Prospectus

PROSPECTUSARUN VERMA ©

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Arun Verma (c)

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PROSPECTUS COMPANIES ORDINANCE, 1984

Prospectus means any document described or issued as prospectus and includes-

• any notice, circular, advertisement or any other communication, inviting offers from the public for the subscription or purchase of any shares in or debentures of, body corporate, inviting deposits from the public other than deposits invited by a banking company or a financial institution approved by the Federal Government whether described as prospectus or otherwise.

DEFINITION: (Companies Act 2013) Clause (70) of Section 2 of the Act define “prospectus” means any document described

or issued as a prospectus and includes a red herring prospectus referred to in section 32 or shelf prospectus referred to in section 31 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.

Section 26 deals with matters to be stated in prospectus.

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PROSPECTUS MEANING:• Company prospectus is released by company to

inform the public and investors of the various securities that are available. These documents describe about mutual funds, bonds, stocks and other forms of investments offered by the company. A prospectus is generally accompanied by basic performance and financial information about the company.

• Prospectus is a formal legal document, which is required by and filed with the SECP that provides details about an investment offering for sale to the public, it should contain the facts that an investor needs to make an informed investment decision

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PROSPECTUS CONCLUSION

Prospectus is a mandatory document for limited organization to commence their business, but its complicated procedure delays the operation of any business, therefore a no. of organizations hesitate to issue Prospectus to general public for subscription of share capital & Debenture.

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PROSPECTUSWHICH COMPANIES ARE REQUIRED TO ISSUE PROSPECTUS• Every public listed company who intends to

offer shares or debentures of the company to the public.

• Every private company who ceases to be a private company and converts into a public company and intends to offer shares or debentures of the company to the public.

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REQUIREMENTS OF A PROSPECTUS

A document would be considered a prospectus only if it meets the following requirements, viz.

it should be in writing it should be issued by or on behalf of a body

corporate it should be issued to public it should contain invitation to public for making

deposits or for subscription of shares in or debentures of a body corporate.

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CONTENTS OF PROSPECTUS (SECTION-26)

It shall be dated and signed and shall contain the following things:• (1) Every prospectus issued by or on behalf of a public company

either with reference to its formation or subsequently, or by or on behalf of any person who is or has been engaged or interested in the formation of a public company, shall be dated and signed and shall—

• (a) state the following information, namely:—• (i) names and addresses of the registered office of the company,

company secretary, Chief Financial Officer, auditors, legal advisers, bankers, trustees, if any, underwriters and such other persons as may be prescribed;

(ii) dates of opening and closing of the issue. (iii) a statement by the BOD of separate bank account. (iv) details about underwriting of the issue.

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CONTD….• (v) consent of the directors, auditors, bankers to the issue,

expert’s opinion, if any, and of such other persons, as may be prescribed;

• (vi) the authority for the issue and the details of the resolution passed therefore;

• (vii) procedure and time schedule for allotment and issue of securities;

• (viii) capital structure of the company in the prescribed manner;• (ix) main objects of public offer, terms of the present issue and

such other particulars as may be prescribed;• (x) main objects and present business of the company and its

location, schedule of implementation of the project;

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CONTD….• (xi) particulars relating to—• (A) management perception of risk factors specific to the project;• (B) gestation period of the project;• (C) extent of progress made in the project;• (D) deadlines for completion of the project; and• (E) any litigation or legal action pending or taken by a Government

Department or a statutory body during the last five years immediately preceding the year of the issue of prospectus against the promoter of the company;

• (xii) minimum subscription, amount payable by way of premium, issue ofshares otherwise than on cash;

• (xiii) details of directors including their appointments and remuneration,and such particulars of the nature and extent of their interests in the company as may be prescribed; and

• (xiv) disclosures in such manner as may be prescribed about sources ofpromoter’s contribution;

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CONTD….

(B) REPORTS IN PROSPECTUS: 1. Reports by the auditors of the company. 2. Reports relating to profits and losses of the company. 3. Reports about the business or transaction to which the

proceeds of the securities are to be applied.

