Fund Raising

August 2, 2015
Lalit Kumar, Partner

J. Sagar Associates
advocates & solicitors
Ahmedabad | Bengaluru | Chennai | Gurgaon | Hyderabad | Mumbai | New Delhi

Public Offer & Private Placement

By Public Company

Public offer through prospectus (IPO / FPO)

Private Placement
Rights Issue
Bonus Issue

By Private Company

Private Placement
Rights Issue
Bonus Issue

Share Capital & Debentures

Equity Share Capital

With voting rights

With differential rights as to dividend, voting or otherwise

Preference Share Capital

Redeemable Preference Shares up to 20 years but can exceed 20

years and up to 30 years for specified infrastructure projects

Convertible Preference Shares Optionally or Compulsorily

Convertible
Share Warrant
Debentures

Non-Convertible Unsecured Debentures

Non-Convertible Secured Debentures

Convertible Debentures Optionally Convertible or Compulsorily

Convertible

Various Concepts of Capital

Authorised Capital or Nominal Capital means the capital as is

authorised by the memorandum of a company to be the
maximum amount of share capital of the company
Issued Capital means such capital as the company issues from
time to time for subscription
Subscribed Capital means such part of the capital which is for
the time being subscribed by the members of a company
Called-Up Capital means such part of the capital which has
been called for payment
Paid-up share capital or Share capital paid-up - means such
aggregate amount of money credited as paid-up as is equivalent
to the amount received as paid-up in respect of shares issued and
also includes any amount credited as paid-up in respect of
shares of the company, but does not include any other amount
received in respect of such shares, by whatever name called
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Equity Shares & Preference Shares

Equity Shares

Means all share capital which is not a preference share

Equity is a pure risk capital

Also called common stock or ordinary shares

Preference Shares

Carries preferential right with respect to

Payment of dividend as a fixed amount or an amount calculated at a fixed rate
Repayment of capital including payment of any fixed premium or premium on
a fixed scale prescribed in the memorandum or articles of the company

Can be redeemable, convertible, cumulative, non-cumulative,

participating or non-participating but cannot be irredeemable

Equity Shares with Differential Rights

Public companies have to comply with DVR rules

New DVR rules are more stringent than existing DVR rules:
o Track record of distributable profits in last 3 FYs means
companies with less than 3 years of existence cannot issue DVRs
o No default in filing financial statements for the last 5 FYs
o

No default in (i) redemption of preference shares, matured

deposits or debentures, (ii) repayment of term loans of scheduled
banks and PFIs, (iii) payment of interest or declared dividend,
and (iv) employee statutory payments

DVR shares cannot exceed 26% of the total equity share capital
including DVRs

Company not been penalised by a court or Tribunal in last 3

years of any offence under the RBI Act, SEBI Act, SCRA,
FEMA Act or any special act

Preference Shares
Can be issued up to 20 years period except in case of
infrastructure projects it can be up to 30 years provided
prescribed % of shares are annually redeemed at the
preference shareholders option
Premium on RPS only payable out of profits (and not
securities premium a/c) for some companies
Provision for issue of new RPS to redeem earlier RPS in
case of failure to redeem or pay dividend - consent of
NCLT & 75% (by value) of preference shareholders needed
Distinction between cumulative and non-cumulative
preference shares w.r.t voting rights removed all kinds of
preference shares entitled to vote on all matters if dividend
remains unpaid for 2 years
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Debentures
Meaning: Includes debenture stock, bonds or any other instrument of a company evidencing a debt,
whether constituting a charge on the assets of the company or not
Secured and Unsecured Debentures
Issue of Secured Debentures

The period of redemption cannot exceed 10 years except in a company engaged in the
setting up of infrastructure projects for which the maximum period is 30 years

Security by creation of charge on the properties or assets of the company, having a value
which is sufficient for the due repayment of the amount of debentures and interest thereon

Appointment of debenture trustee

Creation of Debenture Redemption Reserve

Created out of profits of the company available for distribution of dividend

DRR equivalent to at least 50% of the amount raised through debenture
Each year on or before April 30, invest or deposit, not less than 15% of the amount of
debentures maturing during the year ending on March 31 of the next year in certain
prescribed methods
The remaining invested or deposited shall not at any time fall below 15% of the amount of
the debentures maturing during the year ending on March 31 of that year

Share Capital & Debentures

The shares or debentures or other interest of any member in a company shall be

movable property transferable in the manner provided by the articles of the
company

Every share in a company shall be distinguished by its distinctive number

Can be issued in physical form or dematerialised form

Share / Debentures certificate shall be prima facie evidence of the title of the
person to such shares

Every member of a company holding equity share capital therein shall have a right
to vote on every resolution placed before the company

Preference shareholders have right to vote on certain matters only unless their
dividend is unpaid for 2 years

