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INTRODUCTION
Buy Back of Securities is a very important tool for Companies who wants to reduce their
Share Capital. Buy Back of securities simply implies purchase of its own shares & other
specified securities by a Company. Buy Back of securities is an important mode of Capital
Restructuring. A company can buy back its shares under Section 68 of the Companies Act,
2013 which is more or less same as section 77A of The Companies Act, 1956 apart from
some Procedural Changes.
Buy-back is one of the method of financial restructuring. Buy-back of shares is a method of
financial engineering. Financial restructuring of a Company involves a re-arrangement of its
financial structure to make the Company’s finances more balanced.
Advantage:
A Company generally opt for buy-back of its own shares for the following reasons:- (i) To
improve the shareholders value- buy-back generally result in higher earning per shares. (ii)
As a defense
Mechanism- Buy back provides a safeguard against hostile take- overs bids by increasing
promoters’ shareholding. (iii) To provide an additional exit route to shareholders when shares
are undervalued or thinly traded. (iv) To return surplus cash to shareholder.
FORMS INVOLVED:
MGT– 14-Filing of Special Resolutions to the Registrar of Companies
SH– 8 – Letter of Offer
SH – 9– Declaration of Solvency
SH – 11– Return in respect of buy back of securities
SH – 10- Register of Buy Back of Securities
PROVISION IN AOA:
Table- F- Clause 41: Notwithstanding anything contained in these articles but
subject to the provisions of sections 68 to 70 and any other applicable provision of
the Act or any other law for the time being in force, the company may purchase its
own shares or other specified securities.
Amendment Rules:
G.S.R. (E): dated 10th March, 2013 The Companies (Share Capital and Debentures)
Amendment Rules, 2016
ii. any change in carrying amount of an asset or of a liability recognized in equity, including
surplus in the profit and loss account on measurement of the assets or the liability at the
fair value.
Explanation II. For the purpose of this section “Free Reserve” includes security premium
account.
2. Specified Securities:
Explanation I. Specified Securities includes ESOP or any other securities as notified by
Central Government
Meaning of Specified Securities [Regulation 2(1) (h) of SEBI (LODR) Regulations, 2015]
Non-convertible debt securities, non-convertible redeemable preference shares, perpetual
debt instruments, perpetual non-cumulative preference shares, Indian depository
receipts, securitized debt instruments, units issued by mutual funds and any other
securities as may be specified by the Board.
4. Secured debt: Secured debt financing is typically easy to obtain for most consumers to
obtain. Lenders take on less risk by lending on terms that require an asset held as
collateral security . As this type of loan carries less risk for the lender, interest rates
are usually lower for a secured loan. A prime example of a secured debt is a mortgage,
where the lender places a lien, or financial interest, on the property until the loan is
repaid in full. If the borrower defaults on the loan, the bank can seize the property and
sell it to recover the funds owed.
5. Unsecured debt: Unsecured debt is the opposite of secured debt, and, like its name,
itrequires no security for the loan. Lenders issue funds in an unsecured loan based solely
on the borrower's creditworthiness and promise to repay. In days past, loans were issued
this way with a simple handshake. If a borrower fails to repay the loan, the lender can sue
the borrower to collect the amount owed, but this can take a great deal of time, and legal
fees can add up quickly. Therefore, banks typically charge a higher interest rate on these
so-called signature loans.
a) Free Reserves;
b) The Securities Premium Account; or
c) The proceeds of the issue of any kind of shares or other specified securities:
Condition:
Company shall not utilize any money borrowed from Banks/ Financial Institutions for the
purpose of buying back its shares. [Rule 10(e)].
[8]The buyback cannot be made out of proceeds of same kind of shares or securities. [Rule
10(f)].
Withdrawal of Offer: The Company shall not withdraw the offer once it has announced the
offer to the shareholders. [Rule 10(d)].
Cash Consideration: Consideration will be paid by company in cash only.[In an English
case,BGD Roof Bond Ltd. v. Doughlas, (2000) 1 BCLC 401 (Ch D)]
B. Buy Back of Shares from whom? [Section 68(5)] Let’s find out from whom the
share could be bought back, The buy-back may be[9]
C. Non-Eligibility for buy-back: We should ascertain whether the Company falls under
any one of the prohibitory lists for buy back. The Company cannot buy back its shares
form the following. [Section-70]
i. Check whether Company is authorized under [16]Article of Association (AOA) for buy-back
of shares. [Section 68(2)(a)]
Limit of Buy-Back:
ii. The percentage of Buy Back shall not exceed 10% of the total paid up equity capitaland
free reserves if the same is to be authorized by the Board by means of a resolution in the
Board meeting and not by circulation.
iii. The percentage of buy back could exceed 10% but not beyond 25% of the total paid equity
Capital and free reserves if the same is authorized by the shareholders by means of
a [17]Special resolution.
