Suyog S Kabra
1. The offer for buy back is not made within 1 year of closure of preceding offer buy back.
2. The Articles of association authorize buy back of securities. If not , a special resolution for amending the articles of association under section 14 of Companies Act 2013 has been passed by the company in general meeting
3. Form No. MGT – 14 as per Companies (Management and Administration) Rules, 2014 has been filed with RoC within 30 days of passing the special resolution
4. In case, buy back of securities are up to 10% of total paid up equity capital and free reserves, where a board resolution was passed authorizing the buy-back.
5. A special resolution has been passed in general meeting authorizing the board to buy back
(Note – This is not applicable in case the buy back is ten percent or less of paid up capital and free reserves of the company)
6. The explanatory statement is required to be annexed to the notice of general meeting, pursuant to section 102 contains the disclosures mentioned in rule 17(1) of companies (share capital and debentures) rules 2014 in this behalf
[Note : Refer rule 17(1)]
7. After passing of special resolution but before buy back, the letter of offer has been filed with RoC in Form No. SH – 8 with the required fee.
8. The letter of offer has been dated and signed on behalf of the board by not less than two directors of the company, one of whom shall be the managing director, where there is one.
9. The shares or other securities so bought back are extinguished and physically destroyed within seven days of the completion of buy back.
10. The declaration of solvency required pursuant to section 68(6) of the companies Act 2013 has been filed in Form No. SH – 9 as per Companies (share capital and debentures) Rules 2014
11. The declaration of solvency has been signed and verified by at least two directors, one of whom shall be the managing director of the company, if any.
12. The company maintains a register of shares or other securities which have been bought back in Form No. SH – 10 as per Companies (share capital and debentures) Rules 2014
13. The company has filed a return within 30 days of completion of buy back in form no. SH – 11 as per Companies (share capital and debentures) Rules 2014 with ROC and in case of listed company with SEBI
14. The Certificate of compliance in Form No. SH 15 signed by two directors of the company including the managing director, if any, and verified by company secretary in practice is annexed to return filed with RoC in Form No. SH – 11
15. The company has not issued shares of the same kind within a period of 6 Months except by way of bonus issue or discharge of subsisting obligation.
Indicative list of documents to be checked
· Articles of Association
· Minutes of Board meeting
· Minutes of General meeting
· Notice authorizing buy back along with Explanatory Statement
· Letter of offer (SH – 8)
· Declaration of Solvency (SH-9)
· Register of shares/other securities bought back (SH-10)
· Return of Buy back (SH – 11)
· Certificate of Compliance (SH-15)
· MGT – 14
(Suyog S Kabra is partner with White Collar Legal LLP and can be reached at whitecollarlegal@gmail.com)
