(MERCHANT BANKERS) REGULATIONS, 1992
CONTENTS
1. Short title and commencementCHAPTER II: REGISTRATION OF MERCHANT BANKERS
2. Definitions
3. Application for grant of certificateCHAPTER III: GENERAL OBLIGATIONS AND RESPONSIBILITIES
4. Application to conform to the requirements
5. Furnishing of information, clarification and personal representation
6. Consideration of application
7. Capital Adequacy Requirement
8. Procedure for Registration
9. Renewal of certificate
10. Procedure where registration is not granted
11. Effect of refusal to grant certificate
12. Payment of fees and the consequences of failure to pay fees
13. Code of ConductCHAPTER IV: PROCEDURE FOR INSPECTION
13A. Merchant banker not to associate with any business other than that of the securities market
14. Maintenance of books of accounts, records etc.
15. Submission of Half-yearly results
16. Maintenance of books of account, records and other documents
17. Report on steps taken on Auditor's report
18. Appointment of lead merchant bankers
19. Restriction on appointment of lead managers
20. Responsibilities of lead managers
21. Lead merchant banker not to associate with a merchant banker without registration
22. Underwriting obligations
23. Submission of due diligence certificate
24. Documents to be furnished to the Board
24A. Payment of fees to the Board
25. Continuance of association of lead manager with an issue
26. Acquisition of shares prohibited
27. Information to the Board
28. Disclosures to the Board
29. Board's right to inspectCHAPTER V: PROCEDURE FOR ACTION IN CASE OF DEFAULT
30. Notice before inspection
31. Obligations of merchant banker on inspection by the Board
32. Submission of Report to the Board
33. Communication of findings etc. to the merchant banker
34. Appointment of Auditor
35. Liability for action in case of defaultSCHEDULE I: FORMS
36. Suspension of registration
37. Cancellation of registration
38. Manner of making order of suspension an cancellation
39. Manner of holding enquiry before suspension or cancellation
40. Show-cause notice and order
41. Effect of suspension and cancellation of registration of merchant banker
42. Publication of order of suspension
43. Appeal to the Securities Appellate Tribunal
FORM A: APPLICATION FOR GRANT OF CERTIFICATE / RENEWAL OF CERTIFICATESCHEDULE II: FEES
FORM B: CERTIFICATE OF REGISTRATION
FORM C: DUE DILIGENCE CERTIFICATE
SCHEDULE III: CODE OF CONDUCT FOR MERCHANT BANKERS
SCHEDULE IV
THE GAZETTE OF INDIA
EXTRAORDINARY
PART III - SECTION 4
PUBLISHED BY AUTHORITY
NOTIFICATION
THE 22ND DAY OF DECEMBER, 1992
BOMBAY
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
No.LE/11112/92. In exercise of the powers conferred by Section 30 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Board with the previous approval of the Central Government hereby makes the following regulations, namely: -
1. (1) These regulations may be called the Securities and Exchange Board of India (Merchant Bankers) Regulations, 1992.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In these regulations, unless the context otherwise requires, -
(a) "enquiry officer" means any officer of the Board, or any other person, having experience in dealing with the problems relating to the securities market, who is authorised by the Board under Chapter V;(b) "form " means a form specified in Schedule I;
(c) "inspecting authority" means one or more persons appointed by the Board to exercise powers conferred under Chapter IV;
(d) "principal officer " means -
(i) proprietor, in the case of a proprietary concern;(e) "rules" means Securities and Exchange Board of India (Merchant Bankers) Rules, 1992;(ii) partner, in the case of a partnership firm;
(iii) director, in the case of a body corporate, who is responsible for the activities of the merchant banker;
(f) Words and expressions used and not defined in these regulations but defined in the Act and the rules shall have the meanings respectively assigned to them in the Act or the rules as the case may be.
Application for grant of certificate
3. (1) An application by a person for grant of a certificate shall be made to the Board in Form A.
(2) The application under sub- regulation (1) shall be made for any one of the following categories of the merchant banker namely:-
(a) Category I, that is –1*[(2A) Notwithstanding anything contained in this regulation, with effect from 9th December, 1997,(i) to carry on any activity of the issue management, which will inter-alia consist of preparation of prospectus and other information relating to the issue, determining financial structure, tie-up of financiers and final allotment and refund of the subscription; and(b) Category II, that is, to act as adviser, consultant, co- manager, underwriter, portfolio manager;(ii) to act as adviser, consultant, manager, underwriter, portfolio manager.
(c) Category III, that is to act as underwriter, adviser, consultant to an issue;
(d) Category IV, that is to act only as adviser or consultant to an issue.
(i) an application under sub-regulation (2) can be made only for carrying on the activities mentioned in clause (a) therein, and(3) Notwithstanding anything contained in sub-regulation (1), any application made by a merchant banker prior to coming into force of these regulations containing such particulars or as near thereto as mentioned in Form A shall be treated as an application made in pursuance of sub-regulation (1) and dealt with accordingly.(ii) an applicant can carry on the activity as underwriter only if he obtains separate certificate of registration under the provisions of Securities and Exchange Board of India (Underwriters) Regulations, 1993, and
(iii) an applicant can carry on the activity as portfolio manager only if he obtains separate certificate of registration under the provisions of Securities and Exchange Board of India (Portfolio Manager) Regulations, 1993.]
