Equity capital markets in India: regulatory overview

A Q&A guide to equity capital markets law in India.

The Q&A gives an overview of main equity markets/exchanges, regulators and legislation, listing requirements, offering structures, advisers, prospectus/offer document, marketing, bookbuilding, underwriting, timetables, stabilisation, tax, continuing obligations and de-listing.

To compare answers across multiple jurisdictions visit the Equity Capital Markets Country Q&A tool.

This Q&A is part of the global guide to capital markets law. For a full list of jurisdictional Q&As visit www.practicallaw.com/capitalmarkets-guide.

Sawant Singh and Shantanu Mitra, Phoenix Legal
Contents

Main equity markets/exchanges

1. What are the main equity markets/exchanges in your jurisdiction? Outline the main market activity and deals in the past year.

Main equity markets/exchanges

There are two primary equity exchanges in India, the Bombay Stock Exchange (BSE) and the National Stock Exchange (NSE).

BSE

The BSE is Asia's oldest stock market and was established in 1875. The BSE was for decades India's largest and most influential exchange. As of 31 January 2015, the BSE is the world's 11th largest stock exchange by market capitalisation of issued shares of domestic companies (www.world-exchanges.org/home/index.php/statistics/monthly-reports). The BSE's Sensitive Index (or "Sensex", as it is widely known) of thirty companies developed in 1986, giving the BSE a way of measuring overall performance across several industries. The BSE also launched an SME (Small Medium Enterprises) platform in March 2012. However, since the founding of the NSE in 1993, the BSE has lost much of its former pre-eminence and market share. The website for BSE is www.bseindia.com.

Due to its long held pre-eminent position in the Indian securities markets, some of the principle advantages of listing on the BSE are media attention, liquidity, heightened consumer awareness and confidence, visibility and so on.

NSE

The NSE was established in 1993 as the first demutualised electronic stock exchange. The NSE was the first exchange in the country to provide a modern, fully automated screen-based electronic trading system that offered an easy trading facility to investors across the country. NSE introduced a share price index, the "Nifty Fifty", which is widely tracked by portfolio managers. The NSE became the first clearing corporation in India by introducing the National Securities Clearing Corporation Limited (NSCCL) in April 1995. The NSE is the world's 12th largest stock market of issued shares of domestic companies (with a market capitalisation of US$1.7 trillion) as of 31 January 2015 (www.world-exchanges.org/home/index.php/statistics/monthly-reports). The NSE launched an SME (Small Medium Enterprises) platform in September 2012.The website for NSE is www.nseindia.com.

Some of the principle advantages of listing on the NSE are enhanced exit opportunities and liquidity, easier monitoring, faster decision-making, and wider reach.

Market activity and deals

The equity markets in India were one of the sectors that were hardest hit by the relative stagnation of the Indian economy during the previous regime, as the number of companies proposing to list themselves on the exchanges by way of equity share offerings dwindled. However, with the assumption of office by the current central government, the Indian markets have received a much-needed impetus. In the last year, the number of companies proposing to list themselves on the exchanges has gone up exponentially.

The secondary markets, which saw lacklustre performance in early 2014, turned around exponentially as the year drew to a close. It was reported that the BSE Sensex gained about 30% up until the last week of December and foreign institutional investors pumped close to US$16 billion into equities and US$26.4 billion in the debt markets.

However, the primary markets have not performed that well over the last several years due to the policy paralysis plaguing the growth of the Indian markets. Nevertheless, with the new government assuming office, the numbers of IPOs hitting the markets have increased. A total of nine IPOs opened for subscription. However, one of these IPOs was subsequently withdrawn. The top three IPOs to be subscribed are:

  • Inox Wind Limited (INR7000 million).

  • UFO Moviez Limited (INR6000 million).

  • VRL Logistics Limited (INR4738.80 million).

 
2. What are the main regulators and legislation that applies to the equity markets/exchanges in your jurisdiction?

Legislation

The main legislation governing the securities markets in India includes the:

  • Securities and Exchange Board of India Act 1992 (SEBI Act). The Securities and Exchange Board of India (SEBI) was formed on 12 April 1992 under the SEBI Act. SEBI has been empowered under the provisions of the SEBI Act to:

    • protect the interests of investors;

    • promote the development of the securities markets;

    • regulate the securities markets.

    The regulatory jurisdiction of SEBI covers all intermediaries and persons associated with the securities markets, and all corporates intending to issue capital. SEBI has the power to conduct enquiries, audits and inspections of all participants in the securities markets and has the power to register market intermediaries. The SEBI Act also grants SEBI the powers to initiate quasi-judicial proceedings for violations of the provisions of the SEBI Act and the various rules and regulations framed under it. SEBI is the principal regulator of the Indian securities markets and has full authority to regulate and develop an orderly securities market.

  • Securities Contracts (Regulation) Act 1956 (SCRA). The SCRA provides for direct and indirect control of virtually all aspects of securities trading in India, including the establishment and functioning of stock exchanges, with the aim of preventing undesirable securities transactions. The central government has regulatory jurisdiction to monitor stock exchanges through a process of recognition and continued supervision, contracts in securities and listing of securities on stock exchanges. The various stock exchanges can frame their own rules, bye-laws and listing criteria (while observing the minimum listing criteria). With the establishment of SEBI in 1992 as the primary securities markets regulator in India, various powers under the SCRA that were with the central government have now been given to SEBI.

  • Depositories Act 1996 (Depositories Act). The Depositories Act provides for the establishment of securities depositories to ensure transferability of securities with speed, accuracy and in a secure environment. The Depositories Act broadly aims to:

    • make the securities of public limited companies freely transferable, subject to certain exceptions;

    • allow the dematerialisation of securities; and

    • maintain ownership records.

    In order to streamline the settlement process of securities transactions in the secondary markets, physical securities are converted into dematerialised form and the transfer of securities is recorded through the book entry form.

  • Companies Act 2013 (Companies Act). The Companies Act deals with issue, allotment and transfer of securities, and provides for standards of disclosures to be made in public issues. However, SEBI has been given most of the powers governing the securities markets in India.

Regulators

The central government frames the relevant rules under the Companies Act, SCRA, the SEBI Act and the Depositories Act, while SEBI frames various regulations to regulate the securities markets. The central government and SEBI have the power to issue notifications, circulars and guidelines that must be adhered to by market participants. Various self-regulatory organisations (SROs) such as the various stock exchanges have also framed their own rules, regulations and bye-laws for regulating the markets.

