equity share capital of the issuer is held by such person: Provided further that such financial institution, scheduled bank and 8 [foreign portfolio investor other than Category III foreign portfolio investor] shall be treated as promoter group for the subsidiaries or companies promoted by them or for the mutual fund sponsored by them;
(zc) “public issue” means an initial public offer or further public offer;
(zd) “qualified institutional buyer” means:
(i) a mutual fund, venture capital fund[, Alternative Investment Fund]9 and foreign venture capital investor registered with the Board;
(ii) a 10[foreign portfolio investor other than Category III foreign portfolio investor], registered with the Board;
(iii) a public financial institution as defined in section 4A of the Companies Act, 1956;
(iv) a scheduled commercial bank;
(v) a multilateral and bilateral development financial institution;
(vi) a state industrial development corporation;
(vii) an insurance company registered with the Insurance Regulatory and Development Authority;
(viii)a provident fund with minimum corpus of twenty five crore rupees;
(ix) a pension fund with minimum corpus of twenty five crore rupees;
(x) National Investment Fund set up by resolution no. F. No. 2/3/2005-DDII dated November 23, 2005 of the Government of India published in the Gazette of India;
11[(xi) insurance funds set up and managed by army, navy or air force of the Union of India;]
12[(xii) insurance funds set up and managed by the Department of Posts, India;]
13[(xiii) systemically important non-banking financial companies.]
(ze) “retail individual investor” means an investor who applies or bids for specified securities for a value of not more than 14[two lakhs] rupees;
(zf) “retail individual shareholder” means a shareholder of a listed issuer, who:
(i) 15[***]
(ii) applies or bids for specified securities for a value of not more than 16[two lakhs] rupees;
(zg) “rights issue” means an offer of specified securities by a listed issuer to the shareholders of the issuer as on the record date fixed for the said purpose;
(zh) “Schedule” means schedule annexed to these regulations;
(zi) “Self Certified Syndicate Bank” means a banker to an issue registered with the Board, which offers the facility of Application Supported by Blocked Amount;
(zj) “specified securities” means equity shares and convertible securities;
(zk) “stabilising agent” means a merchant banker who is responsible for stabilising the price of equity shares under a green shoe option, in terms of these regulations;
(zl) “syndicate member” means an intermediary registered with the Board and who is permitted to carry on the activity as an underwriter;
17[(zla) “systemically important non-banking financial company” means a non-banking financial company registered with the Reserve Bank of India and having a net-worth of more than five hundred crore rupees as per the last audited financial statements.]
(zm) “unlisted issuer” means an issuer which is not a listed issuer 18[;]
(zn) 19[“wilful defaulter” means an issuer who is categorized as a wilful defaulter by any bank or financial institution or consortium thereof, in accordance with the guidelines on wilful defaulters issued by the Reserve Bank of India and includes an issuer whose director or promoter is categorized as such.]
(2) All other words and expressions used but not defined in these regulations, but defined in the Act or the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Depositories Act, 1996 and/or the rules and regulations made thereunder shall have the same meaning as respectively assigned to them in such Acts or rules or regulations or any statutory modification or re-enactment thereto, as the case may be. Applicability of the regulations.
3. Unless otherwise provided, these regulations shall apply to the following:
(a) a public issue;
(b) a rights issue, where the aggregate value of specified securities offered is fifty lakh rupees or more;
(c) a preferential issue;
(d) an issue of bonus shares by a listed issuer;
(e) a qualified institutions placement by a listed issuer;
(f) an issue of Indian Depository Receipts 20[:]
21[Provided that the provisions of these regulations shall not apply to issue of securities under clause (b), (d) and (e) of sub-regulation (1) of regulation 9 of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.]
CHAPTER II – COMMON CONDITIONS FOR PUBLIC ISSUES AND RIGHTS ISSUES
General conditions.
4. (1) Any issuer offering specified securities through a public issue or rights issue shall satisfy the conditions of this Chapter at the time of filing draft offer document with the Board (unless stated otherwise in this Chapter) and at the time of registering or filing the final offer document with the Registrar of Companies or designated stock exchange, as the case may be.
(2) No issuer shall make a public issue or rights issue of specified securities:
(a) if the issuer, any of its promoters, promoter group or directors or persons in control of the issuer are debarred from accessing the capital market by the Board;
(b) if any of the promoters, directors or persons in control of the issuer was or also is a promoter, director or person in control of any other company which is debarred from accessing the capital market under any order or directions made by the Board;
(c) 22[***]
(d) unless it has made an application to one or more recognised stock exchanges for listing of specified securities on such stock exchanges and has chosen one of them as the designated stock exchange:
Provided that in case of an initial public offer, the issuer shall make an application for listing of the specified securities in at least one recognised stock exchange having nationwide trading terminals;
(e) unless it has entered into an agreement with a depository for dematerialisation of specified securities already issued or proposed to be issued;
(f) unless all existing partly paid-up equity shares of the issuer have either been fully paid up or forfeited;
(g) unless firm arrangements of finance through verifiable means towards seventy five per cent. of the stated means of finance, excluding the amount to be raised through the proposed public issue or rights issue or through existing identifiable internal accruals, have been made.
23[(3) Warrants may be issued along with public issue or rights issue of specified securities subject to the following:
(a) the tenure of such warrants shall not exceed 24[eighteen] months from their date of allotment in the public/rights issue;
(b) not more than one warrant shall be attached to one specified security 25[;] ]
(c) 26[the price or conversion formula of the warrants shall be determined upfront and at least 25% of the consideration amount shall also be received upfront;
(d) in case the warrant holder does not exercise the option to take equity shares against any of the warrants held by him, the consideration paid in respect of such warrant shall be forfeited by the issuer.]
27[(4) The amount for general corporate purposes, as mentioned in objects of the issue in the draft offer document filed with the Board, shall not exceed twenty five per cent of the amount raised by the issuer by issuance of specified securities.]
28[(5) No issuer shall make,
(a) a public issue of equity securities, if the issuer or any of its promoters or directors is a wilful defaulter; or
(b) a public issue of convertible debt instruments if,
(i) the issuer or any of its promoters or directors is a wilful defaulter, or
(ii) it is in default of payment of interest or repayment of principal amount in respect of debt instruments issued by it to the public, if any, for a period of more than six months.
(6) An issuer making a rights issue of specified securities, shall make disclosures as specified in Part G of Schedule VIII, in the offer document and abridged letter of offer, if the issuer or any of its promoters or directors is a wilful defaulter.
(7) In case of a rights issue of specified securities referred to in sub-regulation (6) above, the promoters or promoter group of the issuer, shall not renounce their rights except to the extent of renunciation within the promoter group.]
Appointment of merchant banker and other intermediaries.
5. (1) The issuer shall appoint one or more merchant bankers, at least one of whom shall be a lead merchant banker and shall also appoint other intermediaries, in consultation with the lead merchant banker, to carry out the obligations relating to the issue.
(2) The issuer shall, in consultation with the lead merchant banker, appoint only those intermediaries which are registered with the Board.
(3) Where the issue is managed by more than one merchant banker, the rights, obligations and responsibilities, relating inter alia to disclosures, allotment, refund and underwriting obligations, if any, of each merchant banker shall be predetermined and disclosed in the offer document as specified in Schedule I29[:]
30[Provided that where any of the merchant bankers is an associate of the issuer, it shall declare itself as a marketing lead manager and its role shall be limited to marketing of the issue.]
(4) The lead merchant banker shall, only after independently assessing the capability of other intermediaries to carry out their obligations, advise the issuer on their appointment.
(5) The issuer shall enter into an agreement with the lead merchant banker in the format specified in Schedule II and with other intermediaries as required under the respective regulations applicable to the intermediary concerned:
Provided that such agreements may include such other clauses as the issuer and the intermediary may deem fit without diminishing or limiting in any way the liabilities and obligations of the
merchant bankers, other intermediaries and the issuer under the Act, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Depositories Act, 1996 and the rules and regulations made thereunder or any statutory modification or statutory enactment thereof:
Provided further that in case of ASBA process, the issuer shall take cognisance of the deemed agreement of the issuer with Self Certified Syndicate Banks.
(6) An issuer shall, in case of an issue made through the book building process, appoint syndicate members and in the case of any other issue, appoint bankers to issue, at all mandatory collection centres as specified in Schedule III and such other collection centres as it may deem fit.
(7) The issuer shall appoint a registrar which has connectivity with all the depositories:
Provided that if issuer itself is a registrar to an issue registered with the Board, then another registrar to an issue shall be appointed as registrar to the issue:
Provided further that the lead merchant banker shall not act as a registrar to the issue in which it is also handling the post issue responsibilities.
Explanation: For the purpose of this regulation, in case of a book built issue, the lead merchant banker appointed by the issuer shall act as the lead book runner.
Filing of offer document.
6. (1) No issuer shall make,
(a) a public issue; or
(b) a rights issue, where the aggregate value of the specified securities offered is fifty lakh rupees or more, unless a draft offer document, along with fees as specified in Schedule IV, has been filed with the Board through the lead merchant banker, at least thirty days prior to registering the prospectus, red herring prospectus or shelf prospectus with the Registrar of Companies or filing the letter of offer with the designated stock exchange, as the case may be.
(2) The Board may specify changes or issue observations, if any, on the draft offer document within thirty days from the later of the following dates:
(a) the date of receipt of the draft offer document under sub-regulation (1); or
(b) the date of receipt of satisfactory reply from the lead merchant bankers, where the Board has sought any clarification or additional information from them; or
(c) the date of receipt of clarification or information from any regulator or agency, where the Board has sought any clarification or information from such regulator or agency; or
(d) the date of receipt of a copy of in-principle approval letter issued by the recognised stock exchanges.
(3) If the Board specifies changes or issues observations on the draft offer document, the issuer and lead merchant banker shall carry out such changes in the draft offer document and comply with the observations issued by the Board before registering the prospectus, red-herring prospectus or shelf prospectus, as the case may be, with the Registrar of Companies or filing the letter of offer with the designated stock exchange.
(4) The issuer shall, simultaneously while registering the prospectus, red herring prospectus or shelf prospectus with the Registrar of Companies or filing the letter of offer with the designated stock exchange or before the opening of the issue, file a copy thereof with the Board through the lead merchant banker.
(5) The lead merchant banker shall, while filing the offer document with the Board in terms of subregulation (1) and sub-regulation (4), file a copy of such document with the recognised stock exchanges where the specified securities are proposed to be listed.
(6) The offer document filed with the Board under this regulation shall also be furnished to the Board in a soft copy in the manner specified in Schedule V.
31[Security Deposit.
7. (1) The issuer shall deposit, before the opening of subscription list, and keep deposited with the stock exchange(s), an amount calculated at the rate of one per cent. of the amount of securities offered for subscription to the public.
(2)The amount specified in sub-regulation (1) shall be deposited in the manner specified by Board and/or stock exchange(s).
(3)The amount specified in sub-regulation (1) shall be refundable or forfeitable in the manner specified by the Board.]
Documents to be submitted before opening of the issue.
8. (1) The lead merchant bankers shall submit the following to the Board along with the draft offer document:
32[ (a) a certificate, confirming that an agreement has been entered into between the issuer and the lead merchant bankers as per the format specified in Schedule II;]
(b) 33[***]
(c) a due diligence certificate as per Form A of Schedule VI;
(d) in case of an issue of convertible debt instruments, a due diligence certificate from the debenture trustee as per Form B of Schedule VI;
34[ (e) a certificate confirming compliance of the conditions specified in Part C of Schedule VIII.]
(2) The lead merchant bankers shall submit the following documents to the Board after issuance of observations by the Board or after expiry of the period stipulated in sub-regulation (2) of regulation 6 if the Board has not issued observations:
(a) a statement certifying that all changes, suggestions and observations made by the Board have been incorporated in the offer document;
(b) a due diligence certificate as per Form C of Schedule VI, at the time of registering the prospectus with the Registrar of Companies;
(c) a copy of the resolution passed by the board of directors of the issuer for allotting specified securities to promoters towards amount received against promoters’ contribution, before opening of the issue;
(d) a certificate from a Chartered Accountant, before opening of the issue, certifying that promoters’ contribution has been received in accordance with these regulations, accompanying therewith the names and addresses of the promoters who have contributed to the promoters’ contribution and the amount paid by each of them towards such contribution;
(e) a due diligence certificate as per Form D of Schedule VI, immediately before the opening of the issue, certifying that necessary corrective action, if any, has been taken;
(f) a due diligence certificate as per Form E of Schedule VI, after the issue has opened but before it closes for subscription.
(3) The issuer shall, at the time of filing draft offer document with the recognised stock exchange where the specified securities are proposed to be listed, submit the Permanent Account Number, bank account number and passport number of its promoters to such stock exchange. Draft offer document to be made public.
9. (1) The draft offer document filed with the Board shall be made public, for comments, if any, for a period of at least twenty one days from the date of such filing, by hosting it on the websites of the Board, recognised stock exchanges where specified securities are proposed to be listed and merchant bankers associated with the issue.
(2) The lead merchant bankers shall, after expiry of the period stipulated in sub-regulation (1), file with the Board a statement giving information of the comments received by them or the issuer on the draft offer document during that period and the consequential changes, if any, to be made in the draft offer document.
35[(3) The issuer either on the date of filing the draft offer document with the Board or on the next day shall make a public announcement in one English national daily newspaper with wide circulation, one Hindi national daily newspaper with wide circulation and one regional language newspaper with wide circulation at the place where the registered office of the issuer is situated, disclosing to the public the fact of filing of draft offer document with the Board and inviting the public to give their comments to the Board in respect of disclosures made in the draft offer document.]
Fast Track Issue.
10. (1) Nothing contained in sub-regulations (1), (2) and (3) of regulation 6 and regulations 7 and 8 shall apply to a public issue or rights issue if the issuer satisfies the following conditions:
(a) the equity shares of the issuer have been listed on any recognised stock exchange having nationwide trading terminals for a period of at least three years immediately preceding the reference date;
(b) the average market capitalisation of public shareholding of the issuer is at least 36[one thousand crore rupees in case of public issue and two hundred and fifty crore rupees in case of rights issue];
(c) the annualised trading turnover of the equity shares of the issuer during six calendar months immediately preceding the month of the reference date has been at least two percent. of the weighted average number of equity shares listed during such six months’period:
37[Provided that for issuers, whose public shareholding is less than fifteen per cent. of its issued equity capital, the annualised trading turnover of its equity shares has been at least two per cent. of the weighted average number of equity shares available as free float during such six months’ period;]
(d) the issuer has redressed at least ninety five per cent. of the complaints received from the investors till the end of the quarter immediately preceding the month of the reference date;
(e) the issuer has been in compliance with the equity listing agreement for a period of at least three years immediately preceding the reference date:
38[Provided that if the issuer has not complied with the provision of the equity listing agreement relating to composition of board of directors, for any quarter during the last three years immediately preceding the reference date, but is compliant with such provisions at the time of filing of offer document with the Registrar of Companies or designated stock exchange, as the case may be, and adequate disclosures are made in the offer document about such non-compliances during the three years immediately preceding the reference date, it shall be deemed as compliance with the condition] 39[:]
40[Provided further that imposition of only monetary fines by stock exchanges on the issuer shall not be a ground for ineligibility for undertaking issuances under this regulation;]
(f) the impact of auditors’ qualifications, if any, on the audited accounts of the issuer in respect of those financial years for which such accounts are disclosed in the offer document does not exceed five per cent. of the net profit or loss after tax of the issuer for the respective years;
(g) no show-cause notices have been issued or prosecution proceedings initiated 41[by the Board] or pending against the issuer or its promoters or whole time directors as on the reference date;
42[(ga) the issuer or promoter or promoter group or director of the issuer has not settled any alleged violation of securities laws through the consent or settlement mechanism with the Board during three years immediately preceding the reference date;]
(h) the entire shareholding of the promoter group of the issuer is held in dematerialised form on the reference date 43[;]
44[(i) in case of a rights issue, promoters and promoter group shall mandatorily subscribe to their rights entitlement and shall not renounce their rights, except to the extent of renunciation within the promoter group or for the purpose of complying with minimum public shareholding norms prescribed under Rule 19A of the Securities Contracts (Regulation) Rules, 1957;
(j) the equity shares of the issuer have not been suspended from trading as a disciplinary measure during last three years immediately preceding the reference date;
(k) the annualized delivery-based trading turnover of the equity shares during six calendar months immediately preceding the month of the reference date has been at least ten per cent of the weighted average number of equity shares listed during such six months’period;
(l) there shall be no conflict of interest between the lead merchant banker(s) and the issuer or its group or associate company in accordance with applicable regulations.]
(2) The issuer shall file the offer document with the Board and the recognised stock exchanges in accordance with sub-regulations (4), (5) and (6) of regulation 6 and shall pay fees to the Board as specified in Schedule IV.
(3) The lead merchant bankers shall submit to the Board, the following documents along with the offer document:
(a) a due diligence certificate as per Form A of Schedule VI including additional confirmations as specified in Form F of Schedule VI;
(b) in case of a fast track issue of convertible debt instruments, a due diligence certificate from the debenture trustee as per Form B of Schedule VI.
Explanation: For the purposes of this regulation:
(I) “reference date” means:
(a) in case of a public issue by a listed issuer, the date of registering the red herring prospectus (in case of a book built issue) or prospectus (in case of a fixed price issue) with the Registrar of Companies; and
(b) in case of a rights issue by a listed issuer, the date of filing the letter of offer with the designated stock exchange.
(II) “average market capitalisation of public shareholding” means the sum of daily market capitalisation of public shareholding for a period of one year up to the end of the quarter preceding the month in which the proposed issue was approved by the shareholders or the board of the issuer, as the case may be, divided by the number of trading days.
(III) “public shareholding” shall have the same meaning as assigned to it in the equity listing agreement.
Opening of an issue.
11. (1) Subject to the compliance with sub-section (4) of section 60 of the Companies Act, 1956, a public issue or rights issue may be opened:
(a) within twelve months from the date of issuance of the observations by the Board under regulation 6; or
(b) within three months of expiry of the period stipulated in sub-regulation (2) of regulation 6, if the Board has not issued observations:
Provided that in case of a fast track issue, the issue shall open within the period stipulated in sub-section (4) of section 60 of the Companies Act, 1956.
(2) In case of shelf prospectus, the first issue may be opened within three months of issuance of observations by the Board.
(3) The issuer shall, before registering the red herring prospectus (in case of a book built issue) or prospectus (in case of a fixed price issue) with the Registrar of Companies or filing the letter of offer with the designated stock exchange, as the case may be, file with the Board through the lead merchant bankers, an updated offer document highlighting all changes made in the offer document.
(4) Notwithstanding anything contained in this regulation, if there are changes in the offer document in relation to the matters specified in Schedule VII, the updated offer document or new draft offer document, as the case may be, shall be filed with the Board along with fees specified in Schedule IV.
45[(5) An issue shall be opened after at least three working days from the date of registering the red herring prospectus with the Registrar of Companies.]
Dispatch of issue material.
12. The lead merchant bankers shall dispatch the offer document and other issue material including forms for ASBA to the designated stock exchange, syndicate members, 46[registrar to issue and share transfer agents, depository participants, stock brokers,] underwriters, bankers to the issue, investors’ associations and Self Certified Syndicate Banks in advance.
Underwriting.
13. (1) Where the issuer making a public issue (other than through the book building process) or rights issue, desires to have the issue underwritten, it shall appoint the underwriters in accordance with Securities and Exchange Board of India (Underwriters) Regulations, 1993.
(2) Where the issuer makes a public issue through the book building process, such issue shall be underwritten by book runners or syndicate members:
47[Provided that atleast 48[seventy five per cent] of the net offer to the public proposed to be compulsorily allotted to qualified institutional buyers for the purpose of compliance of the eligibility conditions specified in sub-regulation (2) of regulation 26 and regulation 27, cannot be underwritten.]
(3) The issuer shall enter into underwriting agreement with the book runner, who in turn shall enter into underwriting agreement with syndicate members, indicating therein the number of specified securities which they shall subscribe to at the predetermined price in the event of undersubscription in the issue.
(4) If syndicate members fail to fulfil their underwriting obligations, the lead book runner shall fulfil the underwriting obligations.
(5) The book runners and syndicate members shall not subscribe to the issue in any manner except for fulfilling their underwriting obligations.
(6) 49[***]
(7) In case of every underwritten issue, the lead merchant banker or the lead book runner shall undertake minimum underwriting obligations as specified in the Securities and Exchange Board of India (Merchant Bankers) Regulations, 1992.
(8) Where hundred per cent. of the offer through offer document is underwritten, the underwriting obligations shall be for the entire hundred per cent. of the offer through offer document and shall not be restricted upto the minimum subscription level.
Minimum subscription.
14. (1) The minimum subscription to be received in an issue shall not be less than ninety per cent. of the offer through offer document 50[:]
51[Provided that in the case of an initial public offer, the minimum subscription to be received shall be subject to allotment of minimum number of specified securities, as prescribed in sub-clause (b) of clause (2) of rule 19 of Securities Contracts (Regulation) Rules, 1957.]
(2) In the event of non-receipt of minimum subscription referred to in sub-regulation (1), all application moneys received shall be refunded to the applicants forthwith, but not later than:
(a) fifteen days of the closure of the issue, in case of a non-underwritten issue; and
(b) seventy days of the closure of the issue, in the case of an underwritten issue where minimum subscription including devolvement obligations paid by the underwriters is not received within sixty days of the closure of the issue.
(3) The offer document shall contain adequate disclosures regarding minimum subscription as specified in Part A of Schedule VIII.
52[(4) Nothing contained in this regulation, except the requirement relating to allotment of minimum number of specified securities, shall apply to offer for sale of specified securities.] Explanation: For the purpose of clause (b) of sub-regulation (4), the term “infrastructure company”means, an enterprise wholly engaged in the business of (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility.
Oversubscription.
15. No allotment shall be made by the issuer in excess of the specified securities offered through the offer document:
Provided that in case of oversubscription, an allotment of not more than ten per cent. of the net offer to public may be made for the purpose of making allotment in minimum lots.
Monitoring agency.
16. (1) If the issue size53[, excluding the size of offer for sale by selling shareholders,] exceeds 54[one hundred] crore rupees, the issuer shall make arrangements for the use of proceeds of the issue to be monitored by a public financial institution or by one of the scheduled commercial banks named in the offer document as bankers of the issuer:
Provided that nothing contained in this clause shall apply to 55[ ] an issue of specified securities made by a bank or public financial institution 56[or an insurance company].
57[(2) The monitoring agency shall submit its report to the issuer in the format specified in Schedule IX on a quarterly basis, till at least ninety five percent of the proceeds of the issue,
excluding the proceeds under offer for sale and amount raised for general corporate purposes, have been utilized.]
58[(3) The Board of Directors and the management of the company shall provide their comments on the findings of the monitoring agency as specified in Schedule IX.
(4) The issuer shall, within forty five days from the end of each quarter, publically disseminate the report of the monitoring agency by uploading the same on its website as well as submitting the same to the stock exchange(s) on which its equity shares are listed.] Manner of calls.
17. If the issuer proposes to receive subscription monies in calls, it shall ensure that the outstanding subscription money is called within twelve months from the date of allotment in the issue and if any applicant fails to pay the call money within the said twelve months, the equity shares on which there are calls in arrear along with the subscription money already paid on such shares shall be forfeited: Provided that it shall not be necessary to call the outstanding subscription money within twelve months, if the issuer has appointed a monitoring agency in terms of regulation 16. Allotment, refund and payment of interest.
18. (1) The issuer and merchant bankers shall ensure that specified securities are allotted and/or application moneys are refunded within fifteen days from the date of closure of the issue.
(2) Where specified securities are not allotted and/or application moneys are not refunded within the period stipulated in sub-regulation (1), the issuer shall undertake to pay interest at such rate and within such time as disclosed in the offer document.
Restriction on further capital issues.
19. No issuer shall make any further issue of specified securities in any manner whether by way of public issue, rights issue, preferential issue, qualified institutions placement, issue of bonus shares or otherwise:
(a) in case of a fast track issue, during the period between the date of registering the red herring prospectus (in case of a book built issue) or prospectus (in case of a fixed price issue) with the Registrar of Companies or filing the letter of offer with the designated stock exchange and the listing of the specified securities offered through the offer document or refund of application moneys; or
(b) in case of other issues, during the period between the date of filing the draft offer document with the Board and the listing of the specified securities offered through the offer document or refund of application moneys;
unless full disclosures regarding the total number of specified securities and amount proposed to be raised from such further issue are made in such draft offer document or offer document, as the case may be.
Additional requirements for issue of convertible debt instruments.