Application to conform to the requirements
4. Subject to the provisions of sub-regulation (3) of regulation 3, any application, which is not complete in all respects and does not conform to the instructions specified in the form, shall be rejected:
Provided that, before rejecting any such application, the applicant shall be given an opportunity to remove within the time specified such objections as may be indicated by the Board.
Furnishing of information, clarification and personal representation
5. (1) The Board may require the applicant to furnish further information or clarification regarding matters relevant to the activity of a merchant banker for the purpose of disposal of the application.
(2) The applicant or its principal officer shall, if so required, appear before the Board for personal representation.
6. The Board shall take into account for considering the grant of a certificate, all matters, which are relevant to the activities relating to merchant banker and in particular the applicant complies with the following requirements, namely: -
2*[(a) the applicant shall be a body corporate other than a non- banking financial company as defined under clause (f) of section 45-I of the Reserve Bank of India Act, 1934, (2 of 1934) as amended from time to time,]3*[Provided that the merchant banker who has been granted registration by the Reserve Bank of India to act as a Primary or Satellite dealer may carry on such activity subject to the condition that it shall not accept or hold public deposit]
4*[(aa)] the applicant has the necessary infrastructure like adequate office space, equipments, and manpower to effectively discharge his activities;]
(c) a person directly or indirectly connected with the applicant has not been granted registration by the Board;
Explanation:
For the purposes of this clause the expression "directly or indirectly connected" means any person being an associate, subsidiary, inter-connected or group Company of the applicant in case of the applicant being a body corporate.
(d) the applicant fulfils the capital adequacy requirement specified in regulation 7;
(e) the applicant, his partner, director or principal officer is not involved in any litigation connected with the securities market which has an adverse bearing on the business of the applicant;
(f) the applicant, his director, partner or principal officer has not at any time been convicted for any offence involving moral turpitude or has been found guilty of any economic offence;
(g) the applicant has the professional qualification from an institution recognised by the Government in finance, law or business management;
5*[(gg) the applicant is a fit and proper person,]
(h) grant of certificate to the applicant is in the interest of investors.
7. (1) The capital adequacy requirement referred to in sub- regulation (d) of regulation 6 shall not be less than the net worth of the person making the application for grant of registration.
(2) For the purposes of sub- regulation (1), the networth shall be as follows, namely: -
Category Minimum Amount
Category I 6*[Rs. 5, 00, 00, 000]
Category II Rs. 50, 00, 000
Category III Rs. 20, 00, 000
Category IV Nil
Explanation:
For the purposes of this regulation "networth" means in the case of an applicant which is a partnership firm or a body corporate, the value of the capital contributed to the business of such firm or the paid up capital of such body corporate plus free reserves as the case may be at the time of making application under sub-regulation (1) of regulation 3.
8. (1) The Board on being satisfied that the applicant is eligible shall grant a certificate in Form B7*[****].
8*[***]
9*[***]
(4) On the grant of a certificate the applicant shall be liable to pay the fees 10*[***] in accordance with Schedule II;
11*[***]
9. (1) Three months before expiry of the period of certificate, the merchant banker, may if he so desires, make an application for renewal in Form A.
(2) The application for renewal, under sub-regulation (1) shall be dealt with in the same manner as if it were a fresh application for grant of a certificate.
12*[Provided that in case of an application for renewal of certificate of registration, the provisions of clause (a) of regulation 6 shall not be applicable upto June 30th, 1998]
(3) The Board on being satisfied that the applicant is eligible for renewal of certificate shall grant a certificate in Form B and send an intimation to the 13*[***]
14*[***]
15*[***]
(6) On the grant of a certificate the applicant shall be liable to pay the fees 16*[***] in accordance with Schedule II;
17*[***]
Procedure where registration is not granted
10. (1) Where an application for grant of a certificate under regulation 3 or of renewal under regulation 9, does not satisfy the criteria set out in regulation 6, the Board may reject the application after giving an opportunity of being heard.
(2) The refusal to grant registration shall be communicated by the Board within thirty days of such refusal to the applicant stating therein the grounds on which the application has been rejected.
(3) Any applicant may, being aggrieved by the decision of the Board, under sub-regulation (1), apply within a period of thirty days from the date of receipt of such intimation to the Board for reconsideration of its decision.
(4) The Board shall reconsider an application made under sub- regulation (3) and communicate its decision as soon as possible in writing to the applicant.
Effect of refusal to grant certificate
11. Any merchant banker whose application for a certificate has been refused by the Board shall on and from the date of the receipt of the communication under sub-regulation (2) of regulation 10 cease to carry on any activity as merchant banker.
Payment of fees and the consequences of failure to pay fees
12. (1) Every applicant eligible for grant of a certificate shall pay such fees in such manner and within the period specified in Schedule II.
(2) Where a merchant banker fails to pay the Annual fees as provided in sub-regulation (1), read with Schedule II, the Board may suspend the registration certificate, whereupon the merchant banker shall cease to carry on any activity as a merchant banker for the period during which the suspension subsists.
Foot notes
1. Sub-regulation inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
2. Clause (a) inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
3. Proviso inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 17.11.1999.
4. Clause (a) renumbered as (aa) by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
5. Clause (gg) inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
6. Substituted for "1, 00, 00, 000" by the SEBI (Merchant Bankers) (Amendment) Regulations, 1995 published in the Official Gazette of India dated 07.09.1995.
