The Float Guide How to float a company in India

Transcription

1 The Float Guide How to float a company in India Contact: Haigreve Khaitan Khaitan & Co haigreve.khaitan@khaitanco.com

2 INTRODUCTION This guide introduces the practice and procedure related to public floats in India. A public float/public offer in India can be by an Indian company, that is, a company incorporated under the laws of India or by a foreign company, one incorporated under the laws of a jurisdiction other than India. The public float by an Indian company can be by way of Initial Public Offering (IPO) (by an unlisted company) or by a follow on public offering (listed company). A public float by a foreign company can be through issue and listing of Indian Depository Receipts (IDRs) which are instruments denominated in Indian Rupees in the form of a depository receipts created by a depository in India against the underlying equity of the foreign company. Page 1

3 Contents Float by an Indian company Float by a foreign company 8 Conclusion Page 2

4 FLOAT BY AN INDIAN COMPANY Listing of Securities on the Indian Stock Exchanges by a Company Incorporated under the Laws of India WHAT IS A PUBLIC OFFER? Under Indian law, an offer of securities by a company to more than 49 shareholders is deemed to be a public offer. A public offer must be made by registering an offer document, termed as a prospectus, with the Registrar of Companies (RoC). The draft of the prospectus (DRHP) must be approved by the Securities and Exchange Board of India (SEBI) prior to registration with the RoC. A public offer must result in listing of shares on a stock exchange(s) recognised by SEBI ( recognised stock exchange ). The prospectus discloses certain details about the issuer company which have been set out in this guide. DOES MY COMPANY QUALIFY TO MAKE A PUBLIC OFFER? For a company to qualify to make a public offer: it must be incorporated under the laws of India; it must be a public company, that is, not a private company and, inter alia, is authorised by its constitutional documents to have more than 50 shareholders and there are no restrictions on the transferability of its shares; neither the company nor its affiliates should be barred from accessing the capital market by SEBI or any other authorities; and none of the promoters, directors or persons in control of the company were or are a promoter, director or person in control of any other company which is barred from accessing the capital market, under any order or directions made by SEBI. Indian law does not mandate a minimum number of years that a prospective issuer company must be in existence prior to its IPO. However, in the event such a company is in existence for less than three years or does not meet certain financial strength tests, it must allot at least 50 per cent of the shares forming part of the IPO to retail and institutional investors. WHO IS A PROMOTER? A promoter, as defined under the SEBI (2009) (Issue of Capital and Disclosure Requirements), is (i) a person(s) who is in control of the issue; (ii) a person(s) who are instrumental in the formulation of a plan for the proposed IPO; or (iii) a person(s) who has been named in the offer document as a promoter. Any director or officer of the issuer acting in his professional capacity shall not be deemed to be a promoter. Where an issuer company has identifiable promoters, the SEBI Regulations (2009) (Issue of Capital and Disclosure Requirements) in a public float process of the Indian company requires detailed disclosures to be made about the promoter and the promoter is also required to fulfil conditions as set out above and certain post issue requirements. IS MY COMPANY READY? Prior to filing the DRHP, a company must fulfil the following requirements: Page 3

