Relaxations are there but not everywhere
Various departments and institutions have given various relaxations and exemptions due to Covid-19. However, there are certain important forms that do not have extension or clarification on extension. Like there are no extension announced or relaxation mentioned for Form 11 LLP which is due on 30th May 2020. Do not ignore those small forms and file them in time.
In this edition, we will be seeing about a topic suggested by CS Renu Wadekar, the temporary relaxations given by SEBI in Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 (SEBI (ICDR) Regulations). Our usual Legal Terms and News Bites related to notifications by MCA, SEBI, RBI, IT and GST follows the article.
CS Saranya Deivasigamani,
CEO
ICDR Compliances and Relaxations
A listed company shall issue capital be it through an IPO, FPO, rights issue or any other means, it shall do only in terms of Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018 (SEBI (ICDR) Regulations). In this article we will see the regular procedures and compliance as per ICDR and the temporary relaxation given by SEBI in the wake of developments relating to the Covid-19 pandemic.
These temporary relaxations are applicable for Right Issues that open on or before March 31, 2021 and are not applicable for issuance of warrants. This relaxation came into force with effect from April 21, 2020.
Applicability of the regulation
Let us see for which all activities do these regulations apply for.
- an initial public offer by an unlisted issuer;
- a rights issue by a listed issuer; where the aggregate value of the issue is ten crore rupees or more;
- a further public offer by a listed issuer;
- a preferential issue by a listed issuer;
- a qualified institutions placement by a listed issuer;
- an initial public offer of Indian depository receipts;
- a rights issue of Indian depository receipts;
- an initial public offer by a small and medium enterprise;
- a listing on the innovators growth platform through an issue or without an issue; and
- a bonus issue by a listed issuer.
Provided that in case of rights issue of size less than ten crore rupees, the issuer shall prepare the letter of offer in accordance with requirements as specified in these regulations and file the same with the Board for information and dissemination on the Board’s website.
Provided further that these regulations shall not apply to issue of securities under clause (b), (d) and (e) of sub-regulation (1) of regulation 9 of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.
Rights Issue
Relaxations with respect to the eligibility conditions related to Fast Track Rights Issues:
Regulation | Regular Compliance | Temporary Relaxation |
99 | Unless otherwise specified, nothing contained in sub-regulations (1), (2), (4) and (5) of regulation 71 shall apply if the issuer satisfies the following conditions for making a rights issue through the fast track route- a) the equity shares of the issuer have been listed on any stock exchange for a period of at least three years immediately preceding the reference date; b) the entire shareholding of the promoter group of the issuer is held in dematerialised form on the reference date; c) the average market capitalisation of public shareholding of the issuer is at least two hundred and fifty crore rupees; d) the annualised trading turnover of the equity shares of the issuer during six calendar months immediately preceding the month of the reference date has been at least two per cent. of the weighted average number of equity shares listed during such six months‘ period: Provided that for issuers, whose public shareholding is less than fifteen per cent. of its issued equity capital, the annualised trading turnover of its equity shares has been at least two percent. of the weighted average number of equity shares available as free float during such six months‘ period; e) the annualized delivery-based trading turnover of the equity shares during six calendar months immediately preceding the month of the reference date has been at least ten per cent. of the annualized trading turnover of equity shares during such six months‘ period; f) the issuer has been in compliance with the equity listing agreement or the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, as applicable, for a period of at least three years immediately preceding the reference date: g) the issuer has redressed at least ninety five per cent. of the complaints received from the investors till the end of the quarter immediately preceding the month of the reference date; h) that no show-cause notices have been issued or prosecution proceedings have been initiated by the Board and pending against the issuer or its promoters or whole-time directors as on the reference date; i) the issuer or promoter or promoter group or director of the issuer has not settled any alleged violation of securities laws through the consent or settlement mechanism with the Board during three years immediately preceding the reference date; j) the equity shares of the issuer have not been suspended from trading as a disciplinary measure during last three years immediately preceding the reference date; k) there shall be no conflict of interest between the lead manager(s) and the issuer or its group companies in accordance with the applicable regulations. l) The promoters and promoter group shall mandatorily subscribe to their rights entitlement and shall not renounce their rights, except to the extent of renunciation within the promoter group or for the purpose of complying with minimum public shareholding norms prescribed under the Securities Contracts (Regulation) Rules, 1957; m) there are no audit qualifications on the audited accounts of the issuer in respect of those financial years for which such accounts are disclosed in the letter of offer | Unless otherwise specified, nothing contained in sub-regulations (1), (2), (4) and (5) of the Regulation 71 shall apply if the issuer satisfies the conditions mentioned under Regulation99of ICDR Regulations for making a rights issue through the fast track route. Certain temporary relaxations with respect to Regulation 99 of ICDR Regulations are extended as follows: a) the equity shares of the issuer have been listed on any stock exchange for a period of at least eighteen months immediately preceding the reference date; b) the entire shareholding of the promoter group of the issuer is held in dematerialised form on the reference date; c) the average market capitalisation of public shareholding of the issuer is at least one hundred crore rupees; d) the annualised trading turnover of the equity shares of the issuer during six calendar months immediately preceding the month of the reference date has been at least two per cent. of the weighted average number of equity shares listed during such six months‘ period: Provided thatfor issuers, whose public shareholding is less than fifteen