7. "and send an intimation to the applicant mentioning the category for which the Board has granted certificate" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
8. Sub-regulation (2) omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
9. Sub-regulation (3) omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
10. "for the category for which the registration is granted" inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
11. Following proviso omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
"Provided that the amount of fees payable shall be proportionately reduced by the amount of fees already paid by the merchant banker for the year in which the registration is granted in the higher category."12. Proviso inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 21.01.1998.
13. "mentioning the category for which the Board has granted certificate" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
14. Following sub-regulation (4) omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
"Notwithstanding anything contained in sub-regulation (1), where a certificarte has been granted for a category lowert than for what has been applied for, the applicant, may make an appliocation to the Board at any time after the expiry of one year from the date of grant of such registration."15. Following sub-regulation (5) omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997
"An application made under sub-regulation (4) shall be considered in the same manner as an application made under regulation 3."16. "for the category for which the registration is granted" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997.
17. Following proviso omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 09.12.1997
"Provided that the amount of fees payable shall be proportionately reduced by the amount of fees already paid by the merchant banker for the year in which the registration is granted in the higher category."
13. Every merchant banker shall abide by the Code of Conduct as specified in Schedule III.
18*[Merchant banker not to associate with any business other than that of the securities market
13A – No merchant banker, other than a bank or a 19*[public financial institution], who has been granted a certificate of registration under these regulations shall 20*[after June 30th, 1998] carry on any business other than that in the securities market.
Notwithstanding anything contained above, a merchant banker who prior to the date of notification of the securities and exchange board of India (Merchant Bankers) Amendment Regulations, 1997, has entered into a contract in respect of a business other than that of the securities market, may, if he so desires, discharge his obligations under such contract.
21*[Provided that a merchant banker who has been granted certificate of registration to act as primary or satellite dealer by Reserve Bank of India, may carry on such business as may be permitted by Reserve Bank of India]
Explanation - for the purposes of this regulation:
(i) A "bank" shall mean a banking company as defined under section 5 of the Banking Regulation Act, 1949 (10 of 1949) and the corresponding new bank set up under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (5 of 1970) and Banking Companies (Acquisition and Transfer of Undertaking) Act, 1980 (40 of 1980), State Bank of India Act, 1955 (23 of 1955) and State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959)Maintenance of books of accounts, records etc.(ii) A "public financial institution" shall have the same meaning as assigned to the term under Section 4A of the Companies Act, 1956 (1 of 1956) and shall include Industrial Development Corporations and Financial Corporations established by the Central Government or State Governments as the case may be]
14. (1) Every merchant banker shall keep and maintain the following books of accounts, records and documents namely: -
(a) a copy of balance sheet as at the end of each accounting period;(2) Every merchant banker shall intimate to the Board the place where the books of accounts, records and documents are maintained.(b) a copy of profit and loss account for that period;
(c) a copy of the auditor's report on the accounts for that period; and
(d) a statement of financial position.
(3) Without prejudice to sub- regulation (1), every merchant banker shall, after the end of each accounting period furnish to the Board copies of the balance sheet, profit and loss account and such other documents for any other preceding five accounting years when required by the Board.
Submission of Half-yearly results
15. Every merchant banker shall furnish to the Board half-yearly unaudited financial results when required by the Board with a view to monitor the capital adequacy of the merchant banker.
Maintenance of books of account, records and other documents
16. The merchant banker shall preserve the books of accounts and other records and documents maintained under regulation 14 for a minimum period of five years.
Report on steps taken on Auditor's report
17. Every merchant banker shall within two months from the date of the auditors' report take steps to rectify the deficiencies, made out in the auditor's report.
Appointment of lead merchant bankers
18. (1) All issues should be managed by atleast one merchant banker functioning as the lead merchant banker:
Provided that, in an issue of offer of rights to the existing members with or without the right of renunciation the amount of the issue of the body corporate does not exceed rupees fifty lakhs, the appointment of a lead merchant banker shall not be essential.
(2) Every lead merchant banker shall before taking up the assignment relating to an issue, enter into an agreement with such body corporate setting out their mutual rights, liabilities and obligations relating to such issue and in particular to disclosures, allotment and refund.
Restriction on appointment of lead managers
19. The number of lead merchant bankers may not, exceed in case of any issue of
Size of issue No. of Merchant Bankers
(a) Less than rupees fifty crores Two
(b) Rupees fifty crores but less
than rupees one hundred crores Three
(c) Rupees one hundred crores
but less than rupees two hundred crores Four
(d) Rupees two hundred crores but less
than rupees four hundred crores Five
(e) Above Rupees four hundred crores five or more as may be agreed by the
board.
Responsibilities of lead managers
20. (1) No lead manager shall agree to manage or be associated with any issue unless his responsibilities relating to the issue mainly, those of disclosures, allotment and refund are clearly defined, allocated and determined and a statement specifying such responsibilities is furnished to the Board atleast one month before the opening of the issue for subscription:
Provided that, where there are more than one lead merchant bankers to the issue the responsibilities of each of such lead merchant banker shall clearly be demarcated and a statement specifying such responsibilities shall be furnished to the Board atleast one month before the opening of the issue for subscription.
(2) No lead merchant banker shall, agree to manage the issue made by any body corporate, if such body corporate is an associate of the lead merchant banker.
Lead merchant banker not to associate with a merchant banker without registration
21. A lead merchant banker shall not be associated with any issue if a merchant banker who is not holding a certificate is associated with the issue.
