SEBI aborts brightening of fine lines of control

By CS Vinita Nair, (finserv@vinodkothari.com)

SEBI at its Board meeting held on March 12, 2016[1] discussed and decided on several important matters, one of them being approving for initiation of public consultation process regarding Bright line Tests for Acquisition of ‘Control’ under the SEBI (SAST) Regulations, 2011[2] (SAST). Acquisition of control, in case of listed entities, entails making an open offer under SAST.

Control has been defined, by way of an inclusive definition, under various laws in India and internationally. The crux of the definition of ‘control’ under various laws has been discussed in Annexure 1. Primarily, the salient features of definition of ‘control’ are as under:

  • The right to appoint a majority of directors
  • The right to control the management
  • The right to control the policy decision

Such rights may be exercised by a person, directly or indirectly. The rights may accrue by virtue of shareholding, management rights, shareholder agreements, voting agreements or in any other manner. However, in case of contractual agreements, assessment of acquisition of control becomes complex and requires consideration of facts. It has been represented to SEBI to amend the definition of control, thereby shifting it from a principle based definition to rule based definition, in order to avoid multitude of opinions. In a given scenario multiple regulators may all be applying the test of control from different perspectives and arriving at differing results which may lead to ambiguity and confusion in the market

In view of the same, SEBI, in the Discussion paper, had proposed following two options to identify bright lines for control:

Option 1:- Framework for Protective Rights

Option 2:- Adopting a numerical threshold

The definition of ‘control’ under the SAST may be amended such that control is defined as:

(a) the right or entitlement to exercise at least 25% of voting rights of a company irrespective of whether such holdings gives de facto control; and/or

(b) the right to appoint majority of the non-independent directors of a company.”

This article analyses the proposed definition of control in the light of past judgments, committee reports etc. The Discussion paper was put open for public comments till April 14, 2016.

Background

‘Control’ as explained in case of Subhkam Ventures v/s SEBI

Decision of Securities Appellate Tribunal (SAT) in case of M/s Subhkam Ventures (I) Private Limited versus SEBI[3] . The recital of the agreement entered into with MSK Projects (India) Limited and its promoters, provided that Subhkam is only a financial investor and will neither be regarded as the promoter nor acquire control and management of the target company for any reason. Subhkam argued that open offer was made under Regulation 10[4] of SAST, 1997 while SEBI insisted that control was acquired and therefore Regulation 12[5] was also required to be disclosed to enable shareholders to make an informed decision.

SAT explained the difference in case of proactive and reactive power and clarified that control, means creating or controlling a situation by taking the initiative and not reacting. It is a positive power and not a negative power. In case of Subhkam, the intent behind incorporating protective clauses in the shareholder’s agreement was to ensure that the target company does not undergo any paradigm shift from its present position without Subhkam’s knowledge and approval. Such provisions did not grant control but enabled Subhkam to oppose a proposal, provided fetters to protect the investment made. SAT allowed the appeal by inferring that none of the clauses of the agreement, individually or collectively demonstrates control in the hands of the appellant.

Being a key issue, SEBI appealed the SAT order before Supreme Court. Supreme Court, on November 16, 2011 stated that ‘keeping in view the above changed circumstances, it is in the interest of justice to dispose of the present appeal by keeping the question of law open and it is also clarified that the  impugned order passed by the SAT will not be treated as a precedent.

Deliberations on ‘Control’ in TRAC[6] report

The Committee concluded that a holding level of 25% of voting rights permits the exercise de facto control (Para 2.6). The existence or nonexistence of control over a listed company would be a question of fact, or at best a mixed question of fact and law, to be answered on a case to case basis. Any blanket provision whereby a right to say “no” is in all circumstances deemed to either constitute “control” or not to constitute “control” may be liable to misuse (Para 3.3). Acquisition of de facto control, and not just de jure control should expressly trigger an open offer (Para 3.6). The Committee had recommended the definition of “control” be modified to include “ability” in addition to “right” to appoint majority of the directors or to control the management or policy decisions would constitute control. It further clarified that a director or officer of the target company would not be regarded as being in control merely by virtue of holding such position (Para 3.7).

