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Prospectus
After getting the company incorporated, promoters will raise finances. The
public is invited to purchase shares and debentures of the company through
an advertisement. A document containing detailed information about the
company and an invitation to the public subscribing to the share capital
and debentures is issued. This document is called prospectuses. Private
companies cannot issue a prospectus because they are strictly prohibited
from inviting the public to subscribe to their shares. Only public companies
can issue a prospectus. Section 2 (36) of the Companies Act defines
prospectus as, A prospectus means any document described or issued as
prospectus and includes any notice, circular, advertisement or other
documents invent deposits from public or inviting offers from the public for
the subscription or purchase of any shares in or debentures of a body
corporate.The prospectus is not an offer in the contractual sense but only
an invitation to offer. A document constructed to be a prospectus should be
issued to the public. A prospectus should have the following essentials.
Contents
The following matters are to be disclosed in a prospectus:
A document containing detailed information about the company and an invitation to the
public regarding subscription to shares and debentures is called a company prospectus. In
many countries private companies cannot issue a prospectus because they are sternly
forbidden from inviting the public to subscribe to their shares.
Only public companies can issue a prospectus. Actually this is done to avoid various kinds of
malpractices that private companies tend to indulge in. Many a time it has happened that
private companies have robbed public of their hard earned money.
So, many governments feel that if they allow private companies to issue prospectuses, the
opposition and other pressure groups may allege the involvement of government in the
malpractices of private companies.
Lets be clear about the fact that a prospectus is not an offer in the contractual sense but
only an invitation to offer. A document construed to be a prospectus should be issued to the
public.
A prospectus should have the fundamentals like, it must be an invitation offering to the
public and it must be made on the behalf of the company. A prospectus must be filed with
the registrar of companies before it is issued to the public.
If the promoters are certain of obtaining the requisite capital through private contacts, even
a public company may not issue a prospectus. The promoters prepare a summary
prospectus containing obligatory information and this document is known as a statement
representing a prospectus.
A prospectus duly dated and signed by all the directors is to be filed to the registrar. A
prospectus brings to the notice of the public that a new company has been formed.
The company tries to persuade the public that it will provide the best prospects for their
investment. A prospectus outlines in detail the terms and conditions on which the shares
have been offered. Usually, the orders for the procurement of shares are done via an
application that comes along with the prospectus.
Several company law experts and law firms that Business Standard spoke to did not want to be
quoted citing conflict in business interest. To start with, there is no specific definition of
misrepresentation in prospectus under the Companies Act, 2013. The way it is described is any
statement which is untrue or misleading in form or context in which it is included or where any
inclusion or omission of any matter is likely to mislead, said a corporate lawyer, quoting the Act.
Civil and criminal liabilities follow if the promoters are found guilty of
misrepresentation. Section 34 of the Companies Act, 2013 deals with criminal
liability for misstatement it has the same liability as that of fraud under Section 447
of the Act.
As per Section 447 a person guilty of fraud shall be punishable with imprisonment
for a term ranging from six months to 10 years.
He is also liable to a fine, which can extend to three times the amount involved in
the fraud. In cases where the fraud involves public interest, the term of
imprisonment shall not be less than three years.
Since, in this case, an IPO public interest is involved, any misstatement in the
prospectus will lead to a minimum punishment of three years, said another lawyer.
Section 35 of the Companies Act provides for civil liability for misstatement in
prospectus.
Under Section 36, those liable to pay compensation include the directors of the
company at the time of the issue of the prospectus and the promoters, among
others, to every person who has sustained loss or damage.
According to Section 37 of the Act, those seeking compensation have to file a law
suit.
A corporate law expert said any claim made by an investor or a shareholder will
have to be proved in a court of law. The compensation will be decided by the court
bearing in mind the facts and circumstances of the case, he added.
Though the Companies Act provides for affected shareholders or investors to file
class action law suit against the company, however the provision will not get
invoked as this section in the Act is yet to be notified, said Rajesh Narain Gupta,
managing partner, SNG & Partners.
Civil liability for misstatements in prospectus.
