SEBI’s Yet Another Move to Ensure Minimum Public Shareholding

By Parul Bansal, (corplaw@vinodkothari.com)

Background

With the development of the economic conditions of the country, various investors including the retail investors are stepping into the securities market with the intention to earn higher return on their investments which has lead to large portion of their income being invested in shares, bonds or securities of listed companies. At this juncture, return on their investment is proportionate to the growth of listed companies. Therefore, their destiny in the stock market lies at the mercy of management and promoters of listed companies.

Stock Exchange Board of India (“SEBI”) with an endeavor to prevent the investors from the monopoly of the listed companies and to debar/prevent the undesirable/illegal transactions has enacted Securities Contract (Regulation) Act, 1956 (“SCRA, 1956”) and Securities Contract (Regulation) Rules, 1957 (“Rules, 1957”) thereof.

Minimum Public Shareholding (“MPS”)

Listed Companies are those companies of which shares are listed on the stock exchange and certain percentage of such shareholding is available for the public to trade in with transparency and liquidity. If large portion of the shareholding of listed companies remain blocked in the hands of the promoters, subsidiary or associate company then the intent of listing such securities is breached and becomes redundant. The promoters will be at liberty to manipulate the price and the market tricking will be easy. This will also reduce the floating capacity of the securities of the company due to less liquidity.  Ministry of Finance vide press release dated June 4, 2010 has also stated that:

A dispersed shareholding structure is essential for the sustenance of a continuous market for listed securities to provide liquidity to the investors and to discover fair prices. Further the larger the number of shareholders, the less is the scope for price manipulation.”

To prevent such abuse, sub-rule 19 of the Rules, 1957 specifies the conditions for initial and continuous listing of a company.

Initial Listing

As per regulation 19(2)(b) of the Rules, 1957, any company proposing to list its securities shall maintain MPS as mentioned below based upon the post issued share capital of the company:

  Post issued share capital at offer price MPS (minimum)
1 Less than or equal to INR 600 crores 25% of each class or kind of equity shares or

debenture convertible into equity shares issued by the company

2 More than INR 600 to INR 4000  crores Such % of each class or kind of equity shares or debentures convertible into equity shares issued by the company equivalent to the value

of four hundred crore rupees

3 More than INR 4000 crores 10% of each class or kind of equity shares or debentures convertible into equity shares issued by the company
In case of 2 and 3, company shall attain MPS equal to 25% within 3 years from the date of listing its securities

Relaxation by SEBI

SEBI has, vide circular dated March 10, 2017, laid down criteria for Schemes of Arrangement by Listed Entities and relaxation under Rule 19 (7) of the Securities Contracts (Regulation) Rules, 1957 (SCRR). Further, to align with the rules of Rule, 1957, amendments were carried out therein through circular dated September 21, 2017.

Pursuant to aforesaid circulars, any listed issuer may for the purpose of arrangement submit a draft scheme of arrangement under sub-rule 19 of Rules, 1957 for seeking relaxation from the applicability of strict provisions of sub-rule 19(2) of Rules, 1957, for listing of its equity shares on a recognized Stock Exchange without making an initial public offer, on satisfying the conditions as mentioned in para III of Annexure I thereof. In terms of such conditions at least 25% of the post-scheme paid up share capital of the transferee entity shall comprise of shares allotted to the public shareholders in the transferor entity. However, on fulfillment of following condition, requirement to attain such MPS may be waived off:

  1. The entity has a valuation in excess of INR 1600 crore as per the valuation report;
  2. The value of post-scheme shareholding of public shareholders of the listed entity in the transferee entity is not less than INR 400 crore;
  • At least 10% of the post-scheme paid up share capital of the transferee entity comprises of shares allotted to the public shareholders of the transferor entity; and,
  1. MPS of 25% shall be attained within a period of one year from the date of listing of its securities and an undertaking to this effect is incorporated in the scheme” .

Continuous Listing

Pursuant to sub-rule 19A of the Rules, 1957 every listed company including the Public Sector Company shall maintain MPS of 25% of the total shareholding of the Company. Initially, limit for the Public Sector Companies was fixed at 10% but later on the same was also increased from 10% to 25% to provide equal footing to listed companies and PSUs.

What if MPS is less than 25% in case of continuous listing?

Pursuant to proviso of sub-rule 19A of Rules, 1957, every listed company which is not meeting the minimum public shareholding specified under sub-rule 19 of the Rules, 1957 shall in accordance with the provision of sub-rule 19A accomplish the same within the stipulated time period which is 4 year from the date of commencement of SCRA Amendment Rules, 2014 i.e. by January 15, 2018. Earlier the time specified was upto January 15, 2017 and listed companies failing to comply with the same has faced severe consequences in past. Albeit, strict steps have been taken by SEBI against such companies, public shareholding of such companies was still below the requirement. Therefore, SEBI has, once again vide circular on July 03, 2017, extended the time limit for achieving the minimum public shareholding by one year i.e. January 15, 2018.

