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Private Placement of securities under the Companies Act, 2013
CONDITIONS FOR PRIVATE PLACEMENT
Equity share, preference share or debenture
Dematerialisation of Shares:
Since the proposed issue will be made by a Public Company, the Shares has to be dematerialised if it goes for issue or transfer of shares.
Offer to be previously approved by Special Resolution: The proposed offer of shares or invitation to subscribe shares has been previously approved by the shareholders of the company, by a Special Resolution, for each of the Offer of Invitation.
Authorization in Article of Association (AOA):
There should be authority in AOA of the Company to issue shares/ securities through Private Placement of shares. If such power is absent then amend the clauses of AOA to insert power to private placement of shares.
Maximum No. of persons to whom offer can be made:
* An offer can be made under a Private Placement Offer Letter to not more than 200 people in a financial year.
* Not just the limitation of allotment to 200 people but even an invitation to subscribe can’t be made to more than 200 people.
* The 200 people limit excludes Qualified Institutional Buyers and Employees and the limit of 200 people is calculated individually for each kind of security.
The restriction of 200 members would be reckoned individually for each kind of shares / security i.e. (equity share, preference share or debenture).
Finalization of name of Allottees:
As per rule 13(2)(d) Company have to mention the names of the proposed Allottees and the percentage of post preferential offer capital that may be held by them in the explanatory statement to be issued for the General Meeting.
Offer Letter (PAS -4):
The Company shall prepare the offer letter in form PAS-4 and maintain the complete record of PAS in form PAS-5. In case of any preferential offer made by a company to one or more existing members only then no need to prepare offer letter in PAS-4 format and no need to prepare PAS-5.
Time period for completion of the Allotment:
The allotment of securities on a preferential basis shall be completed within a period of twelve months from the date of passing of the special resolution. If the allotment of securities is not completed within twelve months from the date of passing of the special resolution, another special resolution shall be passed for the company to complete such allotment thereafter.
OR
The company making an offer or invitation under this section shall allot its securities within sixty days from the date of receipt of the application money. Whichever is earlier.
Valuation report:
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.
Procedural aspects are as follows:
Following is the brief Procedure to be complied with for Issuing Equity shares through private placement:
1. Hold Board Meeting to approve the Notice of Holding General Meeting of Shareholders for the following purposes:
* To Hold General meeting and approve the Notice along with the Offer Letter.
* To alter AOA should it be required to give effect to Private Placement
* To alter MOA for increasing the authorised share capital
* To Issue of Equity shares at Face Value along with premium (if any) to Investors on Private Placement Basis.
* To open Separate Bank Account in the name of for depositing the money against allotment of Shares.
2. Providing Instructions to specified Bank for opening of separate Bank Account and depositing the money against allotment Shares.
3. Prepare the List of Allotees along with all the required details as per the format prescribed under the Form PAS-5
4. Hold General Meeting and pass special resolutions along with resolutions to approve the increase in authorised share capital, Offer Letter and authorize an officer of the company to give effect to the Private Placement.
5. File MGT-14 for registering the Special resolutions
6. Hold Board Meeting for Allotment of Securities
7. File Form PAS-3 and Form MGT-14 within 15 days of the allotment. Attach Special Resolution, Detailed List of allotees and Valuation Report in Form PAS-3. Only after filing of return of allotment with ROC, the subscription money can be utilised.
Introduction
Section 42 of the Companies Act, 2013 read with Rule 14 of the Companies (Prospectus and Allotment of Securities) Rules, 2014 contains provisions of private placements of securities. Recently, both Section 42 and Rule 14 have undergone amendments by way of the Companies (Amendment) Act, 2017 and the Companies (Prospectus and Allotment of Securities) Second Amendment Rules, 2018.
“Private Placement” means any offer of securities (Not Only Shares) or invitation to subscribe securities to a select group of persons by a company through issue of a private placement offer letter and which satisfies the conditions specified in section 42 of the Act.
A. IMPORTANT PROVISIONS OF PRIVATE PLACEMENT
i. Private Placement To How Many People?
The offer of securities or invitation to subscribe securities shall be made to not more than 200 persons in the aggregate in a financial year (excluding qualified institutional buyers and employees of the company being offered securities under
ESOP). This restriction would be reckoned individually for each kind of security that is equity share, preference share or debenture.
ii. Special Resolution for Private Placement.
The offer should be previously approved by the shareholders of the company, by a Special Resolution, for each of the offers or invitations. In case of offer or invitation for non-convertible debentures, it shall be sufficient if the company passes the Board Resolution each time if such issue is within the borrowing limit specified under Section 180(1)(c) of the Companies Act. However, borrowing limits are to be approved by the shareholders of the issuer company first. A company shall issue private placement offer cum application letter only after the relevant special resolution or Board resolution has been filed in the ROC.
iii. Private Placement Offer Letter (PPOL).
A PPOL in form of PAS-4 shall be accompanied by an application form serially numbered and addressed specifically to the person to whom the offer is made and shall be sent to him, either in writing or in electronic mode, within 30 days of recording the names of such persons. PPOL shall not contain any right to renunciation.
iv. Payment through Banking Channel.
The payment to be made for subscription to securities shall be made from the bank account of the person subscribing to such securities and the company shall keep the record of the Bank account from where such payments for subscriptions have been received.
v. Separate Bank Account in scheduled Bank.
