Where at any time, a company having a share capital proposes to increase its subscribed capital by the issue of further shares, such shares may be offered to any persons, if it is authorised by a special resolution, either for cash or for a consideration other than cash, if the price of such shares is determined by the valuation report of a registered valuer subject to such conditions as may be prescribed [Section 62(c) of the Companies Act, 2013]. These persons may include equity shareholders of the company referred to in clause (a) or employees of the company referred to clause (b). Section 62 of the Companies Act 2013 was discussed earlier here,
Rules 13 of the Companies (Share Capital and Debentures) Rules 2014 give us detailed procedure. Before discussing provisions in details, we may understand expression “Preferential Offer”.
The expression ‘Preferential Offer’ means an issue of shares or other securities, by a company to any select person or group of persons on a preferential basis and does not include shares or other securities offered through a public issue, rights issue, employee stock option scheme, employee stock purchase scheme or an issue of sweat equity shares or bonus shares or depository receipts issued in a country outside India or foreign securities.
For the purposes of issue of shares on preferential basis under clause (c) of sub-section (1) of section 62, If authorized by a special resolution passed in a general meeting, shares may be issued by any company in any manner whatsoever including by way of a preferential offer, to any persons whether or not those persons include the persons referred to in clause (a) or clause (b) of sub-section (1) of section 62 and such issue on preferential basis should also comply with conditions laid down in section 42 of the Act.
This make clear that Section 42 which is private placement shall always be read with Section 62(1)(C) read with Rule 13 of these Rules. Section 42 will not apply to a public issue, rights issue, employee stock option scheme, employee stock purchase scheme or an issue of sweat equity shares or bonus shares or depository receipts.
The price of shares to be issued on a preferential basis by a listed company shall not be required to be determined by the valuation report of a registered valuer.
Where the preferential offer of shares or other securities is made by a company whose share or other securities are listed on a recognized stock exchange, such preferential offer shall be made in accordance with the provisions of the Act and regulations made by the Securities and Exchange Board.
It the shares or other securities of the company are not listed, the preferential offer shall be made in accordance with the provisions of the Act and rules made hereunder.
Any company whether their shares or other securities are listed or not, shall comply with the following requirements, namely:-
(a) The issue is authorized by its articles of association;
(b) The issue has been authorized by a special resolution of the members;
(c) The securities allotted by way of preferential offer shall be made fully paid up at the time of their allotment.
(d) The company shall make the following disclosures in the explanatory statement to be annexed to the notice of the general meeting pursuant to section 102 of the Act:
(i) The objects of the issue;
(ii) The total number of shares or other securities to be issued;
(iii) The price or price band at/within which the allotment is proposed;
(iv) Basis on which the price has been arrived at along with report of the registered valuer;
(v) Relevant date with reference to which the price has been arrived at;
(vi) The class or classes of persons to whom the allotment is proposed to be made;
(vii) Intention of promoters, directors or key managerial personnel to subscribe to the offer;
(viii) The proposed time within which the allotment shall be completed;
(ix) The names of the proposed allottees and the percentage of post preferential offer capital that may be held by them;
(x) The change in control, if any, in the company that would occur consequent to the preferential offer;
(xi) The number of persons to whom allotment on preferential basis have already been made during the year, in terms of number of securities as well as price;
(xii) the justification for the allotment proposed to be made for consideration other than cash together with valuation report of the registered valuer;
(xiii) The pre issue and post issue shareholding pattern;
(e) The allotment of securities on a preferential basis made pursuant to the special resolution passed pursuant to sub-rule (2)(b) shall be completed within a period of twelve months from the date of passing of the special resolution.
(f) 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.
(g) The price of the shares or other securities to be issued on a preferential basis, either for cash or for consideration other than cash, shall be determined on the basis of valuation report of a registered valuer;
(h) where convertible securities are offered on a preferential basis with an option to apply for and get equity shares allotted, the price of the resultant shares shall be determined beforehand on the basis of a valuation report of a registered valuer and also complied with the provisions of section 62 of the Act;
(i) where shares or other securities are to be allotted for consideration other than cash, the valuation of such consideration shall be done by a registered valuer who shall submit a valuation report to the company giving justification for the valuation;
(j) where the preferential offer of shares is made for a non-cash consideration, such non-cash consideration shall be treated in the following manner in the books of account of the company-
(i) where the non-cash consideration takes the form of a depreciable or amortizable asset, it shall be carried to the balance sheet of the company in accordance with the accounting standards; or
(ii) where clause (i) is not applicable, it shall be expensed as provided in the accounting standards.
Update by the Companies (Share Capital and Debentures) Amendment Rules, 2014 w.e.f 18 June 2014:
Till a registered valuer is appointed in accordance with the provisions of the Act, the valuation report shall be made by an independent merchant banker who is registered with the Securities and Exchange Board of India or an independent Chartered Accountant in practice having a minimum experience of ten years.
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. [Sub – rule 3 of Rule 13]
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