The Committee examined the possibility of introducing a whitewash provision in the Takeover Regulations on the lines of international practice i.e. an open offer would not be required if a material majority of the shareholders of the target company were to pass a resolution waiving the open offer. The rationale for such a framework is that an open offer is ultimately made for the benefit of the shareholders and it is well within the shareholders‘ rights to renounce such a benefit if they so desire (Para 12.17). However, the whitewash provisions were not incorporated in SAST, 2011 in the absence of robust regulations on proxy solicitation, and given the realities of the Indian market, any provision for shareholder waiver for an open offer may not be in the best interests of investors at large.

Veto rights – protective rights not amounting to exercise of ‘control’

As was explained under SAT order in case of Subhkam Ventures v/s SEBI, veto rights are protective in nature rather than participative in nature. Veto rights are fetters for the purpose of good governance and aimed to protect the investments made from the whims and fancies of the promoters who manage the company. On similar lines, an illustrative list of protective rights has been provided which may be granted to an investor subject to following conditions is provided by way of Annexure 2:

  • The investor must invest atleast 10% or more in the target company;
  • Approval by way of majority of minority i.e. approval of public shareholder’s needs to be obtained and such rights needs to be incorporated in Articles of Association.
  • In case of IPO, the existing agreements to stand cancelled/ modified or suspended till approval is obtained in the aforesaid manner post listing of shares.

However, there still remains a likelihood of this leading to further complexities in assessment of control owing to ambiguity in interpretation.

Adopting numerical threshold

In view of the provisions relating to passing of special resolutions under Companies Act, 2013 and trigger limit for determining control under SAST being 25%, it was proposed to regard 25% as the threshold level for trigger of control in Indian listed companies. Further, it was proposed to determine control on the basis of right to appoint non-independent directors and not majority of directors. The reason for the same being Regulation 17 of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 prescribes the composition of Board.

As compared to aforesaid option, this approach would reduce the uncertainty in assessment of acquisition of ‘control’, however, will not be able to capture control derived by way of special rights.

Stakeholders’ Comments and opinions

SEBI vide a Press Release dated September 08, 2017[7] informed that a number of comments from various stakeholders including industry bodies, intermediaries, advocates and investors were received on the Discussion paper issued on March 14, 2016. No particular option garnered overwhelming support amongst the stakeholders. SEBI also received the views of the Ministry of Corporate Affairs (MCA) and the Reserve Bank of India in this regard.

Few stakeholders including the MCA opined that changing the current definition of ‘control’ may reduce the regulatory scope and may be prone to abuse and hence, the current definition of ‘control’ may not be changed. Instead the stakeholders opined that it would be more appropriate to take decisions on a case-to-case basis. Further, it may be noted that the Justice Bhagwati Committee which was constituted in the year 1995 to review the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1994, had recommended a broad definition of control and opined that it should be left to SEBI to decide whether there has been an acquisition of control on the basis of facts of each case.

Conclusion

SEBI intended to align the definition of control, in line with the recommendations and deliberations made in report submitted by TRAC, justification given in the aforesaid SAT order. However, pursuant to the comments and opinions received from the various stakeholders and authorities it is felt that any change or dilution in the definition of control would have far reaching consequences since a similar definition of ‘control’ is used in the Companies Act, 2013 and other laws.  Consequently, it has been decided to not to proceed with the amendment and to continue with the practice of ascertaining acquisition of ‘control’ as per the extant definition in the SAST.