20. (1) In addition to other requirements laid down in these regulations, an issuer making a public issue or rights issue of convertible debt instruments shall comply with the following conditions:
(a) it has obtained credit rating from one or more credit rating agencies;
(b) it has appointed one or more debenture trustees in accordance with the provisions of section 117B of the Companies Act, 1956 and Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993;
(c) it has created debenture redemption reserve in accordance with the provisions of section 117C of the Companies Act, 1956;
(d) if the issuer proposes to create a charge or security on its assets in respect of secured convertible debt instruments, it shall ensure that:
(i) such assets are sufficient to discharge the principal amount at all times;
(ii) such assets are free from any encumbrance;
(iii) where security is already created on such assets in favour of financial institutions or banks or the issue of convertible debt instruments is proposed to be secured by creation of security on a leasehold land, the consent of such financial institution, bank or lessor for a second or pari passu charge has been obtained and submitted to the debenture trustee before the opening of the issue;
(iv) the security/asset cover shall be arrived at after reduction of the liabilities having a first/prior charge, in case the convertible debt instruments are secured by a second or subsequent charge.
(2) The issuer shall redeem the convertible debt instruments in terms of the offer document. Roll over of non convertible portion of partly convertible debt instruments.
21. (1) The non-convertible portion of partly convertible debt instruments issued by a listed issuer, the value of which exceeds fifty lakh rupees, may be rolled over without change in the interest rate, subject to compliance with the provisions of section 121 of the Companies Act, 1956 and the following conditions:
(a) seventy five per cent. of the holders of the convertible debt instruments of the issuer have, through a resolution, approved the rollover through postal ballot;
(b) the issuer has, along with the notice for passing the resolution, sent to all holders of the convertible debt instruments, an auditors’ certificate on the cash flow of the issuer and with comments on the liquidity position of the issuer;
(c) the issuer has undertaken to redeem the non-convertible portion of the partly convertible debt instruments of all the holders of the convertible debt instruments who have not agreed to the resolution;
(d) credit rating has been obtained from at least one credit rating agency registered with the Board within a period of six months prior to the due date of redemption and has been communicated to the holders of the convertible debt instruments, before the roll over;
(2) The creation of fresh security and execution of fresh trust deed shall not be mandatory if the existing trust deed or the security documents provide for continuance of the security till redemption of secured convertible debt instruments;
Provided that whether the issuer is required to create fresh security and to execute fresh trust deed or not shall be decided by the debenture trustee.
Conversion of optionally convertible debt instruments into equity share capital.
22. (1) An issuer shall not convert its optionally convertible debt instruments into equity shares unless the holders of such convertible debt instruments have sent their positive consent to the issuer and non-receipt of reply to any notice sent by the issuer for this purpose shall not be construed as consent for conversion of any convertible debt instruments.
(2) Where the value of the convertible portion of any convertible debt instruments issued by a listed issuer exceeds fifty lakh rupees and the issuer has not determined the conversion price of such convertible debt instruments at the time of making the issue, the holders of such convertible debt instruments shall be given the option of not converting the convertible portion into equity shares:
Provided that where the upper limit on the price of such convertible debt instruments and justification thereon is determined and disclosed to the investors at the time of making the issue, it shall not be necessary to give such option to the holders of the convertible debt instruments for converting the convertible portion into equity share capital within the said upper limit.
(3) Where an option is to be given to the holders of the convertible debt instruments in terms of sub-regulation (2) and if one or more of such holders do not exercise the option to convert the instruments into equity share capital at a price determined in the general meeting of the shareholders, the issuer shall redeem that part of the instruments within one month from the last date by which option is to be exercised, at a price which shall not be less than its face value.
(4) The provision of sub-regulation (3) shall not apply if such redemption is in terms of the disclosures made in the offer document.
Issue of convertible debt instruments for financing.
23. No issuer shall issue convertible debt instruments for financing replenishment of funds or for providing loan to or for acquiring shares of any person who is part of the same group or who is under the same management:
Provided that an issuer may issue fully convertible debt instruments for these purposes if the period of conversion of such debt instruments is less than eighteen months from the date of issue of such debt instruments.
Explanation: For the purpose of this regulation:
(I) Two persons shall be deemed to be “part of the same group” if they belong to the group within the meaning of clause (ef) of section 2 of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) or if they own “inter connected undertakings within the meaning of clause
(g) of section 2 of the said Act;
(II) The expression “under the same management” shall have the same meaning as assigned to it in sub-section (1B) of section 370 of the Companies Act, 1956 (1 of 1956). Alteration of rights of holders of specified securities.
24. No issuer shall alter the terms (including the terms of issue) of specified securities which may adversely affect the interests of the holders of that specified securities, except with the consent in writing of the holders of not less than three-fourths of the specified securities of that class or with the sanction of a special resolution passed at a meeting of the holders of the specified securities of that class.
CHAPTER III – PROVISIONS AS TO PUBLIC ISSUE
PART I – ELIGIBILITY REQUIREMENTS
Reference date.
25. Unless otherwise provided in this Chapter, an issuer making a public issue shall satisfy the conditions of this Chapter as on the date of filing draft offer document with the Board and also as on the date of registering the offer document with the Registrar of Companies. Conditions for initial public offer.
26. (1) An issuer may make an initial public offer, if:
(a) it has net tangible assets of at least three crore rupees in each of the preceding three full years (of twelve months each), of which not more than fifty per cent. are held in monetary assets:
Provided that if more than fifty per cent. of the net tangible assets are held in monetary assets, the issuer has made firm commitments to utilise such excess monetary assets in its business or project;
59[Provided further that the limit of fifty per cent. on monetary assets shall not be applicable in case the public offer is made entirely through an offer for sale.]
60[(b) it has a minimum average pre-tax operating profit of rupees fifteen crore, calculated on a restated and consolidated basis, during the three most profitable years out of the immediately preceding five years.]
(c) it has a net worth of at least one crore rupees in each of the preceding three full years (of twelve months each);
(d) the aggregate of the proposed issue and all previous issues made in the same financial year in terms of issue size does not exceed five times its pre-issue net worth as per the audited balance sheet of the preceding financial year;
(e) if it has changed its name within the last one year, at least fifty per cent. of the revenue for the preceding one full year has been earned by it from the activity indicated by the new name.
61[(2) An issuer not satisfying the condition stipulated in sub-regulation (1) may make an initial public offer if the issue is made through the book-building process and the issuer undertakes to allot, at least seventy five percent of the net offer to public, to qualified institutional buyers and to refund full subscription money if it fails to make the said minimum allotment to qualified institutional buyers.]
(3) An issuer may make an initial public offer of convertible debt instruments without making a prior public issue of its equity shares and listing thereof.
(4) An issuer shall not make an allotment pursuant to a public issue if the number of prospective allottees is less than one thousand.
62[(5) No issuer shall make an initial public offer if there are any outstanding convertible securities or any other right which would entitle any person with any option to receive equity shares:] Provided that the provisions of this sub-regulation shall not apply to:
(a) a public issue made during the currency of convertible debt instruments which were issued through an earlier initial public offer, if the conversion price of such convertible debt instruments was determined and disclosed in the prospectus of the earlier issue of convertible debt instruments;
(b) outstanding options granted to employees pursuant to an employee stock option scheme framed in accordance with the relevant Guidance Note or Accounting Standards, if any, issued by the Institute of Chartered Accountants of India in this regard.
63[(c) fully paid-up outstanding convertible securities which are required to be converted on or before the date of filing of the red herring prospectus (in case of book-built issues) or the prospectus (in case of fixed price issues), as the case may be.]
(6) Subject to provisions of the Companies Act, 1956 and these regulations, equity shares may be offered for sale to public if such equity shares have been held by the sellers for a period of at least one year prior to the filing of draft offer document with the Board in accordance with subregulation (1) of regulation 6:
Provided that in case equity shares received on conversion or exchange of fully paid-up compulsorily convertible securities including depository receipts are being offered for sale, the holding period of such convertible securities as well as that of resultant equity shares together shall be considered for the purpose of calculation of one year period referred in this sub-regulation: Provided further that the requirement of holding equity shares for a period of one year shall not apply:
(a) in case of an offer for sale of specified securities of a government company or statutory authority or corporation or any special purpose vehicle set up and controlled by any one or more of them, which is engaged in infrastructure sector;
(b) if the specified securities offered for sale were acquired pursuant to any scheme approved by a High Court under sections 391-394 of the Companies Act, 1956, in lieu of business and invested capital which had been in existence for a period of more than one year prior to such approval64[;]
65[(c) if the specified securities offered for sale were issued under a bonus issue on securities held for a period of at least one year prior to the filing of draft offer document with the Board and further subject to the following, –
(i) such specified securities being issued out of free reserves and share premium existing in the books of account as at the end of the financial year preceding the financial year in which the draft offer document is filed with the Board ; and
(ii) such specified securities not being issued by utilization of revaluation reserves or unrealized profits of the issuer.]
66[(7) An issuer making an initial public offer may obtain grading for such offer from one or more credit rating agencies registered with the Board.]
Explanation: For the purposes of this regulation:
(I) “net tangible assets” mean the sum of all net assets of the issuer, excluding intangible assets as defined in Accounting Standard 26 (AS 26) issued by the Institute of Chartered Accountants of India;
(II) “project” means the object for which monies are proposed to be raised to cover the objects of the issue;
(III) In case of an issuer which had been a partnership firm, the track record of distributable profits of the partnership firm shall be considered only if the financial statements of the partnership business for the period during which the issuer was a partnership firm, conform to and are revised in the format prescribed for companies under the Companies Act, 1956 and also comply with the following:
(a) adequate disclosures are made in the financial statements as required to be made by the issuer as per Schedule VI of the Companies Act, 1956;
(b) the financial statements are duly certified by a Chartered Accountant stating that:
(i) the accounts and the disclosures made are in accordance with the provisions of Schedule VI of the Companies Act, 1956;
(ii) the accounting standards of the Institute of Chartered Accountants of India have been followed;
(iii) the financial statements present a true and fair view of the firm’s accounts;
(IV) In case of an issuer formed out of a division of an existing company, the track record of distributable profits of the division spun-off shall be considered only if the requirements regarding financial statements as provided for partnership firms in Explanation III are complied with;
(V) “bid-ask spread” means the difference between quotations for sale and purchase;
(VI) The term “infrastructure sector” includes the facilities or services as specified in Schedule X. Conditions for further public offer.
27. An issuer may make a further public offer if it satisfies the conditions specified in clauses (d) and (e) of sub-regulation (1) of regulation 26 and if it does not satisfy those conditions, it may make a further public offer if it satisfies the conditions specified in sub-regulation (2) of regulation 26.
PART II – PRICING IN PUBLIC ISSUE
Pricing.
28. (1) An issuer may determine the price of specified securities in consultation with the lead merchant banker or through the book building process.
(2) An issuer may determine the coupon rate and conversion price of convertible debt instruments in consultation with the lead merchant banker or through the book building process.
(3) The issuer shall undertake the book building process in a manner specified in Schedule XI.
29. Differential pricing.
An issuer may offer specified securities at different prices, subject to the following:
(a) retail individual investors or retail individual shareholders 67[or employees 68[***] entitled for reservation made under regulation 42 making an application for specified securities of value not more than 69[two lakhs] rupees,] may be offered specified securities at a price lower than the price at which net offer is made to other categories of applicants:
Provided that such difference shall not be more than ten per cent. of the price at which specified securities are offered to other categories of applicants;
(b) in case of a book built issue, the price of the specified securities offered to an anchor investor shall not be lower than the price offered to other applicants;
(c) in case of a composite issue, the price of the specified securities offered in the public issue may be different from the price offered in rights issue and justification for such price difference shall be given in the offer document.
70[(d) In case the issuer opts for the alternate method of book building in terms of Part D of Schedule XI, the issuer may offer specified securities to its employees at a price lower than the floor price:
Provided that the difference between the floor price and the price at which specified securities are offered to employees shall not be more than ten per cent. of the floor price.]
Price and price band.
30. (1) The issuer may mention a price or price band in the draft prospectus (in case of a fixed price issue) and floor price or price band in the red herring prospectus (in case of a book built issue) and determine the price at a later date before registering the prospectus with the Registrar of Companies: Provided that the prospectus registered with the Registrar of Companies shall contain only one price or the specific coupon rate, as the case may be.
(2) 71[* * *] The issuer shall announce the floor price or price band at least 72[five working days] before the opening of the bid (in case of an initial public offer) and at least one working day before the opening of the bid (in case of a further public offer), in all the newspapers in which the pre issue advertisement was released.
(3) The announcement referred to in sub-regulation (2) shall contain relevant financial ratios computed for both upper and lower end of the price band and also a statement drawing attention of the investors to the section titled “basis of issue price” in the prospectus.
73[(3A) The announcement referred to in sub-regulation (2) and the relevant financial ratios referred to in sub-regulation (3) shall be disclosed on the websites of those stock exchanges where the securities are proposed to be listed and shall also be pre-filled in the application forms available on the websites of the stock exchanges.]
(4) The cap on the price band shall be less than or equal to one hundred and twenty per cent. of the floor price.
(5) The floor price or the final price shall not be less than the face value of the specified securities. Explanation: For the purposes of sub-regulation (4), the “cap on the price band” includes cap on the coupon rate in case of convertible debt instruments.
Face value of equity shares.
31. (1) Subject to the provisions of the Companies Act, 1956, the Act and these regulations, an issuer making an initial public offer may determine the face value of the equity shares in the following manner:
(a) if the issue price per equity share is five hundred rupees or more, the issuer shall have the option to determine the face value at less than ten rupees per equity share:
Provided that the face value shall not be less than one rupee per equity share;
(b) if the issue price per equity share is less than five hundred rupees, the face value of the equity shares shall be ten rupees per equity share:
Provided that nothing contained in this sub-regulation shall apply to initial public offer made by any government company, statutory authority or corporation or any special purpose vehicle set up by any of them, which is engaged in infrastructure sector.
(2) The disclosure about the face value of equity shares (including the statement about the issue price being “X” times of the face value) shall be made in the advertisements, offer documents and application forms in identical font size as that of issue price or price band.
Explanation: For the purposes of this regulation, the term “infrastructure sector” includes the facilities or services as specified in Schedule X.
PART III – PROMOTERS’ CONTRIBUTION
Minimum promoters’ contribution.
32. (1) The promoters of the issuer shall contribute in the public issue as follows:
(a) in case of an initial public offer, not less than twenty per cent. of the post issue capital74[:]
75[Provided that in case the post issue shareholding of the promoters is less than twenty per cent., alternative investment funds may contribute for the purpose of meeting the shortfall in minimum contribution as specified for promoters, subject to a maximum of ten per cent of the post issue capital.]
(b) in case of a further public offer, either to the extent of twenty per cent. of the proposed issue size or to the extent of twenty per cent. of the post-issue capital;
(c) in case of a composite issue, either to the extent of twenty per cent. of the proposed issue size or to the extent of twenty per cent. of the post-issue capital excluding the rights issue component.
(2) In case of a public issue or composite issue of convertible securities, minimum promoters’contribution shall be as follows:
(a) the promoters shall contribute twenty per cent. as stipulated in clauses (a), (b) or (c) of sub-regulation (1), as the case may be, either by way of equity shares or by way of subscription to the convertible securities:
Provided that if the price of the equity shares allotted pursuant to conversion is not predetermined and not disclosed in the offer document, the promoters shall contribute only by way of subscription to the convertible securities being issued in the public issue and shall undertake in writing to subscribe to the equity shares pursuant to conversion of such securities.
(b) in case of any issue of convertible securities which are convertible or exchangeable on different dates and if the promoters’ contribution is by way of equity shares (conversion price being pre-determined), such contribution shall not be at a price lower than the weighted average price of the equity share capital arising out of conversion of such securities.
(c) subject to the provisions of clause (a) and (b) above, in case of an initial public offer of convertible debt instruments without a prior public issue of equity shares, the promoters shall bring in a contribution of at least twenty per cent. of the project cost in the form of equity shares, subject to contributing at least twenty per cent. of the issue size from their own funds in the form of equity shares:
Provided that if the project is to be implemented in stages, the promoters’ contribution shall be with respect to total equity participation till the respective stage vis-à-vis the debt raised or proposed to be raised through the public issue.
(3) In case of a further public offer or composite issue where the promoters contribute more than the stipulated minimum promoters’ contribution, the allotment with respect to excess contribution shall be made at a price determined in terms of the provisions of regulation 76 or the issue price, whichever is higher.
(4) The promoters shall satisfy the requirements of this regulation at least one day prior to the date of opening of the issue and the amount of promoters’ contribution shall be kept in an escrow account with a scheduled commercial bank and shall be released to the issuer along with the release of the issue proceeds:
Provided that where the promoters’ contribution has already been brought in and utilised, the issuer shall give the cash flow statement disclosing the use of such funds in the offer document; Provided further that where the minimum promoters’ contribution is more than one hundred crore rupees, the promoters shall bring in at least one hundred crore rupees before the date of opening of the issue and the remaining amount may be brought on pro-rata basis before the calls are made to public.
Explanation: For the purpose of this regulation:
(I) Promoters’ contribution shall be computed on the basis of the post-issue expanded capital:
(a) assuming full proposed conversion of convertible securities into equity shares;
(b) assuming exercise of all vested options, where any employee stock options are outstanding at the time of initial public offer in terms of proviso (b) to sub-regulation (5) of regulation 26.
(II) For computation of “weighted average price”:
(a) “weights” means the number of equity shares arising out of conversion of such specified securities into equity shares at various stages;
(b) “price” means the price of equity shares on conversion arrived at after taking into account predetermined conversion price at various stages.
Securities ineligible for minimum promoters’ contribution.
33. (1) For the computation of minimum promoters’ contribution, the following specified securities shall not be eligible:
(a) specified securities acquired during the preceding three years, if they are:
(i) acquired for consideration other than cash and revaluation of assets or capitalisation of intangible assets is involved in such transaction; or
(ii) resulting from a bonus issue by utilisation of revaluation reserves or unrealised profits of the issuer or from bonus issue against equity shares which are ineligible for minimum promoters’ contribution;
(b) specified securities acquired by promoters 76[ and alternative investment funds] during the preceding one year at a price lower than the price at which specified securities are being offered to public in the initial public offer:
Provided that nothing contained in this clause shall apply:
(i) if promoters77[/alternative investment funds, as applicable] pay to the issuer, the difference between the price at which specified securities are offered in the initial public offer and the price at which the specified securities had been acquired;
(ii) if such specified securities are acquired in terms of the scheme under sections 391-394 of the Companies Act, 1956, as approved by a High Court, by promoters in lieu of business and invested capital that had been in existence for a period of more than one year prior to such approval;
(iii) to an initial public offer by a government company, statutory authority or corporation or any special purpose vehicle set up by any of them, which is engaged in infrastructure sector;
(c) specified securities allotted to promoters 78[and alternative investment funds] during the preceding one year at a price less than the issue price, against funds brought in by them during that period, in case of an issuer formed by conversion of one or more partnership firms, where the partners of the erstwhile partnership firms are the promoters of the issuer and there is no change in the management:
Provided that specified securities, allotted to promoters against capital existing in such firms for a period of more than one year on a continuous basis, shall be eligible;
(d) specified securities pledged with any creditor.
(2) Specified securities referred to in clauses (a) and (c) of sub-regulation (1) shall be eligible for the computation of promoters’ contribution, if such securities are acquired pursuant to a scheme which has been approved under sections 391-394 of the Companies Act, 1956.
Explanation: For the purposes of clause (b) of sub-regulation (1), the term “infrastructure sector”includes the facilities or services as specified in Schedule X.
Requirement of minimum promoters’ contribution not applicable in certain cases.
34. The requirements of minimum promoters’ contribution shall not apply in case of:
(a) an issuer which does not have any identifiable promoter;
(b) a further public offer, where the equity shares 79[of the issuer] 80[***] are not infrequently traded in a recognised stock exchange for a period of at least three years and the issuer has a track record of dividend payment for at least immediately preceding three years:
Provided that where promoters propose to subscribe to the specified securities offered to the extent greater than higher of the two options available in clause (b) of sub-regulation(1) of regulation 32, the subscription in excess of such percentage shall be made at a price determined in terms of the provisions of regulation 76 or the issue price, whichever is higher.
(c) rights issues.
Explanation: For the purpose of clause (b), the words “infrequently traded” have the same meaning as assigned to them in Explanation to sub-regulation (5) of regulation 20 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 and the reference date for the purpose of computing the annualised trading turnover referred to in the said Explanation shall be the date of filing the draft offer document with the Board and in case of a fast track issue, the date of filing the offer document with the Registrar of Companies before opening of the issue.
PART IV – RESTRICTION ON TRANSFERABILITY (LOCK-IN) OF PROMOTERS’CONTRIBUTION, ETC.
Date of commencement of lock in and inscription of non-transferability.
35. (1) Save as otherwise provided in this Chapter, specified securities held by promoters and persons other than promoters shall not be transferable (hereinafter referred to as “lock-in’) from the date of allotment of the specified securities in the proposed public issue for the period stipulated in this Chapter .
(2) The certificate of specified securities which are subject to lock-in shall contain the inscription “non transferable” and the lock-in period and in case such specified securities are dematerialised, the issuer shall ensure that lock-in is recorded by the depository.
(3) Where the specified securities which are subject to lock-in are partly paid-up and the amount called-up on such specified securities is less than the amount called-up on the specified securities issued to the public, the “lock-in” shall end only on the expiry of three years after such specified securities have become pari-passu with the specified securities issued to the public.
Lock-in of specified securities held by promoters.
36. In a public issue, the specified securities held by promoters shall be locked-in for the period stipulated hereunder:
(a) minimum promoters’ contribution 81[ including contribution made by alternative investment funds, referred to in proviso to clause (a) of sub-regulation (1) of regulation 32,] shall be locked-in for a period of three years from the date of commencement of commercial production or date of allotment in the public issue, whichever is later;
(b) promoters’ holding in excess of minimum promoters’ contribution shall be locked-in for a period of one year:
Provided that excess promoters’ contribution as provided in proviso to clause (b) of regulation 34 shall not be subject to lock-in.
Explanation: For the purposes of this clause, the expression “date of commencement of commercial production” means the last date of the month in which commercial production in a manufacturing company is expected to commence as stated in the offer document.
Lock-in of specified securities held by persons other than promoters.
37. In case of an initial public offer, the entire pre-issue capital held by persons other than promoters shall be locked-in for a period of one year:
Provided that nothing contained in this regulation shall apply to:
(a) equity shares allotted to employees under an employee stock option or employee stock purchase scheme of the issuer prior to the initial public offer, if the issuer has made full disclosures with respect to such options or scheme in accordance with Part A of Schedule VIII;
82[(b) equity shares held by a venture capital fund or alternative investment fund of category I or a foreign venture capital investor:
Provided that such equity shares shall be locked in for a period of at least one year from the date of purchase by the venture capital fund or alternative investment fund or foreign venture capital investor.]
Explanation: For the purpose of clause (b), in case such equity shares have resulted pursuant to conversion of fully paid-up compulsorily convertible securities, the holding period of such convertible securities as well as that of resultant equity shares together shall be considered for the purpose of calculation of one year period and convertible securities shall be deemed to be fully paid-up, if the entire consideration payable thereon has been paid and no further consideration is payable at the time of their conversion.
Lock-in of specified securities lent to stabilising agent under green shoe option.
38. The lock-in provisions of this Chapter shall not apply with respect to the specified securities lent to stabilising agent for the purpose of green shoe option, during the period starting from the date of lending of such specified securities and ending on the date on which they are returned to the lender in terms of sub-regulation (5) or (6) of regulation 45:
Provided that the specified securities shall be locked-in for the remaining period from the date on which they are returned to the lender.
Pledge of locked-in specified securities.
39. Specified securities held by promoters and locked-in may be pledged with any scheduled commercial bank or public financial institution as collateral security for loan granted by such bank or institution, subject to the following:
(a) if the specified securities are locked-in in terms of clause (a) of regulation 36, the loan has been granted by such bank or institution for the purpose of financing one or more of the objects of the issue and pledge of specified securities is one of the terms of sanction of the loan;
(b) if the specified securities are locked-in in terms of clause (b) of regulation 36 and the pledge of specified securities is one of the terms of sanction of the loan. Transferability of locked-in specified securities.
40. Subject to the provisions of Securities and Exchange Board of India (Substantial Acquisition of shares and Takeovers) Regulations, 1997, the specified securities held by promoters and locked-in as per regulation 36 may be transferred to another promoter or any person of the promoter group or a new promoter or a person in control of the issuer and the specified securities held by persons other than promoters and locked-in as per regulation 37 may be transferred to any other person holding the specified securities which are locked-in along with the securities proposed to be transferred:
Provided that lock-in on such specified securities shall continue for the remaining period with the transferee and such transferee shall not be eligible to transfer them till the lock-in period stipulated in these regulations has expired.