22. (1) In respect of every issue to be managed, the lead merchant banker holding a certificate under Category I shall accept a minimum Underwriting obligation of five percent of the total underwriting commitment or rupees twenty-five lacs, whichever is less:
Provided that, if the lead merchant banker is unable to accept the minimum underwriting obligation, that lead merchant banker shall make arrangement for having the issue underwritten to that extent by a merchant banker associated with the issue and shall keep the Board informed of such arrangement.
Submission of due diligence certificate
23. The lead merchant banker, who is responsible for verification of the contents of a prospectus or the Letter of Offer in respect of an issue and the reasonableness of the views expressed therein, shall submit to the Board at least two weeks prior to the opening of the issue for subscription, a due diligence certificate in Form C.
Documents to be furnished to the Board
24. (1) The lead manager responsible for the issue shall furnish to the Board, the following documents, namely: -
(i) particulars of the issue;(2) The documents referred to in sub-regulation (1) shall be furnished atleast two weeks prior to date of filing of the draft prospectus or the letter of offer, as the case may be, with the Registrar of Companies or with the Regional Stock Exchanges, or with both.(ii) draft prospectus or where there is an offer to the existing shareholders, the draft letter of offer;
(iii) any other literature intended to be circulated to the investors, including the shareholders; and
(iv) such other documents relating to prospectus or letter of offer as the case may be.
(3) The lead manager shall ensure that the modifications and suggestions, if any, made by the Board on the draft prospectus or the Letter of Offer as the case may be, with respect to information to be given to the investors are incorporated therein.
22*[Payment of fees to the Board
24A. The draft prospectus or draft letter of offer referred to in regulation 24 shall be submitted along with such fees and in such manner as may be specified in Schedule IV]
Continuance of association of lead manager with an issue
25. The lead manager undertaking the responsibility for refunds or allotment of securities in respect of any issue shall continue to be associated with the issue till the subscribers have received the share or debenture certificates or refund of excess application money;
Provided that where a person other than the lead manager is entrusted with the refund or allotment of securities in respect of any issue, the lead manager shall continue to be responsible for ensuring that such other person discharges the requisite responsibilities in accordance with the provisions of the Companies Act and the listing agreement entered into by the body corporate with the stock- exchange.
Acquisition of shares prohibited
26. No merchant banker or any of its directors, partner or manager or principal officer shall either on their respective accounts or through their associates or relatives enter into any transaction in securities of bodies corporate on the basis of unpublished price sensitive information obtained by them during the course of any professional assignment either from the clients or otherwise.
27. Every merchant banker shall submit to the Board complete particulars of any transaction for acquisition of securities of any body corporate whose issue is being managed by that merchant banker within fifteen days from the date of entering into such transaction.
28. A merchant banker shall disclose to the Board as and when required, the following information, namely:-
(i) his responsibilities with regard to the management of the issue;(ii) any change in the information or particulars previously furnished, which have a bearing on the certificate granted to it;
(iii) the names of the body corporate whose issues he has managed or has been associated with;
(iv) the particulars relating to breach of the capital adequacy requirement as specified in regulation 7;
(v) relating to his activities as a manager, underwriter, consultant or adviser to an issue as the case may be.
Foot notes
18. Regulation 13A inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
19. Subsituted for "Financial Institution" by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
20. "after June 30th, 1998" inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
21. Proviso inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 17.11.1999.
22. Regulation 24A inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
Board's right to inspectCHAPTER IV
PROCEDURE FOR INSPECTION
29. (1) The Board may appoint one or more persons as inspecting authority to undertake inspection of the books of accounts, records and documents of the merchant banker for any of the purposes specified in sub-regulation (2).
(2) The purposes referred to in sub-regulation (1) may be as follows namely: -
(a) to ensure that the books of account are being maintained in the manner required;Notice before inspection(b) that the provisions of the Act, rules, regulations are being complied with;
(c) to investigate into the complaints received from investors, other merchant bankers or any other person on any matter having a bearing on the activities of the merchant banker; and
(d) to investigate suo-moto in the interest of securities business or investors interest into the affairs of the merchant banker.
30. (1) Before undertaking an inspection under regulation 29 the Board shall give a reasonable notice to the merchant banker for that purpose.
(2) Notwithstanding anything contained in sub-regulation (1), where the Board is satisfied that in the interest of the investors no such notice should be given, it may by an order in writing direct that the inspection of the affairs of the merchant banker be taken up without such notice.
(3) During the course of inspection, the merchant banker against whom an inspection is being carried out shall be bound to discharge his obligations as provided under regulation 31.
Obligations of merchant banker on inspection by the Board
31. (1) It shall be the duty of every director, proprietor, partner, officer and employee of the merchant banker, who is being inspected, to produce to the inspecting authority such books, accounts and other documents in his custody or control and furnish him with the statements and information relating to his activities as a merchant banker within such time as the inspecting authority may require.
(2) The merchant banker shall allow the inspecting authority to have reasonable access to the premises occupied by such merchant banker or by any other person on his behalf and also extend reasonable facility for examining any books, records, documents and computer data in the possession of the merchant banker or any such other person and also provide copies of documents or other materials which, in the opinion of the inspecting authority are relevant for the purposes of the inspection.
(3) The inspecting authority, in the course of inspection, shall be entitled to examine or record statements of any principal officer, director, partner, proprietor and employee of the merchant banker.
