Demat of Securities by Unlisted Public Companies

NOTE ON ISSUE OF SECURITIES IN DEMATERIALISED FORM BY UNLISTED PUBLIC COMPANIES (Applicable w.e.f. 30^th September 2019)

Governing laws:

A. Companies Act, 2013 (Act)

B. The Companies (Prospectus and Allotment of Securities) Rules, 2014 (Rules)

C. Depositories Act, 1996

D. Securities and Exchange Board of India (SEBI)

E. Securities and Exchange Board of India (Depositories and participants) Regulations, 2018.

F. Companies (Registration Offices and Fees) Rules, 2014.

Background:

Prior to this amendment every unlisted public company pursuant to regulation 55A of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996 were required to submit an audit report on a half yearly basis to the Registrar under whose jurisdiction the registered office of the company is situated.

A Brief:

1. Every unlisted public company, pursuant to Rule 9A of Rules shall;

• Issue the securities only in dematerialized form; and
• Facilitate the dematerialization of all its existing securities as per the Depositories Act, 1996 and relevant regulations made thereunder.

As per section 2(71) of the Act, public companies means a company which –

1. is not a private company and

2. has a minimum paid up share capital as may be prescribed

Provided that a company which is a subsidiary of a company, not being a private company, shall be deemed to be public company for the purposes of this Act even where such subsidiary company continues to be a private company in its articles ;

2. Therefore, as mentioned above, every unlisted public company except a public company which is a Nidhi, a Government company or a wholly owned subsidiary making any offer for;

• issue of any securities, or
• buyback of securities, or
• issue of bonus shares, or
• rights offer,

shall ensure that entire holding of the following categories shall be dematerialized in accordance with the provisions of the Depositories Act, 1996.

• promoters
• directors
• key managerial personnel

3. Every holder of securities of unlisted public companies, who;

4. Every unlisted public company; shall

• facilitate dematerialization of all its existing securities by making necessary application to a depository as defined in clause (e) of sub-section (1) of section 2 of the Depositories Act, 1996; and
• secure International security Identification Number (ISIN) for each type of security; and
• inform all its existing security holders of such facility.

5. Every unlisted company shall ensure that;

6. It makes timely payment of fee (admission as well as annual) to depository and registrar to an issue and share transfer agent as per the agreement

7. It maintains security deposit of not less than two years fee with the depository and registrar

• It complies with the regulations or direction or guidelines of SEBI or depository

Note: No unlisted public company which has defaulted in point 5 above shall make offer of any securities or buyback its securities or issue any bonus or right shares till the payments to depositories or registrar to an issue and share transfer agent are made.

Compliance to be adhered:

Every such unlisted public company shall submit Form PAS-6 (Reconciliation of Share Capital Audit Report) [not yet notified] to the Registrar with such fee as provided in within sixty days from the conclusion of each half year duly certified by a company secretary in practice or chartered accountant in practice.

Deepak Bhardwaj, ACS LL.B CA (I) MBA