(1) Where a person has subscribed for securities of a company acting on any
statement included, or the inclusion or omission of any matter, in the prospectus which is
misleading and has sustained any loss or damage as a consequence thereof, the company
and every person who
(a) is a director of the company at the time of the issue of the prospectus;
(b) has authorised himself to be named and is named in the prospectus as a
director of the company, or has agreed to become such director, either
immediately or
after an interval of time;
(c) is a promoter of the company;
(d) has authorised the issue of the prospectus; and
(e) is an expert referred to in sub-section (5) of section 26,
shall, without prejudice to any punishment to which any person may be liable
under section
36, be liable to pay compensation to every person who has sustained such loss or
damage.
(2) No person shall be liable under sub-section (1), if he proves
(a) that, having consented to become a director of the company, he withdrew his
consent before the issue of the prospectus, and that it was issued without his
authority or consent; or
(b) that the prospectus was issued without his knowledge or consent, and that
on becoming aware of its issue, he forthwith gave a reasonable public notice that
it was issued without his knowledge or consent.
(3) Notwithstanding anything contained in this section, where it is proved that a
prospectus has been issued with intent to defraud the applicants for the securities of a
company or any other person or for any fraudulent purpose, every person referred to in
subsection
(1) shall be personally responsible, without any limitation of liability, for all or any of
the losses or damages that may have been incurred by any person who subscribed to the
securities on the basis of such prospectus.
What is the Doctrine of Indoor Management?
According to this doctrine, persons dealing with the company need not inquire whether internal
proceedings relating to the contract are followed correctly, once they are satisfied that the
transaction is in accordance with the memorandum and articles of association.
Shareholders, for example, need not enquire whether the necessary meeting was convened and
held properly or whether necessary resolution was passed properly. They are entitled to take it
for granted that the company had gone through all these proceedings in a regular manner.
The doctrine helps protect external members from the company and states that the people are
entitled to presume that internal proceedings are as per documents submitted with the Registrar
of Companies.
The doctrine of indoor management evolved around 150 years ago in the context of the doctrine
of constructive notice. The role of doctrine of indoor management is opposed to of the role of
doctrine of constructive notice.
Whereas the doctrine of constructive notice protects a company against outsiders, the doctrine of
indoor management protects outsiders against the actions of a company. This doctrine also is a
possible safeguard against the possibility of abusing the doctrine of constructive notice.
2. If not for the doctrine, the company could escape creditors by denying the authority of
officials to act on its behalf.
Negligence: If, with a minimum of effort, the irregularities within a company could be
discovered, the benefit of the rule of indoor management would not apply. The protection of the
rule is also not available where the circumstances surrounding the contract are so suspicious as to
invite inquiry, and the outsider dealing with the company does not make proper inquiry.
Forgery: The rule does not apply where a person relies upon a document that
turns out to be forged since nothing can validate forgery. A company can
never be held bound for forgeries committed by its officers.
Advantages
(1) Huge Financial Resources : A company can collect large sum of money
from large number of shareholders. There is no limit on the number of
shareholders in a public company. Since its capital is divided into shares
of small value even a person of small means can contribute to its capital
by simply purchasing its shares. It facilities the mobilization of savings of
millions for the productive purposes. In addition, a company can borrow
from banks to a large extent and also issue debentures to public.
Disadvantages
(6) Oligarchic Management : The shareholders who are the real owners do
not have much voice in the management. A handful of shareholders, which
also manage the affairs of the company, are able to have control over it.
Theoretically the company is democratic, but in practice it is mostly a case
of oligarchy (Rule by few). A few persons hold power and control and try
to exploit the majority. Thus, it does not promote the interest of the
shareholders in general.
(9) Neglect of Minority : All major issues in company are decided by the
shareholders having majority of them. Majority group always dominate
over the minority group whose interest are never represented in the
management. The company act provides measures against oppression of
minority, but the measures are not very effective.
Advantages
Easy to establish.
Disadvantages.
Any act of the partner without the other partner, may bind
the LLP.
2.A very substantial part of the Bill will be in form of rules, which will be
prescribed separately. This paves way of or changes to operational prov
isions of Act without amendment and parliament nod.
NFRA : This being constituted without the concept paper being discussed and
stakeholders comments received may not be appropriate.
Too many matters left to the rules and the rules proposed are not yet clear
Penalties: The penalties and the liabilities being substantially increased without looking
at the nature of the offence.
Person not defined so, even companies etc., could form a one person company
Interested director
Clause 184 (2) now also provides for interested director not participating in such
contracts in board meetings
Auditors a firm where majority of partners are chartered accountants Does this pave
way for a firm which has non CAs as members?
