Provisions governing Buy Back of Shares under Companies Act 2013

Introduction: Buy Back of Shares means the purchase by the Company of its own shares. Buy Back of equity shares is an imperative mode of capital restructuring. It is a corporate financial strategy which involves capital restructuring and is prevalent globally with the underlying objectives of increasing Earnings per Share, averting hostile takeovers, improving returns to the stakeholders and realigning the capital structure. Buy Back is an alternative way of Reduction of Capital.

Legal Framework for Buy Back of Shares:

• Companies Act, 2013
• Companies (Share Capital and Debentures) Rules, 2014
• Securities and Exchange Board of India (Buy-back of Securities) Regulations, 1998 and Securities and Exchange Board of India (Buy-back of Securities) (Amendment) Regulations, 2013

For Unlisted Public and Private Companies	Ø  Section 68, 69 and 70 of Companies Act, 2013 Ø  Rule 17 of Companies (Share Capital and Debentures) Rules, 2014
For Listed Companies	Ø  Section 68, 69 and 70 of Companies Act, 2013Ø  Rule 17 of Companies ( Share Capital and Debentures) Rules, 2014Ø  Securities and Exchange Board of India (Buy-back of Securities) Regulations, 1998 and Securities and Exchange Board of India (Buy-back of Securities) (Amendment) Regulations, 2013

 Section 68- Power of Company to purchase its own securities:

 1. Purchase can be made out of:

• its free reserves;
• the securities premium account; or
• the proceeds of the issue of any shares or other specified securities:

No buy-back of any kind of shares or other specified securities shall be made out of the proceeds of an earlier issue of the same kind of shares or same kind of other specified securities.

2. Preliminary Conditions:

• must be authorized by its articles;
• a special resolution has been passed at a general meeting of the company authorizing the buy-back, but the same is not required when:

i. The buy-back is 10% or less of the total paid-up equity capital and free reserves of the company; and
ii.such buy-back has been authorized by the Board by means of a resolution passed at its meeting;

• The buy-back is twenty-five per cent or less of the aggregate of paid-up capital and free reserves of the company. But in case of Equity Shares, the same shall be taken as 25% of paid up equity capital only. Debt equity ratio should be 2:1. Where:

Debt is aggregate of secured and unsecured debts owed by the after buy-back Equity is aggregate of the paid-up capital and its free reserves;

• All the shares or other specified securities for buy-back are fully paid-up;
• If shares or securities are listed, buy back will be in accordance with the regulations made by the Securities and Exchange Board in this behalf; and
• The buy-back in respect of unlisted shares or other specified securities is in accordance Share Capital and Debentures Rules, 2014.
• No offer of buy-back shall be made within a period of one year from the date of the closure of the preceding offer of buy-back, if any.

3. Explanatory Statement:

The notice of the meeting at which the special resolution is proposed to be passed shall be accompanied by an explanatory statement stating various details as required.

4. Time Limit:

Every buy-back shall be completed within a period of one year from the date of passing of the special resolution, or as the case may be, the resolution passed by the Board.

5. Options for Buy back:

The buy-back can be from:

• from the existing shareholders or security holders on a proportionate basis;
• from the open market;
• by purchasing the securities issued to employees of the company pursuant to a scheme of stock option or sweat equity.

6. Solvency Declaration

Before making such buy-back, file with the Registrar, a declaration of solvency signed by at least two directors of the company, one of whom shall be the managing director, if any, Form No. SH.9 may be prescribed and verified by an affidavit to the effect that the Board of Directors of the company has made a full inquiry into the affairs of the company as a result of which they have formed an opinion that it is capable of meeting its liabilities and will not be rendered insolvent within a period of one year from the date of declaration adopted by the Board.

7. Extinguishment of Certificate:

Company shall extinguish and physically destroy the shares or securities so bought back within seven days of the last date of completion of buy-back.

8.  No further issue till 6 months:

Where a company completes a buy-back of its shares or other specified securities, it shall not make a further issue of the same kind of shares or other securities including allotment of new shares or other specified securities within a period of six months except by way of:

a bonus issue or

in the discharge of subsisting obligations such as conversion of warrants, stock option schemes, sweat equity or conversion of preference shares or debentures into equity shares.

9. Register to be maintained:

Company shall maintain a register in Form No. SH.10 of the shares or securities so bought, the consideration paid for the shares or securities bought back, the date of cancellation of shares or securities, the date of extinguishing and physically destroying the shares or securities. The register of shares or securities bought-back shall be maintained at the registered office of the company and shall be kept in the custody of the secretary of the company or any other person authorized by the board in this behalf. The entries in the register shall be authenticated by the secretary of the company or by any other person authorized by the Board for the purpose.