The responsibility for regulating the securities markets is shared between the various departments of the central government, such as the Department of Economic Affairs of the Ministry of Finance (DEA) and the Ministry of Company Affairs (MCA), and between the central bank the Reserve Bank of India (RBI) and SEBI.

SEBI is one of the key agencies that exercises most of the powers under the SCRA and shares its authority with the DEA. The powers of the MEA under the SCRA are also concurrently exercised by SEBI. The provisions of the SEBI Act and the Depositories Act are mostly administered by SEBI. The rules under the securities laws are framed by the central government and the regulations are framed by SEBI, although all rules are administered by SEBI. The provisions of the Companies Act relating to the issue and transfer of securities and non-payment of dividends are administered by SEBI in relation to listed public companies and public companies proposing to list their securities. SROs also play a key role in ensuring that the securities markets in India are investor-friendly, developed and secure.

The Forwards Markets Commission (FMC), the commodities regulator of India, has recently been merged with SEBI in an effort to streamline the regulatory framework in India by decreasing the number of regulators to promote an efficient approval and monitoring process.

 

Equity offerings

3. What are the main requirements for a primary listing on the main markets/exchanges?

Main requirements

In a primary listing, securities are offered for public subscription in order to raise capital. To be eligible to issue shares in an initial public offering (IPO), the issuing company must satisfy five conditions under the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2009 (ICDR Regulations):

  • Net tangible assets of at least INR30 million in each of the preceding three full years, of which not more than 50% are held in monetary assets. If more than 50% of the net tangible assets are held in monetary assets, the issuer must make firm commitments to use such excess monetary assets in its business or project.

  • A track record of distributable profits for at least three out of the five immediately preceding years.

  • A net worth of at least INR10 million in each of the preceding three full years.

  • An aggregate of the proposed issue and all previous issues made in the same financial year in terms of issue size not exceeding five times its pre-issue net worth as per the audited balance sheet of the preceding financial year.

  • If it has changed its name within the last year, at least 50% of the revenue for the year having been earned from the activity indicated by the new name.

An issuer not satisfying these conditions can make an IPO if the issue is made through the bookbuilding process and the issuer undertakes to allot at least 75% of the net offer to qualified institutional buyers (QIBs) and to refund the full subscription money if it fails to make the minimum allotment to qualified institutional buyers.

The ICDR Regulations also list several parameters to which a company must adhere if it intends to list its shares in India, make a public issue or a rights issue. Some of the major conditions are as follows:

  • If the issuer, any of its promoters, promoter group or directors or persons in control of the issuer are debarred from accessing the capital market by SEBI.

  • If any of the promoters, directors or persons in control of the issuer was or is a promoter, director or person in control of any other company that is debarred from accessing the capital market under any order or directions made by SEBI.

  • If the issuer of convertible debt instruments is in the list of wilful defaulters published by the RBI or it is in default of payment of interest or repayment of principal amount in respect of debt instruments issued by it to the public for a period of more than six months.

Further requirements include:

  • The issuer must have made an application to one or more recognised nationwide stock exchanges and chosen one of them as the designated stock exchange.

  • The issuer must have entered into an agreement with a depository for dematerialisation of specified securities already issued or proposed to be issued.

  • All existing partly paid-up equity shares of the issuer must have been either been fully paid up or forfeited.

  • Firm arrangements of finance through verifiable means towards 75% of the stated means of finance must have been made, excluding the amount to be raised through the proposed public issue or rights issue or through existing identifiable internal accruals.

Minimum shares in public hands

Under the Securities Contracts (Regulation) Rules 1957 (SCRR), the minimum public shareholding requirements for IPOs are as follows:

  • All public companies, listed or proposed to be listed, must have at least a 25% public shareholding.

  • At least 10% of each class or kind of equity shares or debentures convertible into equity shares issued by the company must be offered and allotted to the public in an offer document if the post issue capital of the company calculated at offer price is more than INR40 billion.

Existing listed companies with a public shareholding of less than 25% are given three years to comply with the minimum public shareholding limit. SEBI has initiated regulatory actions and enforcement proceedings against companies which are not in compliance with these minimum public shareholding norms.

In order to make the regulatory requirements consistent across companies irrespective of post-issue capitalisation, and to facilitate mid-size issuers who may not require large funds, SEBI has decided to take up the following proposal of the Ministry of Finance (MOF) by amending the SCRR so that the:

  • Minimum dilution to public in an IPO is 25% or INR4 billion, whichever is lower, for companies with post-issue capitalisation of less than INR40 billion.

  • In cases of dilution of less than 25%, the minimum public shareholding of 25% can be achieved within three years of listing.

A foreign company can access the Indian securities markets to raise funds through the issue of Indian Depository Receipts (IDRs). See Question 8.

 
4. What are the main requirements for a secondary listing on the main markets/exchanges?

Main requirements

The various stock exchanges in India have the power to form their own bye-laws which govern themselves as well as any entity which intends to list on those exchange platforms. Although the exchanges have various listing requirements which are unique to the functioning of those exchanges, those requirements are broadly in sync with each other and the various legislation and rules and regulations framed by the primary regulators, the central government and SEBI.

For secondary listings (listings of companies that are already listed on other exchanges), the company proposing to list its shares on another exchange must fulfil the eligibility criteria prescribed by that particular exchange. The broad eligibility criteria are as follows:

  • The company whose securities are proposed for secondary listing must not be suspended on any other nationwide stock exchange where they are listed, due to non-compliance with the SEBI (Listing Obligations and Disclosure Requirements) Regulations 2015 (Listing Regulations) as prescribed by SEBI.

  • The company must have minimum issued and paid-up equity capital of INR30 million and the market capitalisation of the company must not be less than INR100 million. If the issued and paid-up equity share capital is less than INR30 million, the market capitalisation must be at least INR1 billion. Market capitalisation is usually computed by multiplying the outstanding number of equity shares with average closing price derived during last three months, or whatever trading history is available.

  • The issuer must agree, among other things, to comply with:

    • Companies Act.

    • SEBI Act.

    • SCRA.

    • SCRR.

    • Any other guidelines, circulars, regulations issued by any regulatory authority from time to time.

In addition, the exchanges have discretion to consider additional factors for the listing of securities on that particular exchange.