[18]IN SIMPLE WORDS
Note:Calculation of 10% or 25%
o Proviso: The reference to twenty-five per cent in this clause shall be construed with respect to
its total paid-up equity capital in that financial year. Let’s
Discuss;
o We may have to deal with two financial years for a buy back i.e. the Audited financial year
and the financial year in which the real Buy back of shares happens. Which financial year
will be considered? We need more clarity to this point.
o Since the event of buy back happens in the current financial year, we have tocalculate the
percentage for the current financial year only. Percentage should be construed with respect
to its total equity capital in that financial year end, preceding the buy- back of Shares.
Note: However Section 70(1)(c) gives an exemption that buy-back is not prohibited, if the
default from (point no. vi-ix) is remedied and a period of 3 years has lapsed after such
default ceased to subsist.
x. All the Equity Shares and other specified securities for buy-back are fully paid-up.
xi. Listed Company: The buy-back of the shares listed on any recognized stock exchange are
in accordance with the regulations made by the Securities and Exchange Board of India in
this behalf.
xii. [20]Buy-back should be completed within a period of 1 (one) year from the date of passing
of Special Resolution.
STEP-1
Call Meeting of Board Director:
Issue Notice of Board Meeting to all the directors of company at least 7 days before the date
of Board Meeting.
Attach Agenda, Notes to Agenda, and Draft Resolution of Board Meeting along with Notice.
STEP-II
Hold the Board Meeting:
Check the quorum of Board Meeting.(Section 174)
Check whether there is a provision in the AOA for buy back of share or not, if yes then ok. If
No then pass special resolution for alteration in AOA.
Passing of Resolution for authorization for buy back of shares subject to approval of
shareholders. (Pass resolution for approval of scheme of buy-back as contained in letter of
offer.)
Passing of resolution for Issue the Notice of General Meeting along with [21]explanatory
statement. (According to SS-2).
Passing of resolution for Authorize a Company Secretary or director of company to issue
notice of General Meeting.
Passing of Resolution for adoption of unaudited/Audited Accounts
Passing of Resolution for take note of valuation report
Passing of Resolution for declaration of solvency in Forms SH-9
Passing of Resolution for declaration by Board of Directors under Rule 17(1)(m)
Passing of Resolution for and approval of Board for letter of offer of buy-back of shares.
Passing of resolution for Open Separate Bank Account: for remittance and payment towards
purchase consideration for buy back.
Fixing the record date for buy-back of shares.
Note:
Company cannot give any specific offer to a particular member for buy-back of shares, it is required to give
Letter of Offer to all the existing members, therefore, there should not be any specific name in the
resolution or explanatory statement.
STEP-III
Hold Extra-Ordinary general Meeting:
Check the quorum of Meeting.(Section-103).
Pass the Special Resolution for buy back of shares.
STEP-IV
File Form with Registrar (Letter of Offer/ declaration of solvency):
- File MGT-14- with Registrar within 30 days of passing of Special Resolution.
- File SH-8 – Letter of offer Roc before buy back of shares.
- File [22]SH-9- Declaration of solvency with ROC along with SH-8.
STEP-V
The Letter of Offer after filing of with ROC together with all attachments should be
dispatched to the shareholders not later than 21 days from the date of its filing with the
Registrar of Companies.
STEP-VI
The offer of buy back should remain open for a period of not less than 15 (fifteen) days but
not later than 30 days from the date of dispatch of offer.
STEP-VII
The Company should immediately after the date of closure of offer should open the bank
account and deposit therein the entire purchase consideration money meant to be used for buy
back purpose.
STEP-VIII
The Company shall complete the verification of offers within 15 (fifteen) days from the date
of closure of offer[23].
STEP-IX
The Company shall within 7 (seven) days of the time specified for completion of verification:
- make (Consideration) payment to the respective shareholders
- return back the entire share certificates whose shares have not been accepted fully and also
return back the balance share certificates if the shares are accepted partially
[24]STEP-X
If the communication of rejection is not sent to the concerned shareholders within 21 (Twenty
one days) from the date of closure of offer, the shares lodged would be deemed to have been
accepted for buy back.