Annexure 1

Sr. no Act/ Regulations Parameter for determining control Exclusions, if any
1. SEBI (SAST) Regulations, 2011 ·         right to appoint majority of the directors or to

·         control the management or policy decisions

 

exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner

·         Mere holding of position of a director or officer in the target company.
2. SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 As defined under SAST  
3. SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 As defined under SAST, 1997 (same as above) ·         Where there are two or more persons in control over the target company, the cesser of any one of such persons from such control shall not be deemed to be a change in control of management nor shall any change in the nature and quantum of control amongst them constitute change in control of management:

Provided that the transfer from joint control to sole control is effected in accordance with clause (e) of sub-regulation (1) of regulation 3.

4. Companies Act, 2013 Similar to definition under SAST. Exclusions not included.
5. Consolidated FDI Policy, 2015 & FEM ( Transfer or issue of security by a person resident outside India) Regulations, 2000 Similar to definition under SAST. Exclusions not included.
6. Competition Act, 2002 ·     controlling the affairs or management by—

o   one or more enterprises, either jointly or singly, over another enterprise or group[8];

o   one or more groups, either jointly or singly, over another group or enterprise;

7. AS-18 ·     (a) ownership, directly or indirectly, of more than one half of the voting power of an enterprise, or

·     (b) control of the composition of the board of directors in the case of a company or of the composition of the corresponding governing body in case of any other enterprise, or

·     (c) a substantial interest in voting power and the power to direct, by statute or agreement, the financial and/or operating policies of the enterprise

 
8. Ind AS-27 ·     power to govern the financial and operating policies of an entity so as to obtain benefits from its activities.  
9. IFRS 10 ·     Ownership of more than half the voting right of another entity  Power over more than half of the voting rights by agreement with investors

·     Power to govern the financial and operating policies of the other entity under statute/ agreement

·     Power to remove/appoint majority of directors

·     Power to cast majority of votes.

 
10. City Code on Takeovers and Mergers, UK ·     Control means an interest, or interests, in shares carrying in aggregate 30% or more of the voting rights (as defined below) of a company, irrespective of whether such interest or interests give de facto control.  
11. Takeover Guide, Canada ·     A “control person” is a person (or person within a combination of persons who are acting in concert) which holds a sufficient number of shares to affect materially the control of the target (and, if the ownership is greater than 20%, the person(s) are deemed, in the absence of evidence to the contrary, to hold a sufficient number of shares to affect materially the control).  
12. The Singapore Code on Takeovers and Mergers ·     Effective control means a holding, or aggregate holdings, of shares carrying 30% or more of the voting rights (as defined below) of a company, irrespective of whether that holding (or holdings) gives de facto control. “Acquiring effective control” of a company refers to a situation where a person and parties acting in concert with him, who previously held in aggregate less than 30% of the company’s voting rights, increase their aggregate holding of voting rights in the company to 30% or more.

·     “Consolidating effective control” in a company refers to a situation where a person and parties acting in concert with him, who already owned between 30% and 50% of the company’s voting rights, increase their aggregate holding of voting rights in the company by more than 1% within a 6 month period.

 
13. Malaysian Code on Takeovers and Mergers 2010 ·     Does not define control

 

 
14. Takeover Guide, Japan ·     Does not define control  

 

Annexure 2

Illustrative list of protective rights that do not amount to exercise of “control”, including quorum[9] rights for meetings involving matters stated below:

  • Appointment of Non executive Chairman/ Vice Chairman without any casting vote;
  • Appointment of investor’s nominee as observer of Board, without any voting or participation rights;
  • Covenants stipulated by banks, NBFCs etc granting loan on commercial basis, provided the rights are customary to the lending business
  • Non exclusive and Mutually beneficial commercial agreements, approved by the Board where the Board of target company has the right to terminate the agreement;
  • Veto rights in case of following matters that are not part of the ordinary course of business[10] or involve governance issues would be regarded as protective rights.
    • Amendment of MoA & AoA adversely impacting the investor’s rights;
    • Alteration to the capital structure of the company;
    • Change of statutory auditors;
    • Material[11] divestment, transfer or disposal of an undertaking or material subsidiary of the target company;
    • RPTs entered not in ordinary course of business or not on an arm’s length basis;
    • Material[12] acquisition of any companies, bodies corporate, business, undertaking or joint ventures;
    • Incurring indebtedness, granting loans, providing guarantees or creating security in excess of thresholds prescribed under Act, 2013 without shareholder approval;
    • winding up of the company or making a general assignment for the benefit of the creditors of the company and/or the subsidiaries or admitting in writing the inability of the company to repay its debts when they become due;
    • write-off of any of the receivables, loans and advances, investment or investments or inventories outside the ordinary course of business[13]

