AN ASSIGNMENT ON

LISTING & DELISTING OF SECURITIES TO A STOCK EXCHANGE IN INDIA

SUBMITTED IN THE PARTIAL FULFILMENT OF COURSE REQUIREMENT OF SECURITIES LAW

Submitted to: Mr. Amit Kashyap Asst. Professor of Law Gujarat National Law University Submitted by: Navindra Kumar Rai Reg No. 12LM12 LL.M. II Semester (NEL) Batch: 2012 2014

ACKNOWLEDGMENT I am highly indebted and would like to thank Mr. Amit Kashyap (Assistant Professor of law, GNLU) for his active and valuable guidance, and helping me throughout in researching for this topic. I would also like to extend my deep sense of gratitude towards my friends for their active help and support. Last but not the least I would like to thank almighty and my parents for their blessing and never ending support. It is hereby my privilege to acknowledge all those who have assisted me in completion of my research.

Thanking all

Navindra Kumar Rai LL.M. II Semester (NEL) Reg No. 12LM12

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CONTENTS

1. INTRODUCTION....1 2. LISTING....2 3. DELISTING..6 4. CONCLUSION13

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CHAPTER 1 INTRODUCTION

This assignment deals with the legal aspect, i.e. Laws, rules, regulations and by-laws, of listing and delisting of securities in Stock Exchanges by Public Limited Companies in India. The Securities and Exchange Board of India is the regulator for the securities market in India. It was established on 12 April 1992 through the SEBI Act, 1992. It regulates the stock exchanges, amongst which major three are, BSE, formerly known as Bombay Stock Exchange Ltd., Established in 1875, is Asias first Stock Exchange and one of Indias leading exchange groups. Over the past 137 years, BSE has facilitated the growth of the Indian corporate sector by providing it an efficient capital-raising platform. Other are NSE and recently formed MCX Stock Exchange Ltd. There are various other local state level stock exchange recognized by Law in India. The second chapter of this assignment deals with listing of securities and the Act, regulations, guidelines related thereto. It also deals in details with the documents and compliances which are essential for a company before getting it enlisted in the Stock exchange. It further contains relevant provisions of The Companies Act, SEBI Guidelines as well as stock exchange guidelines. Similarly, the third chapter talks about the provisions regarding the delisting of securities, their types, the method deployed as prescribed in Act, The SEBI (Delisting of Securities) Guidelines2003 & 2009 and other regulations relating therto. Finally in the last chapter the researcher tries to conclude by looking into the present day scenario, its implications, possible loopholes and recommendation with regards to all the above.

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CHAPTER 2 Listing
Listing means admittance of securities to transactions on a recognized stock exchange. The securities can be of whichever public limited company, Central Government or State Government, Quasi-governmental & other financial institutions or corporations, municipalities, etc. The objectives of listing are mainly to: offer liquidity to securities; marshal savings for economic expansion; shield interest of shareholders by ensuring complete disclosures.

A company, eager to list its securities on the Stock Exchange shall be obligated to file an application in the prescribed form with the Stock Exchange before issue of Prospectus by the company where the securities are allotted by way of a prospectus or before issue of Offer for Sale where the securities are allotted by way of an offer for sale. Delisting of securities means perpetual removal of securities of listed company from the stock exchange where it was registered. As a result of this the company would no longer be traded at that stock exchange. Rules and guidelines for listing of securities: Securities Contract (Regulation) Act, 1956. S. 21. of the Act deals with the listing of the public companies. Securities Contract (Regulation) Rules 1957.

2.1 Requirements and Documents

S. 19 of the Act deals with the requirements and documents to be submitted with respect to the listing of securities on a recognized stock exchange and i.e. A. Memorandum and articles of association and, in case of a debenture issue, a copy of the trust deed. B. Copies of all prospectuses or statements in lieu of prospectuses issued by the company at any time.
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C. Copies of offers for sale and circulars or advertisements offering any securities for subscription or sale during the last five years. D. Copies of balance sheets and audited accounts for the last five years, or in the case of new companies, for such shorter period for which accounts have been made up. E. A statement showingi. Dividends and cash bonuses, if any, paid during the last ten years (or such shorter period as the company has been in existence, whether as a private or public company). ii. Dividends or interest in arrears, if any.