(4) It shall be the duty of every director, proprietor, partner, officer or employee of the merchant banker to give to the inspecting authority all assistance in connection with the inspection which the merchant banker may reasonably be expected to give.
Submission of Report to the Board
32. The inspecting authority shall, as soon as may be possible submit, an inspection report to the Board.
Communication of findings etc. to the merchant banker
33. (1) The Board shall after consideration of the inspection report communicate the findings to the merchant banker to give him an opportunity of being heard before any action is taken by the Board on the findings of the inspecting authority.
(2) On receipt of the explanation if any, from the merchant banker, the Board may call upon the merchant banker to take such measures as the Board may deem fit in the interest of the securities market and for due compliance with the provisions of the Act, rules and regulations.
34. The Board may appoint a qualified auditor to investigate into the books of account or the affairs of the merchant banker:
Provided that the auditor so appointed shall have the same powers of the inspecting authority as are mentioned in regulation 29 and the obligations of the merchant banker in regulation 31 shall be applicable to the investigation under this regulation.
Explanation:
For the purposes of this regulation the expression "qualified auditor" shall have the same meaning as given in Section 226 of the Companies Act, 1956 (1 of 1956).
Liability for action in case of default
35. (1) A merchant banker who –
(a) fails to comply with any conditions subject to which certificate has been granted;(2) The penalties referred to in sub-regulation (1) may be either:-(b) contravenes any of the provisions of the Act, rules or regulations; shall be liable to any of the penalties specified in sub-regulation (2).
(a) suspension of registration; orSuspension of registration(b) cancellation of registration.
36. (1) A penalty of suspension of registration of a merchant banker may be imposed where -
(i) the merchant banker violates the provisions of the Act, rules or regulations;Cancellation of registration(ii) the merchant banker -
(a) fails to furnish any information relating to his activity as merchant banker as required by the Board;(iii) the merchant banker fails to resolve the complaints of the investors or fails to give a satisfactory reply to the Board in this behalf;(b) furnishes wrong or false information;
(c) does not submit periodical returns as required by the Board;
(d) does not co-operate in any enquiry conducted by the Board;
(iv) the merchant banker indulges in manipulating or price rigging or cornering activities;
(v) the merchant banker is guilty of misconduct or improper or unbusinesslike or unprofessional conduct which is not in accordance with the Code of Conduct specified in Schedule III;
(vi) the merchant banker fails to maintain the capital adequacy requirement in accordance with the provisions of regulation 7;
(vii) the merchant banker fails to pay the fees;
(viii) the merchant banker violates the conditions of registration;
(ix) the merchant banker does not carry out his obligations as specified in the regulation.
37. A penalty of cancellation of registration of a merchant banker may be imposed where
(ii) the financial position of the merchant banker deteriorates to such an extent that the Board is of the opinion that his continuance as merchant banker is not in the interest of investors;
(iii) the merchant banker is guilty of fraud, or is convicted of a criminal offence;
(iv) in case of repeated defaults of the nature mentioned in regulation 36 provided that the Board furnishes reasons for cancellation in writing.
38. No order of penalty of suspension or cancellation as the case may be, shall be imposed except after holding an enquiry in accordance with the procedure specified in regulation 39.
Manner of holding enquiry before suspension or cancellation
39. (1) For the purpose of holding an enquiry under regulation 38, the Board may appoint an enquiry officer.
(2) The enquiry officer shall issue to the merchant banker a notice at the registered office or the principal place of business of the merchant banker.
(3) The merchant banker may, within thirty days from the date of receipt of such notice, furnish to the enquiry officer a reply together with copies of documentary or other evidence relied on by him or sought by the Board from the merchant banker.
(4) The enquiry officer shall, give a reasonable opportunity of hearing to the merchant banker to enable him to make submissions in support of his reply made under sub-regulation (3).
(5) Before the enquiry officer, the merchant banker may either appear in person or through any person duly authorised by the merchant banker:
Provided that no lawyer or advocate shall be permitted to represent the merchant banker at the enquiry:
Provided further that where a lawyer or an advocate has been appointed by the Board as a presenting officer under sub- regulation (6), it shall be lawful for the merchant banker to present its case through a lawyer or advocate.
(6) If it is considered necessary, the enquiry officer may ask the Board to appoint a presenting officer to present its case.
(7) The enquiry officer shall, after taking into account all relevant facts and submissions made by the merchant banker, submit a report to the Board and recommend the penalty to be imposed as also the grounds on the basis of which the proposed penalty is justified.
40. (1) On receipt of the report from the enquiry officer, the Board shall consider the same and issue a show-cause notice as to why the penalty as proposed by the enquiry officer should not be imposed.
(2) The merchant banker shall within twenty-one days of the date of the receipt of the show- cause send a reply to the Board.
(3) The Board after considering the reply to the show-cause notice, if received, shall as soon as possible but not later than thirty days from the receipt of the reply, if any, pass such order as it deems fit.
(4) Every order passed under sub- regulation (3) shall be self- contained and give reasons for the conclusions stated therein including justification of the penalty imposed by that order.
(5) The Board shall send a copy of the order under sub- regulation (3) to the merchant banker.
Effect of suspension and cancellation of registration of merchant banker
41. (1) On and from the date of the suspension of the merchant banker he shall cease to carry on any activity as a merchant banker during the period of suspension.
(2) On and from the date of cancellation the merchant banker shall with immediate effect cease to carry on any activity as a merchant banker.