[1] http://www.sebi.gov.in/cms/sebi_data/pdffiles/33245_t.pdf

[2] http://www.sebi.gov.in/cms/sebi_data/attachdocs/1457945258522.pdf

[3] http://www.sebi.gov.in/satorders/subhkamventures.pdf

[4] Acquisition of fifteen per cent or more of the shares or voting rights of any company.

[5] Acquisition of control over a company.

[6] Takeover Regulations Advisory Committee – set up under the chairmanship of Mr. C Achuthan. Report was submitted on July 19, 2010  – http://www.sebi.gov.in/cms/sebi_data/attachdocs/1287826537018.pdf

[7] http://www.sebi.gov.in/media/press-releases/sep-2017/acquisition-of-control-under-the-sebi-substantial-acquisition-of-shares-and-takeovers-regulations-2011_35891.html

[8] “group” means two or more enterprises which, directly or indirectly, are  in a position to —

(i) exercise twenty-six per cent or more of the voting rights in the other enterprise; or

(ii) appoint more than fifty per cent of the members of the board of directors in the other enterprise; or

(iii) control the management or affairs of the other enterprise;

[9] If two meetings are not quorate, the next meeting would be deemed to have quorum despite the absence of the investor nominees.

[10] The company will be required to formulate a policy defining the parameters that will be ‘outside the ordinary course of business’.

[11] The company will be required to formulate a policy defining the parameters that will be ‘material’.

[12] The company will be required to formulate a policy defining the parameters that will be ‘material’.

[13] The company will be required to formulate a policy defining the parameters that will be ‘outside the ordinary course of business’

SEBI requires disclosure by banks in case of NPA divergence

By Mayank Agarwal, (finserv@vinodkothari.com)

The banking sector is one of the pillars for economic development of any country, and any well balanced and healthy economy is largely dependent on a transparent and credible banking system. In recent years, the Indian economy has recognized the importance of a well-regulated and fundamentally strong banking framework and made it one of its priorities to clear out the vast amount of unhealthy practices and activities that tread on the fine line of regulation. A slew of new policies which led to clearer recognition norms, stricter disclosure requirements, more hands-on approach by the Reserve Bank of India (RBI) and an overall environment that is much more transparent than before are all testimony to the fact that the banking institutions are in for a major overhaul. The introduction of practices such as Asset Quality Review (AQR), restructuring norms and the introduction of Insolvency and Bankruptcy Code (IBC) by the RBI were steps aimed towards a fundamentally cleaner banking system. Read more

Amendment in SAST and ICDR in line with the Insolvency Code.

By Rohit Sharma (resolution@vinodkothari.com)

Introduction

That any Act or Statute evolves and gaps in it are removed while the same become effective and is implemented – is a known theory.