PART V – MINIMUM OFFER TO PUBLIC, RESERVATIONS, ETC.
Minimum offer to public.
41. 83[ The minimum net offer to the public shall be subject to the provisions of clause (b) of sub-rule (2) of rule 19 of Securities Contracts (Regulations) Rules, 1957.] Reservation on competitive basis.
42. (1) In case of an issue made through the book building process, the issuer may make reservation on competitive basis out of the issue size excluding promoters’ contribution and net offer to public in favour of the following categories of persons:
(a) 84[employees; and in case of a new issuer, persons who are in the permanent and full time employment of the promoting companies excluding the promoters and an immediate relative of the promoter of such companies;]
(b) shareholders (other than promoters) of:
(i) listed promoting companies, in case of a new issuer; and
(ii) listed group companies, in case of an existing issuer:
Provided that if the promoting companies are designated financial institutions or state and central financial institutions, the shareholders of such promoting companies shall not be eligible for the reservation on competitive basis;
(c) persons who, as on the date of filing the draft offer document with the Board, are associated with the issuer as depositors, bondholders or subscribers to services of the issuer making an initial public offer:
Provided that the issuer shall not make the reservation to the issue management team, syndicate members, their promoters, directors and employees and for the group or associate companies of the issue management team and syndicate members and their promoters, directors and employees;
(2) In case of an issue made other than through the book building process, the issuer may make reservation on competitive basis out of the issue size excluding promoters’ contribution and net offer to public in favour of the following categories of persons:
(a) 85[employees; and in case of a new issuer, persons who are in the permanent and full time employment of the promoting companies excluding the promoters and an immediate relative of the promoter of such companies;]
(b) shareholders (other than promoters) of:
(i) listed promoting companies, in the case of a new issuer; and
(ii) listed group companies, in the case of an existing issuer:
Provided that if the promoting companies are designated financial institutions or state and central financial institutions, the shareholders of such promoting companies shall not be eligible for the reservation on competitive basis.
(3) In case of a further public offer (not being a composite issue), the issuer may make reservation on competitive basis out of the issue size excluding promoters’ contribution and net offer to public in favour of retail individual shareholders of the issuer.
(4) The reservation on competitive basis shall be subject to following conditions:
(a) the aggregate of reservations for employees shall not exceed 86[five per cent. of the post issue capital of the issuer];
(b) reservation for shareholders shall not exceed ten per cent. of the issue size;
(c) reservation for persons who as on the date of filing the draft offer document with the Board, have business association as depositors, bondholders and subscribers to services with the issuer making an initial public offer shall not exceed five per cent. of the issue size;
(d) no further application for subscription in the net offer to public category shall be entertained from any person (except an employee and retail individual shareholder) in favour of whom reservation on competitive basis is made;
(e) any unsubscribed portion in any reserved category may be added to any other reserved category and the unsubscribed portion, if any, after such inter-se adjustments among the reserved categories shall be added to the net offer to the public category;
(f) in case of under-subscription in the net offer to the public category, spill-over to the extent of under-subscription shall be permitted from the reserved category to the net public offer category;
(g) 87[value of allotment to any employee in pursuance of reservation made under subregulations
(1) or (2), as the case may be, shall not exceed 88[two lakhs] rupees.]
89[Provided that in the event of under-subscription in the employee reservation portion, the unsubscribed portion may be allotted on a proportionate basis, for a value in excess of two lakhs rupees, subject to the total allotment to an employee not exceeding five lakhs rupees.]
(5) In the case of reserved categories, a single applicant in the reserved category may make an application for a number of specified securities which exceeds the reservation. Explanation: For the purposes of this regulation:
(I) The term “reservation on competitive basis” means reservation wherein specified securities are allotted in proportion of the number of specified securities applied for in respect of a particular reserved category to the number of specified securities reserved for that category;
(II) The term “new issuer” means an issuer which has not completed twelve months of commercial operation and its audited operative results are not available.
43. Allocation in net offer to public.
(1) No person shall make an application in the net offer to public category for that number of specified securities which exceeds the number of specified securities offered to public.
90[(2) In an issue made through the book building process under sub-regulation (1) of regulation 26, the allocation in the net offer to public category shall be as follows:
(a) not less than thirty five per cent to retail individual investors;
(b) not less than fifteen per cent to non-institutional investors;
(c) not more than fifty per cent to qualified institutional buyers, five per cent. of which shall be allocated to mutual funds:
Provided that in addition to five per cent allocation available in terms of clause (c), mutual funds shall be eligible for allocation under the balance available for qualified institutional buyers.”;]
91[(2A) In an issue made through the book building process under sub-regulation (2) of regulation 26, the allocation in the net offer to public category shall be as follows:
(a) not more than ten per cent to retail individual investors;
(b) not more than fifteen per cent to non-institutional investors;
(c) not less than seventy five per cent to qualified institutional buyers, five per cent. of which shall be allocated to mutual funds:
Provided that in addition to five per cent. allocation available in terms of clause (c), mutual funds shall be eligible for allocation under the balance available for qualified institutional buyers.]
(3) In an issue made through the book building process, the issuer may allocate upto 92[sixty] per cent. of the portion available for allocation to qualified institutional buyers to an anchor investor in accordance with the conditions specified in this regard in Schedule XI.
(4) In an issue made other than through the book building process, allocation in the net offer to public category shall be made as follows:
(a) minimum fifty per cent. to retail individual investors; and
(b) remaining to:
(i) individual applicants other than retail individual investors; and
(ii) other investors including corporate bodies or institutions, irrespective of the number of specified securities applied for;
(c) the unsubscribed portion in either of the categories specified in clauses (a) or (b) may be allocated to applicants in the other category.
Explanation: For the purpose of sub-regulation (4), if the retail individual investor category is entitled to more than fifty per cent. on proportionate basis, the retail individual investors shall be allocated that higher percentage.
44. Safety-net arrangement.
An issuer may provide for a safety-net arrangement for the specified securities offered in any public issue in consultation with the merchant banker after ascertaining the financial capacity of the person offering the safety-net arrangement, subject to disclosures specified in this regard in Part A of Schedule VIII:
Provided that any such arrangement shall provide for an offer to purchase up to a maximum of one thousand specified securities per original resident retail individual allottee at the issue price within a period of six months from the last date of despatch of security certificates or credit of demat account. Explanation: For the purpose of this regulation, the term “safety net arrangement” means an arrangement provided by the issuer under which a person offers to purchase specified securities from the original resident retail individual allottees at the issue price.
45. Price stabilisation through green shoe option.
(1) An issuer making a public issue of specified securities may provide green shoe option for stabilising the post listing price of its specified securities, subject to the following:
(a) the issuer has been authorized, by a resolution passed in the general meeting of shareholders approving the public issue, to allot specified securities to the stabilising agent, if required, on the expiry of the stabilisation period;
(b) the issuer has appointed a merchant banker or book runner, as the case may be, from amongst the merchant bankers appointed by the issuer as a stabilising agent, who shall be responsible for the price stabilisation process;
(c) prior to filing the draft offer document with the Board, the issuer and the stabilising agent have entered into an agreement, stating all the terms and conditions relating to the green shoe option including fees charged and expenses to be incurred by the stabilising agent for discharging his responsibilities;
(d) prior to filing the offer document with the Board, the stabilising agent has entered into an agreement with the promoters or pre-issue shareholders or both for borrowing specified securities from them in accordance with clause (g) of this sub-regulation, specifying therein the maximum number of specified securities that may be borrowed for the purpose of allotment or allocation of specified securities in excess of the issue size (hereinafter referred to as the “over- allotment”), which shall not be in excess of fifteen per cent. of the issue size;
(e) subject to clause (d), the lead merchant banker or lead book runner, in consultation with the stabilising agent, shall determine the amount of specified securities to be over-allotted in the public issue;
(f) the draft and final offer documents shall contain all material disclosures about the green shoe option specified in this regard in Part A of Schedule VIII;
(g) in case of an initial public offer pre-issue shareholders and promoters and in case of a further public offer pre-issue shareholders holding more than five per cent. specified securities and promoters, may lend specified securities to the extent of the proposed overallotment;
(h) the specified securities borrowed shall be in dematerialised form and allocation of these securities shall be made pro-rata to all successful applicants.
(2) For the purpose of stabilisation of post-listing price of the specified securities, the stabilising agent shall determine the relevant aspects including the timing of buying such securities, quantity to be bought and the price at which such securities are to be bought from the market.
(3) The stabilisation process shall be available for a period not exceeding thirty days from the date on which trading permission is given by the recognised stock exchanges in respect of the specified securities allotted in the public issue.
(4) The stabilising agent shall open a special account, distinct from the issue account, with a bank for crediting the monies received from the applicants against the over-allotment and a special account with a depository participant for crediting specified securities to be bought from the market during the stabilisation period out of the monies credited in the special bank account.
(5) The specified securities bought from the market and credited in the special account with the depository participant shall be returned to the promoters or pre-issue shareholders immediately, in any case not later than two working days after the end of the stabilization period.
(6) On expiry of the stabilisation period, if the stabilising agent has not been able to buy specified securities from the market to the extent of such securities over-allotted, the issuer shall allot specified securities at issue price in dematerialised form to the extent of the shortfall to the special account with the depository participant, within five days of the closure of the stabilisation period and such specified securities shall be returned to the promoters or pre-issue shareholders by the stabilising agent in lieu of the specified securities borrowed from them and the account with the depository participant shall be closed thereafter.
(7) The issuer shall make a listing application in respect of the further specified securities allotted under sub-regulation (6), to all the recognised stock exchanges where the specified securities allotted in the public issue are listed and the provisions of Chapter VII shall not be applicable to such allotment.
(8) The stabilising agent shall remit the monies with respect to the specified securities allotted under sub-regulation (6) to the issuer from the special bank account.
(9) Any monies left in the special bank account after remittance of monies to the issuer under subregulation
(8) and deduction of expenses incurred by the stabilising agent for the stabilisation process shall be transferred to the Investor Protection and Education Fund established by the Board and the special bank account shall be closed soon thereafter.
(10) The stabilising agent shall submit a report to the stock exchange on a daily basis during the stabilisation period and a final report to the Board in the format specified in Schedule XII.
(11) The stabilising agent shall maintain a register for a period of at least three years from the date of the end of the stabilisation period and such register shall contain the following particulars:
(a) The names of the promoters or pre-issue shareholders from whom the specified securities were borrowed and the number of specified securities borrowed from each of them;
(b) The price, date and time in respect of each transaction effected in the course of the stabilisation process; and
(c) The details of allotment made by the issuer on expiry of the stabilisation process.
46. Period of subscription.
(1) 93[Except as otherwise provided in these regulations] a public issue shall be kept open for at least three working days but not more than ten working days including the days for which the issue is kept open in case of revision in price band.
(2) In case the price band in a public issue made through the book building process is revised, the bidding (issue) period disclosed in the red herring prospectus shall be extended for a minimum period of three working days:
Provided that the total bidding period shall not exceed ten working days.
47. Pre-issue advertisement for public issue.
(1) Subject to the provisions of section 66 of the Companies Act, 1956, the issuer shall, after registering the red herring prospectus (in case of a book built issue) or prospectus (in case of fixed price issue) with the Registrar of Companies, make a pre-issue advertisement in one English national daily newspaper with wide circulation, Hindi national daily newspaper with wide circulation and one regional language newspaper with wide circulation at the place where the registered office of the issuer is situated.
(2) The pre-issue advertisement shall be in the format and shall contain the disclosures specified in Part A of Schedule XIII.
48. Issue opening and issue closing advertisement for public issue.
An issuer may issue advertisements for issue opening and issue closing advertisements, which shall be in the formats specified in Parts B and C of Schedule XIII.
49. Minimum application value.
(1) The issuer shall stipulate in the offer document, the minimum application size in terms of number of specified securities which shall fall within the range of minimum application value of 94[ten thousand rupees to fifteen thousand rupees].
(2) The issuer shall invite applications in multiples of the minimum application value, an illustration whereof is given in Schedule XIV.
(3) The minimum sum payable on application shall not be less than twenty five per cent. of the issue price:
Provided that in case of an offer for sale, the issue price payable for each specified security shall be brought in at the time of application.
Explanation: For the purpose of this regulation, “minimum application value” shall be with reference to the issue price of the specified securities and not with reference to the amount payable on application.
50. Allotment procedure and basis of allotment.
(1) The allotment of specified securities to applicants other than 95[retail individual investors and] anchor investors shall be on proportionate basis within the specified investor categories and the number of securities allotted shall be rounded off to the nearest integer, subject to minimum allotment being equal to the minimum application size as determined and disclosed by the issuer:
96[Provided that value of specified securities allotted to any person in pursuance of reservation made under clause (a) of sub-regulation (1) or clause (a) of sub-regulation (2) of regulation 42, shall not exceed 97[two lakhs] rupees.]
98[(1A) The allotment of specified securities to each retail individual investor shall not be less than the minimum bid lot, subject to availability of shares in retail individual investor category, and the remaining available shares, if any, shall be allotted on a proportionate basis.]
(2) The executive director or managing director of the designated stock exchange along with the post issue lead merchant bankers and registrars to the issue shall ensure that the basis of allotment is finalised in a fair and proper manner in accordance with the allotment procedure as specified in Schedule XV.
51. Utilisation of subscription money.
The post-issue lead merchant banker shall ensure that moneys received in respect of the issue are released to the issuer in compliance with the provisions of section 73 of the Companies Act, 1956.
99[Annual Updation of Offer Document
51A. The disclosures made in the red herring prospectus while making an initial public offer, shall be updated on an annual basis by the issuer and shall be made publicly accessible in the manner specified by the Board.]
CHAPTER IV – RIGHTS ISSUE
52. Record Date.
(1) A listed issuer making a rights issue shall announce a record date for the purpose of determining the shareholders eligible to apply for specified securities in the proposed rights issue.
(2) The issuer shall not withdraw rights issue after announcement of the record date.
(3) If the issuer withdraws the rights issue after announcing the record date, it shall not make an application for listing of any of its specified securities on any recognised stock exchange for a period of twelve months from the record date announced under sub-regulation (1):
Provided that the issuer may seek listing of its equity shares allotted pursuant to conversion or exchange of convertible securities issued prior to the announcement of the record date, on the recognised stock exchange where its securities are listed.
53. Restriction on rights issue.
(1) No issuer shall make a rights issue of equity shares 100[***]unless it has made reservation of equity shares of the same class in favour of the holders of 101[***] outstanding 102[compulsorily] convertible debt instruments 103[,if any,] in proportion to the convertible part thereof.
(2) The equity shares 104[so] reserved for the holders of fully or partially 105[compulsorily] convertible debt instruments shall be issued at the time of conversion of such convertible debt instruments on the same terms 106[at] which the equity shares offered in the rights issue were issued.
54. Letter of offer, abridged letter of offer, pricing and period of subscription.
(1) The abridged letter of offer, along with application form, shall be dispatched through registered post or speed post to all the existing shareholders at least three days before the date of opening of the issue:
Provided that the letter of offer shall be given by the issuer or lead merchant banker to any existing shareholder who has made a request in this regard.
(2) The shareholders who have not received the application form may apply in writing on a plain paper, along with the requisite application money.
(3) The shareholders making application otherwise than on the application form shall not renounce their rights and shall not utilise the application form for any purpose including renunciation even if it is received subsequently.
(4) Where any shareholder makes an application on application form as well as on plain paper, the application is liable to be rejected.
(5) The issue price shall be decided before determining the record date which shall be determined in consultation with the designated stock exchange.
(6) A rights issue shall be open for subscription for a minimum period of fifteen days and for a maximum period of thirty days.
107[(7) The issuer shall give only one payment option out of the following to all the investors—
(a) part payment on application with balance money to be paid in calls; or
(b) full payment on application:
Provided that where the issuer has given the part payment option to investors, 108[the part payment on application shall not be less than 25% of the issue price and] such issuer shall obtain the necessary regulatory approvals to facilitate the same.]
55. Pre-Issue Advertisement for rights issue.
(1) The issuer shall issue an advertisement for rights issue disclosing the following:
(a) the date of completion of despatch of abridged letter of offer and the application form;
(b) the centres other than registered office of the issuer where the shareholders or the persons entitled to receive the rights entitlements may obtain duplicate copies of the application forms in case they do not receive the application form within a reasonable time after opening of the rights issue;
(c) a statement that if the shareholders entitled to receive the rights entitlements have neither received the original application forms nor they are in a position to obtain the duplicate forms, they may make application in writing on a plain paper to subscribe to the rights issue;
(d) a format to enable the shareholders entitled to apply against their rights entitlements, to make the application on a plain paper specifying therein necessary particulars such as name, address, ratio of rights issue, issue price, number of equity shares held, ledger folio numbers, depository participant ID, client ID, number of equity shares entitled and applied for, additional shares if any, amount to be paid along with application, and particulars of cheque, etc. to be drawn in favour of the issuer’s account;
(e) a statement that the applications can be directly sent by the shareholders entitled to apply against rights entitlements through registered post together with the application moneys to the issuer’s designated official at the address given in the advertisement;
(f) a statement to the effect that if the shareholder makes an application on plain paper and also on application form both his applications shall be liable to be rejected at the option of the issuer.
(2) The advertisement shall be made in at least one English national daily newspaper with wide circulation, one Hindi national daily newspaper with wide circulation and one regional language daily newspaper with wide circulation at the place where registered office of the issuer is situated, at least three days before the date of opening of the issue.
109[Reservation for employees alongwith rights issue.
55A. Subject to other applicable provision of these regulations the issuer may make reservation for 110[***] employees alongwith rights issue subject to the condition that value of allotment to any employee shall not exceed 111[two lakhs] rupees.]
56. Utilisation of funds raised in rights issue.
The issuer shall utilise funds collected in rights issues after the finalisation of the basis of allotment.
CHAPTER V – MANNER OF DISCLOSURES IN THE OFFER DOCUMENTS
57. Manner of disclosures in the offer document.
(1) The offer document shall contain all material disclosures which are true and adequate so as
to enable the applicants to take an informed investment decision.
(2) Without prejudice to the generality of sub-regulation (1):
(a) the red-herring prospectus, shelf prospectus and prospectus shall contain:
(i) the disclosures specified in Schedule II of the Companies Act, 1956; and
(ii) the disclosures specified in Part A of Schedule VIII, subject to the provisions of Parts B and C thereof.
(b) the letter of offer shall contain disclosures as specified in Part E of Schedule VIII112[:] 113[Provided that in the case of a further public offer or a rights issue, the offer document shall be deemed to be in compliance with the provisions of this regulation, if suitable references are made to the updated disclosures in the offer document referred to in regulation 51A of these regulations.]
58. Abridged prospectus, abridged letter of offer and ASBA.
(1) The abridged prospectus shall contain the disclosures 114[***] as specified in Part D of Schedule VIII.
(2) The abridged letter of offer shall contain the disclosures as specified in Part F of Schedule VIII.
(3) The abridged prospectus and abridged letter of offer shall not contain any matter extraneous to the contents of the offer document.
(4) Every application form including ASBA form distributed by the issuer or any other person in relation to an issue shall be accompanied by a copy of the abridged prospectus or abridged letter of offer, as the case may be.
(5) 115[In all, –
(i) Public issues, the issuer shall accept bids using only ASBA facility in the manner specified by the Board;
(ii) Rights issues, where not more than one payment option is given, the issuer shall provide the facility of ASBA in accordance with the procedure and eligibility criteria specified by the Board:
Provided that in case of qualified institutional buyers and non-institutional investors the issuer shall accept bids using ASBA facility only.]
116[(6) ***]
CHAPTER VI – GENERAL OBLIGATIONS OF ISSUER AND INTERMEDIARIES WITH RESPECT TO PUBLIC ISSUE AND RIGHTS ISSUE
59. Prohibition on payment of incentives.
No person connected with the issue shall offer any incentive, whether direct or indirect, in any manner, whether in cash or kind or services or otherwise to any person for making an application for allotment of specified securities:
Provided that nothing contained in this regulation shall apply to fees or commission for services rendered in relation to the issue.
Explanation: For the purpose of this regulation, the expression “person connected with the issue”includes a person connected with the distribution of the issue.
60. Public communications, publicity materials, advertisements and research reports.
(1) Any public communication including advertisement and publicity material issued by the issuer or research report made by the issuer or any intermediary concerned with the issue or their associates shall contain only factual information and shall not contain projections, estimates, conjectures, etc. or any matter extraneous to the contents of the offer document.
(2) All public communications and publicity material issued or published in any media during the period commencing from the date of the meeting of the board of directors of the issuer in which the public issue or rights issue is approved till the date of filing draft offer document with the Board shall be consistent with its past practices:
Provided that where such public communication or publicity material is not consistent with the past practices of the issuer, it shall be prominently displayed or announced in such public communication or publicity material that the issuer is proposing to make a public or rights issue of specified securities in the near future and is in the process of filing a draft offer document with the Board.
(3) All public communications and publicity material issued or published in any media during the period commencing from the date of filing draft offer document with the Board till the date of allotment of securities offered in the issue, shall prominently disclose that:
(a) the issuer is proposing to make a public issue or rights issue of the specified securities and has filed a draft offer document with the Board or has filed the red herring prospectus or prospectus with the Registrar of Companies or the letter of offer with the designated stock exchange, as the case may be.
(b) the draft offer document, red herring prospectus or final offer document, as the case may be, is available on the website of the Board, lead merchant bankers or lead book runners. 117[Provided that requirements of this sub-regulation shall not be applicable in case of product advertisements of the issuer.]
(4) The issuer shall make prompt, true and fair disclosure of all material developments which take place during the following period mentioned in this sub-regulation, relating to its business and securities and also relating to the business and securities of its subsidiaries, group companies, etc., which may have a material effect on the issuer, by issuing public notices in all the newspapers in which the issuer had issued pre-issue advertisement under regulation 47 or regulation 55, as the case may be:
(a) in case of public issue, between the date of registering final prospectus or the red herring prospectus, as the case may be, with the Registrar of Companies, and the date of allotment of specified securities;
(b) in case of a rights issue, between the date of filing the letter of offer with the designated stock exchange and the date of allotment of the specified securities.
(5) The issuer shall not, directly or indirectly, release, during any conference or at any other time, any material or information which is not contained in the offer document.
(6) In respect of all public communications, issue advertisements and publicity materials, the issuer shall obtain approval from the lead merchant bankers responsible for marketing the issue and shall also make copies of all issue related materials available with the lead merchant bankers at least till the allotment is completed.
(7) Any advertisement or research report issued or caused to be issued by an issuer, any intermediary concerned with the issue or their associates shall comply with the following:
(a) it shall be truthful, fair and shall not be manipulative or deceptive or distorted and it shall not contain any statement, promise or forecast which is untrue or misleading;
(b) if it reproduces or purports to reproduce any information contained in an offer document, it shall reproduce such information in full and disclose all relevant facts and not be restricted to select extracts relating to that information;
(c) it shall be set forth in a clear, concise and understandable language;
(d) it shall not include any issue slogans or brand names for the issue except the normal commercial name of the issuer or commercial brand names of its products already in use;
(e) if it presents any financial data, data for the past three years shall also be included alongwith particulars relating to sales, gross profit, net profit, share capital, reserves, earnings per share, dividends and the book values;
(f) no advertisement shall use extensive technical, legal terminology or complex language and excessive details which may distract the investor;
(g) no issue advertisement shall contain statements which promise or guarantee rapid increase in profits;
(h) no issue advertisement shall display models, celebrities, fictional characters, landmarks or caricatures or the likes;
(i) no issue advertisement shall appear in the form of crawlers (the advertisements which run simultaneously with the programme in a narrow strip at the bottom of the television screen) on television;
(j) in any issue advertisement on television screen, the risk factors shall not be scrolled on the television screen and the advertisement shall advise the viewers to refer to the red herring prospectus or other offer document for details;
(k) no issue advertisement shall contain slogans, expletives or non-factual and unsubstantiated titles;
(l) if an advertisement or research report contains highlights, it shall also contain risk factors with equal importance in all respects including print size of not less than point seven size;
(m) an issue advertisement displayed on a billboard shall not contain information other than that specified in Parts A, B and C of Schedule XIII, as applicable;
(n) an issue advertisement which contains highlights or information other than the details contained in the format as specified in Parts A and B of Schedule XIII shall contain risk factors.
(8) No advertisement shall be issued giving any impression that the issue has been fully subscribed or oversubscribed during the period the issue is open for subscription.