(C) DECLARATION: Prospectus shall make a declaration about the compliance of

the provisions of the act and nothing contained in the prospectus is contravening the provisions of act, Securities Contract regulation act 1956 and Securities and exchange Board of India Act 1992.

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CONTRAVENTION OF SECTION 26 OF THE ACT

• If a prospectus is issued in contravention of the provisions of the section, then

• Company shall be punishable with a fine not less than Rs 50000 which may extend to Rs three lakhs, and

• Every person who is party to the issue of the prospectus shall be punishable with an imprisonment for a term which may extend to three years or with a fine not less than Rs 50000 which may extend to Rs three lakhs, or with both.

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TYPES OF PROSPECTUS• ABRIDGED PROSPECTUS

• DEEMED PROSPECTUS

• SHELF PROSPECTUS

• RED HERRING PROSPECTUS

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ABRIDGED PROSPECTUS

•According to Sec. 2(1) of the Companies Act of 1956, a company cannot issue applications for issue of share or debentures. It cannot do so if it does not contain the salient features of the prospectus of the memorandum. This is known as ‘abridged prospectus’. In other words ‘abridged prospectus’ is a one that contains the salient features of the memorandum of the prospectus.

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DEEMED PROSPECTUS• Section-25 provides that where a company allots or

agrees to allot any shares or debentures with a view to these being offered for sale to the public, any document by which the offer of sale to the public is made, shall for all purposes be deemed to be a prospectus issued by the company.

• Further, an allotment of, or an agreement to allot, shares or debentures shall be deemed to have been made with a view to the shares or debentures being offered for sale to the public, if it is shown;▫ (i) That the offer of the shares or debentures for sale to

the public was made within six months after the allotment or agreement to allot;

▫ (ii) That at the date when the offer was made, the whole consideration to be received by the company in respect of the shares or debentures had not been received by it.

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Additional requirement relating to deemed prospectus

• (i) The net amount of consideration received or to be received by the company in respect of the shares or debentures to which the offer relates;

• (ii) The place and time at which the contract under which in the said shares or debentures have been or are to be allotted may be inspected. Section 60, dealing with the registration of prospectus applies to the deemed prospectus in terms of section 64(4) and accordingly it renders the persons making the offer of sale to the public as deemed directors of the company.

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SHELF PROSPECTUSSection-31    Shelf prospectus

• (1) Any class or classes of companies, as the Securities and Exchange Board may provide by regulations in this behalf, may file a shelf prospectus with the Registrar at the stage of the first offer of securities included therein which shall indicate a period not exceeding one year as the period of validity of such prospectus which shall commence from the date of opening of the first offer of securities under that prospectus, and in respect of a second or subsequent offer of such securities issued during the period of validity of that prospectus, no further prospectus is required.

• (2) A company filing a shelf prospectus shall be required to file an information memorandum containing all material facts relating to new charges created, changes in the financial position of the company as have occurred between the first offer of securities or the previous offer of securities and the succeeding offer of securities and such other changes as may be prescribed, with the Registrar within the prescribed time, prior to the issue of a second or subsequent offer of securities under the shelf prospectus:

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• Provided that where a company or any other person has received applications for the allotment of securities along with advance payments of subscription before the making of any such change, the company or other person shall intimate the changes to such applicants and if they express a desire to withdraw their application, the company or other person shall refund all the money received as subscription within fifteen days thereof.

• (3) Where an information memorandum is filed, every time an offer of securities is made under sub-section (2), such memorandum together with the shelf prospectus shall be deemed to be a prospectus.

• Explanation.—For the purposes of this section, the expression “shelf prospectus” means a prospectus in respect of which the securities or class of securities included therein are issued for subscription in one or more issues over a certain period without the issue of a further prospectus.

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RED HERRING PROSPECTUS• A red herring prospectus, as a first or preliminary prospectus, is a

document submitted by a company (issuer) as part of a public offering of securities (either stocks or bonds). Most frequently associated with an initial public offering (IPO), this document, like the previously submitted Form S-1 registration statement, must be filed with the Securities and Exchange Commission (SEC).