Not to have business relationships directly or indirectly with any group entity (of such
nature as prescribed)
Covers auditor, firm and also all other entities they are related to actual coverage
needs to be clarified
Covers not only the company but its holding coy subsidiary and associate
Auditor Rotation
Right to terminate (by special resolution and previous CG clearance) / right to resign
exists in between also
Also, members can seek conduct of audit by more than one auditor
All listed entities are required to file changes in shareholding of top ten shareholders
and promoters within 15 days of such change!
Internal auditor
Registered Valuers
Business Friendly
Speedy incorporation process
Simple and short process for holding and WOS or small companies
E-enable
Voting through electronic means by members at meeting
The Companies Act 2013 passed by the Parliament received the assent of the President of India
on 29th August 2013. The Act consolidates and amends the law relating to companies. The
Companies Act 2013 was notified in the Official Gazette on 30th August 2013. Download the
complete Act: Companies Act 2013. Some of the provisions of the Act have been implemented
by a notification published on 12th September, 2013. The provisions of Companies Act 1956 are
still in force.
There are more than 450 + sections, 7 schedules and 29 chapters, but today we will highlight few
important ones which may be relevant to financial advisors who transact business as a Pvt. Ltd.
Company or Small company (as per the new definition) or for those who would like to start an
One person Company. Under any circumstances this is not an exhaustive list. Those who are
interested may visit http://www.mca.gov.in to get the complete details about the Companies Act
2013
It's a Private Company having only one Member and at least One Director. This concept is
already prevalent in the Europe, USA, China, Singapore and in several countries in the Gulf
region. It was first recommended in India by an expert committee (headed by Dr. J.J. Irani) in
2005. The one basic pre-requisite to incorporate an OPC is that the only natural-born citizens of
India, including small businessmen, entrepreneurs, artisans, weavers or traders among others can
take advantage of the One Person Company (OPC) concept outlined in the new Companies Act.
The OPC shall have minimum paid up capital of INR 1 Lac and shall have no compulsion to
hold AGM (Annual General meeting).
What is a small Company
-
It means a company, other than a public company, paid-up share capital of which does not
exceed fifty lakh rupees or such higher amount as may be prescribed which shall not be more
than five crorerupees; or turnover of which as per its last profit and loss account does not exceed
two Crore rupees or such higher amount as may be prescribed which shall not be more than
twenty Crore rupees. The 2013 Act provides exemptions to Small Companies primarily from
certain requirements relating to board meeting, presentation of cash flow statement and certain
merger process
Articles of Association
- In the next General Meeting, it is desirable to adopt Table F as standard set of
Articles of Association of the Company with relevant changes to suite the
requirements of the company. Further, every copy of Memorandum and Articles
(MOA) issued to members should contain a copy of all resolutions / agreements that
are required to be filed with the Registrar of companies (ROC).
Commencement of business
For all the companies (public/private company) registered under Companies Act
2013 needs to file the following with the Registrar of Companies (ROC) in order to
commence their business
2..A confirmation that the company has filed a verification of its registered office
with the Registrar of companies (ROC)
In the case of a company requiring registration from any sectoral regulators such as RBI, SEBI
etc., approval from such regulator shall be required prior to starting the business.
Financial Year
- The Companies Act 1956 Act provided companies to elect financial year. The
Companies Act 2013 Act eliminates the existing flexibility in having a financial year
different than 31 March. The 2013 Act provides that the financial year for all
companies should end on 31 March, with certain exceptions approved by the
National Company Law Tribunal. Companies should align the financial year to 31
March within two years from 01 April 2014.
Further, it requires appointment of at least one woman director on the board for prescribed class
of companies. It also requires that company should have at least 1 (one) resident director i.e. who
has stayed in India for a total period of not less than 182 (hundred and eighty two days) in the
previous calendar year.
All existing directors must have Directors Identification Number (DIN) allotted by central
government. Directors who already have DIN need not take any action. However, Directors not
having DIN should initiate the process of getting DIN allotted to him and inform the respective
companies on which he is a director. The Company, in turn, has to inform the registrar of
companies (ROC).
Independent Directors
- The 2013 Act defines the term "Independent Director" . In case of listed
companies, one third of the board of directors should be independent directors.
