BUY-BACK OF SHARES

Power of company to purchase

own securities- Section 68
• Purchase of own securities- called buy back
• Sources for buy-back
• Free reserves
• Securities premium account
• Proceeds of the issue of any shares or other 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.
Section 68 contd….
• Conditions for buy-back
• Authorisation by Articles
• Special resolution has been passed (SR not required if
buy-back is less than 10% of the paid up equity capital
and free reserves of the company, and authorised by
resolution of Board in its meeting)
• Buy-back is 25% or less than aggregate of paid-up capital
and free reserves
• Debt: capital+free reserves= 2:1
• All shares for buy-back must be fully paid
• Buy-back of securities of a listed company must be
according to the rule prescribed by SEBI
• If not listed- Rule 17 of the 2014 Rules
• No offer of buy-back within one year from the closure of
preceding offer of buy-back
Section 68 contd…
• Explanatory statement with the notice which is sent to
the shareholders to call them for the meeting where
the SR relating to Buy-back would be discussed and
passed:
(a) a full and complete disclosure of all material facts;
(b) the necessity for the buy-back;
(c) the class of shares or securities intended to be
purchased under the buy-back;
(d) the amount to be invested under the buy-back; and
(e) the time-limit for completion of buy-back.
• Buy-back to be completed within one year of the
passing of SR
Section 68 contd…
• Manner of buy-back
(a) from the existing shareholders or security holders
on a proportionate basis;
(b) from the open market;
(c) by purchasing the securities issued to employees
of the company pursuant to a scheme of stock option
or sweat equity.
Declaration of Solvency u/s 68
• Where a company proposes to buy-back its own shares or other
specified securities under this section in pursuance of a special
resolution
• it shall file with the Registrar and the SEBI before making such
buy-back a declaration of solvency
• This declaration shall be signed by at least two directors of the
company, one of whom shall be the managing director, if any,
• The declaration shall be 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:
• No declaration of solvency shall be filed with the SEBI by a
company whose shares are not listed on any recognised stock
exchange.
Treatment with the shares that are
bought back
• Where a company buys back its own shares or
other specified securities, it shall extinguish and
physically destroy the shares or securities so
bought back within seven days of the last date of
completion of buy-back.
Restrictions after company buys back
the shares
• After the 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 under clause (a) of sub-section (1) of
section 62 or other specified securities
• Time limit for not issuing further shares- six months
• This limitation does not apply on 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.
Register of shares bought back
• Company shall maintain a register 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 and such other particulars as may be
prescribed
Other provisions for the company
to be followed after buy-back
• Company shall file with the Registrar and the Securities
and Exchange Board a return containing such
particulars relating to the buy-back within thirty days of
such completion, as may be prescribed (if not listed
then no return with SEBI)
• Punishment for not following 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 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
Prohibition on buy-back
• A company cannot buy-back share or other
specified securities:
• Through any subsidiary
• Through any investment company
• If it has made any default in:
• Repayment of deposits
• Interest payable on deposits
• Redemption of debentures or preference shares
• Payment of dividend to any shareholder
• Repayment of term loan or interest payable to any financial
institution or banking company
If default is remedied, then after three years when default ceased
to subsist, buy back can be done
Prohibitions contd… u/s 70
Company cannot purchase its shares or other
specified securities if it has not complied with:
1. Section 92- annual return
2. Section 123- declaration and payment of
dividend
3. Section 127- failure to distribute dividend
4. Section 129- financial statement