• A red herring prospectus is issued to potential investors, but does not have complete particulars on the price of the securities offered and quantum of securities to be issued. The front page of the prospectus displays a bold red disclaimer stating that information in the prospectus is not complete and may be changed, and that the securities may not be sold until the registration statement, filed with the market regulator, is effective. Potential investors may not place buy orders for the security, based solely on the information contained within the preliminary prospectus. Those investors may, however, express an “indication of interest" in the offering, provided that they have received a copy of the red herring at least 48 hours prior to the public sale. After the registration statement becomes effective, and the stock is offered to the public, indications of interest may be converted to purchase orders, at the buyer's discretion. The final prospectus must then be promptly delivered to the buyer.

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• Contents:• “Red-herring prospectus" means a prospectus that does

not have complete particulars on the price of the securities offered and quantum of securities offered. The red herring statement contains:

• purpose of the issue;• disclosure of any option agreement;• underwriter's commissions and discounts;• promotion expenses;• net proceeds to the issuing company (issuer);• balance sheet;• earnings statements for last 3 years, if available;• names and address of all officers, directors, underwriters

and stockholders owning 10% or more of the current outstanding stock;

• copy of the underwriting agreement;• legal opinion on the issue;• copies of the articles of incorporation of the issuer.

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REQUIREMENTS OF PROSPECTUS1. Prospectus must be dated i.e. publication date. 2. It must include an auditor’s report on last five years

profit and loss account and on balance sheet at last date on which accounts were prepared being a date not more than 120 days before the date of issue of the prospectus.

3. It must be issued/published not less than seven or more than thirty days before the subscription date.

4. If prospectus includes a statement made by an expert, the expert must not be engaged or interested in the formation or promotion or in the management of the company. A written consent of the expert should also be obtained before the issue of prospectus with the statement.

5. In case of a listed company approval of the SEBI must be obtained within sixty days before the date of issue of prospectus. However, Commission may, impose such conditions as it may deem necessary.

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Cont’d6. A copy of prospectus must be sent to the registrar before

the issue of prospectus.

7 . Registrar shall not register the prospectus unless the above requirements have been complied with.

8 . A sufficient number of copies of the prospectus issued under sub-section (1) of section 53 shall be made available at the registered office of the company with the stock exchange at which the company is listed or is proposed to be listed and with the bankers to the issue and the prospectus in its full text or in such abridged form as may be prescribed shall be published at least in one local daily and one English daily newspaper having circulation in the province where stock exchange is situated at which the company is listed.

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EXPERTS OPINION 1. Expert includes an engineer, a valuer, an accountant,

or every other person whose profession gives authority to any statement made by him.

2. Experts written consents are required to be obtained which are not withdrawn before the issue of prospectus.

3. Statement is required to be included in the prospectus that experts have given and not withdrawn their consents.

4. An expert shall not be a person engaged or interested in the formation or in the management of the company.

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DOCUMENTS REQUIRED

DOCUMENTS REQUIRED TO BE ATTACHED TO THE PROSPECTUS:

1. Consent of expert; and

2. In the case of a prospectus issued generally;

a copy of contracts regarding remuneration of Chief Executive etc and in case of an unwritten contract, a memorandum thereof, and

a report from the auditors regarding any adjustments to assets and liabilities of the company and reason thereof.

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LIABILITY FOR MISSTATEMENT IN THE PROSPECTUS

• Those who issue prospectus holding out to the public the great advantages which will accrue to persons who will take shares in a proposed undertaking, and inviting the to take shares on the faith of the representations therein contained, are bound to state everything with strict and scrupulous accuracy and not only to abstain from stating as fact that which is not so, but to omit no one fact within their knowledge, the existence of which might in any degree affect the nature or extent and quality of the privileges and advantages which the prospectus holds as inducement to take shares.

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LIABILITY FOR MISSTATEMENT IN THE PROSPECTUS

1.) CIVIL LIABILITY

• AGAINST THE COMPANY▫ TO RESCIND THE CONTRACT▫ TO CLAIM THE DAMAGES

• AGAINST THE DIRECTORS, PROMOTERS AND EXPERTS▫ COMPENSATION▫ DAMAGES▫ DAMAGES UNDER GENERAL LAW

2.) CRIMINAL LIABILITY

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WHO CAN BE SUED?• The company• Every director• Every person whose name appeared in the prospectus as a proposed

director• Every promoter• Every person who authorised the issue of prospectus• An expert ( an engineer, a chartered accountant, a company secretary, a

cost accountant, etc.)