There is a transition period of 1 (one) year form 01 April 2014 to comply with this
requirement. The 2013 Act also provides additional qualifications/ restrictions for
independent directors as compared to the 1956 Act.Section 150 enables manner of
selection of independent directors and maintenance of databank of independent
directors and enables their selection out of data bank maintained by a prescribed
body
Resident Director:
Every Company must have atleast one director who has stayed in India for a total period of 182
days or more in previous calendar year. For existing companies, the compliance need to be made
before 31st March 2015.
Loans to director
The Company cannot advance any kind of loan / guarantee / security to any
director, Director of holding company, his / her partner/s, his/ her relative/s, Firm in
which he or his relative is partner, private limited in which he is director or member
or any bodies corporate whose 25% or more of total voting power or Board of
Directors is controlled by him.
Board meetings
- Atleast 7 days notice to be given for Board Meeting. The Board need to meet
atleast 4 times within a year. There should not be a gap of more than 120 days
between two consecutive meetings.
Appointment of Statutory Auditors
- Every Listed company can appoint an individual auditor for 5 years and a firm of
auditors for 10 years. This period of 5 / 10 years commences from the date of their
appointment. Therefore, those companies who have reappointed their statutory
auditors for more than 5 / 10 years, have to appoint another auditor in their Annual
General Meeting for year 2014.
Contributing to Incubators, which has been notified by the Government of India, is eligible for
spending under CSR. This is a prosperous time for incubators and entrepreneurs and can really
change the entrepreneurial eco system in India.
Financial statements
- Financial Statements are now defined under the Act as comprising of the following.
All companies (except one person Company, small company and dormant
company)are now mandatorily required to maintain the following, which may not
include the cash flow statement)
1)A balance sheet as at the end of the financial year2 )A profit and loss
account / an income and expenditure account for the financial year, as the
case may be 3)Cash flow statement for the financial year.4)A statement of
changes in equity (if applicable) ..4)Any explanatory note annexed to, or
forming part of, any document referred to in sub-clause (i) to sub-clause (iv)
1. Promotion of a Company
2. Registration of a Company
1. Promotion of a Company:
A business enterprise does not come into existence on its own. It comes into existence as a
result of the efforts of an individual or group of people or an institution. That is, it has to be
promoted by some person or persons. The process of business promotion begins with the
conceiving of an idea and ends when that idea is translated into action i.e., the
establishment of the business enterprise and commencement of its business.
A successful promoter is a creator of wealth and an economic prophet. The person who is
concerned with the promotion of business enterprise is known as the Promoter. He
conceives the idea of starting a business and takes all the measures required for bringing
the enterprise into existence. For example, Dhirubhai Ambani is the promoter of Reliance
Industries.The promoters find out the ways to collect money, investigate business ideas
arranges for finance, assembles resources and establishes a going concern.The company
law has not given any legal status to promoters. He stands in a fiduciary position.
Types of Promoters
2. Registration of a Company
It is registration that brings a company into existence. A company is properly formed only
when it is duly registered under the Companies Act.
Procedure of Registration
In order to get the company registered, the important documents required to be filed with
the Registrar of Companies are as follows.
2. Articles of Association: This document is signed by all those persons who have signed the
Memorandum of Association.
3. List of Directors: A list of directors with their names, address and occupation is to be
prepared and filed with the Registrar of Companies.
4. Written consent of the Directors: A written consent of the directors that they have agreed
to act as directors has to be filed with the Registrar along with a written undertaking to the
effect that they will take qualification shares and will pay for them.
5. Notice of the Address of the Registered Office: It is also customary to file the notice of the
address of the companys registered office at the time of incorporation. It is to be given
within 30 days after the date of incorporation.
b. of a High Court, or
When the required documents have been filed with the Registrar along with the prescribed
fee, the Registrar scrutinizes the documents. If the Registrar is satisfied, the name of the
company is entered in the register. Then the Registrar issues a certificate known as
Certificate of Incorporation.
3. Certificate of Incorporation
As soon as a private company gets the certification of incorporation, it can can commence
its business. A public company can commence its business only after getting the certificate
of commencement of business. After the company gets the certificate of incorporation, a
public company issues a prospectus for inviting the public to subscribe to its share capital.