10. Return of Buy Back & a Declaration:

A company shall, after the completion of the buy-back under this section, file with the Registrar a return in Form No. SH.11 containing such particulars relating to the buy-back within thirty days of such completion. There shall be annexed to the return, a certificate in Form No. SH.15 signed by two directors of the company including the managing director, if any, certifying that the buy-back of securities has been made in compliance with the provisions of the Act and the rules made thereunder.

11. Punishment for any Default:

If a company makes any default in complying with the provisions of this section, the company shall be punishable with fine which shall not be less than one lakh rupees but which may extend to three lakh rupees and every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than one lakh rupees but which may extend to three lakh rupees, or with both.

Section 69-Transfer of certain sums to capital redemption reserve account:

1. Capital Redemption Reserve:

Where a company purchases its own share s out of free reserves or securities premium account, a sum equal to the nominal value of the shares so purchased shall be transferred to the capital redemption reserve account and details of such transfer shall be disclosed in the balance sheet.

2. Utilization of Capital Redemption Reserves:

The capital redemption reserve account may be applied by the company, in paying up unissued shares of the company to be issued to members of the company as fully paid bonus shares.

Section 70: Prohibition for Buy Back in certain circumstances:

1. Restriction on Buy Back:

No company shall directly or indirectly purchase its own shares or other specified securities—

(a) through any subsidiary company including its own subsidiary companies;

(b) through any investment company or group of investment companies; or

(c) if a default, is made by the company, in the repayment of deposits accepted either before or after the commencement of this Act, interest payment thereon, redemption of debentures or preference shares or payment of dividend to any shareholder, or repayment of any term loan or interest payable thereon to any financial institution or banking company:

Provided that the buy-back is not prohibited, if the default is remedied and a period of three years has lapsed after such default ceased to subsist.

2. Prohibitions:

No company shall, directly or indirectly, purchase its own shares or other specified securities in case such company has not complied with the provisions of:

Sections 92: Annual Return

Section 123: Declaration and Payment of Dividend

Section 127: Failure to pay Dividend

Section 129: Failure to give True and Fair Statement

Companies (Share Capital and Debentures) Rules, 2014

Rule 17: Buy-back of shares or other securities:

Unless stated otherwise, the following norms shall be complied with by the

• Private companies and
• Unlisted public companies for buy-back of their securities

1. Information disclosure in Explanatory Statement to be annexed with with Special Resolution and Notice of General Meeting:

The Explanatory Statement to be annexed to the notice of the general meeting pursuant to section 102 shall contain the following disclosures, namely:-

(a) The date of the board meeting at which the proposal for buy-back was approved by the board of directors of the company;

(b) the objective of the buy-back;

(c ) the class of shares or other securities intended to be purchased under the buy-back;

(d) the number of securities that the company proposes to buy-back;

(e) the method to be adopted for the buy-back;

(f )the price at which the buy-back of shares or other securities shall be made;

(g) the basis of arriving at the buy-back price;

(h )the maximum amount to be paid for the buy-back and the sources of funds from which the buy-back would be financed;

(i) the time-limit for the completion of buy-back;

(j)   (i) the aggregate shareholding of the promoters and of the directors of the promoter, where the promoter is a company and of the directors and key managerial personnel as on the date of the notice convening the general meeting;

(ii) the aggregate number of equity shares purchased or sold by persons mentioned in sub-clause (i) during a period of twelve months preceding the date of the board meeting at which the buy-back was approved and from that date till the date of notice convening the general meeting;

(iii) the maximum and minimum price at which purchases and sales referred to in sub-clause (ii) were made along with the relevant date;

(k) if the persons mentioned in sub-clause (i) of clause (j) intend to tender their shares for buy-back -

(i) the quantum of shares proposed to be tendered;

(ii) the details of their transactions and their holdings for the last twelve months prior to the date of the board meeting at which the buy-back was approved including information of number of shares acquired, the price and the date of acquisition;

(l) a confirmation that there are no defaults subsisting in repayment of deposits, interest payment thereon, redemption of debentures or payment of interest thereon or redemption of preference shares or payment of dividend due to any shareholder, or repayment of any term loans or interest payable thereon to any financial institution or banking company;

(m) a confirmation that the Board of directors have made a full enquiry into the affairs and prospects of the company and that they have formed the opinion-

(i) that immediately following the date on which the general meeting is convened there shall be no grounds on which the company could be found unable to pay its debts;

(ii) as regards its prospects for the year immediately following that date, that, having regard to their intentions with respect to the management of the company’s business during that year and to the amount and character of the financial resources which will in their view be available to the company during that year, the company shall be able to meet its liabilities as and when they fall due and shall not be rendered insolvent within a period of one year from that date; and

(iii) the directors have taken into account the liabilities(including prospective and contingent liabilities), as if the company were being wound up under the provisions of the Companies Act, 2013

(n) a report addressed to the Board of directors by the company’s auditors stating that-

(i) they have inquired into the company’s state of affairs;

(ii) the amount of the permissible capital payment for the securities in question is in their view properly determined;

(iii) that the audited accounts on the basis of which calculation with reference to buy back is done is not more than six months old from the date of offer document; and

(iv) the Board of directors have formed the opinion as specified in clause (m) on reasonable grounds and that the company, having regard to its state of affairs, shall not be rendered insolvent within a period of one year from that date.

