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Unlock the procedural intricacies of share buybacks in private/unlisted companies under the Companies Act, 2013. Explore the significance of Rule 17 and navigate the complexities of Sections 68, 69, and 70. Understand the modes, conditions, and step-by-step process for successful share buybacks.

Deciphering the Intricacies of Share Buybacks: Unraveling Sections 68, 69, and 70 of the Companies Act, 2013 Alongside the Significance of Rule 17 of Companies (Share Capital and Debentures) Rules, 2014

Welcome to a comprehensive exploration of the world of share buybacks as governed by the Companies Act, 2013. In addition, we’ll delve into the transformative impact brought about by Rule 17 from the Companies (Share Capital and Debentures) Amendment Rules, 2016. Buckle up as we embark on a journey to understand the various dimensions of share buybacks, their methods, conditions, and procedural intricacies.

Modes of Buyback of Shares of Private/Unlisted Company

One of the first points of interest is the various modes through which a company can execute a share buyback:

1. Proportionate Basis: A company can choose to buy back shares from its existing shareholders or security holders on a proportionate basis. This means that the allocation of buyback shares is directly proportional to their current ownership in the company.

2. Open Market: Alternatively, companies can opt to buy back shares from the open market. This method involves purchasing shares from the open stock market, which provides more flexibility and less direct influence over the shareholders involved.

3. Employee Schemes: Another avenue for buyback lies in purchasing securities issued to employees through schemes like stock options or sweat equity. This approach aligns with incentivizing and rewarding the company’s workforce.

Sources for Buyback of Shares of Private/Unlisted Company

Equally important is understanding where the funds for share buybacks can be sourced from. Companies have several options, including:

  • Free Reserves: Utilizing the accumulated free reserves of the company to fund the buyback process.
  • Securities Premium Account: Tapping into the securities premium account to finance the buyback.
  • Proceeds from Share or Securities Issuance: Alternatively, companies can use the proceeds generated from the issuance of new shares or securities to facilitate the buyback.

However, it’s vital to note that the source of funds for buybacks cannot come from the proceeds of a prior issuance of the same category of shares or securities. This rule ensures the integrity of the buyback process and prevents any misuse of funds.

Essential Conditions for Buyback of Shares of Private/Unlisted Company

For a successful and compliant buyback, certain conditions must be met:

  1. Authorization by Company’s Articles: The company’s articles of association must specifically authorize share capital buybacks. In cases where the articles lack relevant provisions, they need to be modified in accordance with the provisions of the Companies Act, 2013.
  2. Shareholder Approval via Special Resolution: Except for specific cases, buybacks require shareholder approval through a special resolution passed in a general meeting. However, if the buyback is 10% or less of the company’s total paid-up equity capital and free reserves, board authorization through a board resolution is sufficient.
  3. Maximum Limit: The aggregate value of the shares bought back should not exceed 25% of the paid-up share capital and free reserves of the company.
  4. Debt-Equity Ratio Post-Buyback: Following the buyback, the debt-equity ratio of the company must not exceed 2:1.
  5. Fully Paid-Up Shares or Securities: Only fully paid-up shares or securities can be bought back.
  6. Completion Period: Every buyback process must be completed within one year from the date of passing the special resolution or board resolution, as the case may be.
  7. Minimum Gap Between Buyback Offers: There must be a minimum gap of one year between two successive buyback offers.

These conditions ensure that buybacks are conducted with transparency, accountability, and adherence to regulatory norms.

Step-by-Step Process for Buyback of Shares of Private/Unlisted Company

Let’s navigate through the step-by-step process that private or unlisted companies need to follow for a successful buyback:

1. Article Authorization: Ensure that the company’s articles of association authorize the buyback of share capital. In case of absence of relevant provisions, modify the articles in line with the provisions of the Companies Act, 2013.

2. Convene a Board Meeting: If the buyback constitutes 10% or less of the company’s total paid-up equity capital and free reserves, the Board of Directors can authorize the proposal through a resolution passed during a board meeting.

3. Convene a General Meeting: For any buyback exceeding the 10% threshold, the proposal must be authorized by a special resolution passed in a duly convened General Meeting.

4. File Form MGT-14 with ROC: Within 30 days of passing the Board Resolution or Special Resolution in the General Meeting, as the case may be, file Form MGT-14 with the Registrar of Companies (ROC). This submission should include requisite documents and fees as specified in the Companies (Registration offices and fees) Rules, 2014.

5. Declaration of Solvency: Prior to the buyback, file a declaration of solvency in Form SH.9 along with the letter of offer in Form SH-8. This declaration should be signed by a minimum of two directors, with one of them being the managing director, if applicable. The declaration should affirm that the Board of Directors has conducted a thorough assessment of the company’s financial affairs and ascertained its capability to meet its liabilities without rendering the company insolvent within a year from the declaration’s adoption.

6. Dispatch the Letter of Offer: Once the necessary filings are made, dispatch the letter of offer to shareholders or security holders. This should occur promptly after filing but not later than 20 days from the filing date with the Registrar of Companies.

7. Offer Period: The offer for the buyback should remain open for a period of not less than 15 days and not exceeding 20 days from the date of dispatch of the letter of offer. However, in cases where all members of the company are in agreement, the offer period may be less than 15 days.

8. Verification of Offer: The company is required to complete the verification of offers received within 15 days from the closure of the offer. If no communication of rejection is conveyed within 21 days from the closure date, the shares or other securities lodged will be deemed accepted.

9. Open a Separate Bank Account: Following the closure of the offer, the company must immediately open a separate bank account. This account will hold the necessary funds to cover the entire sum due and payable as consideration for the shares tendered for buyback, as per the stipulated rules.

10. Extinguishment of Shares/Securities: Within seven days of the last date of completion of the buyback, the company should extinguish and physically destroy the shares or securities that were bought back. This step ensures the removal of such shares or securities from circulation.

11. File Form SH-11: After the completion of the buyback, the company should file a return in Form No. SH.11 within 30 days of the completion date. This filing should be made with the Registrar, accompanied by stipulated fees and specific documents, including a description of the bought-back shares or securities, particulars relating to holders of securities before the buyback, a certified true copy of the special resolution passed at the general meeting, a certified true copy of the board resolution authorizing the buyback, the company’s balance sheet, and a declaration certifying that the buyback was conducted in compliance with the provisions of the Companies Act and the relevant rules.

12. Maintain the Statutory Register: The company is also obligated to maintain a register of shares or other securities that have been bought back. This register, Form No. SH.10, should be housed at the company’s registered office and be in the custody of the Company Secretary or another individual authorized by the board for this purpose. The entries in this register should be authenticated by the Company Secretary or the authorized individual.

Navigating Complex Waters: Share Buybacks and the Companies Act

Understanding and adhering to Sections 68, 69, and 70 of the Companies Act, 2013, along with the ramifications of Rule 17 from the Companies (Share Capital and Debentures) Amendment Rules, 2016, is crucial for private and unlisted companies aiming to conduct successful share buybacks. Compliance not only ensures seamless navigation through the intricate landscape of corporate regulations but also upholds transparency, accountability, and the credibility of the company’s operations.

Feel free to ask any questions or share your thoughts on this multifaceted subject. Let’s together uncover the depths of share buybacks and gain insights into their role within the broader framework of corporate governance.


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One Comment

  1. MIta says:

    Kindly clarify process of extinguishment of shares that were bough back as erstwhile Private Limited Company and Unlisted Public Limited Company (Buy-Back of Securities) Rules, 1999 provided for presence of Practising CS whereas the Companies Act 2013 and Rules are silent.

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July 2024