Issuer Company must open a separate bank account in a scheduled bank for receiving amount against issuance of securities under private placement.
vi. No Advertisement for Private Placement of Shares / Securities
No Company offering securities under this section shall release any public advertisements or utilize any media, marketing or distribution channels or agents to inform the public at large about such an offer.
vii. Allotment of Shares / Securities must be within 60 days
Issuer Company shall allot its securities within 60 days from the date of receipt of the application money for such securities and if the company is not able to allot the securities within that period, it shall repay the application money to the subscribers within 15 days from the date of completion of sixty days and if the company fails to repay the application money within the aforesaid period, it shall be liable to repay that money with interest at the rate of 12% per annum from the expiry of the sixtieth day.
viii. Return of Allotment for Private Placement of Shares / Securities
A return of allotment of securities shall be filed with the Registrar within 15 days of allotment in Form PAS-3 along with a complete list of all the allottees containing.
a. The full name, address, permanent Account Number and E-mail ID of such security holder;
b. The class of security held;
c. The date of allotment of security ;
iv. The number of securities herd, nominal value and amount paid on such securities; and particulars of consideration received if securities were issued for consideration other than cash.
ix. ROC filing must before utilization
The Companies Amendment Act, 2017 refrain issuers from utilizing monies raised through private placement until allotment is made and the return of allotment is filed with the ROC. So, Return of Allotment in form PAS-3 needs to be filled immediately after allotment for an issuer to be able to utilize proceeds from the private placement.
x. Record of Private Placement
The Company shall maintain a complete record of private placement offers in Form PAS-5.
xi. Non-compliance
Any private placement issue not made in compliance of the provisions of section 42 shall be deemed to be a public offer and all the provisions of this Act and the Securities Contracts (Regulation) Act, 1956 and the Securities and Exchange Board of India Act and Regulations will apply.
Contravention of Section 42 attracts penalty which may extend to the amount involved in the offer or invitation or Rs. 2 Crore whichever is higher, and the company shall also refund all monies to subscribers within a period of 30 days of the order imposing the penalty.
B. PRIVATE PLACEMENT
It shall be made only to the selected group of persons who are identified by board first and such number of persons must not 200 in a financial year.
Issuer Company must issue Private Placement Offer Letter (PPOL) to identified persons. Such PPOL shall not contain any right to renunciation.
PPOL must be issued only after filing of Special Resolution or Board Resolution as the case may be.
Application money shall require to be paid through banking channel only.
Issuer Company must open separate bank account in a scheduled bank for receiving money against allotment of securities.
Issuer Company shall allot its securities within 60 days from the date of receipt of the application money and if the company is not able to allot within 60 days, it shall
repay the application money within 15 days from the expiry of 60 days.
Issuer Company must file form PAS-3 for return of allotment within 15 days.
Issuer Company can’t utilize the money till return of allotment is filled with ROC.
Issuer Company must maintain complete record of private placement in PAS-5.
No fresh offer or invitation shall be made unless the allotments with respect to any previous offer or invitation have been completed.
C. CHANGES DONE THROUGH COMPANIES (AMENDMENT) ACT, 2017
i. Dispensation with minimum investment size requirement.
The CAA, 2017 have dispensed with the earlier requirement of the value of offer or invitation per person to be of an investment size of not less than Rs. 20,000 of the face value of the securities.
ii. No Renunciation right
Where earlier the Act was silent on the right of renunciation in the hands of the investor, the CAA 2017, explicitly provides clarity on the fact that the private placement offer letter and the application shall not carry any renunciation rights. Private placement being an issuance of securities to a specific pre-identified person only, this was implied that the offer would not carry the right of renunciation unlike
rights shares which are offered to the existing shareholders.
iii. Relaxation in passing of shareholders’ resolution in case of private placement of non-convertible debentures (NCDs)
Earlier, a shareholders’ resolution was required to be passed once a year for private placement of NCDs during that year. The Recent Amendments permit private placement of NCDs pursuant to board resolution without obtaining shareholders’
resolution so long as the proposed amount to be raised does not exceed the borrowing limit specified under Section 180(1)(c) of the Companies Act, 2013.
However, borrowing limits are to be approved by the shareholders of the issuer company.
iv. Discontinuation of filing GNL-2
Earlier the Company was required to file private placement offer letter and complete record of private placement with the Registrar within 30 days of
circulation of the offer letter. However, the requirement of the same has been done away with. This will surely reduce the compliance burden of the companies.
v. Reduced timeline for filing Return of Allotment in PAS-3
The Amendment Act 2017 provides for filing the return of allotment within 15 days from the date of allotment compared to earlier 30 days.
vi. No utilization of money received from private placement unless PAS-3 filed
A very significant change in CAA, 2017 is that the company making the offer or invitation for subscription of securities through private placement is not allowed
to utilize the money raised through private placement unless the return of allotment is filled with ROC.
D. PROCEDURAL ASPECT OF PRIVATE PLACEMENT
1) Hold Board Meeting:
To grant in-principle approval for issue of securities on private placement basis;
To identify persons to whom securities be allotted;
To approve draft private placement offer letter and record of private placement;
To open separate bank account for receiving money;
To approve notice of GM for approval of members;
2) Confirm whether Letters from all proposed allotees giving consent to subscribe the issue are received or not.
3) Prepare the List of allotees along with all the required details as per the format prescribed under the Form PAS-5.
4) Hold General Meeting and pass special resolution along with resolutions to approve the offer letter and authorize an officer of the company to give effect to
the Private Placement.
5) File MGT-14 alongwith special resolution and explanatory statement.
6) Dispatch private placement offer letter alongwith application form to the proposed allotees.
7) Receive application money against issue of securities in bank account opened in scheduled bank.
8) Hold Board Meeting for Allotment of Securities and allot securities within 60 days of receiving application money.
9) File Form PAS-3 within 15 days of the allotment of securities alongwith Special Resolution and List of allotees.
10) Issue corresponding Share Certificates; make respective entries in Register of Members along with confirming the Distinctive numbers and Certificate Numbers of the Shares allotted.
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