5 structure convert into a public company by amending its memorandum and articles of association and incorporating the requirements of the stock exchanges into its articles; shareholding ensure that the promoters of the company directly hold such number of equity shares which allows 20 per cent of their post-ipo shareholding to be locked in for three years. Shares which are eligible to be locked in for three years: must not have been allotted to the promoters in the last one year at a price lesser than the public offer price; must not have been allotted in the last three years for consideration other than cash, out of revaluation reserves or capitalisation of intangible assets; or must not result from a bonus issue by utilisation of revaluation reserves or unrealised profits of the issuer or from a bonus issue against equity shares which were themselves ineligible for the minimum three year lock-in. board the composition of the board of directors may need to be changed to include independent non-executive directors with appropriate expertise such that there is equal number of non-independent and independent directors on the board of the company. corporate governance procedures the company will need to put in place appropriate corporate governance procedures for a listed company. This includes constituting certain committees of the board, such as an audit committee, investor grievance committee and remuneration committee, framing and adopting a code of conduct for the management and implementing reporting requirements. WHAT WILL IT COST? The costs of an IPO include the fees of the merchant bankers, the legal counsel, add on fees, stock exchange fees, SEBI filing fees, printing and registrar fees. Assuming an issue size of INR 5bn to INR 15bn (approximately US$111.9m to US$335.8m), typical cost is in the range of 1.5 to 2 per cent; once above INR 15bn (approximately US$335.8m) it is 1 per cent. The legal fees, including international and domestic counsel, total around INR 30m to INR 40m (approximately US$671,367 to US$895,395). The book-building mechanism includes stock exchange fees of about INR 7m to INR 8m (approximately US$156,608 to US$178,980). SEBI filing fees assuming an issue size up to INR 50bn (USD 111.9m approximately) is about per cent of issue size. Marketing road-shows is about INR 1.5m to INR 2m. So all inclusive would be up to 5 per cent of the issue size. However, all the costs are paid from the issue proceeds. HOW LONG WILL IT TAKE? On average, a company takes approximately 4 6 months to list its shares. This period commences from filing of the DRHP with SEBI to the listing of the shares. WHO IS ON THE IPO TEAM? The IPO team comprises of: investment banks their responsibilities include predominantly marketing the issue, underwriting the issue (if necessary), liaising with the regulator and other intermediaries to the IPO; legal advisors their responsibilities include conducting the due diligence of the company, drafting the offer document and advising on the structure of the issue; Page 4

6 auditors their responsibilities include consolidating the audited financials of the company, restating the financials and providing comfort on the numbers appearing in the offer document; registrar accepting the application forms and preparing a list of applicants, rejecting multiple or incomplete applications, etc; grading agency a grading agency provides a grade to the company after examining its fundamentals; escrow collection banks the application money is kept in a bank account opened with escrow collection banks. Once allotment of the shares is completed, the funds are released to the issuer company; and syndicate members they are intermediaries appointed by the investment banks who assist the investment banks in collection of bids. THE PROCESS IN BRIEF The IPO process comprises the following sequence of events: The investment banks and lawyers are appointed. The lawyers and the investment banks commence due diligence. The lawyers commence drafting of the draft red herring prospectus (DRHP). The DRHP includes information about the company s financial statements, business and other corporate and legal information. The DRHP does not include details of the price at which the shares would be offered or the period when the issue would be open for subscription. The DRHP, however, states the number of shares on offer or the total issue size. The DRHP is approved by the board of directors of the company. The DRHP is filed with SEBI and the recognised stock exchanges. SEBI issues observations on the DRHP. An updated DRHP is submitted to SEBI which incorporates SEBI s observations. Once SEBI has cleared the DRHP, the updated DRHP, (the red herring prospectus (RHP)), is filed with the RoC. The RHP states the period for which the issue will be open for subscription. The investment banks commence marketing of the issue. The price band (that is the price range within which the public may apply for the shares) is disclosed through a public advertisement. The issue is opened and applications are collected. Issue closes and the price at which maximum applications have been received is the issue price. The RHP, now termed the prospectus, is filed with the RoC. The prospectus states the issue price at which shares would be allotted. Allotment of shares at the issue price is made to the investors. Application for listing is made to the recognised stock exchanges. Page 5

