RAISING OF CAPITAL THROUGH PREFERENTIAL ALLOTMENT BY LISTED ENTITY:
A Company can raise funds via three means: (1) Deposits (2) Loans (3) Capital. Under Companies Amendment Act 2017, A Company can raise funds or Capital in three ways: (1) Private Placement/ Preferential Allotment (2) Right Issue (3) Bonus Issue. Let’s discuss about rising of fund or Capital through preferential allotment where a Company has to Comply with the conditions of the Private Placement.
If we focus on the term Preferential allotment the expression “PREFERENTIAL ALLOTMENT” means an issue of shares or other securities, by a Company to any select person or group of persons on preferential basis and does not include shares or other securities offered through a public issue, right issue, employee stock option scheme, employee stock purchase scheme or an sweet equity issue or bonus issue or depository receipts issued in a country outside India or foreign securities;
While making Preferential issue a Company has to comply with the following conditions before issue:
1. Approval from shareholders shall be taken, either though AGM or EGM or Postal Ballot.
2. Ensure Issue to be authorized by Article of Association.
3. Prepare a list of persons (not exceeding 200 in a financial year for each kind of security )to whom offer may be made. Get the Application letter and consent letter prepared and obtain the same from the proposed allottees before the board meeting to consider the Preferential issue .
4. Separate Bank account in a Scheduled bank to be opened through which subscriber can subscribe its share, and money received in that account to be utilized for the allotment or return only.
5. Value of offer / invitation per person not less than 20,000/-of face value of the Security.
6. Only fully paid up securities to be issued.
For Listed Company existing proposed allottees shall have shares in dematerialised form.
7. Shall not make preferential issue unless it:
a) Is in compliance with the conditions of continuous listing
b) Has obtained PAN of all the proposed allottees.
8. Issuer Company cannot make issue to any person who has sold any equity shares during the six months preceding the relevant date. (Explained below under the heading of person ineligible for issue)
(Relevant Date means a date 30 days prior to the date on which the general meeting of the Company is held)
> Person belonging to promoter or promoter group who has sold his equity shares six months preceding the relevant date:
> Person belonging to promoter or promoter group who has earlier applied for warrant but failed to exercise it.
As per SEBI guidelines if shares are issued on preferential basis by listed entity then these shares to be locked in for certain period of time.
*Total capital of the issuer means- equity share capital issued by way of public issue or right issue including equity shares issued pursuant to conversion of specified securities which are convertible; and specified securities issued on a preferential basis to promoter or promoter group.
The price of shares or other securities to be issued on preferential basis shall not be less
than the price determined on the basis of valuation report of a registered valuer or Independent Valuer having 10 year of experience.
For Listed Company, has to comply the following regulation as per SEBI Regulations.
a) Where the equity shares of the Company has been listed on a stock exchange for a period of equal to more than 26 weeks on relevant date at a price not less than higher of the following:-
b) where the equity shares of the company has been listed on a stock exchange for a period of less than 26 weeks on relevant date at a price not less than higher of the following:-
The Company shall prepare the Offer letter in form PAS-4 and maintain the complete record of preferential allotment in PAS-5.
The procedure for issue of shares or other securities on Preferential Basis is a long process and can be divided into three steps: (1) Board Meeting before issuance (2) General Meeting for issuance (3) Board Meeting for allotment.
Before Board Meeting the following points need to be consider for Preferential Issue
> Ensure that no allotment against any previous offer / invitation of any kind of security is pending.
> Intimate to all the stock exchanges atleast 7 days in advance of the board meeting to consider Preferential Issue (if issuer Company is Listed Entity). Dispatch notices and agenda to all the directors in writing as well.
> In case proposed allottees holds any shares in the company prior to preferential issue the same should be held by them in Demat form so in case of any physical holders get the shares dematerialized and to be lock in as per SEBI guidelines.
> Hold the Board meeting and the get the Preferential Issue and increase in authorised capital if required approved by the Board.
Hold Board Meeting:
> Check the quorum of Board Meeting.
> Identify the person to whom you will issue shares.
> Prepare list of such persons.
> Prepare Draft offer letter under PAS-4.
> Pass Board Resolution for approval of offer letter.
> Issue Notice of General Meeting. As per SS-2.
> General Meeting Notice should contain Explanatory Statement for Preferential Issue as per Rule 13 of Companies Rule (Share capital & Debentures) Rules, 2014.
Post Board Meeting:
> Within thirty minutes of the board meeting intimate the stock exchange about outcome of the board meeting as regards to decision of the board to issue shares on preferential basis, notice of EGM/AGM/Postal Ballot and increase in authorised share capital if required.
> copies of notice of EGM/AGM should be send to the stock exchange , NSDL, CDSL , R& T Agents to all the shareholders as well also send the same to the auditors , Practicing Company Secretary, and directors.
> However In principle approval will be obtained by the company only after EGM/AGM is held as we have to submit EGM/AGM resolution for obtaining Prior Preferential Issue In principle approval.
> Book the meeting hall for EGM/AGM.Advertise the notice of AGM/EGM in the newspapers.
> Check the quorum of Meeting as per section 103.
> Present Offer Letter in PAS-4 before the members of the meeting.
> Pass Special Resolution for Preferential allotment of Shares.
After General Meeting and receiving Money hold Board Meeting for allotment of shares:
> Issue Notice of Board Meeting to all the directors of company at least 7 days beforethe date of Board Meeting.
> Attach Agenda of Board Meeting along with Notice.
> Hold the Board Meeting (Intimation of SE about holding of Board Meeting before 7 days of Board Meeting).
> Proceeding of the Board Meeting to be sent to Stock Exchange as per LODR Regulations, 2015 for allotment of Shares to proposed allottees.
> Share/ Share Certificates to be issued within 2 months of allotment.
> Entry in Register of Members.
(Attachment Special resolution for issuance of equity shares on preferential basis)