F. Certified copies of agreements or other documents relating to arrangements with or between:i. ii. iii. Vendors and/or promoters, Underwriters and sub-underwriters, Brokers and sub-brokers.

G. Certified copies of agreements withi. ii. iii. iv. Managing agents and secretaries and treasurers, Selling agents, Managing directors and technical directors, General manager, sales manager, manager or secretary.

H. Certified copy of every letter, report, balance sheet, valuation contract, court order or other document, part of which is reproduced or referred to in any prospectus, offer for sale, circular or advertisement offering securities for subscription or sale, during the last five years. I. A statement containing particulars of the dates of, and parties to all material contracts, agreements (including agreements for technical advice and collaboration), concessions and similar other documents (except those entered into in the ordinary course of business carried on or intended to be carried on by the company) together with a brief description of the terms, subject-matter and general nature of the documents. J. A brief history of the company since its incorporation giving details of its activities including any reorganization, reconstruction or amalgamation, changes in its capital

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structure (authorized, issued and subscribed) and debenture borrowings, if any. K. Particulars of shares and debentures issued (i) for consideration other than cash, whether in whole or part, (ii) at a premium or discount, or (iii) in pursuance of an option. L. A statement containing particulars of any commission, brokerage, discount or other special terms including an option for the issue of any kind of the securities granted to any person. M. Certified copies of letters of consent of the Controller of Capital Issues N. Particulars of shares forfeited. O. A list of highest ten holders of each class or kind of securities of the company as on the date of application along with particulars as to the number of shares or debentures held by and the address of each such holder. P. Particulars of shares or debentures for which permission to deal is applied for.

2.2 Companies Act, 1956.

As per S. 73 of the companies Act, 1956, a company seeking listing of its securities on a stock exchange is required to submit a Letter of application to all the stock exchanges where it proposes to have its securities listed before filing the prospectus with the registrar of companies.

2.3 SEBI Guidelines.

A company is required to complete the allotment of securities offered to the public within 30 days of the date of closure of the subscription list and approach the designated stock exchange for approval of the basis of allotment. Issuer company to complete the formalities for trading at all the stock exchanges where the securities are to be listed within 7 working days of finalization of the basis of allotment. Companies making public/rights issues are required to deposit 1 % of the issue amount with the designated stock exchange before the issue price.

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2.4 Stock Exchange guidelines.

In addition to all these rules, regulation and compliance every stock exchange have a set of guidelines of its own for the companies to be listed on them. For example they may provide for the minimum issue size and market capitalization of the company A company has to enter into a listing agreement before being given permission to be listed on the exchange. Under this agreement the company undertakes amongst other things, to provide facilities for prompt transfer, registration, sub-division and consolidation of securities: to give proper notice of closure of transfer books and record dates, to forward 6 copies of unabridged Annual reports, balance sheets and profit & loss accounts, to file shareholding patters and financial results on quarterly basis and to intimate promptly to the exchange the happenings which are likely to materially affect the financial performance of the company and its stock price and to comply with the conditions of Corporate governance. The companies are also required to pay to the exchange some listing fee as prescribed by the exchange every financial year. A company not complying with these requirements may face some disciplinary action, including suspension/ delisting of their securities. In case the exchange does not give permission to the company for listing of securities, the company cannot proceed with the allotment of shares. However the company may file an appeal before SEBI under S. 22 of SCRA, 1956. A company delisted by a stock exchange and seeking relisting at the same exchange is required to make a fresh public offer and comply with the extant guidelines of the exchange.

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CHAPTER 3 Delisting
As stated above delisting of securities means removal of the securities of a listed company from the stock exchange. It may happen either when the company does not comply with the guidelines of the stock exchange, or that the company has not witnessed trading for years, or that it voluntary wants to get delisted or in case of merger or acquisition of a company with/by some other company.