This extension of time yet again by SEBI is a clear indication of the its accommodative and perceptive regulatory approach and takes cognizance of the need for a reasonable timeframe within which non-compliant companies may take remedial action with respect to public holding requirements. SEBI has not only increased the time limit for bringing the public shareholding within specified limits but has also amended various Regulations and Acts thereof for achieving the requirement of minimum public shareholding.

Steps taken by SEBI to achieve minimum public shareholding

SEBI has vide circular dated December 16, 2010 and August 29, 2012 specified the methods for complying with the minimum public shareholdings such as  issuance of shares to public through prospectus, offer of shares held by promoters to public,  right issues/ bonus issue to public shareholders with  promoters or promoter group shareholders forgoing their entitlement,  etc.

Subsequently, another circular was issued by SEBI on February 08, 2012 through which listed companies were allowed to achieve minimum public shareholding through institutional placement programme. Along with the aforesaid, SEBI has also specified that listed companies desirous of achieving the minimum public shareholding may approach SEBI with the appropriate details and the same will be entertained by it on the basis of merits.

Result of non-compliance

Despite aforementioned efforts of the SEBI to facilitate achieving minimum shareholding, various companies have not complied with the same. As a result SEBI has taken stern actions like freezing of voting rights, delisting of securities, exclusion of scrips from F&O segments etc.

SEBI has once again vide circular dated October 10, 2017[1], in order to bring uniformity of approach in enforcement of MPS norms and to ensure compliance with same, laid down following procedure:

Steps to be taken by RSE on observing non-compliance

  1. Fine of ₹5,000 per day (₹10,000 per day if non compliance continues for more than 1 year) of non-compliance on the listed entity till the date of compliance. In case the listed entity fails to pay the fine despite receipt of the notice as stated above, the recognized stock exchange may initiate appropriate action.
  2. Freezing of shareholding of promoter/promoter group till the date of compliance (this shall not be an impediment for the entities complying with MPS norms through the methods specified/approved by SEBI).

Provided that where it is observed that the listed entity has adopted a method for complying with MPS requirements which is not prescribed by SEBI under clauses (2)(i) to (vi) under SEBI circular[1] dated November 30, 2015 and approval for the same has not been obtained from SEBI under clause 2 (vii) of the said circular, the recognized stock exchanges shall refer such cases to SEBI.

  1. Promoters, promoter group and directors shall not hold any new position as director in any other listed entity till the date of compliance by such entity (listed entity shall give intimation of the same to RSE and promoters, promoter group and directors)
  2. RSE may consider compulsorily delisting of non-complaint entity in accordance with SCRA, 1956, Rules, 1957 and SEBI (Delisting of Equity Shares) Regulations, 2009.
  3. RSE may keep in abeyance the action or withdraw the action in specific cases where specific exemption from compliance with MPS requirements under the Listing Regulations/ moratorium on enforcement proceedings has been provided under any Act, Court/Tribunal Orders etc.

Upon intimation of compliance and on being satisfied, RSE shall remove the aforementioned restriction levied on the listed entities, its promoter, promoter group and directors.

Aforementioned actions taken by SEBI are without prejudice to its power to take action under the securities laws for violation of the MPS requirements.

International practice

Colombo Stock Exchange

Pursuant to rule 7.13 of the listing rules[2] of the Colombo Stock Exchange, every company listed on the main Board shall maintain a minimum public shareholding as stipulated therein. Previously, such listed companies were required to comply with this requirement of minimum public shareholding by December 31, 2016. However, likewise SEBI, Stock Exchange Commission in consultation with Colambo Sock Exchange has extended the timeline to June 30, 2017 for the listed companies not complying with the requirement of minimum public shareholding.[3]

Europeon Union (Euronext)

Pursuant to the regulations of Euronext Amsterdam[4], minimum public shareholding maintained by the companies shall be 25% of the issued shares of the company. Unlike, SEBI, Colambo Stock Exchange, Euronext considers the free float/liquidity available for the security of the company.  In case a large number of shares of the company are available to public, ensuring enough liquidity for the such shares, irrespective of the percentage, minimum public shareholding may go below 25% subject to the condition that minimum public shareholding shall never be lower than 5% and the free float shall always represent at least EUR 5 million (based on the offering price).


[1] http://www.bseindia.com/downloads/whtsnew/file/Manner%20of%20achieving%20MPS%20301115.pdf

[2] https://cdn.cse.lk/pdf/Section-7.pdf

[3] https://cdn.cse.lk/cmt/upload_cse_report_file/directives_24_18-11-2016.pdf

[4] https://uk.practicallaw.thomsonreuters.com/9-572-8048?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

 

 


 

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

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

 

Concurrence of Pledgee Sufficient For Creating Pledge

Introduction

The Securities and Exchange Board of India (SEBI) vide its notification dated July 25th, 2017[1] has come up with SEBI (Depositories and Participants) (Second Amendment) Regulations, 2017 (hereinafter referred to as “DP Second Amendment Regulations, 2017”) substituting sub-regulation (3) of regulation 58 of the SEBI (Depositories and Participants) Regulations, 1996[2] (hereinafter referred to as “DP Regulations, 1996). Read more

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