 
5. What are the main ways of structuring an IPO?

An IPO may involve either, or a combination of both, an:

  • Invitation for subscriptions to a fresh allotment of shares.

  • Offering of existing shares held by shareholders of the issuer.

The existing shareholders may include the promoters of the company or investor shareholders, such as private equity funds, venture capitalists and so on.

IPOs of public companies can be by way of either a fixed price issue or a bookbuilt issue. Regulation 26 of the ICDR Regulations lays down the eligibility requirements for issuer companies proposing an IPO. If the eligibility conditions of Regulation 26 are satisfied, issuer companies can make their IPOs by offering their securities at a fixed price (also referred to as fixed-price issues). All companies that do not satisfy the requirements of Regulation 26 are compulsorily required to make their IPOs by following the bookbuilt issue procedure as prescribed under the ICDR Regulations.

IPOs by companies not satisfying the eligibility criteria of Regulation 26 may be referred to a compulsory bookbuilt issue. However, companies which meet the requirements of Regulation 26 can choose to adopt the bookbuilt process over the fixed-price process. These IPOs are known as voluntary bookbuilt issues.

 
6. What are the main ways of structuring a subsequent equity offering?

First-time public offers of securities by unlisted companies are known as IPOs. Any further public offers of securities already listed are referred to as follow-on or further public offerings (FPOs).

An FPO has been defined under the ICDR Regulations to mean an offer of specified securities by a listed issuer to the public for subscription, and includes an offer for sale of specified securities to the public by any existing holders of such securities in a listed issuer.

The various other ways in which companies in India raise funds through issue of equity instruments are by way of private placement through the qualified institutional placement and preferential issue routes, and to its existing shareholders by way of a bonus issue or a rights issue. A company may also issue additional shares to the employees of the company by way of employee stock option plans/schemes. A company also has the option of making a composite issue of shares, that is, an issue of securities by a listed issuer on public-cum-rights basis, wherein the allotment in both public issue and rights issue is proposed to be made simultaneously.

The procedure to be followed for making follow-on public offers is similar to the process followed in IPOs. The issuer must appoint merchant bankers and file a draft red-herring prospectus with SEBI after conducting due diligence on the issuers' business and operations, before making an IPO. On review and receipt of observations from SEBI, issuer can file a red-herring prospectus in bookbuilt issues (or a prospectus in case of fixed-price issues) and open the issue for public subscriptions. Issuer companies can determine the issue price for securities offered in FPOs.

An FPO is structured in a similar manner as an IPO as the applicable laws do not prescribe any additional structure for an FPO.

 
7. What are the advantages and disadvantages of rights issues/other types of follow on equity offerings?

Rights issues/further issues

If a public company wants to increase its subscribed capital by allotment of further shares, the further shares must be first offered to the existing shareholders in proportion to the capital paid up on the shares held by them at the date of the offer. The shareholders to whom such an offer is made are not under any legal obligation to accept the offer. However, they have a right to renounce the offer in favour of any person. Shares so offered by a public company to its existing shareholders are called rights shares.

A rights/further issue is the subsequent issue of shares by an existing company to its existing shareholders in proportion to their holding. Further shares can be issued by a company only if the articles of association of the company permit this. Further shares are generally offered to the existing shareholders at a price below the current market price, and they have the options either to exercise the right or to sell the right to another person. Issues of further shares are governed by the guidelines of SEBI and the central government.

A company that is already listed on the stock exchanges may further offer its shares to the public either by an issue of fresh shares or by way of an offer for sale by selling shareholders. Such equity offerings are known as FPOs.

A company can also offer its shares to a select group of individuals over and above its existing shareholders or the public. Such equity offerings are known as preferential allotments.

A rights issue allows a shareholder to retain its proportionate shareholding in the company when the company issues additional shares. A rights offering is more beneficial for companies which do not have broad market appeal and wants to offer shares to its existing investors only. Floatation costs, brokerage and commission expenses are not incurred by the company, unlike in a public issue. Shareholders receive some financial benefits as shares are issued to them at concessional rates. However, if a shareholder fails to exercise his rights to subscribe to the rights issue within the stipulated time, his holdings will become diluted. In addition, a rights issue leads to concentration of shareholding into the hands of a few shareholders, which may be disadvantageous for the company from the perspective of corporate governance.

Bonus issues

In India, bonus issues generally refer to additional shares issued to the current shareholders of the company without additional cost (not for consideration). Such allotments are based on the number of shares owned by the shareholders out of the company's accumulated earnings converted into shares in lieu of dividend.

The issue of bonus shares is traditionally more in the nature of a bookkeeping transaction, as cash does not change hands. A bonus issue usually capitalises a part of reserves, the retained earnings of the company, to bring in additional share capital in line with the assets employed. Bonus issues are also helpful in bringing high share prices back to a reasonable level, thereby enhancing liquidity.

Issues of bonus shares decrease the existing rate of return and may reduce the market price of shares of the company. The issue of bonus shares may also decrease the earnings per share.

 
8. What are the main steps for a company applying for a primary listing of its shares? Is the procedure different for a foreign company and is a foreign company likely to seek a listing for shares or depositary receipts?

Procedure for a primary listing

The provisions of the ICDR Regulations become applicable to an issuer from the date on which its board decides to make an IPO. The period before filing the draft offer document with SEBI is referred to as the pre-filing period. The period after date of filing of the draft offer document with SEBI until the date of final allotment and listing of securities is referred to as the post-filing period. The procedure is as follows:

  • Appointment of merchant bankers by the issuer.

  • Due diligence on the business and operations of the issuer.

  • Filing of draft red-herring prospectus with SEBI by the issuer.

  • Entrance into an agreement with a depository for dematerialisation of specified securities already issued or proposed to be issued.

  • Making of an application for listing of the specified securities in at least one recognised stock exchange with nationwide trading terminals.

  • Issuance of comments and observations on draft red-herring prospectus by SEBI.

  • Incorporation of suggestions, filing of an updated red-herring prospectus with the Registrar of Companies (ROC) and the sending of a copy to SEBI.

  • Invitation of bids from public.

  • Filing of final prospectus.

  • Allotment of securities.

  • Listing and trading of securities.

Procedure for a foreign company

A foreign company can access the Indian securities market to raise funds through the issue of Indian Depository Receipts (IDRs). An IDR is an instrument denominated in INR in the form of a depository receipt created by a domestic depository (that is, a custodian of securities registered with the SEBI against the underlying equity of an issuing company).