With the implementation of the Insolvency and Bankruptcy Code, 2016 (“IBC” or “Code”) and with passing days of such implementation, the gaps in the Code / linked statutes are being realized and accordingly corresponding amendments are being brought. Read more

Taming UPSI and tampering disclosure requirements

By CS Vinita Nair, corplaw@vinodkothari.com

It is a fact that certain decisions are taken by Board impromptu/ surprise item and is not a part of the agenda. Therefore, the agenda includes an item ‘With the permission of Chairperson’ to keep the agenda flexible. It is a good thought to ponder upon that whether all tabled items are impromptu in true sense? Can companies put Unpublished Price Sensitive Information (UPSI) as tabled items and cut the prior intimation requirements? Read more

SEBI mandates timely disclosure of ‘default’: intends to fill credit information gaps

By Vallari Dubey, (vallari@vinodkothari.com)

The Securities and Exchange Board of India (‘SEBI’) has vide circular dated 4th August, 2017[1], issued a set of additional disclosures for default in payment of interest/repayment of principal amount on loans from banks/financial institutions, debt securities etc. the same are to be complied with by all listed entities,

The circular is issued by SEBI, by virtue of ‘the power to remove difficulties’ granted under Regulation 101 of Chapter XII of LODR Regulations, 2015. This circular shall take effect from 1st October, 2017.

Background

As per the existing disclosure requirements, a listed entity is required to intimate or bring it into records of public and/or the stock exchange, the details of any material event or action as specified in the regulations.

Existing disclosures in case of ‘default’

Disclosures by entities which has listed its specified securities[2]

Regulation 30 deals with disclosure of any events/information which, in the opinion of the board of directors of the listed entity are considered material.

The events specified in Para A, Part A of Schedule III are deemed material events, and the listed entity is required to disclose the same to the stock exchange as soon as reasonably possible and not later than twenty four hours from the date of occurrence of event/information. Further, the listed entity shall make disclosures updating material developments with respect to the disclosures already made. The disclosures are also required to be hosted on the website of the company for a minimum period of 5 years.

Inter-alia the events mentioned, para 6 reads as:

  1. Fraud/defaults by promoter or key managerial personnel or by listed entity or arrest of key managerial personnel or by listed entity or arrest of key managerial personnel or promoter.

It may be noted that the term ‘default’ is not defined for the purpose of disclosure under this para.

Disclosures by listed entities which has listed its non-convertible debt securities or non-convertible redeemable preference shares or both

Regulation 51 deals with disclosure of information having a bearing on the performance/operation of the listed entity and/or price sensitive information.  Sub-regulation (2) refers to Part B Schedule III and the events specified therein shall be promptly disclosed to the stock exchanges.

Inter-alia the events mentioned, para 1, 4, 9 and 11 read as:-

  1. Expected default in timely payment of interests/preference dividend or redemption or repayment amount or both in respect of the non-convertible debt securities and non-convertible redeemable preference shares and also default in creation of security for debentures as soon as the same becomes apparent;

 

  1. Any action that shall affect adversely payment of interest on non-convertible debt securities or payment of dividend on non-convertible redeemable preference shares including default by issuer to pay interest on non-convertible debt securities or redemption amount and failure to create a charge on the assets;

 

  1. Delay/ default in payment of interest or dividend / principal amount/redemption for a period of more than three months from the due date;

 

  1. Any instance(s) of default/delay in timely repayment of interests or principal obligations or both in respect of the debt securities including, any proposal for re scheduling or postponement of the repayment programmes of the dues/debts of the listed entity with any investor(s)/lender(s).

 

Explanation – For the purpose of this sub-para, ‘default’ shall mean Non-payment of interest or principal amount in full on the pre-agreed date and shall be recognized at the first instance of delay in servicing of any interest or principal on debt.

Additional disclosures to be made w.e.f. 1st October, 2017

Pursuant to the said circular, disclosures in the format prescribed therein (not covered under the existing disclosure regime) are required to be made. As stated in the circular, the disclosures seek to imbibe a culture of discipline amongst the listed entities and facilitate to fill the existing gaps in terms of credit and default information of listed entities, in respect of loans and borrowings from banks. Such detailed information which is to be provided, along with strict timelines, will prove to be fruitful to the banks and other stakeholders, in cases where any application is initiated against any listed entity before the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016.The disclosures shall be made when the listed entity has committed “default” in its obligation towards any of the following:-

  1. Debt securities (including commercial papers)
  2. Medium Term Notes (MTNs)
  3. Foreign Currency Convertible Bonds
  4. Loans from banks and financial institutions
  5. External Commercial Borrowings (ECBs)
  6. Any other case as and when required

For the purpose of the aforesaid, default shall mean non-payment of interest or principal amount at a pre-agreed date.