- Form SH.15 should be attached along with other attachments to FormNo.SH-11 which is the
Return in respect of Buy back and upload the Form with ROC. [Rule 17(13)]
i. True Fair: The letter of offer shall contain true, factual and material information and shall
not contain any misleading information.
ii. Responsibility: LOO must state that the directors of the company accept the responsibility
for the information contained in such document.
n) If the persons mentioned in point (i) 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;
o) No defaults:
A confirmation that there were NO DEFAULTS subsisting in the 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.
p) 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, 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
H. 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.
- Every officer of the company who is in default shall be punishable with an 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.
I. Accounting Treatment:
Disclosure in Balance Sheet: Where a Company purchases its own shares or specified
securities out of its 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 transfers shall be disclosed in the balance sheet as per Section 69 of
Companies Act 2013.
II. STAMP DUTY.-The Chamber of Income Tax Consultants, Mumbai, has expressed the
opinion that stamp duty is not payable on buy-back of shares under section 77A. Here is what
the Chamber says :
"A question may arise as to whether any stamp duty becomes payable in a case where buy-
back of shares is done by a company. One may note that "transfer" of shares attracts stamp
duty vide Schedule I, Entry 62 to the Indian Stamp Act 1899. Since stamp duty is payable on
"transfer" of shares buy-back cannot be equated with 'transfer". Transfer of shares to be
complete requires the company to register the shares bought back in its name. In case of buy-
back, as provided in section 77A(7), the shares bought back have to be statutorily
extinguished within seven days of the last date of completion of buy-back. Hence, no
registration of such shares takes place in the name of the acquirer. Even the names of the
members/holders of the shares have to be struck off from the Register of members. Hence,
stamp duty would not become payable in a case where buy-back of shares takes place." [P.
35, 1st Edn., 2000].
III. Income Tax, Tax on Capital Gains.-Capital gains tax has become leviable on
buyback of shares by virtue of section 46A inserted in the Income Tax Act, 1961 by the
Finance Act, 1999 effective financial year 1999-2000. The provision is as follows ;
Capital gains on purchase by company of its own shares or other specified securities
46A. Where a shareholder or a holder of other specified securities receives any consideration
from any company for purchase of its own shares or other specified securities held by such
shareholder or holder of other specified securities, then, subject to the provisions of section
48, the difference between the cost of acquisition and the value of consideration received by
the shareholders or the holder of other specified securities, as the case may be, shall be
deemed to be the capital gains arising to such shareholder or the holder of other specified
securities, as the case may be, in the year in which such shares or other specified securities
were purchased by the company.
CASE STUDY
Effect of validity of shareholders' resolution for twelve months
In a recent case D-Link (India) Limited v The Securities and Exchange Board of
IndiaAppeal No. 120 of 2007, decided on 14-7-2008, the Securities Appellate Tribunal
(SAT) had the occasion to decide on the effect of a shareholders' resolution in the context
of a buyback of shares. The facts of the case are fairly straight forward.
The company involved, D-Link India Ltd, proposed to the shareholders a resolution for
the buyback of its shares pursuant to Section 77A of the Companies Act, 1956 (now
section 68 of the Companies Act, 2013) . Under this provision, such a resolution is valid
for a period of 12 months, within which period the company may act upon the resolution.
If the company, however, fails to proceed with the buyback, the resolution lapses at the
end of the 12 months period.
In this case, D-Link India Ltd failed to initiate any buyback within the 12 months period,
due to which its shareholders' resolution lapsed. SEBI initiated action against the
company on the grounds that the company never had any intention of buying back its
shares, and that the convening of the shareholders’ meeting and the announcement of a
buyback was only for the purpose of misleading the investors. Consequently, following
the request of some investors who bought shares in the company in anticipation of a buy-
back, SEBI passed an order stating that the company violated Regulation 5(1)(a) of the
Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade
Practices Relating to the Securities Market) Regulations, 1995. Hence, the company was
directed not to buy, sell or deal in the securities in any manner directly or indirectly for a
period of one month. The company went on appeal to the SAT against such order.
“On a reading of the provisions of section 77A of the Act (now section 68 of the
Companies Act, 2013) and the relevant provisions of the buy-back regulations … we are
of the considered view that a company is under no obligation to buy-back its securities
even if its shareholders have passed a special resolution authorizing it to buy-back on the
terms and conditions mentioned in the resolution. Section 77A of the Act is only an
enabling provision and all that it mandates is that no company shall buy-back its own
securities unless it is authorized by its articles and also by its shareholders. But even
where the shareholders pass a special resolution, it does not become obligatory for the
company to buy-back the shares.”