The issuance of IDRs is regulated by the Companies Act and the rules framed under it. SEBI has also issued regulations for disclosure and compliance requirements pertaining to IDRs. The eligibility criteria given under these rules and guidelines include that the foreign issuing company must:

  • Have pre-issue paid-up capital and free reserves of at least US$50 million and have a minimum average market capitalisation (during the last three years) in its parent country of at least US$100 million.

  • Have a continuous trading record or history on a stock exchange in its parent country for at least three immediately preceding years.

  • Have a track record of distributable profits for at least three out of the immediately preceding five years.

  • Fulfil such other eligibility criteria as may be laid down by SEBI time to time.

 

Advisers: equity offering

9. Outline the role of advisers used and main documents produced in an equity offering. Does it differ for an IPO?

Intermediaries

Intermediaries that are registered with SEBI include:

  • Merchant bankers. These are known as book running lead managers (BRLM) in case of book built public issues. The BRLM is responsible for ensuring compliance with the legal formalities in the entire issue process and for marketing of the issue. The BRLM also conducts the due diligence of the company and is in control of the drafting of the offer document in the format mandated by SEBI.

  • Registrars. Registrars to the issue are involved in finalising the basis of allotment in an issue and for sending refunds, allotment and so on. The registrar finalises the list of eligible allottees after deleting the invalid applications and ensures that the corporate action for crediting of shares to the accounts of the applicants is done and the dispatch of refund orders to those applicable are sent. The BRLM co-ordinates with the registrar to ensure the flow of applications from collecting bank branches, processes applications and other matters until the basis of allotment is finalised, dispatches security certificates and refunds orders completed and securities listed.

  • Underwriters. Underwriters are intermediaries who undertake to subscribe to the securities offered by the company in case these are not fully subscribed by the public, in case of an underwritten issue. Underwriters generally receive underwriting fees from their issuing clients, but they also usually earn profits when selling the underwritten shares to investors. However, underwriters assume the responsibility of distributing a securities issue to the public. If they can't sell all of the securities at the specified offering price, they may be forced to sell the securities for less than they paid for them, or retain the securities themselves

  • Banker. The banker to an issue is a scheduled commercial bank in India which is usually involved in the issue process for acceptance of application and application monies, acceptance of allotment or call monies, refund of application monies and payment of dividend or interest warrants. The bankers to the issue enable the movement of funds in the issue process and therefore enable the registrars to finalise the basis of allotment by making clear funds status available to the registrar.

Their addresses, telephone/fax numbers, registration number, and contact person and email addresses are disclosed in the offer documents.

Offer documents

The offer document is a document which contains all the relevant information about the company, the promoters, projects, financial details, objects of raising the money, terms of the issue and so on, and is used for inviting subscription to the issue being made by the issuer. The offer document is called a prospectus in the case of a public issue or offer for sale and letter of offer in the case of a rights issue.

Terms used for offer documents vary depending on the stage or type of the issue where the document is used. The terms include:

  • Draft red-herring prospectus. This is an offer document filed with SEBI for specifying changes, if any, in it, before it is filed with the ROCs. It is made available in the public domain and is also available on the SEBI website for enabling public to give their comments, if any.

  • Red-herring prospectus. This is an offer document used in case of a bookbuilt public issue. It contains all the ROC before the issue opens.

  • Prospectus. This is an offer document in a public issue, which has all relevant details including price and number of shares being offered. This document is registered with ROC before the issue opens in case of a fixed price issue and after the closure of the issue in case of a book built issue.

  • Letter of offer. This is an offer document in case of a rights issue and is filed with stock exchanges before the issue opens.

  • Abridged letter of offer. This is an abridged version of the letter of offer. It is sent to all the shareholders along with the application form.

  • Abridged prospectus. This is an abridged version of offer document in a public issue and is issued along with the application form of a public issue. It contains all the salient features of a prospectus.

  • Shelf prospectus. This is a prospectus which enables an issuer to make a series of issues within a period of one year without the need of filing a fresh prospectus every time. This facility is available to public sector banks /public financial institutions.

  • Placement document/memorandum. This is an offer document for the purpose of qualified institutional placement and contains all the relevant and material disclosures.

 

Equity prospectus/main offering document

10. When is a prospectus (or other main offering document) required? What are the main publication, regulatory filing or delivery requirements?

Prospectus (or other main offering document) required

The various offer documents discussed in the previous section must be filed at specific times. A draft red-herring prospectus is filed in case of an IPO and/or FPO with SEBI for SEBI's approval. Once SEBI has reviewed the contents of the draft red-herring prospectus, it issues its observations. Any observation issued by SEBI is in the nature of an order and the issuer is required to incorporate the SEBI observations in the red-herring prospectus. In a bookbuilt issue, the red-herring prospectus must be filed with the ROC before the issue opens. The prospectus is filed with the ROC before the opening of the issue in case of a fixed price issue and subsequent to the issue in case of a book built issue. The abridged prospectus is issued to the investors along with the application form. The draft letter of offer is filed with SEBI and as in the case of an IPO or FPO draft red-herring prospectus, SEBI issues its observations, which must be incorporated in the letter of offer. The placement memorandum or documents relating to preferential issues or qualified institutional placements must be filed with the stock exchanges.

Main publication, regulatory filing or delivery requirements

All offer documents that are filed with SEBI are uploaded on the SEBI website and are publicly available. The offer documents filed with the stock exchanges are also publicly available and are uploaded on the website of the stock exchanges.

The documents filed with the SEBI (which excludes confidentially submitted registration statements until they are publicly filed), including the prospectus and letter of offer, are all available on the SEBI's website.

 
11. What are the main exemptions from the requirements for publication or delivery of a prospectus (or other main offering document)?

There are no exemptions for a publication or delivery of an offering document for an IPO, rights issue or a qualified institutional placement.

 
12. What are the main content or disclosure requirements for a prospectus (or other main offering document)? What main categories of information are included?

The basic framework and contents of a prospectus can be broadly categorised into two sets of information:

  • Information on the issuer, including information describing the business, securities, financial position, directors, management and other information.

  • Information about the issue.

  • Information describing the terms and conditions of the securities offered.