ONUS OF PROOF• An allottee must prove that:• The misrepresentation was of fact;• It was in respect of material fact; • He acted on the misrepresentation; and • He has suffered damages in consequence.

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CIVIL LIABILITY FOR MISSTATEMENTS IN PROSPECTUS

1.Where a person has subscribed for securities of a company acting on any statement included, or the inclusion or omission of any matter, in the prospectus which is misleading and has sustained any loss or damage as a consequence thereof, the company and every person who—

• a. is a director of the company at the time of the issue of the prospectus;• b. has authorised himself to be named and is named in the prospectus as a

director of the company, or has agreed to become such director, either immediately or after an interval of time;

• c. is a promoter of the company;• d. has authorised the issue of the prospectus; and• e. is an expert referred to in sub-section (5) of section 26, shall, without

prejudice to any punishment to which any person may be liable under section 36, be liable to pay compensation to every person who has sustained such loss or damage.

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Contd…..2. No person shall be liable under sub-section (1), if he proves—• a. that, having consented to become a director of the company, he

withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or

• b. that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue, he forthwith gave a reasonable public notice that it was issued without his knowledge or consent.

3. Notwithstanding anything contained in this section, where it is proved that a prospectus has been issued with intent to defraud the applicants for the securities of a company or any other person or for any fraudulent purpose, every person referred to in subsection (1) shall 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.

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REMEDIES AGAINST THE COMPANY

1.) Recession of the contract: The right to rescind the contract is available if he proves the following:

Prospectus was issued by or on behalf of the company. Statement must be untrue. Statement must be material misrepresentation. The misrepresentation must have induced the shareholders to rely on the

statement in applying for shares. Misrepresentation must be of the facts and not of law( expression of opinion). That he has taken action promptly to rescind the contract.

2.) Right of action for damages for deceit: This remedy is available even after the company has gone into liquidation only if following conditions are satisfied:

Person who issued the prospectus knew that statement was false. That person was authorised to issue the prospectus. That the allottee has suffered the loss due to misrepresentation.

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REMEDIES AGAINST THE DIRECTORS, PROMOTERS AND EXPERTS

1.) Compensation: The liability consists in paying damages by way of compensation to the aggrieved party. The compensation payable will be the difference between the price paid for shares and their value at the date they are allotted to the subscriber.

2.) Damages for non compliance with section 26: The remedy is to recover damages and not of recession.

3.) Damages under General Law: Plaintiff has to establish the following:

There was a fraudulent misstatement.False representation related to material facts.

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Defences of Directors, Promoters and Experts:

•They can escape the liability for damages if they prove the following:

They withdrew the consent before the prospectus was issued.

Issued without the knowledge.Reasonable ground for belief.

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CRIMINAL LIABILITY FOR MISSTATEMENTS IN PROSPECTUS

• Where a prospectus, issued, circulated or distributed under this Chapter, includes any statement which is untrue or misleading in form or context in which it is included or where any inclusion or omission of any matter is likely to mislead, every person who authorizes the issue of such prospectus shall be liable under section 447.

Imprisonment for a term which may not be less than six months but which may extend to 10 years; or

Amount not less than the amount involved in fraud but it may extend to three times the amount of fraud;

or both imprisonment and fine. • Provided that nothing in this section shall apply to a person if he proves that

such statement or omission was immaterial or that he had reasonable grounds to believe, and did up to the time of issue of the prospectus believe, that the statement was true or the inclusion or omission was necessary.

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MINIMUM SUBSCRIPTION ( SECTION- 39)

When a public company invites the public to subscribe for its shares, it cannot allot those shares until the minimum amount stated in the prospectus has been subscribed. This amount stated in the prospectus is known as the minimum subscription.

The amount payable on application on every security shall not be less than five percent of he nominal amount of security or such other percentage or amount as may be specified.