Information to Credit Rating Agencies (CRAs)

All information pertaining to ‘default’ by the listed entities shall also be supplied to Credit Rating Agencies. Reference may be made to the recent SEBI circular dated 30th June, 2017[3]. The circular clarifies the applicability of the obligation on the Debenture Trustee to monitor and share information about default in payment of interest/principal amount, with registered CRAs. Another circular on the same date was issued[4], laying down a comprehensive monitoring and review mechanism for ratings given by CRAs; the circular also provide for submission of No Default Statement by the issuer to the CRA on a monthly basis.

A tabular comparison of disclosures before and after October 1, 2017

An effective date of 1st October, 2017 has been provided in the circular to enable enough flexibility to the listed entities, to set up proper systems in place for compliance of the disclosures to be made therein.


[1] http://www.sebi.gov.in/legal/circulars/aug-2017/disclosures-by-listed-entities-of-defaults-on-payment-of-interest-repayment-of-principal-amount-on-loans-from-banks-financial-institutions-debt-securities-etc_35538.html

[2] Regulation 2 (zl) defines: ‘specified securities’ means ‘equity shares’ and ‘convertible securities’ as defined under clause (zj) of sub-regulation (1) of regulation 2 of the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009;

[3] http://www.sebi.gov.in/legal/circulars/jun-2017/clarification-on-monitoring-of-interest-principal-repayment-and-sharing-of-such-information-with-credit-rating-agencies-by-debenture-trustees_35219.html

[4] http://www.sebi.gov.in/legal/circulars/jun-2017/monitoring-and-review-of-ratings-by-credit-rating-agencies-cras-_35220.html

 

SEBI aligns DT Regulations with Act, 2013, by Vignesh Iyer

The Securities and Exchange Board of India (SEBI) on July 13, 2017 issued the SEBI (Debenture Trustees) (Amendment) Regulations, 2017 (Amendment Regulations)[1] in order to amend the SEBI (Debenture Trustees) Regulations, 1993 (Principal Regulations)[2] and make the reference to the corresponding provisions of the Companies Act, 2013 (Act, 2013) instead of the erstwhile reference of Companies Act, 1956 (Act, 1956). Read more

SEBI amends ILDS Regulations, clarifies on AOA amendment

 

SEBI vide notification dated March 24, 2015[1] had provided framework for consolidation and re-issuance of debt securities under Regulation 20A of SEBI (Issue and Listing of Debt Securities) Regulations, 2008 (‘ILDS Regulations’) subject to fulfillment of certain conditions. One of the conditions was to have an enabling Read more

Representation to SEBI on Exemptions related to ISINs for Debt Securities

To,

Ms. Richa G. Agarwal

Deputy General Manager

Investment Management Department

Securities and Exchange Board of India

 

Sub: Representation on the exemptions related to International Securities Identification Number (ISINs) for debt securities issued under the SEBI (Issue and Listing of Debt Securities) Regulations, 2008 and clarity on initial reporting.

Ref: SEBI Circular No. CIR/IMD/DF-1/ 67/2017 (‘SEBI Circular’) issued on June 30, 2017.

Dear Madam,

Indian Securitisation Foundation (ISF)

ISF is a not-for-profit entity representing the securitisation industry in India. The membership of the Foundation includes banks, NBFCs, microfinance institutions, other issuers and investors and securitisation professionals for promoting interest of securitisation and fixed income securities in India. As ISF is dedicated to the cause of promoting securitisation, asset-based financing and related areas in India, we humbly submit our recommendations herein below on the captioned subject which may have significant impact on the intent of the circular.