It fixes the minimum subscription. Then it is required to sell the minimum number of
shares mentioned in the prospectus.
After completing the sale of the required number of shares, a certificate is sent to the
Registrar along with a letter from the bank stating that all the money is received.
The Registrar then scrutinizes the documents. If he is satisfied he issues a certificate known
as Certificate of Commencement of Business. This is the conclusive evidence for the
Commencement of Business.
Classification of Promoters.
1. Professional promoters
2. Occasional promoters
3. Promoters
Professional promoters
Rights of promoters
Definition of 'Shares'
The capital of a company is divided into shares. Each share forms a unit of ownership of
a company and is offered for sale so as to raise capital for the company.
Shares can be broadly divided into two categories - equity and preference shares. Equity
shares give their holders the power to share the earnings/profits in the company as well as a
vote in the AGMs of the company. Such a shareholder has to share the profits and also bear the
losses incurred by the company.
On the other hand, preference shares earn their holders only dividends, which are fixed, giving
no voting rights. Equity shareholders are regarded as the real owners of the company. When the
shares are offered for sale directly by the company for the first time, they are offered in the
primary market, whereas the trading of shares takes place in the secondary market.
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Meaning And Types Of Share Capital
2.Issued Capital
Generally, a company does not issue its authorized capital to the public for subscription, but issues a part
of it. So, issued capital is a part of authorized capital, which is offered to the public for subscription,
including shares offered to the vendor for consideration other than cash. The part of authorized capital not
offered for subscription to the public is known as 'un-issued capital'. Such capital can be offered to the
public at a later date.
3.Subscribed Capital
It can not be said that the entire issued capital will be taken up or subscribed by the public. It may be
subscribed in full or in part. The part of issued capital, which is subscribed by the public, is known as
subscribed ccapital
4.Called Up Capital
It is that part of subscribed capital, which is called by the company to pay on shares allotted. It is not
necessary for the company to call for the entire amount on shares subscribed for by shareholders. The
amount, which is not called on subscribed shares, is called uncalled capital.
5. Paid-up Capital
It is that part of called up capital, which actually paid by the shareholders. Therefore it is known as real
capital of the company. Whenever a particular amount is called and a shareholder fails to pay the amount
fully or partially, it is known an unpaid calls or calls in arrears.
Paid-up Capital = Called up capital - calls in arrears
6. Reserve Capital
It is that part of uncalled capital which has been reserved by the company by passing a special resolution
to be called only in the event of its liquidation. This capital can not be called up during the existence of the
company.It would be available only in the event of liquidation as an additional security to the creditors of
the company
Related Topics
Meaning Of Equity Shares, Ordinary Shares Or Common Stock
Meaning And Types Of Preference Shares
Distinction Between Equity Share And Preference Share
What are the required guidelines for issuing fresh share capital ?
The Ministry of Finance (Deptt. of Economic Affairs), Office of the Controller of Capital Issues,
issued a press note on 14th May 1975 prescribing the guidelines for issue of fresh share capital.
Under the Capital Issues (Control) Act, 1947 all companies whose issue of share Capital is not
specifically excluded by the Capital Issues (Exemption) Order,1969, are required to obtain the
approval of the Controller of Capital Issues in the form of a letter of acknowledgement or a
consent. The guidelines for the examination of Issue of Share Capital other than Bonus Shares
are indicated below for the guidance of such companies.
17 essential steps for for issuing fresh share capital
1. All applications should be submitted to the Controller of Capital Issues in the prescribed form
duly accompanied by a Treasury Challan for fees payable under the Act,
2. The applications should be accompanied by a true copy of the Industrial License, wherever
necessary, or registration with the Director General, Technical Development, for the project.
3. A realistic estimate of the project cost will be furnished together with the precise scheme of
finance. In respect of financial assistance from the financial institutions, copies of their letters
indicating their participation in the financing of the capital cost should be forwarded.
5. Where the issue of equity capital involves an offer for subscription by the public for the first
time, the value of equity capital subscribed privately by the promoters, directors and their friends
shall not be less than fifteen per cent of the total issued equity capital, if it does not exceed one
crore of rupees, twelve-and-a half per cent, if it does not exceed two crores of rupees and ten per
cent, if it is in excess of two crores of rupees.