Publication of order of suspension
42. The order of suspension or cancellation of certificate passed under sub-regulation (3) of regulation 40, shall be published in at least two daily newspapers by the Board.
23*[Appeal to the Securities Appellate Tribunal
43. Any person aggrieved by an order of the Board made, on and after the commencement of the Securities Laws (Second Amendment) Act, 1999, (i.e., after 16th December 1999), under these regulations may prefer an appeal to a Securities Appellate Tribunal having jurisdiction in the matter]
Foot notes
23. Substituted for the following provision
SCHEDULE I - FORMS
FORM A
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
(REGULATION 3)
APPLICATION FOR GRANT OF CERTIFICATE /
RENEWAL OF CERTIFICATE
NAME OF APPLICANT 24*[***]
CATEGORY: I
CONTACT NAME ______________________
TELEPHONE NO: _____________________
INSTRUCTIONS FOR FILLING UP FORM
1. It is important that this application form should be filled in accordance with the regulations.
2. Applicants must submit a completed application form together with appropriate supporting documents to the Board.
3. Application for registration will be considered provided it is complete in all respects.
4. Answers must be typed.
5.All signatures must be original.
6.Information which needs to be supplied in more details may be given on separate sheets which should be attached to the application form.
1. PARTICULARS OF THE APPLICANT
1.1 Name of the Applicant:
1.2 (A) Address - Principal Place of business / Registered Office of the Company.
Pin code: ______________________ Telephone No:________________
Telex No:______________________Fax No:______________________
(B) Address for Correspondence:
Pin code:______________________Telephone No:________________
Telex No:______________________Fax No:______________________
(C) Address of Branch Offices:
2. ORGANISATION STRUCTURE
(Organisation Chart separately showing functional responsibilities of Merchant Banking activities to be enclosed).
2.1 Objectives:-
(To be given in brief along with copy of Memorandum and Articles of Association).
2.2 Date and Place of Incorporation:
Day Month Year Place
2.3 Status of the Applicant:
(e.g. limited company - Private/Public, unlimited company, partnership, proprietary, others. If listed, names of Stock Exchanges and latest share price to be given).
2.4 Particulars of all Directors/Partners/Proprietors:-
Name
Qualification
Experience in Merchant Banking &
Financial Services related areas
Share in applicants firm company
Directorship in other companies
2.5 Particulars of Key Management Personnel: (Particulars of merchant banking division)
Name
Qualification
Experience with particular
reference to merchant banking
Date of appointment
Functional areas
2.6 Name and activities of associate companies/concerns
Name of Company
Address/firm
Type of activity handled
Nature of Interest of Promoter/Director
Nature and interest of applicant company
3. BUSINESS INFORMATION
3.1 History, major events and present activities:
3.2 Details of Experience in Merchant Banking activities.
3.3 Experience in other financial services rendered:-
3.4 Business handled during the last three years:
a) Issue Management
Name of client
Type of Issue
Size of Issue
Year of Issue
Times subscribed
Name of lead merchant banker
Functional responsibilities
b) Investment Adviser: -
Name of Client Year for which services are rendered
Nature of services rendered
c) Underwriting
Name of client Type and size
Amount underwritten of Issue
% age of issue under Year of Issue
Whether there was any devolvement written
d) Portfolio Management
Name of Scheme
Features of the Scheme
Number of Clients
Total Volume of Funds managed
Average Returns
e) Consultants/Advisors to the Issue
Name of the Client
Year of Issue
Type and Size of Issue
Nature of services rendered
Name of Lead Merchant Banker(s)
4. CLIENT INFORMATION
4.1 List of major clients with address
Name
Services Rendered
4.2 If the applicant is proposing to engage in Merchant Banking activities for the first time, the experience of key management personnel to be indicated.
Name of Key management personnel
Qualification
Previous positions held
Experience particularly in respect of merchant banking activities
4.2 (a) If the applicant is proposing to engage in Merchant Banking activities for the first time, business plan of the company with projected volume of activities and income for which registration is sought to be specifically given.
4.3 Details of infrastructure including computing facilities, equity research and database available with the applicant.
4.4 Any other information considered relevant to the nature of services rendered by the applicant.
5. FINANCIAL INFORMATION
5.1 Capital Structure (Rs. in lakhs)
| | | |
| a) Paid-up capital | ||
| b) Free reserves (excluding re- valuation reserves) | ||
| c) Total (a) + (b) |
Note: - 1. In case of partnership or proprietary concerns, please indicate capital minus drawings.
2. In case of partnership or proprietary concerns, please indicate the financial position, means and networth of the partners.
5.2 Deployment of Resources (Rs. in lakhs)
| | | |
| (a) Fixed Assets | ||
| (b) Plant & Machinery and Office Equipment | ||
| (c) Quoted Investments | ||
| (d) Unquoted Investments | ||
| (e) Details of Liquid Assets | ||
| (f) Others |
(Details of Investments, Loans & Advances made to Associate Companies/ firms where Promoters/ Directors have an interest be separately given).
5.3 Major Sources of Income: (Rs. in lakhs)
| | | | |
| (a) Issue Management | |||
| (b) Underwriting | |||
| (c) Portfolio Management | |||
| (d) Consultant/ Advisor to Issue | |||
| (e) Investment Adviser | |||
| (f) Others |
*As fees charged by the merchant banker may vary from issue to issue, please indicate range within which fees have been charged.