3.1 Types of delisting

So, broadly it can be classified under two head: 1. Compulsory delisting. 2. Voluntary delisting. Compulsory delisting refers to permanent removal of securities of a listed company from a stock exchange as a penalizing measure at the behest of the stock exchange for not making submissions/comply with various requirements set out in the Listing agreement within the time frames prescribed. In voluntary delisting, a listed company decides on its own to permanently remove its securities from a stock exchange. This happens mainly due to merger or amalgamation of one company with the other or due to the non-performance of the shares on the particular exchange in the market. A stock exchange may compulsorily delist the shares of a listed company under certain circumstances like: non-compliance with the Listing Agreement. for a minimum period of six months. failure to maintain the minimum trading level of shares on the exchange. promoters' Directors' track record especially with regard to insider trading, manipulation of share prices, unfair market practices (e.g. returning of share transfer documents under objection on frivolous grounds with a view to creating scarcity of floating stock, in the market causing unjust aberrations in the share prices, auctions, close-out, etc. (Depending upon the trading position of directors or the firms). The company has become sick and unable to meet current debt obligations or to adequately finance operations, or has not paid interest on debentures for the last 2-3 years, or has become defunct, or there are no employees, or liquidator appointed, etc
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Where the securities of the company are delisted by an exchange under this method, the promoter of the company shall be liable to compensate the security-holders of the company by paying them the fair value of the securities held by them and acquiring their securities, subject to their option to remain security-holders with the company. In such a case there is no provision for an exit route for the shareholders except that the stock exchanges would allow trading in the securities under the permitted category for a period of one year after delisting. Voluntary Delisting is done by the companies upon request to any stock exchange other than the regional stock exchange, following the delisting guidelines. In such cases, the companies are required to obtain prior approval of the holders of the securities sought to be delisted, by a special resolution at a General Meeting of the company. The shareholders will be provided with an exit opportunity by the promoters or those who are in the control of the management. Companies can get delisted from all stock exchanges following the substantial acquisition of shares. The regulation state that if the public shareholding slides to 10 per cent or less of the voting capital of the company, the acquirer making the offer, has the option to buy the outstanding shares from the remaining shareholders at the same offer price. An exit price mechanism called the book-building method is used by the delisted companies to derive to the price at which the share will be brought into and that which will be paid to the shareholders. However, an exit opportunity need not be given in cases where securities continue to be listed in a stock exchange having nationwide trading terminals. Under the existing SEBI takeover code, an acquirer is required to make an offer to buy securities at the same offer price. However, here the exit price is based on the average of the preceding 26week high and low prices. The acquirer is required to allow a further period of 6 months for any of the remaining shareholders to tender securities at the same price. The stock exchange monitors the possibility of any price manipulation and keeps under special watch the securities for which announcement for delisting has been made. This mechanism however is not seen as beneficial in depressed Indian market conditions as the price arrived through this principle may not adequately compensate the shareholder for the permanent loss of investment opportunity, especially in a company whose shares are regarded as value investment.
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3.2 The SEBI (Delisting of Securities) Guidelines- 2003

The prescribed procedure under this regulating Act framing the guidelines and the procedure for delisting of securities is: 1. The decision on delisting should be taken by shareholders though a special resolution in case of voluntary delisting & though a panel to be constituted by the exchange comprising the following in case of compulsory delisting: Two directors/ officers of the exchange (one director to be a public representative). One representative of the investors. One representative from the Central government (Department of Company Affairs) / regional director/ Registrar of Companies. Executive Director/ secretary of the Exchange. 2. Due notice of delisting and intimation to the company as well as other Stock Exchanges where the companys securities are listed to be given. 3. Notice of termination of the Listing Agreement to be given. 4. Making an application to the exchange in the form specified, annexing a copy of the special resolution passed by the shareholders in case of voluntary delisting. 5. Public announcement to be made in this regard with all due information.