(9) An announcement regarding closure of issue shall be made only after the lead merchant banker(s) is satisfied that at least ninety per cent. of the offer through offer document has been subscribed and a certificate has been obtained to that effect from the registrar to the issue:
Provided that such announcement shall not be made before the date on which the issue is to be closed. (10) No advertisement or distribution material with respect to the issue shall contain any offer of incentives, whether direct or indirect, in any manner, whether in cash or kind or services or otherwise.
(11) No product advertisement shall contain any reference, directly or indirectly, to the performance of the issuer during the period commencing from the date of the resolution of the board of directors of the issuer approving the public issue or rights issue till the date of allotment of specified securities offered in such issue.
(12) A research report may be prepared only on the basis of information, disclosed to the public by the issuer by updating the offer document or otherwise.
(13) No selective or additional information or information which is extraneous to the information disclosed to the public through the offer document or otherwise, shall be given by the issuer or any member of the issue management team or syndicate to any particular section of the investors or to any research analyst in any manner whatsoever, including at road shows, presentations, in research or sales reports or at bidding centres.
118[(14) The merchant bankers shall submit a compliance certificate in the format specified in Part D of Schedule XIII, for the period between the date of filing the draft offer document with the Board and the date of closure of the issue, in respect of news reports appearing in any of the following media:
(a) newspapers mentioned in sub-regulation (3) of regulation 9;
(b) major business magazines;
(c) print and electronic media controlled by a media group where the media group has a private treaty/shareholders’ agreement with the issuer or promoters of the issuer.]
Explanation: For the purpose of this regulation:
(I) “public communication or publicity material” includes corporate, product and issue advertisements of the issuer, interviews by its promoters, directors, duly authorized employees or representatives of the issuer, documentaries about the issuer or its promoters, periodical reports and press releases.
(II) An issue advertisement shall be considered to be misleading, if it contains:
(a) Statements made about the performance or activities of the issuer without necessary explanatory or qualifying statements, which may give an exaggerated picture of such performance or activities.
(b) An inaccurate portrayal of past performance or its portrayal in a manner which implies that past gains or income will be repeated in the future.
61. Copies of offer documents to be available to public.
(1) The issuer and lead merchant bankers shall ensure that the contents of offer documents hosted on the websites as required in these regulations are the same as that of their printed versions as filed with the Registrar of Companies, Board and the stock exchanges.
(2) The lead merchant bankers and the recognised stock exchange shall provide copies of the draft offer document and final offer document to the public as and when requested.
(3) The lead merchant bankers or the recognised stock exchange may charge a reasonable sum for providing the copy of the offer document.
62. Redressal of investor grievances.
The post-issue lead merchant bankers shall actively associate himself with post-issue activities such as allotment, refund, despatch and giving instructions to syndicate members, Self Certified Syndicate Banks and other intermediaries and shall regularly monitor redressal of investor grievances arising therefrom.
63. Appointment of Compliance Officer.
The issuer shall appoint a compliance officer who shall be responsible for monitoring the compliance of the securities laws and for redressal of investors’ grievances.
Explanation: For the purpose of this regulation, the term “securities laws” means the Companies Act, 1956, the Act, the Securities Contracts (Regulation) Act, 1956, the Depositories Act, 1996 and the rules and regulations made thereunder and the regulations, general or special orders, guidelines or circulars made or issued by the Board.
64. Due diligence.
(1) The lead merchant bankers shall exercise due diligence and satisfy himself about all the aspects of the issue including the veracity and adequacy of disclosure in the offer documents.
(2) The lead merchant bankers shall call upon the issuer, its promoters or directors or in case of an offer for sale, the selling shareholders, to fulfil their obligations as disclosed by them in the offer document and as required in terms of these Regulations.
(3) The post-issue merchant banker shall continue to be responsible for post-issue activities till the subscribers have received the securities certificates, credit to their demat account or refund of application moneys and the listing agreement is entered into by the issuer with the stock exchange and listing/ trading permission is obtained.
(4) The responsibility of the lead merchant banker shall continue even after the completion of issue process.
65. Post- issue reports.
119[(1) In public issue, the lead merchant banker shall submit final post-issue report as specified in Part C of Schedule XVI, within seven days of the date of finalization of basis of allotment or within seven days of refund of money in case of failure of issue.
(2) In rights issue, the lead merchant banker shall submit post-issue reports as follows:-
(a) initial post issue report as specified in Part B of Schedule XVI, within three days of closure of the issue;
(b) final post issue report as specified in Part D of Schedule XVI, within fifteen days of the date of finalization of basis of allotment or within fifteen days of refund of money in case of failure of issue.]
The lead merchant banker shall submit a due diligence certificate as per the format specified in Form G of Schedule VI, along with the final post issue report.
66. Post-issue Advertisements.
(1) The post-issue merchant banker shall ensure that advertisement giving details relating to oversubscription, basis of allotment, number, value and percentage of all applications including ASBA, number, value and percentage of successful allottees for all applications including ASBA, date of completion of despatch of refund orders or instructions to Self Certified Syndicate Banks by the Registrar, date of despatch of certificates and date of filing of listing application, etc. is released within ten days from the date of completion of the various activities in at least one English national daily newspaper with wide circulation, one Hindi national daily newspaper with wide circulation and one regional language daily newspaper with wide circulation at the place where registered office of the issuer is situated.
(2) The post-issue merchant banker shall ensure that issuer, advisors, brokers or any other entity connected with the issue do not publish any advertisement stating that issue has been oversubscribed or indicating investors’ response to the issue, during the period when the public issue is still open for subscription by the public.
67. Co-ordination with Intermediaries.
(1) The post-issue merchant banker shall maintain close co-ordination with the registrars to the issue and arrange to depute its officers to the offices of various intermediaries at regular intervals after the closure of the issue to monitor the flow of applications from collecting bank branches and/or Self Certified Syndicate Banks, processing of the applications including application form for
“(1) The lead merchant banker shall submit post-issue reports to the Board in accordance with sub-regulation (2).
(2) The post-issue reports shall be submitted as follows:
(a) initial post issue report as specified in Parts A and B of Schedule XVI, within three days of closure of the issue;
(b) final post issue report as specified in Parts C and D of Schedule XVI, within fifteen days of the date of finalisation of basis of allotment or within fifteen days of refund of money in case of failure of issue.”
ASBA and other matters till the basis of allotment is finalised, despatch of security certificates and refund orders are completed and securities are listed.
(2) Any act of omission or commission on the part of any of the intermediaries noticed during such visits shall be duly reported to the Board.
(3) In case there is a devolvement on underwriters, the merchant banker shall ensure that the notice for devolvement containing the obligation of the underwriters is issued within a period of ten days from the date of closure of the issue.
(4) In case of undersubscribed issues, the merchant banker shall furnish information in respect of underwriters who have failed to meet their underwriting devolvement to the Board in the format specified in Schedule XVII.
(5) The post-issue merchant banker shall confirm to the bankers to the issue by way of copies of listing and trading approvals that all formalities in connection with the issue have been completed and that the banker is free to release the money to the issuer or release the money for refund in case of failure of the issue.
Audited financial statements in the offer document.
68. The merchant banker shall ensure that the information contained in the offer document and the particulars as per audited financial statements in the offer document are not more than six months old from the issue opening date.
69. Other responsibilities.
(1) The post-issue merchant banker shall ensure that the despatch of refund orders, allotment letters and share certificates is done by way of registered post or certificate of posting, as may be applicable.
(2) The post-issue merchant banker shall ensure payment of interest to the applicants for delayed dispatch of allotment letters, refund orders, etc. as per the disclosure made in the offer document.
(3) In case of absence of definite information about subscription figures, the issue shall be kept open for the required number of days to avoid any dispute, at a later date, by the underwriters in respect of their liability.
(4) The issuer shall ensure that transactions in securities by the promoter and promoter group during the period between the date of registering the offer document with the Registrar of Companies or filing the letter of offer with the designated stock exchange, as the case may be and the date of closure of the issue shall be reported to the recognised stock exchanges where the specified securities of the issuer are listed, within twenty four hours of the transactions.
120[CHAPTER VI-A CONDITIONS AND MANNER OF PROVIDING EXIT OPPORTUNITY TO DISSENTING SHAREHOLDERS
69A. Applicability.
(1) The provisions of this Chapter shall apply to an exit offer made by the promoters or shareholders in control of an issuer to the dissenting shareholders in terms of section 13(8) and section 27(2) of the Companies Act, 2013, in case of change in objects or variation in the terms of contract referred to in the prospectus.
(2) The provisions of this Chapter shall not apply where there are neither identifiable promoters nor shareholders in control of the listed issuer.
69B. Definitions.
For the purpose of this Chapter:
(a) “dissenting shareholders” means those shareholders who have voted against the resolution for change in objects or variation in terms of a contract, referred to in the prospectus of the issuer;
(b) “frequently traded shares” shall have the same meaning as assigned to it in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.
(c) “relevant date” means date of the board meeting in which the proposal for change in objects or variation in terms of a contract, referred to in the prospectus is approved, before seeking shareholders’ approval.
69C. Conditions for exit offer.
The promoters or shareholders in control shall make the exit offer in accordance with the provisions of this Chapter, to the dissenting shareholders, if:
(a) the public issue has opened after April 1, 2014; and
(b) the proposal for change in objects or variation in terms of a contract, referred to in the prospectus is dissented by at least ten per cent. of the shareholders who voted in the general meeting; and
(c) the amount to be utilized for the objects for which the prospectus was issued is less than seventy five per cent. of the amount raised (including the amount earmarked for general corporate purposes as disclosed in the offer document).
69D. Eligibility of shareholders for availing the exit offer
Only those dissenting shareholders of the issuer who are holding shares as on the relevant date shall be eligible to avail the exit offer made under this Chapter.
69E. Exit offer price.
The ‘exit price’ payable to the dissenting shareholders shall be the highest of the following:
(a) the volume-weighted average price paid or payable for acquisitions, whether by the promoters or shareholders having control or by any person acting in concert with them, during the fifty-two weeks immediately preceding the relevant date;
(b) the highest price paid or payable for any acquisition, whether by the promoters or shareholders having control or by any person acting in concert with them, during the twenty-six weeks immediately preceding the relevant date;
(c) the volume-weighted average market price of such shares for a period of sixty trading days immediately preceding the relevant date as traded on the recognised stock exchange where the maximum volume of trading in the shares of the issuer are recorded during such period, provided such shares are frequently traded;
(d) where the shares are not frequently traded, the price determined by the promoters or shareholders having control and the merchant banker taking into account valuation parameters including book value, comparable trading multiples, and such other parameters as are customary for valuation of shares of such issuers.
69F. Manner of providing exit to dissenting shareholders.
(1) The notice proposing the passing of special resolution for changing the objects of the issue and varying the terms of contract, referred to in the prospectus shall also contain information about the exit offer to the dissenting shareholders.
(2) In addition to the disclosures required under the provisions of section 102 of the Companies Act, 2013 read with rule 32 of the Companies (Incorporation) Rules, 2014 and rule 7 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 and any other applicable law, a statement to the effect that the promoters or the shareholders having control shall provide an exit opportunity to the dissenting shareholders shall also be included in the explanatory statement to the notice for passing special resolution.
(3) After passing of the special resolution, the issuer shall submit the voting results to the recognised stock exchange(s), in terms of the provisions of regulation 44(3) of the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015.
(4) The issuer shall also submit the list of dissenting shareholders, as certified by its compliance officer, to the recognised stock exchange(s).
(5) The promoters or shareholders in control, shall appoint a merchant banker registered with the Board and finalize the exit offer price in accordance with these regulations.
(6) The issuer shall intimate the recognised stock exchange(s) about the exit offer to dissenting shareholders and the price at which such offer is being given.
(7) The recognised stock exchange(s) shall immediately on receipt of such intimation disseminate the same to public within one working day.
(8) To ensure security for performance of their obligations, the promoters or shareholders having control, as applicable, shall create an escrow account which may be interest bearing and deposit the aggregate consideration in the account at least two working days prior to opening of the tendering period.
(9) The tendering period shall start not later than seven working days from the passing of the special resolution and shall remain open for ten working days.
(10) The dissenting shareholders who have tendered their shares in acceptance of the exit offer shall have the option to withdraw such acceptance till the date of closure of the tendering period.
(11) The promoters or shareholders having control shall facilitate tendering of shares by the shareholders and settlement of the same through the recognised stock exchange mechanism as specified by SEBI for the purpose of takeover, buy-back and delisting.
(12) The promoters or shareholders having control shall, within a period of ten working days from the last date of the tendering period, make payment of consideration to the dissenting shareholders who have accepted the exit offer.
(13) Within a period of two working days from the payment of consideration, the issuer shall furnish to the recognised stock exchange(s), disclosures giving details of aggregate number of shares tendered, accepted, payment of consideration and the post-offer shareholding pattern of the issuer and a report by the merchant banker that the payment has been duly made to all the dissenting shareholders whose shares have been accepted in the exit offer.
69G. Offer not to exceed maximum permissible non-public shareholding.
In the event, the shares accepted in the exit offer were such that the shareholding of the promoters or shareholders in control, taken together with persons acting in concert with them pursuant to completion of the exit offer results in their shareholding exceeding the maximum permissible non-public shareholding, the promoters or shareholders in control, as applicable, shall be required to bring down the non-public shareholding to the level specified and within the time permitted under Securities Contract (Regulation) Rules, 1957.”
CHAPTER VII PREFERENTIAL ISSUE
70. Chapter VII not to apply in certain cases.
(1) The provisions of this Chapter shall not apply where the preferential issue of equity shares is made:
(a) pursuant to conversion of loan or option attached to convertible debt instruments in terms of sub-sections (3) and (4) of sections 81 of the Companies Act, 1956 121[or sub-section (3) and (4) of section 62 of the Companies Act, 2013, whichever applicable];
(b) pursuant to a scheme approved by a High Court under section 391 to 394 of the Companies Act, 1956 114[or a Tribunal under sections 230 to 234 of the Companies Act, 2013, whichever applicable
Provided that the pricing provisions of this Chapter shall apply to the issuance of shares under schemes mentioned in clause (b) in case of allotment of shares only to a select group of shareholders or shareholders of unlisted companies pursuant to such schemes;]
(c) in terms of the rehabilitation scheme approved by the Board of Industrial and Financial Reconstruction under the Sick Industrial Companies (Special Provisions) Act, 1985 114[or the Tribunal under the Insolvency and Bankruptcy Code, 2016, whichever applicable]: 122[Provided that the lock-in provisions of this Chapter shall apply to preferential issue of equity shares mentioned in clause (c).]
(2) The provisions of this Chapter relating to pricing and lock-in shall not apply to equity shares allotted to any financial institution within the meaning of sub-clauses (ia) and (ii) of clause (h) of section 2 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (51 of 1993).
(3) The provisions of regulation 73 and regulation 76 shall not apply to a preferential issue of equity shares and compulsorily convertible debt instruments, whether fully or partly, where the Board has granted relaxation to the issuer in terms of regulation 29A of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 123[or regulation 11 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, whichever applicable], if adequate disclosures about the plan and process proposed to be followed for identifying the allottees are given in the explanatory statement to notice for the general meeting of shareholders.
124[(4) The provisions of sub-regulation (2) of regulation 72 and sub-regulation (6) of regulation 78 shall not apply to a preferential issue of specified securities where the proposed allottee is a Mutual Fund registered with the Board or Insurance Company registered with Insurance Regulatory and Development Authority 125[of India or a Scheduled Bank listed under the Second Schedule of the Reserve Bank of India Act, 1934 or a Public Financial Institution as defined in clause 72 of section 2 of the Companies Act, 2013].]
126[(5) Conversion of debt into equity under strategic debt restructuring scheme- The provisions of this Chapter shall not apply where the preferential issue of equity shares is made to the consortium of banks and financial institutions pursuant to conversion of their debt, as part of the strategic debt restructuring scheme in accordance with the guidelines specified by the Reserve Bank of India, subject to the following conditions:
(a) conversion price shall be determined in accordance with the guidelines specified by the Reserve Bank of India for strategic debt restructuring scheme, which shall not be less than the face value of the equity shares;
(b) conversion price shall be certified by two independent qualified valuers, and for this purpose ‘valuer’ shall have the same meaning as assigned to it under clause (r) of sub regulation (1) of regulation 2 of the Securities and Exchange Board of India (Issue of Sweat Equity) Regulations, 2002;
(c) equity shares so allotted shall be locked in for a period of one year from the date of trading approval:
Provided that for the purposes of transferring the control, the consortium of banks and financial institutions may transfer their shareholding to an entity before completion of the lock in period subject to continuation of the lock in on such shares for the remaining period with the transferee;
(d) applicable provisions of Companies Act, 2013 are complied with, including the requirement of special resolution.
(6) The provisions of this Chapter shall not apply when any other secured lenders opt to join the strategic debt restructuring scheme in accordance with the guidelines specified by the Reserve Bank of India and convert their debt into equity share in accordance with sub regulation (5).]
71. Relevant date.
For the purpose of this Chapter, “relevant date” means:
(a) in case of preferential issue of equity shares, the date thirty days prior to the date on which the meeting of shareholders is held to consider the proposed preferential issue:
Provided that in case of preferential issue of equity shares pursuant to a scheme approved under the Corporate Debt Restructuring framework of Reserve Bank of India, the date of approval of the Corporate Debt Restructuring Package shall be the relevant date.
(b) in case of preferential issue of convertible securities, either the relevant date referred to in clause
(a) of this regulation or a date thirty days prior to the date on which the holders of the convertible securities become entitled to apply for the equity shares.
127[Explanation: Where the relevant date falls on a Weekend/Holiday, the day preceding the Weekend/Holiday will be reckoned to be the relevant date.]
71A. Frequently traded shares.
128[For the purpose of this Chapter, “frequently traded shares” means shares of an issuer, in which the traded turnover on any stock exchange during the twelve calendar months preceding the relevant date, is at least ten per cent of the total number of shares of such class of shares of the issuer: Provided that where the share capital of a particular class of shares of the issuer is not identical throughout such period, the weighted average number of total shares of such class of the issuer shall represent the total number of shares.]
72. Conditions for preferential issue.
(1) A listed issuer may make a preferential issue of specified securities, if:
(a) a special resolution has been passed by its shareholders;
(b) all the equity shares, if any, held by the proposed allottees in the issuer are in dematerialised form;
(c) the issuer is in compliance with the conditions for continuous listing of equity shares as specified in the listing agreement with the recognised stock exchange where the equity shares of the issuer are listed;
(d) the issuer has obtained the Permanent Account Number of the proposed allottees.
(2) The 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:
Provided that in respect of the preferential issue of equity shares and compulsorily convertible debt instruments, whether fully or partly, the Board may grant relaxation from the requirements of this sub-regulation, if the Board has granted relaxation in terms of regulation 29A of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 to such preferential allotment.
129[Explanation.—Where any person belonging to promoter(s) or the promoter group has sold his equity shares in the issuer during the six months preceding the relevant date, the promoter(s) and promoter group shall be ineligible for allotment of specified securities on preferential basis.
(3) Where any person belonging to promoter(s) or the promoter group has previously subscribed to warrants of an issuer but failed to exercise the warrants, the promoter(s) and promoter group shall be ineligible for issue of specified securities of such issuer on preferential basis for a period of one year from:
(a) the date of expiry of the tenure of the warrants due to non-exercise of the option to convert; or
(b) the date of cancellation of the warrants, as the case may be.]
73. Disclosures.
(1) The issuer shall, in addition to the disclosures required under section 173 of the Companies Act, 1956 or any other applicable law, disclose the following in the explanatory statement to the notice for the general meeting proposed for passing special resolution:
(a) the objects of the preferential issue;
(b) the proposal of the promoters, directors or key management personnel of the issuer to subscribe to the offer;
(c) the shareholding pattern of the issuer before and after the preferential issue;
(d) the time within which the preferential issue shall be completed;
(e) the identity of 130[the natural persons who are the ultimate beneficial owners of the shares proposed to be allotted and/or who ultimately control] the proposed allottees, the
percentage of post preferential issue capital that may be held by them and change in control, if any, in the issuer consequent to the preferential issue 131[:]
132[Provided that if there is any listed company, mutual fund, bank or insurance company in the chain of ownership of the proposed allottee, no further disclosure will be necessary.]
(f) an undertaking that the issuer shall re-compute the price of the specified securities in terms of the provision of these regulations where it is required to do so;
(g) an undertaking that if the amount payable on account of the re-computation of price is not paid within the time stipulated in these regulations, the specified securities shall continue to be locked- in till the time such amount is paid by the allottees.
133[(h) disclosures, similar to disclosures specified in Part G of Schedule VIII, if the issuer or any of its promoters or directors is a wilful defaulter.]
(2) The issuer shall place a copy of the certificate of its statutory auditor before the general meeting of the shareholders, considering the proposed preferential issue, certifying that the issue is being made in accordance with the requirements of these regulations.
(3) Where specified securities are issued on a preferential basis to promoters, their relatives, associates and related entities for consideration other than cash, the valuation of the assets in consideration for which the equity shares are issued shall be done by an independent qualified valuer, which shall be submitted to the recognised stock exchanges where the equity shares of the issuer are listed:
Provided that if the recognised stock exchange is not satisfied with the appropriateness of the valuation, it may get the valuation done by any other valuer and for this purpose it may obtain any information, as deemed necessary, from the issuer.
(4) The special resolution shall specify the relevant date on the basis of which price of the equity shares to be allotted on conversion or exchange of convertible securities shall be calculated. Explanation: For the purpose of sub-regulation (3), the term ‘valuer’ has the same meaning as is assigned to it under clause (r) of sub-regulation (1) of regulation 2 of the Securities and Exchange Board of India (Issue of Sweat Equity) Regulations, 2002.
74. Allotment pursuant to special resolution.
(1) Allotment pursuant to the special resolution shall be completed within a period of fifteen days from the date of passing of such resolution:
Provided that where any application for exemption from the applicability of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 or any approval or permission by any regulatory authority or the Central Government for allotment is pending, the period of fifteen days shall be counted from the date of order on such application or the date of approval or permission, as the case may be:
Provided further that where the Board has granted relaxation to the issuer in terms of regulation 29A of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, the preferential issue of equity shares and compulsorily convertible debt instruments, whether fully or partly, shall be made by it within such time as may be specified by the Board in its order granting the relaxation:
Provided further that requirement of allotment within fifteen days shall not apply to allotment of specified securities on preferential basis pursuant to a scheme of corporate debt restructuring as per the corporate debt restructuring framework specified by the Reserve Bank of India.
(2) If the allotment of specified securities is not completed within fifteen days from the date of special resolution, a fresh special resolution shall be passed and the relevant date for determining the price of specified securities under this Chapter will be taken with reference to the date of latter special resolution.
134[(3) Notwithstanding anything contained in this regulation, where a preferential allotment is made that attracts an obligation to make an open offer for shares of the issuer under Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011, and there is no offer made under sub-regulation (1) of regulation 20 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011, the period of fifteen days shall be counted from the expiry of the period specified in sub-regulation (1) of regulation 20 or date of receipt of all statutory approvals required for the completion of an open offer under the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011: Provided that if an offer is made under sub-regulation (1) of regulation 20 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011, the period of fifteen days shall be counted from the expiry of the offer period as defined in the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011:
Provided further that the provisions of this sub-regulation shall not apply to an offer made under sub-regulation (1) of regulation 20 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 2011, pursuant to a preferential allotment.” ]
135[(4) Allotment shall only be made in dematerialised form.
Explanation.-The requirement of allotment in dematerialised form shall also be applicable for the equity shares to be allotted pursuant to exercise of option attached to warrant or conversion of convertible securities.]
75. Tenure of convertible securities.
The tenure of the convertible securities of the issuer shall not exceed eighteen months from the date of their allotment.
76. Pricing of equity shares 136[- Frequently traded shares].
(1) If the equity shares of the issuer have been listed on a recognised stock exchange for a period of 137[twenty six weeks] or more as on the relevant date, the equity shares shall be allotted at a price not less than higher of the following:
(a) The average of the weekly high and low of the 138[volume weighted average price] of the related equity shares quoted on the recognised stock exchange during the 139[twenty six weeks] preceding the relevant date; or
(b) The average of the weekly high and low of the 140[volume weighted average prices] of the related equity shares quoted on a recognised stock exchange during the two weeks preceding the relevant date.
(2) If the equity shares of the issuer have been listed on a recognised stock exchange for a period of less than 141[twenty six weeks] as on the relevant date, the equity shares shall be allotted at a price not less than the higher of the following:
(a) the price at which equity shares were issued by the issuer in its initial public offer or the value per share arrived at in a scheme of arrangement under sections 391 to 394 of the Companies Act, 1956, pursuant to which the equity shares of the issuer were listed, as the case may be; or
(b) the average of the weekly high and low of the 142[volume weighted average prices] of the related equity shares quoted on the recognised stock exchange during the period shares have been listed preceding the relevant date; or
(c) the average of the weekly high and low of the 143[volume weighted average prices] of the related equity shares quoted on a recognised stock exchange during the two weeks preceding the relevant date.