Such a resolution only provides authority to the Board of directors to then decide on the
details of the transaction, and even to decide on the essential question of whether the
transaction should be given effect to in the very first place. In a sense, such a resolution
recognises the primacy of the directors in such a context. Other examples of such
resolutions where the board is given the power to effect a transaction without being
obligated to do so include issue of shares, disposal of an undertaking or substantial assets,
borrowing.
When it comes to an action relating to fraudulent and unfair trade practices, since there is
an element of “mens rea” involved in proving an offence, SEBI as the regulator has the
onerous task of proving that element.
Flow Chart:
S. DAYS PARTICULARS DOCUMENTATION/ INFORMATION FORMS
NO
130 Filling of Form with ROC- The Company shall prepare a certificate of SH-15
Compliance in respect of Buy Back SH-11
in [28]Form No.Sh-15 duly signed
by [29]two Directors and verified by the
Company Secretary in Practice. [Rule 17(14)]
K. FAQ’s Buy-Back
A. What is a share buyback and why are you doing it?
This is when a company purchases its own shares back from its shareholders. A share
buyback is thus a way for the company to return funds to shareholders, and thus similar to a
dividend. A share buyback is an alternative form of shareholder distribution, where a
company buys back its own stock from shareholders, effectively reducing the number of
outstanding shares and increasing the proportional rights of any single share.
B. What is the difference between a dividend pay-out and a share buy back?
[10]An economic system with no barriers to free market activity. An open market is characterized by the
absence of tariffs, taxes, licensing requirements, subsidies, unionization and any other regulations or
practices that interfere with the natural functioning of the free market. Anyone can participate in an open
market. There may be competitive barriers to entry, but there are no regulatory barriers to entry.
A company intending to buyback its equity shares or other specified securities in accordance with the
provisions of section 66(5)(b) may buyback from the open market in which case the requirements under
Chapter IV [Regulations 14 to 18] of the Buyback Regulations shall be complied with. The buyback of
shares or other specified securities from the open market may be in any one of the following methods: (a)
through stock exchange; (b) Book Building process [Regulation 14].
[17] When the resolution goes beyond the scope of revocation, it may become specifically enforceable
against the company. Where the off market purchase resolution does not satisfy the requirements of the
section, it is neither binding on the company nor enforceable against it or against any one else. Vision
Express (UK) Ltd. v. Wilson (No. 2), (1998) BCC 173: Western v. Rigblast Holdings Ltd., 1989 GWD 23-950
(Scot). A defective resolution can be rectified before its implementation by a subsequent curative
resolution. But where the resolution has already been implemented the illegality cannot be rectified. R. W.
Peak (Kings Lvun) Ltd., 0 998) 1 BCLC 193 : (1998) BCC 596.
[18] For buy back upto 10% of aggregate paid up share Capital required Board Resolution or Buy-back 10%
of paid up share capital and free reserve but upto 25% of aggregate paid up share capital and free reserve by
Special Resolution.
[19] According to Notification GSR 479(E) issued by the DCA (now MCA) on 12th June, 2005, the debt
equity ratio for listed Housing Finance Companies for the purposes of clause (d) of subsection (2) of section
68 shall be such as may be specified by the National Housing Bank being the regulator, in consultation with
the Central Government.
[20] With case study described at the end of the Article.
[21] Provisions relating to Explanatory Statement discussed in detail at the end of the article.
[22] It’s also required to file with SEBI, if Company is listed.
[23]If the number of shares offered by the shareholders are more than the number of shares to be bought
back, the acceptance per shareholder should be on a proportionate basis
[24]If the number of shares offered bythe shareholders are more than the number of shares to be bought
back,
the acceptance per shareholder should be on a proportionate basis
[25] This form certifying that the buy-back of securities has been made in compliance with the provision of
the act and rules thereunder.
[26] One should be Managing Director, if there is any.
[27] Further issue of the same kind of shares, including allotment of further shares under clause (a) of
subsection
(1) of section 62 as those, which have been bought-back cannot be made within a period of six months.
[28] This form certifying that the buy-back of securities has been made in compliance with the provision of
the act and rules thereunder.
[29] One should be Managing Director, if there is any.