3.3 The SEBI (Delisting of Securities) Guidelines- 2009

The Securities and Exchange Board of India (SEBI) has notified the SEBI (Delisting of Equity Shares) Regulations, 2009, Regulations, thereby superseding the old SEBI (Delisting of Securities) Guidelines 2003. These Regulations provide three different set of provisions for delisting of equity shares under different circumstances. Voluntary delisting means delisting of equity shares of a company voluntarily on application of the company under these regulations. The main delisting provision pertains to the voluntary delisting sought by the promoters of a company from the only recognized stock exchange giving exit opportunity to all public shareholders

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Compulsory delisting means delisting of equity shares of a company by a recognized stock exchange on any ground prescribed in the rules made under section 21A of the Securities Contracts (Regulation) Act, 1956

Special provision for delisting of small companies Not frequently traded or with small number of shareholders

Public shareholders mean the holders of equity shares, other than the following: (a) Promoters; (b) Holders of depository receipts issued overseas against equity shares held with a custodian and such custodian;

3.4 Applicability
A. Apply to delisting of equity shares of a company from all or any of the recognized stock exchanges where such shares are listed. B. Does not apply to any delisting made pursuant to a scheme sanctioned by the Board for Industrial and Financial Reconstruction under the SICA or by the NCLT under section 424D of the Companies Act, 1956, if such scheme specify procedure to complete the delisting; or provides an exit option to the existing public shareholders at a specified rate. C. Delisting not Permitted under certain circumstances: A company cannot apply for delisting of its equity shares pursuant to Buy back of its equity shares, or preferential allotment made by the company; or unless a period of three years has elapsed since the listing of that class of equity shares on any recognised stock exchange; or if any instruments issued by the company, which areconvertible into the same class of equity shares that are sought to be delisted, are outstanding. D. No delisting of Convertible securities E. Exit opportunity not required if after the proposed delisting from a recognized stock exchange the equity shares would remain listed on any recognised stock exchange which
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has nationwide trading terminals, hence no exit opportunity needs to be given to the public shareholders. F. No promoter shall directly or indirectly employ the funds of the company to finance an exit opportunity or an acquisition of shares made by Promoters pursuant to sub regulation (3) of regulation 23 G. No fraud, deception or manipulation with respect to delisting by promoter or any other person.

3.5 Voluntary Delisting under 2009 guidelines

1. Obtain the prior approval of the board of directors 2. Prior approval of shareholders of the company by special resolution passed through postal ballot. 3. Make an application to the concerned recognised SE for in-principle approval & shall be accompanied by an audit report, in respect of the equity shares sought to be delisted, covering a period of six months prior to the date of the application. 4. On receipt of in principle approval for delisting, promoters of the company to make a public announcement in at least one English, Hindi, regional language newspaper of the region. 5. Public announcement to specify a date(called as specified date), being a day not later than thirty working days from the date of the public announcement for determining the names of shareholders to whom the letter of offer shall be sent. 6. Before any public announcement the Promoter has to perform following to appoint a merchant banker & other intermediaries to ensure compliance of provisions. open an escrow account and deposit therein the total estimated amount of consideration calculated on the basis of floor price and number of equity shares outstanding with public shareholders. the escrow account shall consist of either cash deposited with a scheduled commercial bank, or a bank guarantee in favour of the merchant banker, or a combination of both.