1.    SEBI Circular

Para 2.2 of the SEBI Circular provides for exemption from applicability of ISINs. The text of the exemption is as follows:

2.2. Exemptions from applicability of ISINs:

The following classes of debt securities issued for raising regulatory capital are exempted from the applicability of provisions of this circular:

XX

Tier II bonds issued by Non-Systemically Important Non-Deposit taking Non-Banking Financial Company issued as per RBI “Master Direction-Non-Banking   Financial Company-Non-Systemically important Non-deposit taking Company (Reserve Bank) Directions, 2016”dated September 01, 2016. (Emphasis Supplied)

2.    NBFC-ND-SI Directions

Para 6 of the Non-Banking Financial Company -Systemically Important Non-Deposit taking Company and Deposit taking Company (Reserve Bank) Directions, 2016 (‘NBFC-ND-SI Direction’) provides that every applicable NBFC shall maintain a minimum capital ratio consisting of Tier I and Tier II capital which shall not be less than 15 percent of its aggregate risk weighted assets on-balance sheet and of risk adjusted value of off-balance sheet items.

3.    NBFC-ND-NSI Directions

Para 46 and 48 of the Non-Banking Financial Company – Non-Systemically Important Non-Deposit taking Company (Reserve Bank) Directions, 2016 (‘NBFC-ND-NSI Directions’) requires every NBFC-IFC (Non-Banking Finance Company – Infrastructure Finance Companies) and NBFC-MFI (Non-Banking Finance Company – Micro Finance Institutions), respectively, to maintain a minimum capital ratio consisting of Tier I and Tier II capital which shall not be less than 15 percent of its aggregate risk weighted assets on-balance sheet and of risk adjusted value of off-balance sheet items.

4.    Our Representation

  • Including Tier-II bonds issued by NBFC-ND-SI in exemption category – Considering the provisions of law, following scenario emerges as far as applicability of capital adequacy is concerned:
  1. Applicable NBFCs as defined under para 2 of the NBFC-ND-SI Directions are required to comply with the capital to risk assets ratio thereby necessarily required to maintain tier-I and tier-II capital.
  2. NBFC-IFC-NSI and NBFC-MFI-NSI complying with the provisions of NBFC-ND-NSI Directions are required to with the capital to risk assets ratio thereby necessarily required to maintain tier-I and tier-II capital.
    1. Every other NBFC-ND-NSI is required to maintain a leverage ratio.

As evident from the text of the SEBI Circular, only those companies have been exempted from applicability of ISINs which issues debt securities for raising regulatory capital; however, it seems that the SEBI Circular have inadvertently missed adding NBFC-ND-SI within the exemption list.

Therefore, it is a humble request to consider including the following:

“2.2.8. Tier II bonds issued by Systemically Important Non-Deposit taking Non-Banking Financial Company issued as per RBI “Non-Banking Financial Company -Systemically Important Non-Deposit taking Company and Deposit taking Company (Reserve Bank) Directions, 2016” dated September 01, 2016.”

  • Clarity with respect to initial reporting requirement – Para 3.1.1. of the SEBI Circular requires the issuer to submit the data in the format prescribed under the said para. The SEBI Circular does not specify to whom such data shall be submitted, i.e., to recognized stock exchange only or to recognized stock exchanges as well as a depository or to SEBI. In this regard, we request you to kindly clarify as to whom the submission shall be made.

Thanking you

For Indian Securitisation Foundation

Sd/-

(Vinod Kothari)

MoF issues Securities Contracts (Regulation) (Amendment) Rules, 2017

Ministry of Finance (MoF) vide notification dated 27th June, 2017 issued the Securities Contracts (Regulation) (Amendment) Rules, 2017 (Amendment Rules)[1] to amend Rule 8 of the Securities Contracts (Regulation) Rules, 1957[2] (Principal Rules).

Rule 8 of the Principal Rules deals with the qualifications for membership of a recognized stock exchange. Read more