(3) Where the price of the equity shares is determined in terms of sub-regulation (2), such price shall be recomputed by the issuer on completion of 144[twenty six weeks] from the date of listing on a recognised stock exchange with reference to the average of the weekly high and low of the 145[volume weighted average prices] of the related equity shares quoted on the recognised stock exchange during these 146[twenty six weeks] and if such recomputed price is higher than the price paid on allotment, the difference shall be paid by the allottees to the issuer.
(4) Any preferential issue of specified securities, to qualified institutional buyers not exceeding five in number, shall be made at a price not less than the average of the weekly high and low of the
147[volume weighted average prices] of the related equity shares quoted on a recognised stock exchange during the two weeks preceding the relevant date.
Explanation: For the purpose of this regulation, ‘stock exchange’ means any of the recognised stock exchanges in which the equity shares are listed and in which the highest trading volume in respect of the equity shares of the issuer has been recorded during the preceding 148[twenty six weeks] prior to the relevant date.
Pricing of equity shares – Infrequently traded shares.
149[76A. Where the shares are not frequently traded, the price determined by the issuer shall take into account valuation parameters including book value, comparable trading multiples, and such other parameters as are customary for valuation of shares of such companies:
Provided that the issuer shall submit a certificate stating that the issuer is in compliance of this regulation, obtained from an independent merchant banker or an independent chartered accountant in practice having a minimum experience of ten years, to the stock exchange where the equity shares of the issuer are listed.
76B. Adjustments in pricing – Frequently or Infrequently traded shares
The price determined for preferential issue in accordance with regulation 76 or regulation 76A, shall be subject to appropriate adjustments, if the issuer :
(a) makes an issue of equity shares by way of capitalization of profits or reserves, other than by way of a dividend on shares;
(b) makes a rights issue of equity shares;
(c) consolidates its outstanding equity shares into a smaller number of shares;
(d) divides its outstanding equity shares including by way of stock split;
(e) re-classifies any of its equity shares into other securities of the issuer;
(f) is involved in such other similar events or circumstances, which in the opinion of the concerned stock exchange, requires adjustments.]
77. Payment of consideration.
(1) Full consideration of specified securities other than warrants issued under this Chapter shall be paid by the allottees at the time of allotment of such specified securities:
Provided that in case of a preferential issue of specified securities pursuant to a scheme of corporate debt restructuring as per the corporate debt restructuring framework specified by the Reserve Bank of India, the allottee may pay the consideration in terms of such scheme.
(2) An amount equivalent to at least twenty five per cent. of the consideration determined in terms of regulation 76 shall be paid against each warrant on the date of allotment of warrants.
(3) The balance seventy five per cent. of the consideration shall be paid at the time of allotment of equity shares pursuant to exercise of option against each such warrant by the warrant holder.
(4) In case the warrant holder does not exercise the option to take equity shares against any of the warrants held by him, the consideration paid in respect of such warrant in terms of sub-regulation (2) shall be forfeited by the issuer.
150[(5) The issuer shall ensure that the consideration of specified securities, if paid in cash, shall be received from respective allottee’s bank account.
(6) The issuer shall submit a certificate of the statutory auditor to the stock exchange where the equity shares of the issuer are listed stating that the issuer is in compliance of sub-regulation (5) and the relevant documents thereof are maintained by the issuer as on the date of certification. ]
78. Lock-in of specified securities.
(1) The specified securities allotted on preferential basis to promoter or promoter group and the equity shares allotted pursuant to exercise of options attached to warrants issued on preferential basis to promoter or promoter group, shall be locked-in for a period of three years from 151[date of trading approval granted for] the specified securities or equity shares allotted pursuant to exercise of the option attached to warrant, as the case may be:
Provided that not more than twenty per cent. of the total capital of the issuer shall be locked-in for three years from the date of 152
[trading approval]:
Provided further that equity shares allotted in excess of the twenty per cent. shall be locked-in for one year from the date of 153[trading approval] pursuant to exercise of options or otherwise, as the case may be.
(2) The specified securities allotted on preferential basis to persons other than promoter and promoter group and the equity shares allotted pursuant to exercise of options attached to warrants issued on preferential basis to such persons shall be locked in for a period of one year from the date of 154[trading approval].
(3) The lock-in of equity shares allotted pursuant to conversion of convertible securities other than warrants, issued on preferential basis shall be reduced to the extent the convertible securities have already been locked-in.
(4) The equity shares issued on preferential basis pursuant to a scheme of corporate debt restructuring as per the Corporate Debt Restructuring framework specified by the Reserve Bank of India shall be locked-in for a period of one year from the 155[trading approval] :
Provided that partly paid up equity shares, if any, shall be locked-in from the date of 156[trading approval] and the lock-in shall end on the expiry of one year from the date when such equity shares become fully paid up.
(5) If the amount payable by the allottee, in case of re-calculation of price under sub-regulation (3) of regulation 76 is not paid till the expiry of lock-in period, the equity shares shall continue to be locked in till such amount is paid by the allottee.
(6) The entire pre-preferential allotment shareholding of the allottees, if any, shall be locked-in from the relevant date upto a period of six months from the date of 157[trading approval] .
158[ Explanation 1 ] : For the purpose of this regulation:
(I) The expression “total capital of the issuer” means:
(a) equity share capital issued by way of public issue or rights issue including equity shares issued pursuant to conversion of specified securities which are convertible; and
(b) specified securities issued on a preferential basis to promoter or promoter group.
(II) (a) For the computation of twenty per cent. of the total capital of the issuer, the amount of minimum promoters’ contribution held and locked-in, in the past in terms of Securities and Exchange Board of India (Disclosure and Investor Protection) Guidelines, 2000 or these regulations shall be taken into account.
(b) The minimum promoters’ contribution shall not again be put under fresh lock-in, even though it is considered for computing the requirement of twenty per cent. of the total capital of the issuer, in case the said minimum promoters’ contribution is free of lock-in at the time of the preferential issue.
159[Explanation 2. — For the purposes of this regulation, the date of trading approval shall mean the latest date when trading approval has been granted by all the recognised stock exchanges where the equity shares of the issuer are listed, for specified securities allotted as per the provisions of this Chapter.]
79. Transferability of locked-in specified securities and warrants issued on preferential basis.
160[(1)] Subject to the provisions of Securities and Exchange Board of India (Substantial Acquisition of shares and Takeovers) Regulations, 1997, specified securities held by promoters and locked-in in terms of sub-regulation (1) of regulation 78 may be transferred among promoters or promoter group or to a new promoter or persons in control of the issuer: Provided that lock-in on such specified securities shall continue for the remaining period with the transferee.
161[(2) The specified securities allotted on preferential basis shall not be transferred by the allottee till trading approval is granted for such securities by all the recognised stock exchanges where the equity shares of the issuer are listed.]
CHAPTER VIII QUALIFIED INSTITUTIONS PLACEMENT
80. Applicability.
The provisions of this Chapter shall apply to a qualified institutions placement made by a listed issuer.
81. Definitions.
For the purpose of this Chapter:
(a) “eligible securities” include equity shares, non-convertible debt instruments along with warrants and convertible securities other than warrants;
(b) “qualified institutions placement” means allotment of eligible securities by a listed issuer to qualified institutional buyers on private placement basis in terms of these regulations;
(c) “relevant date” means:
(i) in case of allotment of equity shares, the date of the meeting in which the board of directors of the issuer or the committee of directors duly authorised by the board of directors of the issuer decides to open the proposed issue;
(ii) in case of allotment of eligible convertible securities, either the date of the meeting in which the board of directors of the issuer or the committee of directors duly authorised by the board of directors of the issuer decides to open the issue of such convertible securities or the date on which the holders of such convertible securities become entitled to apply for the equity shares.
82. Conditions for qualified institutions placement.
A listed issuer may make qualified institutions placement if it satisfies the following conditions:
(a) a special resolution approving the qualified institutions placement has been passed by its shareholders;
(b) the equity shares of the same class, which are proposed to be allotted through qualified institutions placement or pursuant to conversion or exchange of eligible securities offered 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 convening the meeting to pass the special resolution: Provided that where an issuer, being a transferee company in a scheme of merger, de-merger, amalgamation or arrangement sanctioned by a High Court under sections 391 to 394 of the Companies Act, 1956, makes qualified institutions placement, the period for which the equity shares of the same class of the transferor company were listed on a stock exchange having nation wide trading terminals shall also be considered for the purpose of computation of the period of one year.
162[(c) it is in compliance with the requirement of minimum public shareholding specified in the Securities Contracts (Regulation) Rules, 1957;]
(d) In the special resolution, it shall be, among other relevant matters, specified that the allotment is proposed to be made through qualified institutions placement and the relevant date referred to in sub-clause (ii) of clause (c) of regulation 81 shall also be specified.
Explanation: For the purpose of clause (b), “equity shares of the same class” shall have the same meaning as assigned to them in Explanation to sub-rule (4) of rule 19 of the Securities Contracts (Regulation) Rules, 1957.
83. Appointment of merchant banker.
(1) A qualified institutions placement shall be managed by merchant banker(s) registered with the Board who shall exercise due diligence.
(2) The merchant banker shall, while seeking in-principle approval for listing of the eligible securities issued under qualified institutions placement, furnish to each stock exchange on which the same class of equity shares of the issuer are listed, a due diligence certificate stating that the eligible securities are being issued under qualified institutions placement and that the issuer complies with requirements of this Chapter.
84. Placement Document:
(1) The qualified institutions placement shall be made on the basis of a placement document which shall contain all material information, including those specified in Schedule XVIII 163[and disclosures similar to disclosures specified in Part G of Schedule VIII shall be made, if applicable].
(2) The placement document shall be serially numbered and copies shall be circulated only to select investors.
(3) The issuer shall, while seeking in-principle approval from the recognised stock exchange, furnish a copy of the placement document, a certificate confirming compliance with the provisions of this Chapter along with any other documents required by the stock exchange.
(4) The placement document shall also be placed on the website of the concerned stock exchange and of the issuer with a disclaimer to the effect that it is in connection with a qualified institutions placement and that no offer is being made to the public or to any other category of investors.
164[***]
85. Pricing.
(1) The qualified institutions placement shall be made at a price not less than the average of the weekly high and low of the closing prices of the equity shares of the same class quoted on the stock exchange during the two weeks preceding the relevant date165[:]
166[Provided that the issuer may offer a discount of not more than five per cent. on the price so calculated for the qualified institutions placement, subject to approval of shareholders as specified in clause (a) of regulation 82 of these regulations.]
(2) Where eligible securities are convertible into or exchangeable with equity shares of the issuer, the issuer shall determine the price of such equity shares allotted pursuant to such conversion or exchange taking the relevant date as decided and disclosed by it while passing the special resolution.
(3) The issuer shall not allot partly paid up eligible securities:
Provided that in case of allotment of non convertible debt instruments along with warrants, the allottees may pay the full consideration or part thereof payable with respect to warrants, at the time of allotment of such warrants:
Provided further that on allotment of equity shares on exercise of options attached to warrants, such equity shares shall be fully paid up.
(4) The prices determined for qualified institutions placement shall be subject to appropriate adjustments if the issuer:
(a) makes an issue of equity shares by way of capitalization of profits or reserves, other than by way of a dividend on shares;
(b) makes a rights issue of equity shares;
(c) consolidates its outstanding equity shares into a smaller number of shares;
(d) divides its outstanding equity shares including by way of stock split;
(e) re-classifies any of its equity shares into other securities of the issuer;
(f) is involved in such other similar events or circumstances, which in the opinion of the concerned stock exchange, requires adjustments.
Explanation: For the purpose of sub-regulation (1), the term “stock exchange” means any of the recognised stock exchanges in which the equity shares of the same class of the issuer are listed and in which the highest trading volume in such equity shares has been recorded during the two weeks immediately preceding the relevant date.
86. Restrictions on allotment.
(1) Allotment under the qualified institutions placement shall be made subject to the following conditions:
(a) Minimum of ten per cent. of eligible securities shall be allotted to mutual funds: Provided that if the mutual funds do not subscribe to said minimum percentage or any part thereof, such minimum portion or part thereof may be allotted to other qualified institutional buyers;
(b) 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 issuer:
Provided that a qualified institutional buyer who does not hold any shares in the issuer and who has acquired the said rights in the capacity of a lender shall not be deemed to be a person related to promoters.
(2) In a qualified institutions placement of non-convertible debt instrument along with warrants, an investor can subscribe to the combined offering of non- convertible debt instruments with warrants or to the individual securities, that is, either non- convertible debt instruments or warrants.
(3) The applicants in qualified institutions placement shall not withdraw their bids after the closure of the issue.
Explanation: For the purpose of clause (b) of sub-regulation (1), a qualified institutional buyer who has any of the following rights shall be deemed to be a person related to the promoters of the issuer:
(a) rights under a shareholders’ agreement or voting agreement entered into with promoters or persons related to the promoters;
(b) veto rights; or
(c) right to appoint any nominee director on the board of the issuer. Minimum number of allottees.
87. (1) The minimum number of allottees for each placement of eligible securities made under qualified institutions placement shall not be less than:
(a) two, where the issue size is less than or equal to two hundred and fifty crore rupees;
(b) five, where the issue size is greater than two hundred and fifty crore rupees:
Provided that no single allottee shall be allotted more than fifty per cent. of the issue size.
(2) The qualified institutional buyers belonging to the same group or who are under same control shall be deemed to be a single allottee.
Explanation: For the purpose of sub-regulation (2), the expression “qualified institutional buyers belonging to the same group” shall have the same meaning as derived from sub-section (11) of section 372 of the Companies Act, 1956;
Validity of the special resolution.
88. (1) Allotment pursuant to the special resolution referred to in clause (a) of regulation 82 shall be completed within a period of twelve months from the date of passing of the resolution.
(2) The issuer shall not make subsequent qualified institutions placement until expiry of six months from the date of the prior qualified institutions placement made pursuant to one or more special resolutions.
Restrictions on amount raised.
89. The aggregate of the proposed qualified institutions placement and all previous qualified institutions placements made by the issuer in the same financial year shall not exceed five times the net worth of the issuer as per the audited balance sheet of the previous financial year. Tenure.
90. The tenure of the convertible or exchangeable eligible securities issued through qualified institutions placement shall not exceed sixty months from the date of allotment.
Transferability of eligible securities.
91. The eligible securities allotted under qualified institutions placement shall not be sold by the allottee for a period of one year from the date of allotment, except on a recognised stock exchange.
167[CHAPTER VIII-A
INSTITUTIONAL PLACEMENT PROGRAMME
Applicability.
91A. (1) The provisions of this Chapter shall apply to issuance of fresh shares and or offer for sale of shares in a listed issuer for the purpose of achieving minimum public shareholding in terms of Rule 19(2)(b) and 19A of the Securities Contracts (Regulation) Rules, 1957.
(2) Unless otherwise specified, no provisions of these regulations shall be applicable to the institutional placement programme except for the following:-
(a) regulations 2, 5, 12, 18, 19, 47, 48, 51, 59, 60, 61, 64, 65, 66 and 68;
(b) clauses (a) and (b) of sub-regulation (2) of regulation 4;
(c) clause (b) of regulation 7.
Definitions.
91B. For the purpose of this Chapter:
(a) “eligible securities” shall mean equity shares of same class listed and traded in the stock exchange(s);
(b) “eligible seller” include listed issuer, promoter/promoter group of listed issuer;
(c) “institutional placement programme” means a further public offer of eligible securities by an eligible seller, in which the offer, allocation and allotment of such securities is made only to qualified institutional buyers in terms of this Chapter.
Conditions for institutional placement programme.
91C. (1) An institutional placement programme may be made only after a special resolution approving the institutional placement programme has been passed by the shareholders of the issuer in terms of section 81(1A) of the Companies Act, 1956.
(2) No partly paid-up securities shall be offered.
(3) The issuer shall obtain an in-principle approval from the stock exchange(s).
Appointment of merchant banker.
91D. An institutional placement programme shall be managed by merchant banker(s) registered with the Board who shall exercise due diligence.
Offer Document.
91E. (1) The institutional placement programme shall be made on the basis of the offer document which shall contain all material information, including those specified in Schedule XVIII.
(2) The issuer shall, simultaneously while registering the offer document with the Registrar of Companies, file a copy thereof with the Board and with the stock exchange(s) through the lead merchant banker.
(3) The issuer shall file the soft copy of the offer document with the Board as specified in Schedule V, along with the fee as specified in Schedule IV.
(4) The offer document shall also be placed on the website of the concerned stock exchange and of the issuer clearly stating that it is in connection with institutional placement programme and that the offer is being made only to the qualified institutional buyers.
(5) The merchant banker shall submit to the Board a due diligence certificate as per Form A of Schedule VI, stating that the eligible securities are being issued under institutional placement programme and that the issuer complies with requirements of this Chapter. Pricing and allocation/allotment.
91F. (1) The eligible seller shall announce a floor price or price band at least one day prior to the opening of institutional placement programme.
(2) The eligible seller shall have the option to make allocation/allotment as per any of the following methods –
(a) proportionate basis;
(b) price priority basis; or
(c) criteria as mentioned in the offer document.
(3) The method chosen shall be disclosed in the offer document.
(4) Allocation/allotment shall be overseen by stock exchange before final allotment.
Restrictions.
91G. 168[ (1) The promoter or promoter group shall not make institutional placement programme if the promoter or any person who is part of the promoter group has purchased or sold the eligible securities during the twelve weeks period prior to the date of the programme and they shall not purchase or sell the eligible securities during the twelve weeks period after the date of the programme:
Provided that such promoter or promoter group may , within the period provided in sub-regulation (1), offer eligible securities held by them through institutional placement programme or offer for sale through stock exchange mechanism specified by the Board, subject to the condition that there shall be a gap of minimum two weeks between the two successive offer(s) and /or programme(s).]
(2) Allocation/allotment under the institutional placement programme shall be made subject to the following conditions:
(a) Minimum of twenty five per cent. of eligible securities shall be allotted to mutual funds and insurance companies:
Provided that if the mutual funds and insurance companies do not subscribe to said minimum percentage or any part thereof, such minimum portion or part thereof may be allotted to other qualified institutional buyers;
(b) No allocation/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 issuer:
Provided that a qualified institutional buyer who does not hold any shares in the issuer and who has acquired the rights in the capacity of a lender shall not be deemed to be a person related to promoters.
(3) The issuer shall accept bids using ASBA facility only.
(4) The bids made by the applicants in institutional placement programme shall not be revised downwards or withdrawn.
Explanation: For the purpose of clause (b) of sub-regulation (2), a qualified institutional buyer who has any of the following rights shall be deemed to be a person related to the promoters of the issuer:-
(a) rights under a shareholders’ agreement or voting agreement entered into with promoters or persons related to the promoters;
(b) veto rights; or
(c) right to appoint any nominee director on the board of the issuer.
Minimum number of allottees.
91H. (1) The minimum number of allottees for each offer of eligible securities made under institutional placement programme shall not be less than ten:
Provided that no single allottee shall be allotted more than twenty five per cent. of the offer size.
(2) The qualified institutional buyers belonging to the same group or who are under same control shall be deemed to be a single allottee.
Explanation: For the purpose of sub-regulation (2), the expression “qualified institutional buyers belonging to the same group” shall have the same meaning as derived from sub-section (11) of section 372 of the Companies Act, 1956;
Restrictions on size of the offer.
91-I. (1) The aggregate of all the tranches of institutional placement programme made by the eligible seller shall not result in increase in public shareholding by more than ten per cent. or such lesser per cent. as is required to reach minimum public shareholding.
(2) Where the issue has been oversubscribed, an allotment of not more than ten per cent. of the offer size shall be made by the eligible seller.
“(1) The promoter or promoter group who are offering their eligible securities should not have purchased and/ or sold the eligible securities of the company in the twelve weeks period prior to the offer and they should undertake not to purchase and / or sell eligible securities of the company in the twelve weeks period after the offer.”
Period of Subscription and display of demand.
91J. (1) The issue shall be kept open for a minimum of one day or maximum of two days.
(2) The aggregate demand schedule shall be displayed by stock exchange(s) without disclosing the price.
Withdrawal of offer.
91K. The eligible seller shall have the right to withdraw the offer in case it is not fully subscribed. Transferability of eligible securities.
91L. The eligible securities allotted under institutional placement programme shall not be sold by the allottee for a period of one year from the date of allocation/allotment, except on a recognised stock exchange.]
CHAPTER IX – BONUS ISSUE
Conditions for bonus issue.
92. Subject to the provisions of the Companies Act, 1956 or any other applicable law for the time being in force, a listed issuer may issue bonus shares to its members if:
(a) it is authorised by its articles of association for issue of bonus shares, capitalisation of reserves, etc.:
Provided that if there is no such provision in the articles of association, the issuer shall pass a resolution at its general body meeting making provisions in the articles of associations for capitalisation of reserve;
(b) it has not defaulted in payment of interest or principal in respect of fixed deposits or debt securities issued by it;
(c) it has sufficient reason to believe that it has not defaulted in respect of the payment of statutory dues of the employees such as contribution to provident fund, gratuity and bonus;
(d) the partly paid shares, if any outstanding on the date of allotment, are made fully paid up Restriction on bonus issue.
93. (1) No issuer shall make a bonus issue of equity shares 169[***] unless it has made reservation of equity shares of the same class in favour of the holders of 170[***] outstanding 171[compulsorily] convertible debt instruments 172[,if any,] in proportion to the convertible part thereof.
(2) The equity shares 173[so] reserved for the holders of fully or partly 174[compulsorily] convertible debt instruments shall be issued at the time of conversion of such convertible debt instruments on the same terms or same proportion 175[at] which the bonus shares were issued.
Bonus shares only against reserves, etc. if capitalised in cash.
94. (1) The bonus issue shall be made out of free reserves built out of the genuine profits or securities premium collected in cash only and reserves created by revaluation of fixed assets shall not be capitalised for the purpose of issuing bonus shares.
(2) Without prejudice to the provisions of sub-regulation (1), the bonus share shall not be issued in lieu of dividend.
Completion of bonus issue.
95. (1) An issuer, announcing a bonus issue after the approval of its board of directors and not requiring shareholders’ approval for capitalisation of profits or reserves for making the bonus issue, shall implement the bonus issue within fifteen days from the date of approval of the issue by its board of directors:
Provided that where the issuer is required to seek shareholders’ approval for capitalisation of profits or reserves for making the bonus issue, the bonus issue shall be implemented within two months from the date of the meeting of its board of directors wherein the decision to announce the bonus issue was taken subject to shareholders’ approval.
(2) Once the decision to make a bonus issue is announced, the issue can not be withdrawn.
CHAPTER X – ISSUE OF INDIAN DEPOSITORY RECEIPTS
Applicability.
96. (1) The provisions of this Chapter shall apply to an issue of Indian Depository Receipts (hereinafter referred to as “IDR”) made in terms of section 605A of the Companies Act, 1956 and Companies (Issue of Indian Depository Receipts) Rules, 2004.
(2) All provisions of these regulations shall be applicable in case of issue of IDR, except the disclosure requirements with respect to public issue and rights issue of specified securities as provided in these regulations and the following:
(a) clauses (a), (b), (c) and (f) of sub-regulation (2) of regulation 4;
(b) sub-regulations (1), (2) and (3) of regulation 6,
(c) clauses (c),(d) and (e) of sub-regulation (1) of regulation 8;
(d) sub-regulations (2) and (3) of regulation 8;
(e) regulations 10,16,17,19, 20,21,22,23,24,26,27,31,41, 42,176[***] 45,47, 49 and 68;
(f) sub-regulation (2) of regulation 11;
(g) sub-regulation (2) of regulation 28;
(h) clauses (b) and (c) of regulation 29;
(i) Parts III and IV of Chapter III;
177[(ia) regulation 43, except sub-regulation (3) thereof;]
(j) Chapter IV;
(k) sub-regulation (3) of regulation 65;
(l) Chapters VII, VIII and IX.
(3) Further, the applicability of regulation 60 shall be as follows:
(a) the applicability of sub-regulations (1) and (7) and Explanation II shall be restricted to any issue advertisements made in India or any research report circulated in India, pertaining to the IDR issue of the issuing company;
(b) the applicability of sub-regulations (2) and (3) shall be restricted to any public communications and publicity material issued or published in any media in India;
(c) the applicability of sub-regulations (5) and (6) shall be restricted to any material or information released in India and any issue advertisements and publicity materials issued or published in any media in India;
(d) the applicability of sub-regulation (13) shall be restricted to any product advertisement of an issuing company issued or published in any media in India;
(e) all other provisions of regulation 60 shall be applicable.