7 Listing and trading permission is granted by the stock exchanges and trading commences. WHAT GOES IN THE PROSPECTUS? The prospectus must contain all the information about the company that investors, and their advisers, would reasonably require to make an informed assessment of: the assets and liabilities, financial position and performance, profits and losses, and prospects of the company; and the rights and liabilities attaching to the shares to be offered. Broadly, the prospectus comprises of the following significant information about an issuer company: discussions about the business verticals, strengths, opportunities and strategies about the issuer company; the risk factors affecting the business and results of operations of the issuer company; the litigation involving the issuer company, directors and its group; details about the management of the company; the industry in which the company operates; the objective of the fund raising; and the financial performance of the company for the last five years or since incorporation, whichever is later. NATURE OF DUE DILIGENCE NECESSARY FOR A PUBLIC OFFER A due diligence (or enquiry) process is conducted to make sure the offer document complies with the relevant legal requirements and no material information of the company is omitted from the prospectus. The offer document is drafted pursuant to the results of the diligence exercise. The investment bankers are required to submit a due diligence certificate to SEBI. The investment bankers derive their comfort on the diligence based on certification issued by the lawyers and auditors. WHAT IS THE COMPANY S WORTH? The merchant banks determine the valuation of the issuer company based on parameters such as past financial performance, strength and reputation of the group which the company is a part of, the performance and governmental policies towards the industry sector which the company is a part of, feedback from institutional investors, peer comparison and quality of the board of directors. The investment banks must disclose such an analysis in the offer documents and justify the issue price of the securities on offer. HOW WILL THE FLOAT BE MARKETED? The investment banks commence marketing of the issue to institutional investors once SEBI approves the offer document. The marketing initiatives begin through road shows where the promoters of the company along with the investment banks meet institutional investors. The company also issues advertisements in relation to the public issue. Page 6

8 BOOK-BUILDING Indian law allows an issue to be either through a book-build mechanism or a fixed price mechanism. Book-building is mandatory in the event certain parameters linked to the financial performance of the company are not met. In a fixed priced mechanism, the offer is made to the prospective shareholders in an IPO at a fixed price. All applications must be made at that price. In the book-building method, the issuer company, in consultation with the book-running lead managers, determine a price band. Prospective investors submit their applications as a bid at a price within the price band. Maximum bids received at a particular price within the price band is determined to be the issue price and consequently, the prospective investors themselves discover the price at which they want to buy the shares. Currently, the book-built method is the most common mechanism adopted in IPOs for pricing. DILUTION In an IPO at least 25 per cent of the post issue share capital must be offered to the public, ie, entities who are not promoters or their affiliates and at least ten per cent if the post issue capital of the issuer company calculated at the offer price is more than INR 40bn (approximately US$895.4m ). LOCK-IN REQUIREMENTS Twenty per cent of the post-ipo shareholding held by the promoters directly is locked in for a period of three years post the allotment of the shares. The remaining pre-ipo shares are locked in for a period of one year post allotment. However, this restriction does not apply for shares held by SEBI registered venture capital funds and shares allotted pursuant to an employee stock option scheme. Existing shareholders, however, may choose to sell their shares, which have been held by them for at least one year prior to the date of filing of the DRHP with SEBI, as part of the IPO. This is a route preferred by private equity investors who wish to exit and realise the value of their investment.. The entire pre-issue capital is locked in for a period of one year from the date of the IPO. DOES THE COMPANY HAVE TO ENTER INTO AN EQUITY LISTING AGREEMENT? As a pre-requisite to listing, the issuer company is required to enter into a standard listing agreement. The listing agreement prescribes for post issue disclosure requirements and certain conditions for continued listing, such as, quarterly and annual disclosure of financial performance of the company, quarterly reporting of the shareholding pattern of the company, adhering to the corporate governance requirements as set out in this float guide above, and maintaining of the minimum public float of 25 per cent of the issued capital. Page 7