A prospectus issued in relation to an IPO of securities by a public company must contain the minimum mandatory information given by Rules 3 to 6 of the Companies (Prospectus and Allotment of Securities) Rules 2014 read with Section 26 of the Companies Act. The minimum disclosure obligations in a prospectus are not applicable to:

  • Offer documents in relation to right issue of securities to existing shareholders or debenture holder.

  • Prospectuses issued in relation to FPOs in India.

The ICDR Regulations prescribe the disclosure requirements in an IPO prospectus. The ICDR Regulations also prescribe separate disclosure frameworks for follow-on public offerings, rights issues and private placements of equity or convertible securities whose equity shares are already listed on a recognised stock exchange in India.

Regulation 57 of the ICDR Regulations requires issuer companies to ensure that the offer documents contain all true and adequate material disclosures to enable investors to make an informed decision when investing in the IPO. Disclosures must also be made according to the provisions of the Companies Act and schedule VIII of the ICDR Regulations. Schedule VIII of the ICDR Regulations contains detailed descriptions of the information that must be contained in an offer document and prescribes the manner, form and sequence of those disclosures.

 
13. How is the prospectus (or other main offering document) prepared? Who is responsible and/or may be liable for its contents?

Issuer

The first and foremost responsibility in cases of misstatements lies with the issuer. The ICDR Regulations provide that while making a public offer of securities, an issuer must make certain mandatory disclosures in the prospectus. Section 25(1) of the Companies Act provides that the liability of an issuer is without prejudice to the liability of any other person liable for misstatements under Companies Act.

Board of directors

All directors of the company at the time of the issue are liable for misstatements as per the Companies Act. The liability of the directors is frozen at the time of the red-herring prospectus and subsequent resignation would not prevent a director from being held liable.

The Companies Act also prescribes that independent directors or any other non-executive directors can be held liable only in respect of acts of omission or commission by a company attributable to processes of the board of directors that occurred with their knowledge, with their consent or connivance or where they had not acted diligently.

Audit committee

The Audit Committee has the responsibility of certifying whether all the disclosures made in the offer document are true and correct. Corporate governance standards and the role of auditors have been outlined in the Listing Regulations.

Merchant banker

A merchant banker will be appointed to manage the issue of an IPO of a company and it plays a fiduciary role by co-ordinating the activities of the company, the regulatory bodies, and the investors. SEBI has laid down the SEBI (Merchant Bankers) Regulations 1992 to govern merchant bankers in India. The merchant banker is in control of the entire issue process and is also tasked with conducting the due diligence of the issuer.

Officer of the issuer

Directors of the company occupy most of the designations that constitute the meaning of an officer. Any officer of an issuer who is not a director can be liable under the provisions of the Companies Act. In addition, liability can also be attached to persons who qualify as an officer who are in default.

Promoters

Promoters of a company are liable for misstatements in the prospectus as per the Companies Act.

Experts

Experts (including engineers, valuers, charted accountants, company secretaries, cost accountants and any other such persons) may also be held liable for misstatements contained in an offer document as per the provisions of the Companies Act.

Civil liabilities

Any inclusion or omission in an offer document which misleads an investor in subscribing to securities offered in an IPO is subject to liabilities under the provisions of the Companies Act which requires compensation to be paid to every person who has sustained loss or damage due to such misstatements.

Criminal liabilities

If misstatements are made in a prospectus with a fraudulent intent, every person who authorises the issue of such prospectus is subject to criminal sanctions under the Companies Act. Additional sanctions would be imposed on the persons responsible under provisions of the SEBI Act and SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations 2003 (FUTP Regulations).

 

Marketing equity offerings

14. How are offered equity securities marketed?

Publicly offered equity securities are typically marketed by roadshow presentations for institutional investors, and general advertising including in newspapers for retail investors.

Publicity restrictions set out in Chapter VI, particularly Regulation 60, of the ICDR Regulations must be strictly adhered to at all times. The issuer is mandated to make certain mandatory advertisements during the various stages of an IPO process. The content and format of these advertisements are prescribed by SEBI and have to be strictly adhered to. The various stages at which an issuer has to issue advertisements can be broadly classified into three distinct stages:

  • Pre-issue advertisements.

  • Issue opening and closing advertisements.

  • Post-issue advertisements.

The issuer must obtain the prior approval of the merchant banker leading the marketing of the issue with respect to all public communication, issue advertisements and publicity materials. In addition, the merchant banker must submit several compliance certificates and an undertaking to the effect that the issue related advertisements and marketing material have been prepared and managed in accordance with the requirements of the ICDR Regulations.

 
15. Outline any potential liability for publishing research reports by participating brokers/dealers and ways used to avoid such liability.

Research reports are typically prepared by analysts. Research reports are primarily regulated by publicity restrictions in the ICDR Regulations as well as restrictions and liabilities under the SEBI (Research Analyst) Regulations, 2014 and SEBI (Prohibition of Insider Trading) Regulations 2015 (Insider Trading Regulations).

The term "insider" under the Insider Trading Regulations includes persons connected on the basis of being in any contractual, fiduciary or employment relationship and therefore immediate relatives are also considered insiders, as will any person who has access unpublished price sensitive information. The Insider Trading Regulations, among other things, require an organisation to separate those areas of the organisation that routinely have access to confidential information from areas which are connected with sales, marketing or investment advice. An insider must not divulge any price-sensitive information to any person. Insider trading provisions have also been added to the Companies Act.

Analysts must disclose their shareholdings in companies for which they are preparing research reports to their employer's compliance officers. In addition, analysts who prepare research reports of listed companies are prohibited from trading in securities of that company for 30 days from preparation of the research report.

Reports can only be prepared using information that is publicly available. In addition, listed companies are prohibited from providing any non-public information to analysts or any section of the public. Violation of these norms attracts penalties, which may be monetary penalties or cancellation of registration of SEBI registered intermediaries.

 

Bookbuilding

16. Is the bookbuilding procedure used and in what circumstances? How is any related retail offer dealt with? How are orders confirmed?

Bookbuilding is a process of price discovery. The ICDR Regulations require the issuer to disclose a price band or floor price before the issue opens for subscription. The BRLM, in close consultation with the issuer, determines a price band which is a range of price within which the investors will be allowed to bid for the issue. The spread between the floor and the cap of the price band cannot be more than 20%. Once the issue has opened, depending on the demand for the issue, the BRLM is allowed by the ICDR Regulations to revise the price band and, if such price band is revised, it is required that the bidding period be extended by a further period of three days, provided that the total bidding period does not exceed thirteen days.