Voting rights in respect of preference shares no distinction between cumulative

and non-cumulative preference shares

Bonus issuance certain conditions imposed cannot be issued from revaluation

reserve and in lieu of dividend Offer once made cannot be withdrawn

Share Capital & Debentures

Prohibition of issue of shares at discount - issue at discount to be void
Issue of sweat equity shares permitted - means such equity shares
are issued by a company to its directors or employees at a discount
for consideration, other than cash, for providing their know-how
making available rights in the nature of intellectual property rights
value additions, by whatever name called

as
or
or
or

Concept of calls in arrears, calls in advance and forfeiture of shares

Restriction on giving of loans or other financial assistance by a
company for purchase of its own shares
Preferential issue value to be determined by registered valuer
Convertible debentures can be issued subject to shareholders
resolution

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Process of Private Placement

New issuances by private companies to be either (i) rights or

bonus issues, or (ii) private placement

Private placement defined

offer/ invitation to persons not exceeding 200 in a financial year

+ prescribed conditions

Issue of equity instruments now have to comply with private

placement norms and preferential allotment norms!

Rules define Preferential Offer to mean:

o Issue of equity shares or convertible securities

any offer of securities/ invitation to subscribe to securities to a

select group of persons through issue of a private placement
offer letter

To any select person or group on a preferential basis

Excludes public issue, rights issue, ESOP, ESPS, sweat

equity, bonus, DRs issued outside India or foreign securities
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Process of Private Placement

Private placement limit does not include QIBs and ESOPs
Preferential issue price to be determined by registered valuer
Rules prescribe:
o 200 person limit
o

The value of the offer or invitation per person must be

with an investment size of not less than INR 20,000 of
the face value of the securities Very Tricky Issue!
o Above 2 conditions not applicable to NBFCs and HFCs if
RBI / NHB have prescribed regulations and they are
compliant with them
o Special resolution to issue all securities required for each
offer

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Process of Private Placement

In Private Placement monies payable shall be paid through cheque

or demand draft of other banking channels but not by cash

Allotment of Securities within 60 days from the date of receipt of

application money

Money received on application shall be kept in a separate bank

account and shall not be utilised for any purpose except

For adjustment against allotment of securities

For repayment of monies where the company is unable to allot
securities

Certificate for the allotted securities to be issued

Within 2 months from the date of allotment of shares

Within 6 months from the date of allotment of debentures

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Derivative

Means the derivative as defined in the Securities Contracts

(Regulation) Act, 1956 for example equity linked debentures

Securities Contracts (Regulation) Act, 1956 defines derivative as

under:

Derivative includes

(A) a security derived from a debt instrument, share, loan,

whether secured or unsecured, risk instrument or contract for
differences of any other form of security;

(B) a contract which derives its value from the prices or index of
prices of underlying securities

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Depository Receipts
GDR
Means any instrument in the form of a depository receipt, by
whatever name called created by a foreign depository outside
India and authorised by a company making an issue of such
depository receipts
The underlying security is the equity share of the Indian
company
IDR
Means any instrument in the form of a depository receipt, by
whatever name called created by a domestic depository in
India and authorised by a company incorporated outside
Indian making an issue of such depository receipts

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Prospectus
Means any document described or issued as a prospectus and includes a red
herring prospectus or shelf prospectus or any notice, circular, advertisement or
other document inviting offers from the public for the subscription or purchase
of any securities of a body corporate
Document containing offer of securities for sale to the public to be deemed
prospectus only public company can issue prospectus
Specific matters to be stated in prospectus
Variation in the terms of contract or objects in prospectus Possible only with
the approval of shareholders by way of a special resolution, the dissenting
shareholders to be given exit by the promoter or controlling shareholder at exit
price
Offer of sale to the public through prospectus
Public offer of securities to be in dematerialise form
Shelf Prospectus
Red Herring Prospectus

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Prospectus
Issue of application forms for securities accompanied by an abridged
prospectus
Criminal liability for mis-statements in prospectus Same punishment as for
fraud under Section 447
Civil liability for mis-statements in prospectus Liable to pay compensation
to every person who has sustained loss or damage acting on any statement
incuded or omitted in the prospectus
Where prospectus is issued with intent to defraud the applicants for the
securities or any other person or for any fraudulent purpose, persons referred
to in Section 35(1) will be personally responsible without any limitation of
liability for all or any of the losses or damages that may have been incurred
by any person who subscribed to the securities on the basis of such prospectus
Punishment for fraudulently inducing persons to invest money punishment
under Section 447

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Prospectus
No allotment of securities if the amount stated in the
prospectus as the minimum subscription and the sums
payable on application have been paid to and received
by the company
If the minimum subscription or the amount payable on
application is not received within 30 days from the date
of the issue of prospectus, the entire amount received
has to be refunded
Securities to be dealt in stock exchanges

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Various Forms of Fund Raising

IPO / FPO / Institutional Placement Programme
Rights Issue
Bonus Issuance though not really a fund raising exercise
Private Placement / Preferential Allotment
ADR / GDR
Qualified Institutional Placement
PE Investment
Bank Financing
ECB including FCCB

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Thank You
lalit@jsalaw.com

Disclaimer:
This presentation has been compiled for general information and does not constitute professional guidance
or legal opinion. Readers should obtain appropriate professional advice.
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