6. Ordinarily issue of shares for consideration other than cash is not permitted. In exceptional
cases where the parties desire that shares should be allowed in lieu of the assets transferred,
detailed information in regard to the valuation of such assets together with the copies of
necessary valuation reports be furnished.
7. In case of companies registered under the M.R.T.P. Act, they are advised to ensure that the
requisite approval under the M.R.T.P. Act has been obtained before making an application to the
Controller of Capital Issues.
8. To finance the capital cost of the project, the capital structure should be such that an equity
debt ratio of 1 : 2 is considered fair and reasonable. In case of capital intensive industries, a
higher equity debt ratio can be considered on merits of such case.
10. The rate of dividend on preference shares should be within the ceiling as notified by the
Controller of Capital issues from time to time.
11. No premium is allowed in respect of a new company making its first issue of shares.
12. There should be satisfactory underwriting arrangements in respect of new issues and the
names of underwriters together with the amounts underwritten should be indicated in the
application, except it case of Right Shares.
13. No company is expected to make an allotment of shares to nonresidents except with the prior
approval in writing of the Government of India or of the Reserve Bank of India and a copy of
such approval should be attached to the application if the shares are proposed to be allotted to
non-residents.
14. If any firm allotment is intended to be given in favour of the public financial institutions, the
particulars thereof should be furnished in the application.
15. Any arrangement reached by the company or commitment made prior to the issue of the
capital which has a significant impact on the capital, cost estimate or the capital structure of the
company, the same may be disclosed along with the application.
16. A certificate duly signed by the Secretary and/or Director of the company stating that the
information furnished is complete and correct, be annexed to the application. Similarly a
certificate from the Auditors of the company stating that the information in the application has
been verified by them and is found to be true and correct to the best of their knowledge and
information, be furnished.
17. Before making an application to the Controller of Capital Issues for issue of fresh share
capital as rights shares, companies are further required to give in a letter addressed to the
existing shareholders information in sufficient details as to how they propose to utilize the
additional moneys that are being raised by the rights issue and give some broad ideas of the
future earnings after the investment of such additional capital. (This guideline has been added
with a view to enabling the shareholders to decide well in advance whether they should subscribe
or not to the rights issue).
Private Placement
What is a 'Private Placement'
Since a private placement is offered to a few select individuals, the placement does not
have to be registered with the Securities and Exchange Commission(SEC). In many
cases, detailed financial information is not disclosed and the investment is not sold
by prospectus.
The SEC regulates how securities are sold to the public through the Securities Act of
1933. This law was put into place after the stock market crash of 1929 to ensure that
investors receive sufficient disclosure when they purchase securities. If a company
wants to issue stocks or bonds to the public, it must register with the SEC and sell the
security using a prospectus.
Regulation D of the 1933 Act provides an exemption to the prospectus requirement. The
regulation allows an issuer to sell securities to a limited number of accredited
investors or sophisticated investorswith a high net worth. Instead of a prospectus, these
securities are sold using a private placement memorandum (PPM) and cannot be
broadly marketed to the general public.
Factoring in Advantages
The private placement regulations allow an issuer to avoid the time and expense of
registering with the SEC and creating a prospectus. The process of underwriting the
security is faster, which allows the issuer to receive proceeds from the sale in less time.
If an issuer is selling a bond, it can also avoid the time and expense to get a credit
rating from a bond agency. A private placement issuer can sell a more complex security
to sophisticated investors who understand the potential risks and rewards, and the firm
can remain a privately owned company, which avoids the need to file annual disclosures
with the SEC.
Disadvantages
The buyer of a private placement bond issue expects a higher rate of interest than he
earns on a publicly traded security. Because of the additional risk of not obtaining a
credit rating, a private placement buyer may not buy a bond unless the bond is secured
by specific collateral. A private placement stock investor may demand a higher
percentage of ownership in the business or a fixeddividend payment per share of stock.
public issue
Definition
Issue of stock on a public market rather than being privately funded by the companies own
promoter(s), which may not be enough capital for the business to start up, produce, or continue
running. By issuingstock publically, this allows the public to own a part of the company, though not be
a controlling factor.
You need to make sure that you know what a good public issuewould be and try to get in early
on.
It was a public issue and we all thought it was best for us to just avoid what we did and how
we did it.
l The public issue of Google was indeed a big event, because many investors turned out for one of