Eligibility.
97. An issuing company making an issue of IDR shall also satisfy the following:
(a) the issuing company is listed in its home country;
(b) the issuing company is not prohibited to issue securities by any regulatory body;
(c) the issuing company has track record of compliance with securities market regulations in its home country.
Explanation: For the purpose of this regulation, the term “home country” means the country where the issuing company is incorporated and listed. Conditions for issue of IDR.
98. An issue of IDR shall be subject to the following conditions:
(a) issue size shall not be less than fifty crore rupees;
(b) procedure to be followed by each class of applicant for applying shall be mentioned in the prospectus;
(c) minimum application amount shall be twenty thousand rupees;
(d) at least fifty per cent. of the IDR issued shall be allotted to qualified institutional buyers on proportionate basis as per illustration given in Part C of Schedule XI;
(e) the balance fifty per cent. may be allocated among the categories of non-institutional investors and retail individual investors including employees at the discretion of the issuer and the manner of allocation shall be disclosed in the prospectus. Allotment to investors within a category shall be on proportionate basis:
178[ Provided that at least thirty per cent. of the IDRs being offered in the public issue shall be available for allocation to retail individual investors and in case of under subscription in retail individual investor category, spillover to other categories to the extent of under subscription may be permitted.
Explanation: For the purpose of this regulation, “employee” shall mean a person who,-
(a) is a resident of India, and
(b) is a permanent and full-time employee or a director, whether whole time or part time, of the issuer or of the holding company or subsidiary company or of the material associate(s) of the issuer, whose financial statements are consolidated with the issuer’s financial statements, working in India and does not include promoters and an immediate relative of the promoter (i.e., any spouse of that person, or any parent, brother, sister or child of the person or of the spouse).]
(f) At any given time, there shall be only one denomination of IDR of the issuing company.
(g) 179[the issuing company shall ensure that the underlying equity shares against which IDRs are issued have been or will be listed in its home country before listing of IDRs in stock exchange(s).
(h) the issuing company shall ensure that the underlying shares of IDRs shall rank pari-passu with the existing shares of the same class.] Minimum subscription.
99. (1) For non-underwritten issues:
(a) If the issuing company does not receive the minimum subscription of ninety per cent. of the offer through offer document on the date of closure of the issue, or if the subscription level falls below ninety per cent. after the closure of issue on account of cheques having being returned unpaid or withdrawal of applications, the issuing company shall forthwith refund the entire subscription amount received.
(b) If the issuing company fails to refund the entire subscription amount within fifteen days from the date of the closure of the issue, it is liable to pay the amount with interest to the subscribers at the rate of fifteen per cent. per annum for the period of delay.
(2) For underwritten issues: If the issuing company does not receive the minimum subscription of ninety per cent. of the offer through offer document including devolvement of underwriters within sixty days from the date of closure of the issue, the issuing company shall forthwith refund the entire subscription amount received with interest to the subscribers at the rate of fifteen per cent. per annum for the period of delay beyond sixty days.
180[Fungibility.
100. The Indian Depository Receipts shall be fungible into underlying equity shares of the issuing company in the manner specified by the Board and Reserve Bank of India, from time to time.] Filing of draft prospectus, due diligence certificates, payment of fees and issue advertisement for IDR.
101. 181[(1) The issuing company shall appoint one or more merchant bankers, at least one of whom shall be a lead merchant banker and shall also appoint other intermediaries, in consultation with the lead merchant banker and shall enter into an agreement with the merchant banker on the lines of format of agreement as specified in Schedule II.]
(2) Where the issue is managed by more than one merchant banker, the rights, obligations and responsibilities, relating inter-alia to disclosures, allotment, refund and underwriting obligations, if any, of each merchant banker shall be predetermined and disclosed in the prospectus on the lines of format as specified in Schedule I.
(3) The issuing company shall file a draft prospectus with the Board through a merchant banker along with the requisite fee, as prescribed in Companies (Issue of Indian Depository Receipts) Rules, 2004.
(4) The prospectus filed with the Board under this regulation shall also be furnished to the Board in a soft copy on the lines specified in Schedule V.
(5) The lead merchant bankers shall:
(a) submit a due diligence certificate as per format given in Part C of Schedule XIX to the Board along with the draft prospectus.
(b) certify that all amendments, suggestions or observations made by the Board have been incorporated in the prospectus
(c) submit a fresh due diligence certificate as per format given in Part C of Schedule XIX, at the time of filing the prospectus with the Registrar of the Companies.
(d) furnish a certificate as per format given in Part C of Schedule XIX, immediately before the opening of the issue, certifying that no corrective action is required on its part.
(e) furnish a certificate as per format given in Part C of Schedule XIX, after the issue has opened but before it closes for subscription.
(6) The issuing company shall make arrangements for mandatory collection centres as specified in Schedule III.
(7) The issuing company shall issue an advertisement in one English national daily newspaper with wide circulation and one Hindi national daily newspaper with wide circulation, soon after receiving final observations, if any, on the publicly filed draft prospectus with the Board, which shall be on the lines of the format and contain the minimum disclosures as given in Part A of Schedule XIII.
182[Agreements with other intermediaries and others.
101A. (1) The issuing company shall appoint a registrar and transfer agent which has connectivity with all the depositories.
(2)The issuing company shall enter into an agreement with overseas custodian bank and domestic depository.
(3) The lead merchant banker, after independently assessing the capability of other intermediaries and others to carry out their obligations, shall advise the issuing company on their appointment.] 183[Display of bid data and issue of allotment letter.
102. (1) The stock exchange(s) offering online bidding system for the book building process shall display on their website, the data pertaining to book built IDR issue, in the format specified in Part B(2) of Schedule XI, from the date of opening of the bids till at least three days after closure of bids.
(2) The issuing company shall ensure that letter of allotment for the IDRs are issued simultaneously to all allottees and that in the event of it being impossible to issue letters of regret at the same time, a notice to that effect be issued in the media so that it appears on the morning after the letters of allotment have been dispatched.]
Disclosures in prospectus and abridged prospectus.
103. (1) The prospectus shall contain all material disclosures which are true, correct and adequate so as to enable the applicants to take an informed investment decision.
(2) Without prejudice to the generality of sub-regulation (1), the prospectus shall contain:
(a) the disclosures specified in Schedule to Companies (Issue of Indian Depository Receipts) Rules, 2004; and
(b) the disclosures in the manner as specified in Part A of Schedule XIX.
(3) The abridged prospectus for issue of Indian Depository Receipts shall contain the disclosures as specified in Part B of Schedule XIX.
Post-issue reports.
104. (1) The merchant banker shall submit post-issue reports to the Board in accordance with subregulation (2).
(2) The post-issue reports shall be submitted as follows:
(a) initial post issue report on the lines of Parts A and B of Schedule XVI, within three days of closure of the issue;
(b) final post issue report on the lines of Parts C and D of Schedule XVI, within fifteen days of the date of finalisation of basis of allotment or within fifteen days of refund of money in case of failure of issue.
Undersubscribed issue.
105. In case of undersubscribed issue of IDR, the merchant banker shall furnish information in respect of underwriters who have failed to meet their underwriting devolvement to the Board on the lines of the format specified in Schedule XVII.
Finalisation of basis of allotment.
106. The executive director or managing director of the stock exchange, where the IDR are proposed to be listed, along with the post issue lead merchant bankers and registrars to the issue shall ensure that the basis of allotment is finalised in a fair and proper manner in accordance with the allotment procedure as specified in Schedule XV.
184[CHAPTER XA – RIGHTS ISSUE OF INDIAN DEPOSITORY RECEIPTS
Applicability.
106A. (1) In addition to compliance with Chapter X, a listed issuer offering IDR through a rights issue shall satisfy the conditions specified in this Chapter at the time of filing the offer document: Provided that the provisions of the following regulations shall not be applicable in case of rights issue of IDRs:
(a) clauses (a), (b), (c), (d) and (e) of regulation 98;
(b) regulation 102; and
(c) regulation 103.
(2) Every listed issuer offering IDRs through a rights issue shall prepare the offer document in accordance with the home country requirements along with an addendum containing disclosures as specified in Part A of Schedule XXI and regulation 106F and file the same with the Board and the stock exchanges on which the IDRs of the issuer are listed. Eligibility.
106B. No issuer shall make a rights issue of IDRs:
(a) if at the time of undertaking the rights issue, the issuer is in breach of ongoing material obligations under the IDR Listing Agreement as may be applicable to such issuer or material obligations under the deposit agreement entered into between the domestic depository and the issuer at the time of initial offering of IDRs; and
(b) unless it has made an application to all the recognised stock exchanges in India, where its IDRs are already listed, for listing of the IDRs to be issued by way of rights and has chosen one of them as the designated stock exchange.
Renunciation by an IDR holder.
106C. Unless the laws of the home jurisdiction of the issuer company otherwise provide, the rights offering shall be deemed to include a right exercisable by the person concerned to renounce the IDRs offered to the IDR holder in favour of any other person subject to applicable laws and the same shall be disclosed in the offer document.
Depository.
106D. The domestic depository shall, in accordance with the depository agreement executed with the issuer at the time of initial offering of IDRs, take such steps as are necessary to enable the IDR holders to have entitlements under the rights offering and issue additional IDRs to such IDR holders, distribute the rights to the IDR Holders/renouncees or arrange for the IDR holders/renouncees to subscribe for any additional rights which are available due to lack of take-up by other holders of underlying shares.
Record Date.
106E. (1) A listed issuer making a rights issue of IDRs shall in accordance with provisions of the listing agreement, announce a record date for the purpose of determining the shareholders eligible to apply for IDRs in the proposed rights issue.
(2) If the issuer withdraws the rights issue after announcing the record date, it shall notify the Board about the same and shall notify the same in one English national daily newspaper with wide circulation, one Hindi national daily newspaper with wide circulation and one regional language daily newspaper with wide circulation at the place where principal office of the issuer is situated in India. If the issuer withdraws the rights issue after announcing the record date, it shall not make an application for offering of IDRs on a rights basis for a period of twelve months from the said record date.
Disclosures in the offer document and the addendum for the rights offering.
106F. (1) The offer document for the rights offering shall contain disclosures as required under the home country regulations of the issuer.
(2) Apart from the disclosures as required under the home country regulations, an additional wrap (addendum to offer document) shall be attached to the offer document to be circulated in India containing information as specified in Part A of Schedule XXI and other instructions as to the procedures and process to be followed with respect to rights issue of IDRs in India.
(3) Without prejudice to the generality of sub-regulations (1) and (2), the offer document and the addendum attached with it, shall contain all material information, which are true, correct and adequate, so as to enable the applicants to take an informed investment decision.
Filing of draft offer document and the addendum for rights offering.
106G. (1)The issuer shall appoint one or more merchant bankers, one of whom shall be a lead merchant banker and shall also appoint other intermediaries, in consultation with the lead merchant banker, to carry out the obligations relating to the issue.
(2) The issuer shall, through the lead merchant banker, file the draft offer document prepared in accordance with the home country requirements along with an addendum containing disclosures as specified in Part A of Schedule XXI with the Board, as a confidential filing accompanied with fees as specified in Part A of Schedule IV.
(3) The Board may specify changes or issue observations, if any, on the draft offer document and the addendum within thirty days or from the following dates, whichever is later:
(a) the date of receipt of the draft offer document prepared in accordance with the home country requirements along with an addendum under sub-regulation (2); or
(b) the date of receipt of satisfactory reply from the lead merchant bankers, where the Board has sought any clarification or additional information from them; or
(c) the date of receipt of clarification or information from any regulator or agency, where the Board has sought any clarification or information from such regulator or agency; or
(d) the date of receipt of a copy of in-principle approval letter issued by the recognised stock exchanges.
(4) If the Board specifies changes or issues observations on the draft offer document and the addendum under sub-regulation(3), the issuer and the merchant banker shall file the revised draft offer document and the updated addendum after incorporating the changes suggested or specified by the Board.
(5) The issuer shall also submit an undertaking from the Overseas Custodian and Domestic Depository addressed to the issuer, to comply with their obligations with respect to the said rights issue under their respective agreements entered into between them, along with the offer document.
(6) The issuer shall ensure that the Compliance Officer, in charge of ensuring compliance with the obligations under this Chapter, functions from within the territorial limits of India.
Fast track issue.
106H. (1) Nothing contained in sub-regulations (1), (2), (3) and (4) of regulation 106G shall apply, if the issuer satisfies the following conditions:
(a) the issuer is in compliance in all material respects with the provisions of deposit agreement and the provisions of listing agreements (or listing conditions) applicable in all the jurisdictions wherever the issuer is listed, for a period of at least three years immediately preceding the date of filing of the offer document, and a certification to this effect is provided by the issuer;
(b) the offer document for the rights offering of the securities of the issuer has been filed and reviewed by the securities regulator in the home country of the issuer;
(c) there are no pending show-cause notices or prosecution proceedings against the issuer or its promoters, where applicable, or whole time directors on the reference date by the Board or the regulatory authorities in its home country restricting them from accessing the capital markets; and
(d) the issuer has redressed at least ninety five per cent. of the complaints received from the IDR holders before the end of the three months period immediately preceding the month of date of filing the letter of offer with the designated stock exchange.
(2) Where the conditions in sub-regulation (1) are satisfied, the issuer may opt for rights issue of IDRs by filing a copy of the offer document prepared in accordance with the home country requirements along with an addendum containing disclosures as specified in Part A of Schedule XXI with the Board for record purposes, before filing the same with the recognised stock exchanges.
Dispatch of abridged letter of offer and application form.
106I. (1) The abridged letter of offer, containing disclosures as specified in Part B of Schedule XXI, for a rights offering, along with application form, shall be dispatched through registered post or speed post to all the eligible IDR holders at least three days before the date of opening of the issue and shall be made available on the website of the issuer with appropriate access restrictions at the same time it is made available to the holders of its equity shares.
Provided that a hard copy of the offer document for a rights offering along with the addendum shall be made available at the principal office of the issuer or lead merchant banker to any existing IDR holder who has made a request in this regard.
(2) The eligible IDR holders who have not received the application form may apply in writing on a plain paper to the domestic depository, along with the requisite application money within the time frame for acceptance.
(3) The eligible IDR holders making an application otherwise than on the application form shall not renounce their rights and shall not utilise the application form for any purpose including renunciation even if it is received subsequently.
(4) Where any eligible IDR holder makes an application on an application form as well as on plain paper, such application is liable to be rejected.
(5) The issue price and the ratio shall be decided simultaneously with record date in accordance with the home country regulations.
185[Period of subscription and issue of allotment letter.
106J. (1) A rights issue shall be open for subscription in India for a period as applicable under the laws of its home country but in no case less than ten days.
(2) The issuing company shall ensure that it sends the allotment letter of rights to IDR Holders at the time they are sent to shareholders of the issuing company as per the requirement of its home country or other jurisdictions where its securities are listed.]
Pre-Issue Advertisement for rights issue.
106K. (1) The issuer shall issue an advertisement for the rights issue disclosing the following: (a) the date of completion of despatch of the abridged letter of offer and the application form;
(b) the centres other than principal office of the issuer in India where the eligible IDR holders may obtain duplicate copies of the application forms in case they do not receive the application form within a reasonable time after opening of the rights issue;
(c) a statement that if the eligible IDR holders have neither received the original application forms nor they are in a position to obtain the duplicate forms, they may make application in writing on a plain paper to subscribe to the rights issue;
(d) a format to enable the eligible IDR holders, to make the application on a plain paper specifying therein necessary particulars such as name, address, ratio of rights issue, issue price, number of IDRs held, ledger folio numbers, depository participant ID, client ID, number of IDRs entitled and applied for, amount to be paid along with application, and particulars of cheque, etc. to be drawn in favour of the issuer’s account;
(e) a statement that the applications can be directly sent by the eligible IDR holders through registered post together with the application moneys to the issuer’s designated official at the address given in the advertisement;
(f) a statement to the effect that if the eligible IDR holder makes an application on plain paper and also on application form both his applications shall be liable to be rejected at the option of the issuer.
(2) The advertisement shall be made in at least one English national daily newspaper with wide circulation, one Hindi national daily newspaper with wide circulation and one regional language daily newspaper with wide circulation at the place where principal office of the issuer is situated in India at least three days before the date of opening of the issue.
Utilisation of funds raised in rights issue.
106L. (1) The issuer shall utilise funds raised in relation to the IDRs pursuant to the rights offering only upon completion of the allotment process.]
186[ CHAPTER XB]
187[ISSUE OF SPECIFIED SECURITIES BY SMALL AND MEDIUM ENTERPRISES]
Applicability.
188[106M.] (1) An issuer whose post-issue face value capital does not exceed ten crore rupees shall issue its specified securities in accordance with provisions of this Chapter.
(2) An issuer, whose post issue face value capital is more than ten crore rupees and upto twenty five crore rupees, may also issue specified securities in accordance with provisions of this Chapter.
(3) The provisions of these regulations, in respect of the matters not specifically dealt or excluded under this Chapter, shall mutatis mutandis apply to any issue of specified securities under this Chapter:
Provided that provisions of sub-regulations (1), (2) and (3) of regulation 6, 189[****], regulation 8, regulation 9, regulation 10, regulation 25, regulation 26, regulation 27 and sub-regulation (1) of regulation 49 of these regulations shall not apply to an issue of specified securities made under this Chapter.
Definitions.
190[106N.] (1) In this Chapter, unless the context otherwise requires, –
(a) “Main Board” means a recognized stock exchange having nationwide trading terminals, other than SME exchange;
(b) “nominated investor” means a qualified institutional buyer or private equity fund, who enters into an agreement with the merchant banker to subscribe to the issue in case of under-subscription or to receive or deliver the specified securities in the marketmaking process;
Explanation: “private equity fund” means a fund registered with any regulatory authority or a fund established by any person registered with any regulatory authority;
(c) “SME exchange” means a trading platform of a recognised stock exchange having nationwide trading terminals permitted by the Board to list the specified securities issued in accordance with this Chapter and includes a stock exchange granted recognition for this purpose but does not include the Main Board;
(2) All other words and expression used in this Chapter but not defined under subregulation
(1) shall derive their meaning from regulation 2 of these regulations.
Filing of offer document and due diligence certificate.
191[106O.] (1) The issuer making a public issue or rights issue of specified securities under this Chapter shall not file the draft offer document with the Board:
Provided that the issuer shall file a copy of the offer document with the Board through a merchant banker, simultaneously with the filing of the prospectus with the SME exchange and the Registrar of Companies or letter of offer with the SME Exchange:
Provided further that the Board shall not issue any observation on the offer document.
(2) The merchant banker shall submit a due-diligence certificate as per Form A of Schedule VI including additional confirmations as provided in Form H of Schedule VI alongwith the offer document to the Board.
(3) The offer document shall be displayed from the date of filing in terms of sub-regulation (1) on the websites of the Board, the issuer, the merchant banker and the SME exchange where the specified securities offered through the offer document are proposed to be listed. Underwriting by merchant bankers and underwriters.
192[106P.] (1) The issue made under this Chapter shall be hundred per cent. underwritten. Explanation: The underwriting under this regulation shall be for the entire hundred percent of the offer through offer document and shall not be restricted upto the minimum subscription level.
(2) The merchant banker/s shall underwrite at least fifteen per cent of the issue size on his/ their own account/s.
(3) The issuer in consultation with merchant banker may appoint underwriters in accordance with Securities and Exchange Board of India (Underwriters) Regulations, 1993 and the merchant banker may enter into an agreement with nominated investor indicating therein the number of specified securities which they agree to subscribe at issue price in case of under-subscription.
(4) If other underwriters fail to fulfill their underwriting obligations or other nominated investors fail to subscribe to unsubscribed portion, the merchant banker shall fulfill the underwriting obligations.
(5) The underwriters other than the merchant banker and the nominated investors, who have entered into an agreement for subscribing to the issue in case of under-subscription, shall not subscribe to the issue made under this Chapter in any manner except for fulfilling their obligations under their respective agreements with the merchant banker in this regard.
(6) All the underwriting and subscription arrangements made by the merchant banker shall be disclosed in the offer document.
(7) The merchant banker shall file an undertaking to the Board that the issue has been hundred per cent. underwritten along with the list of underwriters and nominated investors indicating the extent of underwriting or subscription commitment made by them, one day before the opening of issue.
Minimum Application Value.
193[106Q.] The issuer shall stipulate in the offer document, the minimum application size in terms of number of specified securities which shall not be less than one lakh rupees per application.
Minimum Number of Allottees.
194[106R.] No allotment shall be made pursuant to any initial public offer made under this Chapter, if the number of prospective allottees is less than fifty.
Listing of specified securities.
195[106S.] (1) Specified securities issued in accordance with this Chapter shall be listed on SME exchange.
(2) Where any listed issuer issues specified securities in accordance with provisions of this Chapter it shall migrate the specified securities already listed on any recognized stock exchange/s to the SME exchange.
Migration to SME exchange.
196[106T.] A listed issuer whose post-issue face value capital is less than twenty five crore rupees may migrate its specified securities to SME exchange if its shareholders approve such migration by passing a special resolution through postal ballot to this effect and if such issuer fulfils the eligibility criteria for listing laid down by the SME exchange:
Provided that the special resolution shall be acted upon if and only if the votes cast by shareholders other than promoters in favour of the proposal amount to at least two times the number of votes cast by shareholders other than promoter shareholders against the proposal.
Migration to Main Board.
197[106U.] (1) An issuer, whose specified securities are listed on a SME Exchange and whose post issue face value capital is more than ten crore rupees and upto twenty five crore rupees, may migrate its specified securities to Main Board if its shareholders approve such migration by passing a special resolution through postal ballot to this effect and if such issuer fulfils the eligibility criteria for listing laid down by the Main Board:
Provided that the special resolution shall be acted upon if and only if the votes cast by shareholders other than promoters in favour of the proposal amount to at least two times the number of votes cast by shareholders other than promoter shareholders against the proposal.
(2) Where the post issue face value capital of an issuer listed on SME exchange is likely to increase beyond twenty five crore rupees by virtue of any further issue of capital by the issuer by way of rights issue, preferential issue, bonus issue, etc. the issuer shall migrate its specified securities listed on SME exchange to Main Board and seek listing of specified securities proposed to be issued on the Main Board subject to the fulfilment of the eligibility criteria for listing of specified securities laid down by the Main Board:
Provided that no further issue of capital by the issuer shall be made unless –
(a) the shareholders of the issuer have approved the migration by passing a special resolution through postal ballot wherein the votes cast by shareholders other than promoters in favour of the proposal amount to at least two times the number of votes cast by shareholders other than promoter shareholders against the proposal;
(b) the issuer has obtained in- principle approval from the Main Board for listing of its entire specified securities on it.
Market Making.
198[106V.] (1) The merchant banker shall ensure compulsory market making through the stock brokers of SME exchange in the manner specified by the Board for a minimum period of three years from the date of listing of specified securities issued under this Chapter on SME exchange or from the date of migration from Main Board in terms of regulation 199[106T], as the case may be.
(2) The merchant banker may enter into agreement with nominated investors for receiving or delivering the specified securities in the market making subject to the prior approval by the SME exchange where the specified securities are proposed to be listed.
(3) The issuer shall disclose the details of arrangement of market making in the offer document.
(4) The specified securities being bought or sold in the process of market making may be transferred to or from the nominated investor with whom the merchant banker has entered into an agreement for the market making:
Provided that the inventory of the market maker, as on the date of allotment of the specified securities, shall be at least five per cent. of the specified securities proposed to be listed on SME exchange.
(5) The market maker shall buy the entire shareholding of a shareholder of the issuer in one lot, where value of such shareholding is less than the minimum contract size allowed for trading on the SME exchange:
Provided that market maker shall not sell in lots less than the minimum contract size allowed for trading on the SME exchange.
(6) Market maker shall not buy the shares from the promoters or persons belonging to promoter group of the issuer or any person who has acquired shares from such promoter or person belonging to promoter group, during the compulsory market making period laid down under sub-regulation (1).
(7) The promoters’ holding shall not be eligible for offering to the market maker under this Chapter during the period specified in sub-regulation (1):
Provided that the promoters’ holding which is not locked-in as per these regulations can be traded with prior permission of the SME exchange, in the manner specified by the Board.
(8) Subject to the agreement between the issuer and the merchant banker/s, the merchant banker/s who have the responsibility of market making may be represented on the board of the issuer.]
200[CHAPTER XC LISTING ON INSTITUTIONAL TRADING PLATFORM
Applicability.
106W. (1) The provisions of this chapter shall apply to entities which seek listing of their specified securities exclusively on the institutional trading platform either pursuant to a public issue or otherwise.