Two working days before the IPO opens for subscription, the floor price or price band is disclosed, whereas the timeframe for disclosing the floor price or price band for an FPO is one working day. The bids from the applicants indicating the quantity of the securities and the price at which they are willing to buy is received during the days the issue is open for subscription. Once the bidding process is over, the cut-off price is arrived at, based on the demand for the securities and the price at which the bids have been received. The basis of allotment is then finalised and securities are allotted. The refund process is initiated if the minimum subscription levels have not been achieved. The prospectus is then filed with ROC with the details of the final issue price and the issue size, completing the issue process.

Under the ICDR Regulations, only retail individual investors have the option of bidding at cut-off, that is, investors who are applying for securities worth up to INR200,000 only. Such investors are required to tick the cut-off option which indicates their willingness to subscribe to shares at any price discovered within the price band. Unlike price bids (where a specific price is indicated) which can be invalid if the price indicated by the applicant is lower than the price discovered, the cut-off bids always remain valid for the purpose of allotment.

The investor can change or revise the quantity or price in the bid using the form for changing/revising the bid that is available along with the application form. However, the entire process of changing or revising the bids is to be completed within the date of closure of the issue. The investor can also cancel the bid any time before the finalisation of the basis of allotment by making an application to the registrar of the issue.

Depending on compliance with the requirements of Regulation 26 of the ICDR Regulations, bookbuilding IPOs are classified as either voluntary or compulsory.

Under Regulation 43(2) of the ICDR Regulations, for issues made under the voluntary bookbuilding route, the allocation in the net offer (total issue size-reservations) to pubic category must be:

  • Not less than 35% to retail individual investors.

  • Not less than 15% to non-institutional investors.

  • Not more than 50% to qualified institutional buyers, 5% of which must be allocated to mutual funds.

Under Regulation 43(2A) of the ICDR Regulations, for issues made through the compulsory bookbuilding route, the allocation in the net offer to pubic category must be:

  • Not less than 10% to retail individual investors.

  • Not less than 15% to non-institutional investors,

  • Not more than 75% to qualified institutional buyers, 5% of which must be allocated to mutual funds.

 

Underwriting: equity offering

17. How is the underwriting for an equity offering typically structured? What are the key terms of the underwriting agreement and what is a typical underwriting fee and/or commission?

The Indian underwriting model covers only the payment risk rather than the subscription risk. If an issue does not get necessary bids for a successful issue, underwriters in India do not have any liability to subscribe to the issue towards ensuring a successful issue. In addition, underwriting for the qualified institutional buyers portion in compulsory bookbuilt issues is prohibited.

With the introduction of Application Supported by Blocked Amount (ASBA) bidding in bookbuilt issues, underwriting in India has further lost its relevance. Under ASBA bidding, there is little chance of default in payment because the necessary funds in the account of the bidders are already blocked at the time of making bid applications. However, ASBA is not a mandatory requirement and it is optional for the investor to apply through the ASBA mechanism.

Therefore, underwriting is only relevant for non-ASBA bids. Any defaults in payment from non-ASBA bids that have been allocated securities in the final basis of allotment must be covered by syndicate members collecting such bids. Non-ASBA bids made to registered brokers are also not underwritten.

In compulsory bookbuilding issues, only non-ASBA bids made under the retail category, not more than 10% of the issue size, are underwritten in compulsory bookbuilt IPOs.

In voluntary bookbuilding issues, non-ASBA bids made by retail investors through syndicate members constituting not more than 35% of the net issue size are underwritten for any default in payment for such bids.

 

Timetable: equity offerings

18. What is the timetable for a typical equity offering? Does it differ for an IPO?

The provisions of the ICDR Regulations become applicable to an issuer from the date on which its board decides to make an IPO. The period between the date of the board resolution and the date of filing of the draft offer document with SEBI is generally referred to as the pre-filing period. The period after the date of filing of the draft offer document with SEBI until the date of final allotment and listing of securities is referred to as the post-filing period. The post-filing period is further divided into two periods:

  • The period between the date of filing of the draft red-herring prospectus RHP and that of the red-herring prospectus.

  • The period between the date of filing of red-herring prospectus and that of the final prospectus.

Typically, the entire IPO process from the date of filing of the DRHP with SEBI and the listing of the equity shares on the stock exchanges takes about eight to 12 months.

 

Stabilisation

19. Are there rules on price stabilisation and market manipulation in connection with an equity offering?

An issuer making a public issue of equity shares can provide a greenshoe option for stabilising the post-listing price of its equity shares under Regulation 45 of the ICDR Regulations. The price stabilisation mechanism must be authorised by a resolution passed in the issuer's general meeting of shareholders. A greenshoe option means an option of allotting equity shares in excess of the equity shares offered in the public issue as a post-listing price stabilising mechanism. The stabilisation agreement is entered into between the:

  • Stabilising agent (that is, a SEBI-registered merchant banker).

  • Greenshoe lender (that is, a pre-issue shareholder of the issuer, including the promoter).

  • Issuer.

The FUTP Regulations prohibit all fraudulent dealings in securities and provide wide investigative powers to investigate any fraudulent dealings. Under these regulations, SEBI can (in accordance with the prescribed procedure) take appropriate regulatory action against market manipulation, which may include imposition of monetary penalties, disgorgement of unlawful gains and debarment from accessing the Indian securities markets.

 

Tax: equity issues

20. What are the main tax issues when issuing and listing equity securities?

Capital gains tax

At present short-term capital gains tax is 15% and long-term capital gains tax is zero for residents.

Dividends

Dividends received by resident Indian shareholders from domestic companies are tax-free. The investor, the shareholder who receives dividends, must report dividends on his income tax returns, but these are not subject to personal income tax.

Dividend distribution tax

This tax is unique to India: the company pays tax on any amount declared, distributed or paid by way of dividend (whether interim or otherwise), whether out of current or accumulated profits. The dividend distribution tax liability is the sum of:

  • 15% of the amount declared as dividends.

  • 0.75% surcharge (that is, 5% on the 15%).

  • 0.30% education cess (that is, 2% on the 15%).

  • 0.15% secondary and higher education charge (that is 1% on the 15%).