5.4 Net Profit
| | | |
5. 5 Dividend
| | | |
Amount
Percentage
Note: Please enclose three years of audited annual accounts. Where unaudited reports are submitted, give reasons. If minimum networth requirement has been met after last audited annual accounts, audited statement of accounts of a later date also be submitted.
5.6 List of major shareholders (holding 5% and above of applicant directly or along with associates - applicable only to limited companies)
Shareholding as on: ______________________________
Name of shareholder
No. of Shares held
% age of total paid up capital of the company
5.7 Name and Address of the Principal bankers of the applicant.
5.8 Name and address of the Auditors.
6. OTHER INFORMATION
6.1 Details of all settled and pending disputes:
Nature of dispute Name of the party Pending/settled.
6.2 Indictment of involvement in any economic offences by the applicant or any of the Directors, or key managerial Personnel in the last three years.
DECLARATION
THIS DECLARATION MUST BE SIGNED BY TWO DIRECTORS, TWO PARTNERS OR THE SOLE PROPRIETOR AS THE CASE MAY BE
I/We hereby apply for registration. I/We warrant that I/We have truthfully and fully answered the questions above and provided all the information which might reasonably be considered relevant for the purposes of my registration. I/We declare that the information supplied in the application form is complete and correct.
For and on behalf of ------------------------------------------ (Name of Applicant)
Director/Partner or Sole Proprietor Director/Partner ___________________
(Name in Block Letters) (Name in Block Letters) _______________________
Date
24. "APPLIED FOR: II/III/IV" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
FORM B
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
(REGULATION 8)
CERTIFICATE OF REGISTRATION
In exercise of the powers conferred by sub-section (1) of section 12 of the Securities and Exchange Board of India Act, 1992, read with the rules and regulations made thereunder the Board hereby grants a certificate of registration to ______________________________ as a merchant banker in Category I 25*[***] subject to the conditions in the rules and in accordance with the regulations to carry out the following activities: -
1. Management of any issue, including preparation of prospectus, gathering information relating to the Issue, determining financing structure, tie up of financiers, final allotment and refund of excess application money.
2. Investment Advisor.
26*[***]
27*[***]
5. Managers, Consultant or Adviser to any issue including corporate advisory services.
6. Consultant or Advisor.
(*Delete whichever are not applicable)
II. Registration Code for the merchant banker is MB / / /
III. This certificate shall be valid from _____________ to _________ and may be renewed as specified in regulation 9 of Securities and Exchange Board of India (Merchant Bankers) Regulations, 1992.
Place
Date
Sd/-
For and on behalf of Securities and Exchange Board of India
25. "II/III/IV" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
26. "3. Underwriting of Issue" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
27. "4. Portfolio Manager Service" omitted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 06.06.1996.
FORM C
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
(REGULATION 23)
DUE DILIGENCE CERTIFICATE
To,
SECURITIES AND EXCHANGE BOARD OF INDIA
Dear Sirs,
SUB: ISSUE OF ____________________ BY _______________________ LTD.
We, the undernoted Lead Manager(s) to the above mentioned forthcoming issue state as follows:
1. We have while finalising the draft prospectus/letter of offer pertaining to the said issue have examined various documents and other material as for adequate disclosures to the investor;
2. On the basis of such examination and the discussions with the company, its directors and other officers, other agencies, independent verification of the statements concerning objects of the issue the contents of the documents and other material furnished by the company, WE CONFIRM that:
(a) the draft prospectus/letter of offer forwarded to SEBI is in conformity with the documents, materials and papers relevant to the issue;
(b) all the legal requirements connected with the said issue have been duly complied with; and
(c) the disclosures made in the draft prospectus/letter of offer are true, fair and adequate to enable the investors to make a well informed decision as to the investment in the proposed issue.
PLACE:
DATE:
LEAD MANAGER (S) TO THE ISSUE
N. B. A list of documents and materials examined may be forwarded along with this certificate.
SCHEDULE II
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
(REGULATION 12)
FEES
28*[1. Every merchant banker shall pay a sum of Rupees five lacs as registration fees at the time of the grant of certificate by the Board.
2. A merchant banker to keep registration in force shall pay renewal fee of Rs 2. 5 lacs every three years from the fourth year from the date of initial registration.
3. (a) The fee referred to in paragraph 1 shall be paid by the merchant banker within fifteen days from the date of receipt of the intimation from the Board under sub- regulation (1) of regulation 8.
(b) The fee referred to in paragraph 2, shall be paid by the merchant banker within fifteen days from the date of receipt of intimation from the Board under sub -regulation (3) of regulation 9.
4. The fees specified in paragraphs 1 and 2, shall be payable by merchant banker by a demand draft in favour of ‘Securities and Exchange Board of India’ payable at Mumbai or at the respective regional office."]
Foot notes
28. Substituted for the following paragraphs 1, 2, 3 and 4 by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette of India dated 30.09.1999.
"1. Every Merchant bankers shall subject to paragraphs 3 and 4 of this Schedule pay registration fees as set out below:(a) Category I merchant banker.
A sum of Rs 2.5 lakhs to be paid annually for the first two years commencing from the date of initial registration and thereafter for the third year a sum of Rs 1 lakh to keep his registration in force;
(b) Category II Merchant banker
A sum of Rs 1.5 lakhs to be paid annually for the first two years commencing from the date of initial registration and thereafter for the third year a sum of Rs 50,000 to keep his registration in force;
(c) Category III Merchant bankers
A sum of Rs 1 lakh to be paid annually for the first two years commencing from the date of initial registration and thereafter for the third year a sum of Rs 25,000 to keep his registration in force;
(d) Category IV Merchant bankers
A sum of Rs 5,000/- to be paid annually for the first two years commencing from the date of initial registration and thereafter for the third year a sum of Rs 1000/- to keep his registration in force.