2. File Letter of Offer with ROC in FORM SH-8:

The company which has been authorized by a special resolution shall, before the buy-back of shares, file with the Registrar of Companies (ROC) a letter of offer in Form No. SH.8, along with the fee:

Provided that such letter of offer shall be dated and signed on behalf of the Board of directors of the company by not less than two directors of the company, one of whom shall be the managing director, where there is one.

3. File Declaration of Solvency in FORM SH-9 along with FORM SH-8:

The company shall file with the Registrar, along with the letter of offer, and in case of a listed company with the Registrar and the Securities and Exchange Board, a declaration of solvency in Form No. SH.9 along with the fee and signed by at least two directors of the company, one of whom shall be the managing director, if any, and verified by an affidavit as specified in the said Form.

4. Circulate among the Shareholders in 20 days from filing with ROC:

The letter of offer shall be dispatched to the shareholders or security holders immediately after filing the same with the Registrar of Companies but not later than twenty days from its filing with the Registrar of Companies.

5. Offer Period between 15-30 days from the date of Circulation

The offer for buy-back shall remain open for a period of not less than fifteen days and not exceeding thirty days from the date of dispatch of the letter of offer.

6. Acceptance on proportionate basis:

In case the number of shares or other specified securities offered by the shareholders or security holders is more than the total number of shares or securities to be bought back by the company, the acceptance per shareholder shall be on proportionate basis out of the total shares offered for being bought back.

7. Verification by the Company:

The company shall complete the verifications of the offers received within fifteen days from the date of closure of the offer and the shares or other securities lodged shall be deemed to be accepted unless a communication of rejection is made within twenty one days from the date of closure of the offer.

8. Opening of Separate Bank Account:

The company shall immediately after the date of closure of the offer, open a separate bank account and deposit therein, such sum, as would make up the entire sum due and payable as consideration for the shares tendered for buy-back in terms of these rules.

1. Make payment or return Share Certificates:

The company shall within seven days of the time specified in point 7-

(a) make payment of consideration in cash to those shareholders or security holders whose securities have been accepted; or

(b) return the share certificates to the shareholders or security holders whose securities have not been accepted at all or the balance of securities in case of part acceptance

1. Other Restrictions:

The company shall ensure that—

(a) the letter of offer shall contain true, factual and material information and shall not contain any misleading information and must state that the directors of the company accept the responsibility for the information contained in such document;

(b) the company shall not issue any new shares including by way of bonus shares from the date of passing of special resolution authorizing the buy-back till the date of the closure of the offer under these rules, except those arising out of any outstanding convertible instruments;

(c) the company shall confirm in its offer the opening of a separate bank account adequately funded for this purpose and to pay the consideration only by way of cash;

(d) the company shall not withdraw the offer once it has announced the offer to the shareholders;

(e) the company shall not utilize any money borrowed from banks or financial institutions for the purpose of buying back its shares; and

(f) the company shall not utilize the proceeds of an earlier issue of the same kind of shares or same kind of other specified securities for the buy-back.

11. Maintain Register of Buy Back in FORM SH-10

(a) The company shall maintain a register of shares or other securities which have been bought-back in Form No. SH.10.

(b) The register of shares or securities bought-back shall be maintained at the registered office of the company and shall be kept in the custody of the secretary of the company or any other person authorized by the board in this behalf.

(c) The entries in the register shall be authenticated by the secretary of the company or by any other person authorized by the Board for the purpose.

12. File Return of Buy Back in FORM SH-11:

The company, after the completion of the buy-back under these rules, shall file with the Registrar, and in case of a listed company with the Registrar and the Securities and Exchange Board of India, a return in the Form No. SH.11 along with the fee.

1. File Compliance Certificate in FORM SH-15 along with FORM SH-11:

There shall be annexed to the return filed with the Registrar in Form No. SH.11, a certificate in Form No. SH.15 signed by two directors of the company including the managing director, if any, certifying that the buy-back of securities has been made in compliance with the provisions of the Act and the rules made thereunder.

(Author: CS Varun Kapoor, ACS-37377, B.Com, Mobile: +91 9899110705, Email: csvarunkapoor@gmail.com)

Source: Companies Act, 2013 and Rules made thereunder

Disclaimer:  This article contains interpretation of the Act, Rules and personal views of the author are based on such interpretation. It is not intended to be a professional advice and should not be relied upon for real time professional facts. Readers are advised either to cross check the views of the author with the Act or seek the expert’s views if they want to rely on contents of this article. Author accepts no responsibility whatsoever and will not be liable for any losses, claims or damages which may arise because of the contents of this write up. Kindly share your opinion.