per cent. of its issued equity capital, the annualised trading turnover of its equity shares has been at least two percent. of the weighted average number of equity shares available as free float during such six months‘ period; e) the annualized delivery-based trading turnover of the equity shares during six calendar months immediately preceding the month of the reference date has been at least ten per cent. of the annualized trading turnover of equity shares during such six months‘ period; f) the issuer has been in compliance with the equity listing agreement or the Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015, as applicable, for a period of at least eighteen months immediately preceding the reference date: g) the issuer has redressed at least ninety five per cent. of the complaints received from the investors till the end of the quarter immediately preceding the month of the reference date; h) no show-cause notices, excluding under adjudication proceedings, have been issued by the Board and pending against the issuer or its promoters or whole-time directors as on the reference date; In cases where against the issuer or its promoters/ directors/ group companies, i) A show cause notice(s) has been issued by the Board in an adjudication proceeding or ii) prosecution proceedings have been initiated by the Board; necessary disclosures in respect of such action (s) along-with its potential adverse impact on the issuer shall be made in the letter of offer. i) the issuer or promoter or promoter group or director of the issuer has fulfilled the settlement terms or adhered to directions of the settlement order(s) in cases where it has settled any alleged violation of securities laws through the consent or settlement mechanism with the Board j) the equity shares of the issuer have not been suspended from trading as a disciplinary measure during last eighteen months immediately preceding the reference date; k) there shall be no conflict of interest between the lead manager(s) and the issuer or its group companies in accordance with the applicable regulations. l) The promoters and promoter group shall mandatorily subscribe to their rights entitlement and shall not renounce their rights, except to the extent of renunciation within the promoter group or for the purpose of complying with minimum public shareholding norms prescribed under the Securities Contracts (Regulation) Rules, 1957; m) For audit qualifications, if any, in respect of any of the financial years for which accounts are disclosed in the letter of offer, the issuer shall provide the restated financial statements adjusting for the impact of the audit qualifications. Further, that for the qualifications wherein impact on the financials cannot be ascertained the same shall be disclosed appropriately in the letter of offer. |
Minimum Subscription
Relaxation with respect to Minimum Subscription:
86 | (1) The minimum subscription to be received in the issue shall be at least ninety per cent. of the offer through the offer document. (2) In the event of non-receipt of minimum subscription referred to in sub-regulation (1), all application monies received shall be refunded to the applicants forthwith, but not later than fifteen days from the closure of the issue. | (1) The minimum subscription to be received in the issue shall be at least seventy-five per cent of the offer through the offer document. Provided that if the issue is subscribed between 75% to 90%, issue will be considered successful subject to the condition that out of the funds raisedatleast75% of the issue size shall be utilized for the objects of the issue other than general corporate purpose. (2) In the event of non-receipt of minimum subscription referred to in sub-regulation (1), all application monies received shall be refunded to the applicants forthwith, but not later than fifteen days from the closure of the issue. |
Minimum Threshold for Letter of Offer
Relaxation with respect to the minimum threshold required for not filing draft letter of offer with SEBI:
3 | (b) a rights issue by a listed issuer; where the aggregate value of the issue is ten crore rupees or more;
| (b) a rights issue by a listed issuer; where the aggregate value of the issue is twenty-five crores rupees or more;
|
The eligibility and general conditions as specified in Regulation 61 & 62 respectively shall continue to apply.
Legal Terms
Moratorium
n. 1) any suspension of activity, particularly voluntary suspension of collections of debts by a private enterprise or by government or pursuant to court order. 2) in bankruptcy, a halt to the right to collect a debt. In times of economic crisis or a natural disaster like a flood or earthquake, there may be a moratorium on foreclosures or mortgage payments until the public can get back to normal activities and earnings.
MCA Updates
- PERIOD/DAYS OF EXTENSION FOR NAMES RESERVED AND RESUBMISSION OF FORMS.
- Circular seeking applications from Chartered Accountants for engagement as Professionals in NFRA on contractual basis.
- Clarification on dispatch of notice under section 62(2) of Companies Act, 2013 by listed companies for rights issue opening upto 31st July, 2020.
- Clarification on holding of annual general meeting (AGM) through video conferencing (VC) or other audio visual means (OAVM).
- Extension of the last date of filing of Form NFRA-2.
- Companies (Appointment and Qualification of Directors) 2nd Amdt Rules 2020.
SEBI Updates
- Relaxation in timelines for compliance with regulatory requirements.
- Relaxations relating to procedural matters – Takeovers and Buy-back.
- Relaxation from the applicability of SEBI Circular dated October 10, 2017 on non-compliance with the Minimum Public Shareholding (MPS) requirements.
RBI Updates
- Extending Master Direction – Know Your Customer (KYC) Direction, 2016 to Housing Finance Companies.
- Submission of regulatory returns – Extension of timelines.
- COVID19 Regulatory Package – Asset Classification and Provisioning.
- COVID19 Regulatory Package – Review of Resolution Timelines under the Prudential Framework on Resolution of Stressed Assets.
- Basel III Framework on Liquidity Standards – Liquidity Coverage Ratio (LCR).
- Investment by Foreign Portfolio Investors (FPI) in Government Securities: Medium Term Framework (MTF).
- Additional relaxation in relation to compliance with certain provisions of SEBI (Listing Obligations and Disclosure Requirements) Regulations 2015 – Covid-19 pandemic.
- SEBI Notification on COVID-19 dated May 03, 2020
IT Updates
- Clarifications in respect of prescribed electronic modes under section 269SU of the Income-tax Act, 1961.
- Clarification in respect of residency under section 6 of the Income-tax Act,1961
- Order under section 119 of the Income-tax Act, 1961 regarding reporting requirement under clause 30C and clause 44 of the Form 3CD.
- Clarifications on provisions of the Direct Tax Vivad se Vishwas Act, 2020.