9 FLOAT BY A FOREIGN COMPANY A foreign company can raise funds from India by issuance of IDRs WHAT IS AN IDR WHY IDRS? IDRs allow: This derivative instrument is modelled on global depository receipts and American depository receipts. Every IDR represents an ownership of certain underlying equity shares of the foreign company. The IDRs are issued by the depository in India against underlying equity shares of the foreign company, which are held in custody by an overseas custodian bank. IDRs are denominated in Indian Rupees. a foreign company to raise capital from Indian capital markets; and an Indian investor to invest in a foreign company without being subjected to the laws of the country in which the foreign company is incorporated. IDRs enable Indian investors who are looking at a diversified portfolio to invest in foreign companies within the Indian legal framework REGULATORY FRAMEWORK The regulatory framework for issuance of IDRs comprises of: Companies Act (1956); Companies (Issue of Indian Depository Receipts) Rules (2004); Chapter X of the SEBI (ICDR) Regulations (2009), as amended; IDR Listing Agreement; and the circulars and notifications issued by the Reserve Bank of India, SEBI and Ministry of Corporate Affairs in this regard from time to time. CONDITIONS FOR AN IDR ISSUE IDRs must be offered to more than 49 person. The issue size must be more than INR 500m (approximately US$11.1m). The minimum application amount by an applicant must be of least INR 20,000 (approximately US$445). Page 8

10 At least 50 per cent of the issue must be allotted to qualified institutional buyers on a proportionate basis and the remaining to non institutional investors and retail individual investors on a discretionary basis. Qualified institutional buyers include certain type of public financial institutions, scheduled commercial banks, mutual funds, foreign institutional investors and sub-accounts, multilateral and bilateral development financial institutions, venture capital funds, foreign venture capital investors, state industrial development corporation, insurance companies, national investment funds, insurance funds set up by the army, navy or air force or the department of posts, and provident funds and pension funds. The number of underlying equity shares offered in a financial year through IDRs must not exceed 25 per cent of the outstanding capital of the foreign company. An issuer company proposing to issue and list IDRs must submit a prospectus, disclosing certain details about the issuer company, to SEBI and the RoC. The details of the disclosures in the prospectus are set out below. DOES MY COMPANY QUALIFY? For a foreign company to qualify to list its depository receipts on an Indian stock exchange, it must meet the following parameters: It must be incorporated outside India. It must be listed in the home country of its incorporation. It must have distributable profits in the immediately preceding years. It must have a trading track record. It should not be prohibited from accessing capital markets in its home country. It should satisfy the conditions of good financial health in terms of pre-issue capital, free reserves and market capitalisation. The parameters for guidance of financial health have been set out under Companies (Issue of Indian Depository Receipts) Rules (2004). WHO CAN HOLD IDRS? Foreign institutional investors, sub-accounts of foreign institutional investors and non resident Indians, non institutional investors and retail individual investors can invest in IDRs. WHO CONSTITUTES THE IDR DEAL TEAM? The IDR deal team comprises of all the entities involved in a domestic IPO described above and: overseas custodian bank they hold the underlying shares on behalf of the depository; domestic depository IDRs are issued by the depository to the investors on the basis of the underlying equity shares issued by the foreign company; and the legal advisors there are two sets of lawyers typically appointed for the transaction, one of them is a domestic legal counsel (lawyers from the country of the issuing company s incorporation) and the other is the international legal counsel (Indian counsel). Their responsibilities include conducting due diligence of the company, drafting the offer document and advising on structuring of the issue. A lawyer from the home country must be appointed to review the offer document. Page 9