If the stated minimum amount has not been subscribed and the sum payable on application is not received within a period of thirty days from the date of issue of the prospectus, all amount received shall be returned within prescribed time and in prescribed manner.

The company shall file with the Registrar of Companies a “Return of Allotment” in prescribed manner.

In case of any default, the company and its officer who is in default shall be liable to a penalty, for each default, of one thousand rupees for each day during which such default continues or one lakh rupees, whichever is less.

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DIFFERENCES BETWEEN THE POSITION OF UNDERWRITERS AND BROKERS

• Underwriters give an undertaking to take up shares if the issue is under-subscribed. Brokers give no such undertaking to take up such shares or debentures

• Underwriters get underwriting commission on the entire issue which is underwritten by them. Brokers get brokerage only on those shares or debentures for which they procure subscription.

• Underwriters are entitled to underwriting commission at a rate not exceeding 5% of the issue price of shares and 2.5% percent of the issue price of debentures. They are entitled to get such brokerage which has been recognized by the companies to pay.

• Underwriting commission is payable only on the shares or debentures which are offered to the public. Brokerage is payable on those shares or debentures for which subscription is procured even though not offered to the public

• Underwriters are entitled to get underwriting commission only if the Articles authorizes such payment. The brokers are entitled to brokerage even if the Articles are silent regarding its payment.

• The name, address, and occupation of each underwriter has to be disclosed in the prospectus. There is no such requirement in case of brokers.

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BOOK BUILDINGDEFINITION

• “Book Building is a process by which the issuer Company before filing the Prospectus builds up and ascertains the Demand for the securities being issued and assesses the price at which such securities may be issued and ultimately determines the quantum of securities to be issued.” – SEBI

TYPES OF BOOK-BUILDING• In the Book-Building, the books can be of two types:

• 1. The Open Book-Building: In this system, there is an online display of the demand and the bids during the bidding. This facility is available on both NSE and BSE. This enables the investors to know the movement and quantum of bids during the period the bids are open.

• 2. The Closed Book-Building: Under this system the book is not made public and the investors bid without having any details of the bids made by the other bidders.

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BOOK-BUILDING PROCESS• For example – Reliance ltd. issued shares of Rs. 100 each amounting to Rs. 5000

crores. The company appointed a Merchant Banker as Book Runner who collected all the relevant information from various investors to initiate the process of book building. The prices quoted by the investors are:

• Mr. A quoted a price @ Rs. 96 for 1000 Cr• Mr. B quoted a price @ Rs. 99 for 1500 Cr• Mr. C quoted a price @ Rs. 102 for 500 Cr• Mr. D quoted a price @ Rs. 98 for 800 Cr• Mr. E quoted a price @ Rs. 100 for 1200 Cr

The weighted average is calculated on the basis of the quotes made by the various investors the in the following table:

• Price quoted (X) Weights (W) WX 96 1000 96000

99 1500 148500 102 500 51000 98 800 78400 100 1200 120000 ΣW = 5000 ΣWX = 493900

• Weighted Average = ΣWX/ ΣW = 493900 / 5000= Rs. 98.78

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STEPS FOR BOOK BUILDING

• The following steps are undertaken for the Book-Building Procedure:

• A book runner is appointed. The book runner is generally a merchant banker. After the appointment of the book runner, he prepares a draft document and submits it to SEBI to obtain the acknowledgement receipt.

• Once the acknowledgement is received the issuer and the book runner decide the price range in which they will offer the shares.

• In order to determine the demand the offer is received from the syndicate members comprising of the brokers, financial institutions, merchant bankers, mutual funds etc.

• The number of days for which the bids will be received from the public is defined.

• Once the bids are received, the issuer decides the cut off rate in consultation with the book runner.

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CONTD……

• After the price at which the shares are to be issued has been decided the prospectus is filed with the registrar.

• In order to collect application money two separate accounts are opened namely the placement portion and the public portion.

• One day prior to opening issue to public, the book runner collects application forms and application money from institutional buyers and underwriters.

• The allotment of share is done on the same day to both the placement and public portions.