(2) The provisions of these regulations, in respect of the matters not specifically dealt or excluded under this Chapter, shall apply mutatis mutandis to any listing of specified securities under this Chapter:
Provided that the provisions of sub-regulation (4) of regulation 4, sub-regulations (1) and (2) of regulation 26 of these regulations shall not apply to listing of specified securities made under this Chapter.
(3) The institutional trading platform shall be accessible to institutional investors and noninstitutional investors.
Definitions.
106X. (1) In this chapter, unless the context otherwise requires,-
(a) “institutional trading platform” means the trading platform for listing and trading of specified securities of entities that comply with the eligibility criteria specified in regulation 106Y;
(b) “institutional investor” means:
(i) qualified institutional buyer; or
(ii) family trust or systematically important NBFCs registered with Reserve Bank of India or intermediaries registered with the Board, all with net-worth of more than five hundred crore rupees, as per the last audited financial statements;
(c) “persons acting in concert” shall have the same meaning as assigned to it under regulation
2(1)(q) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.
(3) All other words and expressions used in this Chapter but not defined under sub-regulation (1) shall derive their meaning from regulation 2 of these regulations. Eligibility.
106Y. (1) The following entities shall be eligible for listing on the institutional trading platform,-
(a) an entity which is intensive in the use of technology, information technology, intellectual property, data analytics, bio-technology or nano-technology to provide products, services or business platforms with substantial value addition and at least twenty five per cent of its pre-issue capital is held by qualified institutional buyer(s) as on the date of filing of draft information document or draft offer document with the Board, as the case may be; or
(b) any other entity in which at least fifty per cent of the pre-issue capital is held by qualified institutional buyers as on the date of filing of draft information document or draft offer document with the Board, as the case may be.
(2) No person, individually or collectively with persons acting in concert, shall hold twenty five per cent or more of the post-issue share capital in an entity specified in sub-regulation (1). Listing without public issue.
106Z. (1) An entity seeking listing of its specified securities without making a public issue shall file a draft information document along with necessary documents with the Board in accordance with these regulations along with fee as specified in Schedule IV of these regulations.
(2) The draft information document shall contain the disclosures as specified for draft offer document in these regulations.
(3) Regulations relating to the following shall not be applicable in case of listing without public issue:
(i) allotment;
(ii) issue opening / closing;
(iii) advertisement;
(iv) underwriting;
(v) sub-regulation (5) of regulation 26;
(vi) pricing;
(vii) dispatch of issue material;
(viii) and other such provisions related to offer of specified securities to public.
(4) The entity shall obtain in-principle approval from the recognised stock exchanges on which it proposes to get its specified securities listed.
(5) The entity shall list its specified securities on the recognised stock exchange(s within thirty days:
(a) from the date of issuance of observations by the Board; or
(b) from the expiry of the period stipulated in sub-regulation (2) of regulation 6, if the Board has not issued any such observations.
(6) The entity which has received in-principle approval from the recognised stock exchange for listing of its specified securities on the institutional trading platform, without making a public issue, shall be deemed to have been waived by the Board under sub-rule (7) of rule 19 from the requirement of clause (b) of sub-rule (2) of rule 19 of Securities Contracts (Regulation) Rules, 1957 for the limited purpose of listing on the institutional trading platform.
(7) Provisions relating to minimum public shareholding shall not apply to entities listed on institutional trading platform without making a public issue.
(8) The draft and final information document shall be approved by the board of directors of the entity and shall be signed by all directors, the Chief Executive Officer, i.e., the Managing Director or Manager within the meaning of the Companies Act, 2013 and the Chief Financial Officer, i.e., the Whole-time Finance Director or any other person heading the finance function and discharging that function.
(9) The signatories shall also certify that all disclosures made in the information document are true and correct.
(10) In case of mis-statement in the information document or any omission therein, any person who has authorized the issue of information document shall be liable in accordance with the provisions of the SEBI Act, 1992 and regulations made thereunder.
Listing pursuant to public issue.
106ZA. (1) An entity seeking issue and listing of its specified securities shall file a draft offer document along with necessary documents with the Board in accordance with these regulations along with fees as specified in Schedule IV of these regulations.
(2) The minimum application size shall be ten lakh rupees.
(3) The number of allottees shall be more than two hundred.
(4) The allocation in the net offer to public category shall be as follows:
(a) seventy-five per cent to institutional investors:
Provided that there shall be no separate allocation for Anchor Investors;
(b) twenty-five per cent to non-institutional investors;
(5) Any under-subscription in the non-institutional investor category shall be available for subscription under the institutional investors’ category.
(6) The allotment to institutional investors may be on a discretionary basis whereas the allotment to non-institutional investors shall be on a proportionate basis.
(7) The mode of allotment to institutional investors, i.e., whether discretionary or proportionate, shall be disclosed prior to or at the time of filing of the Red Herring Prospectus.
(8) In case of discretionary allotment to institutional investors, no institutional investor shall be allotted more than ten per cent of the issue size.
(9) The offer document shall disclose the broad objects of the issue.
(10) The basis of issue price may include disclosures, except projections, as deemed fit by the issuers in order to enable investors to take informed decisions and the disclosures shall suitably caution the investors about basis of valuation. Lock-in.
106ZB. (1) The entire pre-issue capital of the shareholders shall be locked-in for a period of six months from the date of allotment in case of listing pursuant to public issue or date of listing in case of listing without public issue:
Provided that nothing contained in this regulation shall apply to:
(i) equity shares allotted to employees under an employee stock option or employee stock purchase scheme of the entity prior to the initial public offer, if the entity has made full disclosures with respect to such options or scheme in accordance with Part A of Schedule VIII;
(ii) equity shares held by a venture capital fund or alternative investment fund of Category I or a foreign venture capital investor:
Provided that such equity shares shall be locked in for a period of at least one year from the date of purchase by the venture capital fund or alternative investment fund or foreign venture capital investor.
(iii) equity shares held by persons other than promoters, continuously for a period of at least one year prior to the date of listing in case of listing without public issue: Explanation.- For the purpose of clause (ii) and (iii), in case such equity shares have resulted pursuant to conversion of fully paid-up compulsorily convertible securities, the holding period of such convertible securities as well as that of resultant equity shares together shall be considered for the purpose of calculation of one year period and the convertible securities shall be deemed to be fully paid-up, if the entire consideration payable thereon has been paid at the time of their conversion.
(2) The specified securities held by promoters and locked-in may be pledged with any scheduled commercial bank or public financial institution as collateral security for loan granted by such bank or institution if the pledge of specified securities is one of the terms of sanction of the loan.
(3) The specified securities that are locked-in may be transferable in accordance with regulation 40 of these regulations.
(4) All specified securities allotted on a discretionary basis shall be locked-in in accordance with the requirements for lock-in by Anchor Investors on main board of the stock exchange, as specified under clause 10(j) in Part A of Schedule XI.
Trading lot.
106ZC. The minimum trading lot shall be ten lakh rupees.
Exit of entities listed without making a public issue.
106ZD. (1) An entity whose specified securities are listed on the institutional trading platform without making a public issue may exit from that platform, if-
(a) its shareholders approve such exit by passing a special resolution through postal ballot where ninety per cent of the total votes and the majority of non-promoter votes have been cast in favor of such proposal; and
(b) the recognised stock exchange where its shares are listed approve of such an exit.
(2) The recognised stock exchange may delist the specified securities of an entity listed without making a public issue upon non-compliance of the conditions of listing and in the manner as specified by the stock exchange.
(3) No entity promoted by promoters and directors of an entity delisted under sub-regulation (2), shall be permitted to list on institutional trading platform for a period of five years from the date of such delisting:
Provided that the provisions of this regulation shall not apply to another entity promoted by the independent directors of such a delisted entity. Migration to main board.
106ZE. An entity that has listed its specified securities on a recognised stock exchange in accordance with the provisions of this Chapter may at its option migrate to the main board of that recognised stock exchange after expiry of three years from the date of listing subject to compliance with the eligibility requirements of the stock exchange. Repeal and saving.
106ZF. The provisions of Chapter XC and all directions, guidelines, instructions or circulars, issued by the Board as applicable to small and medium enterprises which are listed on the institutional trading platform, as on the date of commencement of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) (Fourth Amendment) Regulations, 2015 shall continue to remain in force for the period such companies are listed on the institutional trading platform or till such time as specified by the Board, whichever is earlier, as if Chapter XC had not been repealed.
Explanation.- Under this Chapter, the phrases ‘pre-issue’ and ‘post-issue’, wherever they occur shall be construed as ‘pre-listing’ and ‘post-listing’, respectively, in case of listing without public issue.]
201[CHAPTER XI
LISTING OF SECURITIES ON STOCK EXCHANGES
In-principle approval of recognized stock exchange(s).
107. (1) The issuer or the issuing company, as the case may be, shall obtain in-principle approval from recognised stock exchange as follows:
(a) in case of an initial public offer or an issue of Indian Depository Receipts (hereinafter referred to as ‘IDRs’) , from all the recognised stock exchange(s) on which the issuer or the issuing company, proposes to get its specified securities or IDRs, as the case may be, listed; and
(b) in case of other issues, before issuance of further securities, as follows:
(i) where the securities are listed only on recognised stock exchange(s) having nationwide trading terminals, from all such stock exchange(s);
(ii) where the securities are not listed on any recognised stock exchange having nationwide trading terminals, from all the stock exchange(s) on which the securities of the issuer are proposed to be listed;
(iii) where the specified are listed on recognised stock exchange(s) having nationwide trading terminals as well as on the recognised stock exchange(s) not having nationwide trading terminals, from all recognised stock exchange(s) having nationwide trading terminals.
Application for Listing.
108. (1) The issuer or the issuing company, as the case may be, shall complete the prelisting formalities within the time lines specified by the Board from time to time.
(2) The issuer or the issuing company, as the case may be, shall, make an application for listing, within twenty days from the date of allotment, to one or more recognized stock exchange(s) along with the documents specified by stock exchange(s) from time to time.
(3) In case of delay in making application for listing beyond twenty days from the date of allotment, the issuer or the issuing company, as the case may be, shall pay penal interest to allottees for each day of delay at the rate of atleast ten per cent. per annum from the expiry of thirty days from date of allotment till the listing of such securities to the allottees.
(4) In the event of non-receipt of listing permission from the stock exchange(s) by the issuer or the issuing company, as the case may be, or withdrawal of Observation Letter issued by the Board, wherever applicable, the securities shall not be eligible for listing and the issuer or the issuing company, as the case may be, shall be liable to refund the subscription monies, if any, to the respective allottees immediately alongwith interest at the rate of ten per cent. per annum from the date of allotment.
Listing Agreement.
109. (1) Every issuer or the issuing company desirous of listing its securities on a recognised stock exchange shall execute a listing agreement with such stock exchange.
(2) Every issuer or the issuing company which has previously entered into agreement(s) with a recognised stock exchange to list its securities shall execute a fresh listing agreement with such stock exchange within six months of the date of notification of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015. Obligation of stock exchange(s).
110. The stock exchange(s) shall grant in-principle approval/list the securities or reject the application for in-principle approval /listing by the issuer or issuing company, as the case maybe, within thirty days from the later of the following dates:
(a) the date of receipt of application for in-principle approval/listing from issuer or the issuing company, as the case may be,;
(b) the date of receipt of satisfactory reply from the issuer or the issuing company, as the case may be, in cases where the stock exchange(s) has sought any clarification from them.]
202[CHAPTER XII]
MISCELLANEOUS
Directions by the Board.
203[111.] Without prejudice to the power under sections 11, 11A, 11B, 11D, sub-section (3) of section 12, Chapter VIA and section 24 of the Act or section 621 of the Companies Act, 1956, the Board may either suo motu or on receipt of information or on completion or pendency of any inspection, inquiry or investigation, in the interests of investors or the securities market, issue such directions or orders as it deems fit including any or all of the following:
(a) directing the persons concerned not to access the securities market for a specified period;
(b) directing the person concerned to sell or divest the securities;
(c) any other direction which Board may deem fit and proper in the circumstances of the case:
Provided that the Board shall, either before or after issuing such direction or order, give a reasonable opportunity of being heard to the person concerned:
Provided further that if any interim direction or order is required to be issued, the Board may give post-decisional hearing to the person concerned.
204[Liability for contravention of the Act, rules or the regulations.
111A. (1) The listed entity or any other person thereof who contravenes any of the provisions of these regulations, shall, in addition to the liability for action in terms of the securities laws, be liable for the following actions by the respective stock exchange(s), in the manner specified in the circulars or guidelines issued by the Board:
(a) imposition of fines;
(b) suspension of trading;
(c) freezing of promoter/promoter group holding of designated securities, as may be applicable, in coordination with depositories;
(d) any other action as may be specified by the Board from time to time.
(3) The manner of revocation of actions specified in clauses (b) and (c) of sub-regulation (1), shall be as specified in the circulars or guidelines issued by the Board.
Failure to pay fine.
111B. If the listed entity fails to pay any fine imposed upon it by the recognised stock exchange(s), within the period as specified from time to time, the stock exchange may initiate such other action in accordance with law, after giving a notice in writing.]
Power to remove difficulty.
205[112]. In order to remove any difficulties in the application or interpretation of these regulations, the Board may issue clarifications through guidance notes or circulars after recording reasons in writing.
Power to relax strict enforcement of the regulations.
206[113]. [(1)]207 The Board may, in the interest of investors or for the development of the securities market, relax the strict enforcement of any requirement of these regulations, if the Board is satisfied that:
(a) the requirement is procedural in nature; or
(b) any disclosure requirement is not relevant for a particular class of industry or issuer; or
(c) the non-compliance was caused due to factors beyond the control of the issuer.
208[(2) For seeking relaxation under sub-regulation (1), an application, giving details and the grounds on which such relaxation has been sought, shall be filed with the Board.
(3) The application referred to under sub-regulation (2) shall be accompanied by a non-refundable fee of rupees one lakh payable by way of direct credit in the bank account through NEFT/RTGS/IMPS or any other mode allowed by RBI or by way of a demand draft in favour of the Board payable in Mumbai.]
Amendments to other regulations.
209[114]. On and from the commencement of these regulations, the regulations mentioned in
Schedule XX shall stand amended to the extent specified therein.
Repeal and Savings.
210[115]. (1) On and from the commencement of these regulations, the Securities and Exchange Board of India (Disclosure and Investor Protection) Guidelines, 2000 shall stand rescinded.
(2) Notwithstanding such rescission:
(a) anything done or any action taken or purported to have been done or taken including observation made in respect of any draft offer document, any enquiry or investigation commenced or show cause notice issued in respect of the said Guidelines shall be deemed to have been done or taken under the corresponding provisions of these regulations;
(b) any offer document, whether draft or otherwise, filed or application made to the Board under the said Guidelines and pending before it shall be deemed to have been filed or made under the corresponding provisions of these regulations.]
SCHEDULE I
[See regulation 5(3) and 101(2)]
INTER-SE ALLOCATION OF RESPONSIBILITIES
(1) The lead merchant bankers shall make inter-se allocation of responsibilities pertaining to the activities or sub-activities to be carried out under these regulations.
(2) The lead merchant bankers shall delineate the activity-wise allocation of responsibilities and intimate the Board about the name of the lead merchant banker responsible for each set of the activities or sub-activities at the time of filing the draft offer document with the Board. This intimation must be signed by all the lead merchant bankers to the issue.
(3) Where circumstances warrant joint and several responsibility of the lead merchant bankers for any particular activity, a co-ordinator designated from among the lead merchant bankers (hereinafter referred to as the “designated lead merchant banker”) shall furnish to the Board, when called for, information, report, comments, etc. on matters relating to such activity.
(4) The activities or sub-activities may be grouped on the following lines:
(a) Capital structuring with the relative components and formalities such as composition of debt and equity, type of instruments, etc.
(b) Drafting and design of the offer document and of the advertisement or publicity material including newspaper advertisement and brochure or memorandum containing salient features of the offer document.
(c) Selection of various agencies connected with issue, such as registrars to the issue, printers, advertising agencies, etc.
(d) Marketing of the issue, which shall cover, inter alia, formulating marketing strategies, preparation of publicity budget, arrangements for selection of (i) ad-media, (ii) centres for holding conferences of stock brokers, investors, etc., (iii) bankers to the issue, (iv) collection centres as per schedule III, (v) brokers to the issue, and (vi) underwriters and underwriting arrangement, distribution of publicity and issue material including application form, prospectus and brochure and deciding upon the quantum of issue material.
(e) Post-issue activities, which shall involve essential follow-up steps including follow-up with bankers to the issue and Self Certified Syndicate Banks to get quick estimates of collection and advising the issuer about the closure of the issue, based on correct figures, finalisation of the basis of allotment or weeding out of multiple applications, listing of instruments, despatch of certificates or demat credit and refunds and coordination with various agencies connected with the post-issue activity such as registrars to the issue, bankers to the issue, Self Certified Syndicate Banks, etc. Ordinarily, one lead merchant banker shall be responsible for the post-issue activities.
(5) The designated lead merchant banker shall be responsible for ensuring compliance with these regulations and other requirements and formalities specified by the Registrar of Companies, the Board and the recognised stock exchanges where specified securities being offered are proposed to be listed.
(6) Even if many of the post-issue activities are handled by other intermediaries, the designated lead merchant banker shall be responsible for ensuring that these intermediaries fulfil their functions and enable him to discharge this responsibility through suitable agreements with the issuer.
(7) In case of under-subscription in an issue, the lead merchant banker responsible for underwriting arrangements shall be responsible for invoking underwriting obligations and ensuring that the notice for devolvement containing the obligations of the underwriters is issued in terms of these regulations.
SCHEDULE II
[See regulations 5(5) and 101(1)]
FORMAT OF AGREEMENT BETWEEN LEAD MERCHANT BANKERS TO THE ISSUE AND ISSUER/ISSUING COMPANY
This Agreement made BETWEEN……. (name of the issuer), having its registered office at ……… (registered office address of the issuer) (hereinafter referred to as “the issuer”) AND …………. (name of the lead merchant bankers), having their registered office at…………………. with the branch office at …….
WHEREAS:
(1) The issuer is taking steps for the issue of …………………. (particulars of the issue) to the public/ existing shareholders of the issuer (the said issue of specified securities hereinafter referred to as “the issue”); AND
(2) The issuer has approached the lead merchant bankers to manage the issue and the lead merchant bankers have accepted the engagement inter-alia, subject to the issuer entering into an agreement for the purpose being these presents;
NOW, THEREFORE, the issuer and the lead merchant bankers do hereby agree as follows:
(1) Besides the lead merchant bankers, ………., …………, and …………….. would be acting as the co-managers to the issue.
(2) The issuer hereby declares that it has complied with or agrees to comply with all the statutory formalities under the Companies Act, 1956, the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 and other conditions, instructions and advices issued by Securities and Exchange Board of India (hereinafter referred to as “the Board”) and other relevant statutes to enable it to make the issue and in particular in respect of the following matters:
(Give details and particulars of statutory compliances which the issuer has to fulfil before making the issue)
Consent of the shareholders has been obtained vide ……….. (details of the resolution) passed in the general meeting held on ………….. (date of the meeting).
(3) The issuer undertakes and declares that any information made available to the lead merchant banker or any statement made in the offer document shall be complete in all respects and shall be true and correct and that under no circumstances it shall give or withhold any information or statement which is likely to mislead the investors.
(4) The issuer also undertakes to furnish complete audited annual reports, other relevant documents, papers, information relating to pending litigations, etc. to enable the lead merchant banker to corroborate the information and statements given in the offer document.
(5) The issuer shall, if so required, extend such facilities as may be called for by the lead merchant banker to enable them to visit the plant site, office of the issuer or such other places to ascertain for themselves the state of affairs of the issuer including the progress made in respect of the project implementation, status and other facts relevant to the issue.
(6) The issuer shall extend all necessary facilities to the lead merchant banker to interact on any matter relevant to the issue with the solicitors / legal advisors, auditors, consultants, advisors to the issue, financial institutions, banks or any other organisation and any other intermediary associated with the issue in any capacity whatsoever.
(7) The issuer shall ensure that all advertisements prepared and released by the advertising agency or otherwise in connection with the issue conform to the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 and the instructions given by the lead merchant banker from time to time and that it shall not make any misleading or incorrect statement in any public communication or publicity material including corporate, product and issue advertisements of the issuer, interviews by its promoters, directors, duly authorized employees or representatives of the issuer, documentaries about the issuer or its promoters, periodical reports and press releases issued by the issuer or research report made by the issuer, any intermediary concerned with the issue or their associates or at any press, brokers’ or investors’ conferences.
(8) The issuer shall not, without the prior consent of the lead merchant banker, appoint other intermediaries (except Self Certified Syndicate Banks) or other persons associated with the issue such as advertising agencies, printers, etc. for printing the application forms, allotment advices, allotment letters, share certificates / debenture certificates, refund orders or any other instruments, circulars, or advices.
(9) The issuer shall, whenever required and wherever applicable, in consultation with the lead merchant banker, enter into an agreement with the intermediaries associated with the issue, clearly setting forth their mutual rights, responsibilities and obligations. A certified true copy of such agreements shall be furnished to the lead merchant banker.
(10) The issuer shall take such steps as are necessary to ensure completion of allotment and despatch of letters of allotment and refund orders to the applicants including non–resident Indians soon after the basis of allotment is approved by designated stock exchanges but not later than the specified time limit and in the event of failure to do so, pay interest to the applicants as provided under the Companies Act, 1956 as disclosed in the offer document.
(11) The issuer shall take steps to pay the underwriting commission and brokerage to the underwriters, stock brokers, etc. within the time specified in any agreement with such underwriters, stock brokers, etc. or within a reasonable time.
(12) The issuer undertakes to furnish such information and particulars regarding the issue as may be required by the lead merchant banker to enable them to file a report with the Board in respect of the issue.
(13) The issuer shall keep the lead merchant banker informed if it encounters any problems due to dislocation of communication system or any other material adverse circumstance which is likely to prevent or which has prevented the issuer from complying with its obligations, whether statutory or contractual, in respect of the matters pertaining to allotment, dispatch of refund orders, share certificates or debenture certificates, demat credit, etc.
(14) The issuer shall not resort to any legal proceedings in respect of any matter having a bearing on the issue except in consultation with and after receipt of advice from the lead merchant banker.
(15) The issuer shall not access the moneys raised in the issue till finalisation of the basis of allotment or completion of issue formalities.
(16) The issuer shall refund the moneys raised in the issue to the applicants, if required to do so for any reason such as failing to get listing permission or under any direction or order of the Board. The issuer shall pay requisite interest amount if so required under the laws or direction or order of the Board.
(17) (Rights of lead merchant banker vis-à-vis the issuer )————- (give details).
(18) (Consequences of breach) ——— (give details).
In Witness whereof the parties hereto have put their hands on this ———– (date) day of ……(month) of ………… (year).
SCHEDULE III
[See regulation 5(6) and 101(7)]
MANDATORY COLLECTION CENTRES
(1) The minimum number of collection centres shall be as follows:
(a) The four metropolitan centres situated at Mumbai, Delhi, Kolkata and Chennai.
(b) All such places where the recognised stock exchanges are located in the region in which the registered office of the issuer is situated;
(c) The region-wise collection centres are as indicated hereunder:
Sr. No. Name of the Recognised Stock Exchange City
(A) NORTHERN REGION
(i) Ludhiana Stock Exchange Ltd. Ludhiana
(ii) Delhi Stock Exchange Ltd. Delhi
(iii) Jaipur Stock Exchange Ltd. Jaipur
(iv) U.P. Stock Exchange Ltd. Kanpur
(B) SOUTHERN REGION
(i) Bangalore Stock Exchange Ltd. Bangalore
(ii) Cochin Stock Exchange Ltd. Cochin
(iii) Madras Stock Exchange Ltd. Madras
(C) EASTERN REGION
(i) Calcutta Stock Exchange Association Ltd. Kolkata
(ii) Gauhati Stock Exchange Ltd. Gauhati
(iii) Bhubaneswar Stock Exchange Ltd. Bhubaneswar
(D) WESTERN REGION
(i) Bombay Stock Exchange Ltd. Mumbai
(ii) National Stock Exchange of India Ltd. Mumbai
(iii) OTC Exchange of India Ltd. Mumbai
(iv) Pune Stock Exchange Ltd. Pune
(v) M P Stock Exchange Ltd. Indore
(vi) Vadodara Stock Exchange Ltd. Vadodara
(vii) Ahmedabad Stock Exchange Ltd. Ahmedabad
(2) In addition to the collection centres specified in para (1), all designated branches of Self Certified Syndicate Banks, as displayed on the websites of such banks and of the Board, shall be deemed to be mandatory collection centres
(3) The issuer may appoint any other collection centre/s as it may deem fit in addition to the minimum collection centre specified in this Schedule.