11 WHAT WILL IT COST? The cost of an IDR issue is approximately six to eight per cent of the issue size. This includes predominantly fees to the investment banks, the legal advisors, underwriting commissions (if any), fees payable to the depository and the custodians, the auditors, the registrar to the issue, marketing costs, processing fees to SEBI and the stock exchanges, etc. THE PROCESS IN BRIEF The IDR issue process comprises the following sequence of events: The overseas custodian bank, a domestic depository, merchant banker, lawyers and an underwriter are appointed for the issue of the IDRs. The lawyers and the investment banks commence due diligence. The draft red herring prospectus (DRHP) is drafted based on the legal, financial and management due diligence undertaken by the lawyers and the lead managers. The DRHP does not include details of the price at which the IDRs would be offered or the ratio between the IDRs and the underlying equity shares or the period when the issue would be open for subscription. The DRHP, however, states the maximum numbers of IDRs on offer or the total issue size. The DRHP is approved by the board of directors of the company. The DRHP is filed with SEBI. This filling can be either confidential or public filing. SEBI issues observations on the DRHP. An updated DRHP is submitted to SEBI which incorporates SEBI s observations. At this juncture, the issuing company decides the ratio between the underlying equity shares and the IDRs. Certain numbers of IDRs represent certain numbers of underlying equity shares, which is set out in the RHP to be filed with the Registrar of Companies, New Delhi. Once SEBI has cleared the DRHP, the updated DRHP, which is now termed as the red herring prospectus (RHP), is filed with the registrar of companies, New Delhi. The RHP states the period for which the issue shall be open for subscription. The lead mangers commence marketing of the issue. The company, together with lead managers, based on investor feedback, determines the price band (price range within which the public may apply for the IDRs). This price band is then included in the RHP or intimated to prospective investors through a public advertisement. The issue is opened and applications are accepted. Issue closes and the price at which maximum applications have been received is determined to be the issue price. The prospectus is filed with the RoC, New Delhi. The prospectus states the issue price at which IDRs would be allotted. Allotment of underlying equity shares is made to the depository. The said shares are held in custody by an overseas custodian. Page 10

12 Listing and trading approval is sought for the underlying equity shares. Upon receipt of the approval, IDRs are issued by the depository to the prospective investors. Listing and trading approval is sought for the IDRs from the recognised stock exchange where such IDRs are proposed to be listed. Upon receipt of the listing and trading approval, the listing and trading of the IDRs commences on the platform of the stock exchanges. WHAT GOES IN THE PROSPECTUS? The prospectus must contain all the information about the company that investors, and their advisers, would reasonably require to make an informed decision with regard to their investment in the company. Broadly, the prospectus comprises of the following information about an issuer company which is additional to the information provided in a domestic IPO: the financial performance of the company for the last three years; a brief description of the securities regulations of the country where the issuing company is incorporated; description of the IDRs and the rights of the IDR holder; and detailed disclosure on the issue procedure to be followed for the issue of underlying shares and subsequent IDRs. IS THERE A MINIMUM SUBSCRIPTION THAT HAS TO BE RECEIVED BY THE ISSUING COMPANY FOR THE ISSUE TO BE SUCCESSFUL? DILUTION The issuance of IDRs may or may not be underwritten. In case of a non-underwritten issue, the issuer company must receive a minimum subscription of 90 per cent of the offer as of the issue closure date for the issue to be successful. In case of an underwritten issue, the Issuer must receive a minimum subscription of 90 per cent of the offer including the underwriters commitment within 60 days of the issue closure date. There are no minimum dilution requirements for an IDR issue. LOCK-IN REQUIREMENTS The IDRs are not automatically fungible into underlying equity shares. Further, the IDRs can only be redeemed after the completion of one year from the date of issuance of IDRs, if the IDRs are infrequently traded on the stock exchange(s) in India. Infrequently traded has been defined to mean where the annualised trading turnover in IDRs during the six calendar months immediately preceding the month of redemption is less than five percent of the listed IDRs. IS THERE A SEPARATE LISTING AGREEMENT FOR IDRS? Yes. The listing agreement for an IDR is separate from that of an equity issue. The issuer company has to enter into a listing agreement with the stock exchange, where the Issuer proposes to list its Page 11

13 depository receipts. This listing agreement for an IDR is on similar lines to that of the equity listing agreement applicable to the domestic issuers in an IPO. The regulators have also introduced another listing agreement for issuer companies located in countries forming a part of the Multilateral Memorandum of Understanding of International Organization of Securities Commissions as there exist certain differences in terms of compliance. Page 12

14 CONCLUSION Undertaking a public float process and listing Indian companies has gained popularity. While a listing has its own advantages for all stakeholders, the company is required to observe and comply with various conditions set out under the listing agreement with the stock exchanges. A public float of IDRs is a very recent development and it is expected that in the years to come foreign companies could access Indian capital markets through the IDR route. Page 13