 

Continuing obligations

21. What are the main areas of continuing obligations applicable to listed companies and the legislation that applies?

SEBI has notified Listing Regulations, which consolidate and streamline the provisions of existing listing agreements for different segments of the capital market. The Listing Regulations are to come into force on and from 1 December 2015. The Listing Regulations have been structured to provide ease of reference by consolidating into one single document the listing obligations and the disclosure requirements for various types of securities listed on stock exchanges. The listing Regulations have been divided into two parts

  • The substantive provisions incorporated in the main body of regulations.

  • The procedural requirements in the form of schedules to the regulations.

A key feature of the Listing Regulations is that listed companies can now seek shareholders' approval for related-party transactions through ordinary resolutions instead of the previous requirement for passing a special resolution. The conditionality imposed by the Listing Regulations is that passing of the ordinary resolution is subject to the related parties abstaining from voting on such resolutions, which is in line with the provisions of the Companies Act. A shortened version of the Listing Agreement has also been prescribed by SEBI and an issuer has to execute the new Listing Agreement before getting its securities listed on stock exchanges. The existing listed entities are required to sign the shortened version of the Listing Agreement within six months of the notification of the Listing Regulations.

The Listing Regulations have been incorporated under different chapters for the ease of comprehension. This is a welcome measure as earlier the compliance and disclosure requirements were enumerated in the various Listing Agreements for the different listed instruments. Chapter II of the Listing Regulations deal with periodic disclosures that the listed entities are required to make. It also lays special emphasis on compliance to principles of corporate governance as laid down by the Organisation for Economic Co-operation and Development (OECD). Obligations in relation to filings on electronic platforms, general compliances for listed companies and provisions for the appointment of a chief compliance officer have been incorporated in Chapter III. Chapters IV-IX contain specific provisions with respect to different types of securities and the remaining chapters deal with the responsibilities and obligations of stock exchanges.

The Listing Regulations place an obligation on the listed entities to prepare information in accordance with applicable standards of accounting and financial disclosure. Listed entities are also required to ensure that the yearly statutory audit is conducted by an independent, competent and qualified auditor. In addition, there are provisions in the Listing Regulations with respect to the protection of rights of shareholders and the responsibilities of the directors of a company.

 
22. Do the continuing obligations apply to listed foreign companies and to issuers of depositary receipts?

Foreign companies can become listed on the Indian stock exchanges by issuing IDRs (see Question 8, Procedure for a foreign company). Continuing obligations for such issues are set out in a standard model listing agreement for IDRs and are the same as under the Listing Regulations (see Question 21).

The Listing Regulations require an issuer issuing IDRs in India to promptly inform the stock exchange of all material events and price sensitive information that has current bearing on performance/operation of the listed entity. The reporting obligation must cover the same issues that the issuer is obliged to report to the listing authority or any other authority or other stock exchange(s) in its home country or other jurisdictions where its securities may be listed. The Listing Regulations also place a duty on the issuer of IDRs to file with the stock exchanges information pertaining to its shareholding pattern and shareholding details, periodical financial results, annual reports and son on. The issuer is also required to publish periodical advertisements in newspapers containing details of periodical financial results required to be disclosed and notices given to its IDR holders.

 
23. What are the penalties for breaching the continuing obligations?

In public issues, in cases of failure to comply with the continuing disclosure obligations under the Companies Act 2013, the company may be liable to be fine between INR50,000 and INR500,000. There are also criminal liabilities incurred by every officer deemed to be responsible for the non-compliance.

Under the SEBI Act and its various regulations, SEBI has various powers to penalise and to investigate contravention of continuing obligations. These include the ability to conduct inquiries and pass orders directing the issuer (or other concerned persons) to:

  • Refund the application monies to the applicants in a public issue.

  • Not further deal in securities in any manner.

  • Not access the securities market for a particular period.

  • Observe any other direction which SEBI may deem fit and proper in the circumstances of the case.

SEBI can also:

  • Impose penalties varying from INR100,000 for every day of default (subject to a maximum amount of INR10,000,000) for any failure to furnish documents, returns, reports required to be submitted to SEBI or to maintain the books of accounts.

  • Impose a minimum penalty of INR100,000 for any failure to file any return or furnish any information, books or other documents within the specified time period.

In addition, section 11B of the SEBI Act 1992 also grants SEBI residual powers to issue directions (including disgorgement) to specified persons in the securities market where, after conducting an enquiry, SEBI is satisfied that such directions are necessary:

  • To the interest of investors or the orderly development of the securities market.

  • To secure the proper management of an intermediary to prevent its affairs being conducted in a manner detrimental to the interest of investors or securities market.

 

Market abuse and insider dealing

24. What are the restrictions on market abuse and insider dealing?

Restrictions on market abuse/insider dealing

The Insider Trading Regulations was notified by SEBI in January 2015 with the intention of removing certain lacunae in the earlier regulations. The Insider Trading Regulations now define an insider as any connected person or any person in possession of or with access to unpublished price sensitive information. A connected person includes any person who is or has been associated with the company during the six months before the concerned act, including through frequent communication with its officers or as a director, officer, vendor and others with access to unpublished price sensitive information. Connected persons include:

  • Immediate relatives.

  • Holding/subsidiary or associate companies.

  • Mutual fund, stock exchange or clearing house official and bankers.

The Insider Trading Regulations have considerably widened the definitions of "insider" and "connected person", and now any person, irrespective of whether he is related to the company or not, may come within the purview of the Insider Trading Regulations if he is expected to have access to or is in possession of unpublished price sensitive information. The onus of establishing that they were not in possession of unpublished price sensitive information would be with the connected persons. In addition, the Insider Trading Regulations have been made applicable for any unpublished price sensitive information in relation to the company or its securities which are listed on a stock exchange or are proposed to be listed on a stock exchange.

The Insider Trading Regulations also require the parties who have access to unpublished price sensitive information as part of a due diligence exercise to enter into agreements protecting the confidentiality of the information and to not trade in the securities of the listed company while in possession of it, in effect enforcing a standstill obligation. Specific exemptions have been carved-out in the Insider Trading Regulations whereby the communication of unpublished price sensitive information in furtherance of legitimate purposes, performance of duties or discharge of legal obligations will not be actionable.

The terms "furtherance of legitimate purposes", "performance of duties" or "discharge of legal obligations" have not been defined in the Insider Trading Regulations, although, the notes appended to the regulations state that it is intended for organisations to develop best practices based on need-to-know principles for treatment of such information and to enable persons in possession of unpublished price sensitive information to carry out their legitimate duties.