• In case of any under subscription, the placement portion is used to adjust under subscription and vice-versa.

• All the records of Book-Building are to be maintained by the book runner and other intermediaries as per the SEBI requirements.

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PRIVATE PLACEMENT

• "any offer of securities or invitation to subscribe securities to a select group of persons by a company (other than by way of public offer) through issue of a private placement offer letter and which satisfies the conditions specified in this section including the condition that the offer or invitation is made to not more than 50 or such higher number of persons as may be prescribed in a financial year".

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OFFER FOR SALE DOCUMENTS (SECTION 61 & 62)1. Owner of 10 percent or more shares of the company can

make an offer to the general public for divesting his shares to the public with prior approval of Commission.

2. Such offer can be made only by issuing a document in the nature of prospectus. This document is named as “Offer for Sale Document” and all the provisions of law as applicable to the prospectus apply to this document as if it is a prospectus issued by any company.

3. The person making the offer shall be considered to be a director of the company for the purpose of this document.

4. The directors of the company shall be responsible to the same extent in case of this offering document as they are responsible in case of a prospectus.

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GENERAL PROVISIONS REGARDING PROSPECTUS (63 & 65)

1. Untrue statement in context of prospectus includes a statement which in misleading in the context in which it is used in the prospectus. If the omission of any statement from a prospectus can be concluded as misleading; then the prospectus would be considered as a prospectus having untrue statement. (section 63 (1))

2. General public in context of offer for sale or invitation for subscription of shares includes any section of public, including the existing shareholders or debenture holders of the company. However section of the public will not be taken as public when it is assured that the shares or debentures shall not be available for subscription by anybody other than those person to whom offer is made. Also section of public would not be considered as public when the offer can be proved to be domestic concern of the person making the offer. (section 65(1) & (2))

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STATEMENT IN LIEU OF PROSPECTUS

1. It is a statement which is delivered by a company, having share capital to the Registrar for registration, at least three days before the first allotment of shares or debentures under the following conditions:

• Where a company does not issue prospectus; or• Where a company has issued a prospectus but has not

proceeded to allot any of its shares offered to the public for subscription.

2. SILOP is to be signed by every person who is named therein as a director or a proposed director of a company.

3. Where a company which is required to submit a SILOP does not comply with the requirement, it can not allot shares. (section 69(1))

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CONTENTS OF STATEMENT IN LIEU OF PROSPECTUS

1. The name of the company.2. The nominal share capital of the company divided into number

of ordinary shares and par value per share.3. Description of the business to be undertaken and its prospects.4. Names, addresses, description and occupations of the

proposed or appointed directors , chief executive, managing agent and secretary of the company.

5. Provisions regarding the appointment and remuneration of the above officers of the company.

6. Voting rights in the meetings of the company.7. Numbers and the amount of shares and debentures agreed to

be issued.8. Names, occupation and addresses of vendors of property

purchased or proposed to be purchased by the company.9. Amount payable in cash, shares or debentures, to each vendor

of the property.

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DIFFERENCES B/W PROSPECTUS AND SILOPPROSPECTUS :

1. Filed by a public listed company.

2. Has been defined in definitions Sec. 2 (29)

3. Submitted to registrar, commission and shareholders.

4. Is a document containing an advertisement for invitation of subscription from the public.

STATEMENT IN LIEU OF PROSPECTUS:

1. Filed by a public unlisted company.

2. Has NOT been defined in definitions.

3. Submitted only to registrar.

4. Is not an invitation of subscription.

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DIFFERENCES B/W PROSPECTUS AND SILOP

PROSPECTUS :

5. Approval of commission must be obtained within 60 days before the issue of prospectus.

6. No prescribed form is specified in this Ordinance.

7. No prospectus shall be issued unless before the date of its publication, a copy signed by the directors or their agent has been delivered to the registrar

STATEMENT IN LIEU OF PROSPECTUS:

5. Is not a kind of advertisement for invitation of subscription.

6. Is filed on prescribed form.

7. It is filed with the registrar concerned at least 3 days before the first allotment of shares

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THANK YOU

Arun Verma (c)

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