(2) Renewal fees to be paid by the Merchant banker.
(a) Category I merchant bankers
A sum of Rs 1 lakh to be paid annually for the first two years commencing from the date of each renewal and thereafter for the third year a sum of Rs 20,000 to keep his registration in force;
(b) Category II Merchant bankers
A sum of Rs 75,000/- to be paid annually for the first two years commencing from the date of each renewal and thereafter for the third year a sum of Rs 10,000 to keep his registration in force;
(c) Category III Merchant bankers
A sum of Rs 50,000/- to be paid annually for the first two years commencing from the date of each renewal and thereafter for the third year a sum of Rs 5,000 to keep his registration in force;
(d) Category IV Merchant bankers
A sum of Rs 5,000/- to be paid annually for the first two years commencing from the date of each renewal and thereafter for the third year a sum of Rs 2, 500 to keep his registration in force;
(3) The fees specified in paragraphs 1 and 2 above, shall be paid in the following manner namely:-
(a) First installment is to be paid within 15 days from the date of intimation from the Board under regulation 8.
(b) Subsequent installments including the renewal fee to be paid on or before expiry of 12 months of each year of registration beginning from date of grant of such registration.
(4) The Fees specified in paragraphs 1 and 2 above, shall be payable by a*[**] draft in favour of “Securities and Exchange Board of India “ at Bombay b*[or at the respective regional office.]
a. "a cheque or" deleted by the Securities and Exchange Board of India (Payment of Fees) Amendment Regulations, 1995 by notification no S.O. 939 (E) dated 28.11.95.
b. "or at the respective regional office" inserted by the Securities and Exchange Board of India (Payment of Fees) Amendment Regulations, 1995 by notification no S.O. 939 (E) dated 28.11.95.
SCHEDULE III
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) REGULATIONS, 1992
CODE OF CONDUCT FOR MERCHANT BANKERS
(REGULATION 13)
1. A merchant banker in the conduct of his business shall observe high standards of integrity and fairness in all his dealings with his clients and other merchant bankers.
2. A merchant banker shall render at all times high standards of service, exercise due diligence, ensure proper care and exercise independent professional judgement.
He shall wherever necessary, disclose to the clients, possible sources of conflict of duties and interests, while providing unbiased services.
3. A merchant banker shall not make any statement or become privy to any act, practice or unfair competition, which is likely to be harmful to the interests of other merchant bankers or is likely to place such other merchant bankers in a disadvantageous position in relation to the merchant banker, while competing for or executing any assignment.
4. A merchant banker shall not make any exaggerated statement, whether oral or written, to the client either about the qualification or the capability to render certain services or his achievements in regard to services rendered to other clients.
5. A merchant banker shall always endeavour to -
a. render the best possible advice to the clients having regard to the clients' needs and the environments and his own professional skill; and
b. ensure that all professional dealings are effected in a prompt, efficient and cost effective manner.
6.A merchant banker shall not -
a. divulge to other clients, press or any other party any confidential information about his client, which has come to his knowledge; and
b. deal in securities of any client company without making disclosure to the Board as required under the regulations and also to the Board of Directors of the client company.
7.A merchant banker shall endeavour to ensure that -
a. the investors are provided with true and adequate information without making any misguiding or exaggerated claims and are made aware of attendant risks before any investment decision is taken by them;
b. copies of prospectus, memorandum and related literature are made to the investors;
c. adequate steps are taken for fair allotment of securities and refund of application money without delay; and
d. complaints from investors are adequately dealt with.
8.The merchant bankers shall not generally and particularly in respect of issue of any securities be party to -
a. creation of false market;
b. price rigging or manipulation;
c. passing of price sensitive information to brokers, members of the stock exchanges and other players in the capital market or take any other action which is unethical or unfair to the investors.
9. A merchant banker shall abide by the provisions of the Act, rules and regulations and which may be applicable and relevant to the activities carried on by the merchant banker.
29*[SCHEDULE IV
SECURITIES AND EXCHANGE BOARD OF INDIA
(MERCHANT BANKERS) (AMENDMENT) REGULATIONS, 1996
(SEE REGULATION 24A )
1. Every merchant banker shall pay fees as set out below:
Size of the issue including premium and intended retention of oversubscription (Rs.) Proposed Fee per document (Rs.)
Upto 5 crores 10, 000
More than 5 crores and upto 10 crores 15, 000
More than 10 crores and upto 50 crores 25, 000
More than 50 crores and upto 100 crores 50, 000
More than 100 crores and upto 500 crores 2, 50, 000
More than 500 crores 5, 00, 000
2. Fees referred to in clause (1) above, shall be paid in the following manner:
a. The fees shall be paid along with the draft of the offer document submitted to the Board under regulation 24.
b. The fees shall be payable by a draft in favour of `Securities and Exchange Board of India' at Mumbai or at the respective regional offices where the draft offer document under regulation 24 is submitted.
Foot notes
29. Schedule IV inserted by the SEBI (Merchant Bankers) (Amendment) Regulations, 1996 published in the Official Gazette dated 06.06.1996.