SCHEDULE IV
[See regulations 6(1), 10(2) 211[, 11(4) and 212[, 91E(3), 106Z(1) and 106ZA(1)]]]
FEES TO BE PAID ALONG WITH OFFER DOCUMENT
(1) There shall be charged in respect of every draft offer document, every offer document (in case of a fast track issue) and in case of updation of any draft offer document, fees at the rate as specified in Part A and Part B of this Schedule.
(2) The fees shall be paid 213[by way of direct credit in the bank account through NEFT/RTGS/IMPS or any other mode allowed by RBI or] by means of a demand draft drawn in favour of ‘the Securities and Exchange Board of India’ payable at the place where the draft offer document or offer document or updated draft offer document, as the case may be, is filed with the Board.
PART A
FEES TO BE PAID ALONG WITH DRAFT OFFER DOCUMENT OR IN CASE OF A FAST TRACK ISSUE, ALONG WITH OFFER DOCUMENT
(1) There shall be charged in respect of every draft offer document or in case of a fast track issue, every offer document filed by a lead merchant banker with the Board in terms of these regulations, a fee at the following rate:
(a) 214[ In case of a public issue:
| Size of the issue, including intended retention of oversubscription | Amount / Rate of fees |
| Less than or equal to ten crore | A flat charge of one lakh rupees |
| Size of the issue, including intended retention of oversubscription | Amount / Rate of fees |
| Less than or equal to ten crore rupees. | A flat charge of twenty five thousand rupees (Rs.25,000/-). |
| More than ten crore rupees, but less than or equal to five thousand crore rupees. | 0.025 per cent. of the issue size. |
| More than five thousand crore rupees, but less than or equal to twenty five thousand crore rupees. | One crore twenty five lakh rupees (Rs.1,25,00,000/-) plus 0.00625 per cent of the portion of the issue size in excess of five thousand crore rupees (Rs.5000,00,00,000/-). |
| More than twenty five thousand crore rupees. | A flat charge of three crore rupees (Rs.3,00,00,000/-). |
| More than ten crore rupees, but less than or equal to five thousand crore rupees. | 0.1 per cent of the issue size. |
| More than five thousand crore rupees. | Five crore rupees ( 5,00,00,000/-) plus 0.025 percent of the portion of the issue size in excess of five thousand crore rupees ( 5000,00,00,000/-).] |
215[“(b) In case of a rights issue:
| Size of the issue, including intended retention of oversubscription | Amount / Rate of fees |
| Less than or equal to ten crore rupees. | A flat charge of fifty thousand rupees ( 50,000/-). |
| More than ten crore rupees | 0.05 per cent. of the issue size.] |
216[(c) In case of listing without public issue: ]
| Paid up capital of the entity | Amount / Rate of fees |
| Less than or equal to ten crore rupees. | A flat charge of one lakh rupees ( 1,00,000/-). |
| More than ten crore rupees, but less than or equal to five thousand crore rupees. | 0.1 per cent of the paid up capital |
| More than five thousand crore rupees. | Five crore rupees ( 5,00,00,000/-) plus 0.025 percent of the portion of the paid up capital in excess of five thousand crore rupees ( 5000,00,00,000/-). |
Paid up capital of the entity
Amount / Rate of fees Less than or equal to ten crore rupees.
A flat charge of one lakh rupees ( 1,00,000/-).
More than ten crore rupees, but less than or equal to five thousand crore rupees.
0.1 per cent of the paid up capital
More than five thousand crore rupees.
Five crore rupees ( 5,00,00,000/-) plus 0.025 percent of the portion of the paid up capital in excess of five thousand crore rupees ( 5000,00,00,000/-).
(2) Where the issue size is not determined at the time of submission of the draft offer document or the offer document (in case of a fast track issue), the issuer shall pay fees mentioned at para (1), based on the estimated issue size.
(3) If the issue size estimated by the issuer differs from eventual issue size and thereby:–
(a) the fees paid by the issuer is found to be deficient, the balance fee shall be paid by the issuer within seven days of registering the prospectus with the Registrar of Companies or filing the letter of offer with the recognised stock exchanges, as the case may be; and
(b) if any excess fee is found to have been paid, it shall be refunded by the Board to the issuer.
PART B
FEES TO BE PAID ALONG WITH UPDATED OFFER DOCUMENT
Where updations or changes are made in any of the sections specified in 217[Para 2] of Schedule VII of these regulations, there shall be charged a fee of ten thousand rupees (Rs.10,000/-) for updations or changes per section, subject to total fee not exceeding one fourth (1/4th) of the filing fees paid at the time of filing the draft document with the Board or rupees fifty thousand, whichever is higher.
SCHEDULE V
[See regulations 6(6) 218[, 101(4) and 91E(3)]]
MANNER OF SUBMISSION OF SOFT COPY OF DRAFT OFFER DOCUMENT AND OFFER DOCUMENT TO THE BOARD
(1) The soft copies of draft and final offer document shall be submitted in PDF format in a compact disk placed in a sealed envelope.
(2) One compact disk shall contain the draft or final offer document of only one issue and in single file.
(3) While submitting the compact disk, the lead merchant banker shall, inter alia, certify to the Board that the information contained in the compact disk contains all text and data in a systematic order, matches exactly with the contents of the hard copy of the offer document and satisfies the requirements of this Schedule.
(4) The compact disk containing the offer document shall have a sticker duly pasted giving the following information:
(a) The name of the merchant banker;
(b) Name of the issuer;
(c) Type of the issue ;
(d) Signature of the person who has signed the due diligence certificate.
(5) The sticker on the compact disk containing final offer document shall mention all the information as stated in clause (4) and the following additional information:
(a) Date of registering red herring prospectus or the prospectus with the Registrar of Companies or filing the letter of offer with the designated stock exchanges
(b) Issue opening date.
(6) If the requirements of this Schedule are not fulfilled, the offer document would be liable to be rejected.
(7) The lead merchant bankers shall, within one day of the hosting of offer document on the website (if the next day is a holiday, on the first working day), confirm to the Board in writing that the contents of the offer document appearing on the website are in order.
(8) The following information shall also be submitted with soft copies of the offer documents: Sr. No. Particulars Comments
(i) Soft c opy submitted by:
(ii) Conte nt Title:
(iii) Wheth er the Documents are in PDF Format? YES/NO
(iv) Wheth er the tabular data in the PDF format are in order? YES/NO/N.A.
(v) Wheth er the Sr. Numbers of paragraph/points are in order and matches with the printed copy?
YES/NO/N.A.
(vi) Wheth er the alignments of all paragraphs are in order? YES/NO
(vii) Wheth er all relevant image files, if any are available in the compact disk?
YES/NO/N.A.
(viii) Wheth er the contents of the PDF format and hard copy of the offer document have been compared and found to be in order?
YES/NO
(ix) Wheth er the spacing between lines and paragraphs is uniform?
YES/NO
(x) Rema rks, if any
Prepared by: Verified by:
Date:
SCHEDULE VI
FORMATS OF DUE DILIGENCE CERTIFICATES
FORM A
219[[See regulations 8(1)(c), 10(3)(a) 220[, 221[106O(2)] and 91E(5)]]]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY MERCHANT BANKER ALONG WITH DRAFT OFFER DOCUMENT
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public/Rights Issue of ………………… by………………………. (Name of the Issuer)
We, the lead merchant banker(s) to the above mentioned forthcoming issue, state and confirm as follows:
(1) We have examined various documents including those relating to litigation like commercial disputes, patent disputes, disputes with collaborators, etc. and other material in connection with the finalisation of the draft red herring prospectus (in case of a book built issue) / draft prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue) pertaining to the said issue;
(2) On the basis of such examination and the discussions with the issuer, its directors and other officers, other agencies, and independent verification of the statements concerning the objects of the issue, price justification and the contents of the documents and other papers furnished by the issuer, WE CONFIRM that:
(a) the draft red herring prospectus/ draft prospectus/ draft letter of offer filed with the Board is in conformity with the documents, materials and papers relevant to the issue;
(b) all the legal requirements relating to the issue as also the regulations guidelines, instructions, etc. framed/issued by the Board, the Central Government and any other competent authority in this behalf have been duly complied with; and
(c) the disclosures made in the draft red herring prospectus/draft prospectus/draft letter of offer are true, fair and adequate to enable the investors to make a well informed decision as to the investment in the proposed issue and such disclosures are in accordance with the requirements of the Companies Act, 1956, the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 and other applicable legal requirements.
(3) We confirm that besides ourselves, all the intermediaries named in the draft red herring prospectus/ draft prospectus/ draft letter of offer are registered with the Board and that till date such registration is valid.
(4) We have satisfied ourselves about the capability of the underwriters to fulfil their underwriting commitments.
(5) We certify that written consent from promoters has been obtained for inclusion of their specified securities as part of promoters’ contribution subject to lock-in and the specified securities proposed to form part of promoters’ contribution subject to lock-in shall not be disposed / sold / transferred by the promoters during the period starting from the date of filing the draft red herring prospectus/draft prospectus with the Board till the date of commencement of lock-in period as stated in the draft red herring prospectus/draft prospectus.
(6) We certify that regulation 33 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, which relates to specified securities ineligible for computation of promoters contribution, has been duly complied with and appropriate disclosures as to compliance with the said regulation have been made in the draft red herring prospectus/draft prospectus.
(7) We undertake that sub-regulation (4) of regulation 32 and clause (c) and (d) of sub-regulation
(2) of regulation 8 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 shall be complied with. We confirm that arrangements have been made to ensure that promoters’ contribution shall be received at least one day before the opening of the issue. We undertake that auditors’ certificate to this effect shall be duly submitted to the Board. We further confirm that arrangements have been made to ensure that promoters’ contribution shall be kept in an escrow account with a Scheduled Commercial Bank and shall be released to the issuer along with the proceeds of the public issue.
(8) We certify that the proposed activities of the issuer for which the funds are being raised in the present issue fall within the ‘main objects’ listed in the object clause of the Memorandum of Association or other charter of the issuer and that the activities which have been carried out until now are valid in terms of the object clause of its Memorandum of Association.
(9) We confirm that necessary arrangements have been made to ensure that the moneys received pursuant to the issue are kept in a separate bank account as per the provisions of sub-section(3) of section 73 of the Companies Act, 1956 and that such moneys shall be released by the said bank only after permission is obtained from all the stock exchanges mentioned in the prospectus/ letter of offer. We further confirm that the agreement entered into between the bankers to the issue and the issuer specifically contains this condition.
(10) We certify that a disclosure has been made in the draft red herring prospectus/draft prospectus/ draft letter of offer that the investors shall be given an option to get the shares in demat or physical mode.
(11) We certify that all the applicable disclosures mandated in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 have been made in addition to disclosures which, in our view, are fair and adequate to enable the investor to make a well informed decision.
(12) We certify that the following disclosures have been made in the draft red herring prospectus/ draft prospectus/ draft letter of offer:
(a) An undertaking from the issuer that at any given time, there shall be only one denomination for the equity shares of the issuer and
(b) An undertaking from the issuer that it shall comply with such disclosure and accounting norms specified by the Board from time to time.
(13) We undertake to comply with the regulations pertaining to advertisement in terms of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 while making the issue.
(14) We enclose a note explaining how the process of due diligence has been exercised by us in view of the nature of current business background or the issuer, situation at which the proposed business stands, the risk factors, promoters experience, etc.
(15) We enclose a checklist confirming regulation-wise compliance with the applicable provisions of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, containing details such as the regulation number, its text, the status of compliance, page number of the draft red herring prospectus/ draft prospectus/ draft letter of offer where the regulation has been complied with and our comments, if any.
222[(16) We enclose statement on ‘Price Information of Past Issues handled by Merchant Bankers (who are responsible for pricing this issue)’, as per format specified by the Board through Circular.]
223[(17) We certify that profits from related party transactions have arisen from legitimate business transactions.]
224[(18) We certify that the entity is eligible under 106Y (1) (a) or (b) (as the case may be) to list on the institutional trading platform, under Chapter XC of these regulations. (if applicable)]
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
Note: 225[(i)] The requirements in items 5, 6 and 7 are not applicable in case of a rights issue. 226[(ii) The requirements in clause 16 may be updated by the merchant bankers at the time of registering offer document with Registrar of Companies and should be submitted to Board.
The same should also be updated in offer document.]
FORM B
[See regulations 8(1)(d) and 10(3)(b)]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY DEBENTURE TRUSTEE ALONG WITH DRAFT OFFER DOCUMENT
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public/Rights Issue of ……………………. by ……………………….. (Name of the Issuer)
We, the debenture trustees to the above mentioned forthcoming issue, state as follows:
(1) We have examined the documents pertaining to the said issue.
(2) We have also examined the relevant documents pertaining to the security to be created.
(3) On the basis of such examination and of the discussions with the issuer, its directors and other officers, other agencies and of independent verification of the various relevant documents, WE CONFIRM that:
(a) The issuer has made adequate provisions for and/or has taken steps to provide for adequate security/asset cover for the secured convertible debt instruments to be issued.
(b) The issuer has obtained the permissions / consents necessary for creating security on the property as second charge/pari passu charge (wherever applicable)
(c) The issuer has made all the relevant disclosures about the security/asset cover
(d) The issuer has made all the relevant disclosures about its continued obligations towards the holders of convertible debt instruments.
(e) All disclosures made in the draft prospectus/letter of offer with respect to the convertible debt instruments are true, fair and adequate to enable the investors to make a well informed decision as to the investment in the proposed issue.
(4) We have satisfied ourselves about the ability of the issuer to service the debt securities.
Place: Debenture Trustee to the Issue
Date: with his Official Seal
Note: With respect to the issue of unsecured convertible debt instruments, the debenture trustee shall not certify and confirm the requirements stated in item 2 and sub-item (a), (b) and (c) of item 3 above.
FORM C
[See regulation 8(2)(b)]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY MERCHANT BANKER AT THE TIME OF REGISTERING OFFER DOCUMENT WITH THE REGISTRAR OF COMPANIES / FILING LETTER OF OFFER WITH THE DESIGNATED STOCK EXCHANGE
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public/Rights Issue of ……………….. by ……………………… (Name of the Issuer)
(1) This is to certify that the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) registered with the Registrar of Companies / letter of offer filed with the designated stock exchange (in case of a rights issue) on …. (date) was suitably updated under intimation to the Board and that the said red herring prospectus/prospectus or letter of offer contains all the material disclosures in respect of the issuer as on the said date.
(2) We confirm that the registrations of all the intermediaries named in the red herring prospectus/prospectus or letter of offer are valid as on date and that none of these intermediaries have been debarred from functioning by any regulatory authority.
(3) We confirm that written consent from promoters has been obtained for inclusion of their securities as part of promoters’ contribution subject to lock-in.
(4) We further confirm that the securities proposed to form part of promoters’ contribution and subject to lock-in, have not been disposed / sold / transferred by the promoters during the period starting from the date of filing the draft prospectus with the Board till date.
(5) We confirm that agreements have been entered into with both the depositories for dematerialisation of the securities of the issuer.
(6) We certify that as per the requirements of first proviso to sub-regulation (4) of regulation 32 of Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, cash flow statement has been prepared and disclosed in the red herring prospectus and/or prospectus.
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
Note: The requirements in items 3, 4 and 6 above are not applicable in case of a rights issue.
FORM D
[See regulation 8(2)(e)]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY MERCHANT BANKER IMMEDIATELY BEFORE OPENING OF THE ISSUE
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public/Rights Issue of …………………….. by ……………………. (Name of the Issuer)
(1) This is to certify that all the material disclosures in respect of the issuer as on the date of opening of the issue have been made through the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) registered with the Registrar of Companies / letter of offer filed with the designated stock exchange (in case of a rights issue) on ….. (date) and subsequent amendments/ advertisements (if applicable) dated ……… (Details of advertisements to be enclosed), We confirm:
(a) that the registrations of all the intermediaries named in the red herring prospectus/prospectus /letter of offer, are valid as on date and that none of these intermediaries have been debarred from functioning by any regulatory authority as on date.
(b) that the securities proposed to form part of promoters’ contribution and subject to lockin, have not been disposed / sold / transferred by the promoters during the period starting from the date of filing the draft prospectus with the Board till date.
(c) that the abridged prospectus/letter of offer contains all the disclosures as specified in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
Note: The requirements in item 227[1(b)] above are not applicable in case of a rights issue.
FORM E
[See regulation 8(2)(f)]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY MERCHANT BANKER AFTER OPENING OF THE ISSUE BUT BEFORE CLOSURE OF SUBSCRIPTION
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public/Rights Issue of …………………… by …………………… (Name of the Issuer)
(1) This is to certify that all the material disclosures in respect of the issuer as on date have been made through the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) registered with the Registrar of Companies / letter of offer filed with the recognised stock exchange (in case of a rights issue) on ……… (date) and subsequent amendments/ advertisements (if applicable) dated ……….. (Details of advertisements to be enclosed).
(2) We confirm that the registrations of all the intermediaries named in the red herring prospectus/prospectus/letter of offer, are valid as on date and that none of these intermediaries have been debarred from functioning by any regulatory authority as on date.
(3) We also confirm that the specified securities proposed to form part of promoters’ contribution and subject to lock-in, have not been disposed / sold / transferred by the promoters during the period starting from the date of filing the draft prospectus with the Board till date.
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
Note: The requirement in item 3 above is not applicable in case of a rights issue.
FORM F
[See regulation 10(3)(a)]
ADDITIONAL CONFIRMATIONS/ CERTIFICATION TO BE GIVEN BY MERCHANT BANKER IN DUE DILIGENCE CERTIFICATE TO BE GIVEN ALONG WITH OFFER DOCUMENT FOR FAST TRACK ISSUE
(1) We confirm that none of the intermediaries named in the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue) have been debarred from functioning by any regulatory authority.
(2) We confirm that the issuer is eligible to make fast track issue in terms of regulation 10 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009. The fulfilment of the eligibility criteria as specified in that regulation, by the issuer, has also been disclosed in the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue).
(3) We confirm that all the material disclosures in respect of the issuer have been made in the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue) and certify that any material development in the issuer or relating to the issue up to the commencement of listing and trading of the specified securities offered through this issue shall be informed through public notices/ advertisements in all those newspapers in which pre-issue advertisement and advertisement for opening or closure of the issue have been given.
(4) We confirm that the abridged prospectus / abridged letter of offer contains all the disclosures as specified in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
(5) We confirm that agreements have been entered into with the depositories for dematerialisation of the specified securities of the issuer.
(6) We certify that as per the requirements of first proviso to sub-regulation (4) of regulation 32 of Securities and Exchange board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, cash flow statement has been prepared and disclosed in the red herring prospectus and / or prospectus.
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
FORM G
[See regulation 65(3)]
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY MERCHANT BANKER ALONG WITH FINAL POST ISSUE REPORT
To,
Securities and Exchange Board of India
Dear Sirs,
Sub.: Public issue of …………………… by ……………………… (Name of Issuer)
We, the under noted post issue lead merchant bankers to the abovementioned issue state as follows:
(1) We confirm that –
(a) the certificates in respect of locked-in specified securities have been stamped ‘not transferable’ indicating the period of non-transferability;
(b) if the specified securities offered for lock-in are in dematerialised form, non transferability details have been informed to the depositories;
(c) details of lock-in have been provided to all the stock exchanges on which specified securities are to be listed, before the listing of the specified securities.
(2) We certify that specified securities included as minimum promoters’ contribution and the specified securities in excess of minimum promoters’ contribution have been locked-in in terms of regulation 36 of Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
(3) We certify that provisions regarding lock-in of specified securities held by persons other than promoters have been duly complied with in accordance with regulation 37 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
Place: Merchant Banker(s) to the Issue
Date: with Official Seal(s)
228[ FORM H
[See regulation 229[106O(2)]]
ADDITIONAL CONFIRMATIONS/ CERTIFICATION TO BE GIVEN BY MERCHANT BANKER IN DUE DILIGENCE CERTIFICATE TO BE GIVEN ALONG WITH OFFER DOCUMENT REGARDING SME EXCHANGE
(1) We confirm that none of the intermediaries named in the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue) have been debarred from functioning by any regulatory authority.
(2) We confirm that all the material disclosures in respect of the issuer have been made in the red herring prospectus (in case of a book built issue) / prospectus (in case of a fixed price issue) / letter of offer (in case of a rights issue) and certify that any material development in the issuer or relating to the issue up to the commencement of listing and trading of the specified securities offered through this issue shall be informed through public notices/ advertisements in all those newspapers in which pre-issue advertisement and advertisement for opening or closure of the issue have been given.
(3) We confirm that the abridged prospectus / abridged letter of offer contains all the disclosures as specified in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009.
(4) We confirm that agreements have been entered into with the depositories for dematerialisation of the specified securities of the issuer.
(5) We certify that as per the requirements of first proviso to sub-regulation (4) of regulation 32 of Securities and Exchange board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009, cash flow statement has been prepared and disclosed in the red herring prospectus and / or prospectus.
(6) We confirm that underwriting and market making arrangements as per requirements of regulation 230[106P] and 231[106V] of the Securities and Exchange board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 have been made.
(7) We confirm that the issuer has redressed at least ninety five per cent. of the complaints received from the investors till the end of the quarter immediately preceding the month of the filing of the red herring prospectus / prospectus with the Registrar of Companies or letter of offer with SME exchange. (Applicable only in case of Further public offer and rights issue) Place: Merchant Banker(s) to the Issue Date: with Official Seal(s)]
SCHEDULE VII
[See regulation 11(4)]
NATURE OF UPDATION/CHANGES IN THE OFFER DOCUMENT AND CONSEQUENT STEPS THEREIN REQUIRING FILING OF UPDATED OFFER DOCUMENT
(1) Changes which require fresh filing of the draft offer document with the Board, along with fees: If changes are made in the offer document with respect to the following, the issuer shall file fresh draft offer document with the Board in terms of regulation 6, along with the fees as specified in Part A of Schedule IV:
(a) Change in promoter or persons in control of the issuer.
(b) Change in more than half of the board of directors of the issuer.
(c) Change in main object clause of the issuer.
(d) Any addition 232[* * *]to objects of the issue resulting in 233[an increase] in estimated issue size or estimated means of finance by more than 234[twenty per cent]. 235[However, if there are grounds to believe that there is an exacerbation of risk on account of deletion of an object resulting in a decrease in issue size by more than twenty per cent., the Board may require fresh filing of the offer document along with fees.]
(e) Any increase or decrease in estimated issue size by more than 236[twenty per cent]
(f) Any increase 237[* * *] in estimated deployment in any of the objects of the issue by more than 238[twenty per cent].
(g) Changes which may result in non-compliance with the provisions of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 and the lead merchant banker intends to seek relaxation under regulation 109 of the said regulations.
(2) Changes which require filing of the updated offer document with the Board, along with fees:
(a) If changes are made in the offer document with respect to the following, the issuer shall file an updated offer document with the Board, along with payment of fees as specified in Schedule IV of these regulations:
(i) Section 1: Risk Factors: Any material development which may result in potential risk and may require updation in this section.
(ii) Section 2: Capital Structure: An aggregate increase of 5% or more in the shareholding of the promoter or promoter group or an aggregate increase of 5% or more in the shareholding of the top ten shareholders. (iii) Section 3: Issue Size: Any addition or deletion to the objects of the issue resulting in a change in the estimated issue size or estimated means of finance 239[by more than 10% and not exceeding 20%.]
(iv) Section 4: Management: Appointment of any new director.
(v) Section 5: Promoter Group: Any addition to the promoter group or group companies.
(vi) Section 6: Financial Statements: Any variation in net profit after tax or net loss after tax and/ or extraordinary items in excess of 10% over the last updated financials submitted to SEBI.
(vii) Section 7: Legal and other information: Any new litigation or any development about a pending litigation which is material in view of the merchant bankers.
(b) After filing the updated offer document with the Board, the issuer shall proceed with the issue after receiving a conformation to this effect from the Board.
(3) Changes which require filing of updated offer document with the Board, without fees: All other changes/ updations in the offer document which are not covered under paras (1) and
(2) above shall be carried out in the offer document and updated offer document shall be filed with the Board without fees.
SCHEDULE VIII
[See regulations 14(3), 37(a), 44, 45(1)(f), 57(2)(a), 57(2)(b), 58(1) and 58(2)]
DISCLOSURES IN OFFER DOCUMENT, ABRIDGED PROSPECTUS AND ABRIDGED LETTER OF OFFER
240[(i) The words “group companies”, wherever they occur, shall include such companies as covered under the applicable accounting standards and also other companies as considered material by the board of the issuer.
(ii) The policy on materiality shall be disclosed in the offer document.]