A significant departure from the earlier regulatory framework governing insider trading in India is that the Insider Trading Regulations have introduced the concept of a trading plan for persons who are perpetually in possession of unpublished price sensitive information. This is a welcome change in the regulatory framework as now insiders will be able to implement their pre-determined trades without any allegation being levelled against them that the trades were executed while in possession of unpublished price sensitive information. However, reasonable checks and balances have been put into place which will govern the trading plans.

Penalties for market abuse/insider dealing

Under the SEBI Act, insider trading is publishable by a penalty of INR250 million or three times the profit made out of insider trading, whichever is higher. SEBI is also empowered to:

  • Prohibit an insider from investing in or dealing in securities.

  • Declare violating transactions as void.

  • Order return of securities so purchased or sold.

  • Disgorge illegitimate gains.

Any person contravening or attempting to contravene or abetting the contravention of the SEBI Act or its rules and regulations may also be liable to imprisonment for a term of up to ten years or a fine of up to INR250 million, or both.

 

De-listing

25. When can a company be de-listed?

De-listing

De-listing of Indian companies is governed by the SEBI (De-listing of Equity Shares) Regulations 2009 (De-listing Regulations). SEBI has amended these regulation and introduced SEBI (De-listing of Equity Shares) (Amendment) Regulations, 2015 (De-listing Amendment Regulations), amendments have been notified on 24 March 2015 with immediate effect.

De-listing can be either a compulsory de-listing by the stock exchanges or a voluntary de-listing from the stock exchanges by the company. Compulsory de-listing refers to permanent removal of securities of a listed company from a stock exchange as a penalising measure at the behest of the stock exchange for not making submissions or complying with various requirements set out in the listing agreement within the prescribed time frames.

After enactment of the De-listing Regulations, India witnessed only 38 de-listing offers out of which 29 were successful, seven offers failed as minimum number of shares were not tendered, and in the remaining two the offer price was rejected by the acquirer. Companies have experienced several hurdles in de-listing their securities from the stock exchanges due to several onerous requirements of the De-listing Regulations.

However, with the notification of the De-listing Amendment Regulations, the process of de-listing has been simplified substantially. Some of the salient features of the de-listing process in India after the De-listing Amendment Regulations are as follows:

  • The timelines for obtaining in-principle approval by stock exchanges, de-listing public announcements after stock exchange approval, dispatching offer letters, opening of the offer, and final announcements regarding outcome of such offers have been reduced from 138 days to about 20 days.

  • The threshold for a successful de-listing offer has been revised to 90% of the issued share capital of the company. In addition, a new condition is added which requires that at least 25% of public shareholders holding demat shares must participate in the book building process.

  • The board of directors of the company seeking de-listing must disclose the de-listing proposal to the stock exchange and appoint merchant banker for due diligence. It is also required to furnish details of trading and off-market transactions for the top 25 shareholders to the merchant banker and provide additional information, as and when sought.

  • Shares can be now tendered through the stock exchange mechanism by the shareholders. A separate window for acquiring shares during de-listing would be provided by stock exchanges with nationwide trading terminals.

  • SEBI has been empowered to relax the strict enforcement of de-listing regulations in certain instances, provided that the relaxation is in interest of investors and the securities market.

  • Voluntary de-listing of shares under an open offer under the SEBI (Substantial Acquisition of Shares and Takeover) Regulations 2011 have been permitted, provided an acquirer can declare its intent to de-list a target company at the time of making a detailed public statement of the open offer.

 

Reform

26. Are there any proposals for reform of equity capital markets/exchanges? Are these proposals likely to come into force and, if so, when?

The Indian securities markets have undergone several reforms in the last year. Several notable amendments have been carried out in the existing regulatory framework and several new regulations have been introduced.

SEBI has amended the ICDR Regulations and has introduced an institutional trading platform where technology-intensive start-up companies in India can list their securities in the stock exchanges without undergoing the elaborate process for launching an IPO in India. This will facilitate capital-raising by small and medium enterprises, including start-up companies which are in their early stages of growth, and provide easier entry and exit options for informed investors (angel investors, venture capital and private equity funds and so on) to and from such companies. Several other key regulations such as the Takeover Regulations, the De-listing Regulations and the AIF Regulations have also been amended to facilitate the institutional trading platform.

In addition, SEBI has amended the Listing Regulations to align the disclosure and continuous requirements applicable to all entities that have securities (whether debt or equity) listed on the stock exchanges.

The FMC has also been merged with SEBI in an effort to streamline the regulatory framework in India by decreasing the number of regulators to promote an efficient approval and monitoring process.

The Ministry of Finance's Standing Council on International Competitiveness of the Indian Financial Sector has prepared a list of recommendations for making India a much more competitive market in the globalised world. The list of recommendations include removal of several ambiguities related to taxation, investor participation and product innovation to bring the domestic currency, equity and commodity derivatives markets into line with offshore markets. Several short-term actions, along with medium- and long-term goals have been identified to make India more competitive.

 

Online resources

The Securities and Exchange Board of India (SEBI)

W www.sebi.gov.in

Description. Maintained by SEBI. All notifications, regulations, circulars, list of debarred entities are available.

Ministry of Corporate Affairs, Government of India

W www.mca.gov.in

Description. Maintained by the Ministry of Corporate Affairs. The text of the Companies Act 2013, the rules thereunder, amendments and notifications are available.

BSE Limited (BSE)

W www.bseindia.com

Description. Maintained by the BSE. Trading data, eligibility criteria and membership information is available.

National Stock Exchange of India Limited (NSE)

W www.nseindia.com

Description. Maintained by NSE. Trading data, eligibility criteria and membership information is available.



Contributor profiles

Sawant Singh, Partner

Phoenix Legal

T +91 22 43 40 500
F +91 22 43 40 501
E sawant.singh@phoenixlegal.in
W www.phoenixlegal.in

Professional qualifications. India, Advocate (Bar Council of Maharashtra)

Areas of practice. Banking and finance, debt capital markets

Shantanu Mitra, Counsel

Phoenix Legal

T +91 22 43 40 500
F +91 22 43 40 501
E shantanu.mitra@phoenixlegal.in
W www.phoenixlegal.in

Professional qualifications. India, Advocate (Bar Council of Maharashtra)

Areas of practice. Financial regulatory, securities law and capital markets


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