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7. A letter of offer to be sent to all public shareholders, not later than forty five working days from the date of the public announcement, and to contain all disclosures along with a bidding form. 8. The date of opening of the offer shall not be later than fifty five working days from the date of the public announcement. The offer shall remain open for a minimum period of three working days and a maximum period of five working days, during which the public shareholders may tender their bids. 9. Offer price: All public shareholders of the equity shares which are sought to be delisted shall be entitled to participate in the book building process. It shall be determined through book building after fixation of floor price. Floor Price determined on basis of weekly high and low of the closing prices of the equity shares of the company during the twenty six weeks or two weeks preceding the date on which the recognised stock exchanges were notified of the board meeting in which the delisting proposal was considered, whichever is higher; and if the shares are infrequently traded highest price paid by the promoter for acquisitions, during the 26 weeks or net worth, book value of the shares of the company, earning per share The promoter shall not be bound to accept the equity shares at the offer price. 10. An offer made, shall be deemed to be successful if post offer, the shareholding of the promoter (along with the persons acting in concert)taken together with the shares accepted through eligible bids at the final price, reaches the higher of (a) 90% of the total issued shares of that class excluding the shares which are held by a custodian and against which depository receipts have been issued overseas; (b) the aggregate percentage of pre offer promoter shareholding (along with persons acting in concert with him) and 50% of the offer size. 11. Within one year of passing the special resolution, make the final application to the concerned SE, shall be accompanied with such proof of having given the exit opportunity. 12. While considering an application seeking in-principle approval, SE may require the company to satisfy: (a) payment of listing fees to that recognised stock exchange (b) the resolution of investor grievances by the company; etc

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3.6 Compulsory Delisting by SE under 2009 guidelines

1. Before making an order, the SE shall give a notice in one English & one regional language newspaper of the region of the proposed delisting. 2. The SE appoints an independent valuer or valuers from its panel to determine the fair value of the delisted equity shares. 3. The promoter of the company shall acquire delisted equity shares from the public shareholders by paying them the value determined by the value, subject to their option of retaining their shares. 4. Where a company has been compulsorily delisted, the company, its whole time directors, its promoters shall not directly or indirectly access the securities market or seek listing for any equity shares for a period of ten years from the date of such delisting.

3.7 Special Provision for small companies

Such provisions are applicable to companies: a) Where the paid up capital is upto one crore of rupees and the shares are not traded in the one year preceding the decision to delist the shares; or b) where the public shareholders are not more than three hundred and the paid up value of the shares held by such shareholders is not more than one crore of rupees. In case the above conditions are met with, some of the provisions related with the voluntary delisting such as approval of the Board of Directors, seeking in-principle approval of the stock exchange, in addition to the following procedures have to be followed by the promoters for delisting its equity shares: A merchant banker has to determine the floor price for the buy back; Promoters have to write individually to all public shareholders proposing the buy back and indicating the floor price and the basis for arriving at the same; At least 90% of the public shareholders consent to sell or continue to hold equity shares even after delisting; Process for completing the buy back is completed within 75 days of first informing the public shareholders and payments are made within 15 days from the date of expiry of 75 days.

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CHAPTER 4 Conclusion
There was a time not very long ago when there was no regulating agency like SEBI. Trading was done then also but then it was a one way route. Every company that issues shares to the public is required to have its shares listed on a recognised stock exchange. In 1956, the Government of India enacted a law called Securities Contracts (Regulations), 1956, which came into force with effect from February 1957. Among other things, this law regulated operations of stock exchanges and listing of public issues. The Controller of Capital Issues fixed the price of shares issued by any company. Normally, the Controller used to permit a small premium that could be charged by a company while issuing shares to the public. However, with the changing economic scenario and with the opening up of the Indian economy, the country witnessed huge influx of foreign capital. This resulted in growth in the number of listing of companies on the stock exchanges. Alternatively it also lay to demand from several India-based MNCs that they should be permitted to delist their shares. The reason remains the non-performance of the shares on the stock exchange and in case of merger and acquisition of one company with the other. To consider the prevailing position in respect of delisting, SEBI appointed a committee to study the whole issue and, as a result, issued guidelines for delisting of securities in 2003. However, in the present scenario, if the market is studied minutely many MNC seeks to get their shares delisted at the expense of those investor who themselves are worried seeing their hard earned money whooping in number game. The reason being, the exits route method applied in case of voluntary delisting. Under the present norms the exits price is decided on the basis of price of companys shares on 26 weeks highs and lows and in this market condition these companies are finding it profitable to buy back their shares at this price. In this scenario SEBI should look after any such possibility of playing fraud on the investors by these big companies.

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