What is Private Placement?
As per provision under Companies Act, 2013, Chapter III, Part II of the Act, 2013 deals exclusively with private placements. Section 42 of the Act, 2013 defines 'private placement' which can be said in consonance with the interpretation of the Supreme Court as “any offer of securities or invitation to subscribe securities to a select group of persons by a company (other than by way of public offer) through issue of a private placement offer letter and which satisfies the conditions specified in this section including the condition that he offer or invitation is made to not more than 200 or such higher number of persons as may be prescribed (excluding QIB's and employees offered securities under ESOP) in a financial year".
CHECKLIST FOR PRIVATE PLACEMENT FOR ISSUE OF SHARES AND SECURITIES UNDER SECTION 42 OF THE COMPANIES ACT 2013
Private Placement U/S 42 ( Read with Companies ( Prospectus and Allotment of Securities) Rules 2014
For public and private company:
i. To ensure that persons to whom offer may be made not to exceed 200 in a financial year for each kind of security for Public Ltd., Company. In Private Ltd., Co. the maximum number of members shall not exceed 200.
ii. No allotment against any previous offer/invitation of any kind of security is pending.
iii. The explanatory statement contains justification for price and premium, if any.
iv. Company has passed a special resolution for each offer/invitation ( except in case of NCDs, where one resolution in a year for all offers during the year is sufficient.
v. Issue a private placement offer letter was in form PAS-4.
vi. The requirement of private placement offer letter -
1. Was accompanied by serially numbered application form
2. Addressed specifically to the person to whom offer is being made
3. Sent to only such person in writing / electronically
4. Within 30 days of recording names in the list
5. No person other than the addressee was allowed to apply through application form.
6. Value of offer / invitation per person was not less than Rs.20,000/- of the face value of the security.
vii. Private placement was offered to such persons whose names are recorded prior to the invitation to subscribe.
viii. The Company has maintained a record of offer letters in PAS-5.
ix. Amount against the offer to be received only by cheque/demand draft / other banking channels but not by cash - only from the bank account of the subscriber.
x. Company has filed offer letter with ROC along with the record of offer letters in the form PAS 6 within 30 days circulation of the offer letter.
xi. Company to maintain a record of the bank account from which payments received.
xii. In case of joint holders, payment was received from the first applicant only.
xiii. Allotment was completed within 60 days from the date of receipt of application form. If not application money repaid within 15 days of completion of 60 days. If not repaid, the application money along with interest at 12% per annum from the expiry of 60th day was paid.
xiv. Board resolution to specifically contain authority for the signing of share certificates by 2 directors and CS / one authorized person. One of the two directors should be the director other than MD / WTD.
xv. Share application money to be kept in a separate bank account and was utilized only for:
1. Adjustment against allotment or
2. Repayment.
xvi. The company filed Return of allotment in form PAS-3 within 30 days.
xvii. Share certificates were issued within 2 months of allotment of shares / 6 months of allotment of debentures.
xviii. In case of contravention, money was refunded within 30 days of order
xix. The company has made an entry in Register of Members.
CONCLUSION
Since the requirements for raising the funds by way of private placement have been made more stringent, it will significantly increase the compliance burden on private companies looking to raise funds through a private placement. It is also to be noted that as no specific exemption has been provided for private companies or small companies, it will lead to reducing flexibility available to private companies and the companies operated by closely held people for the raising funds. However, the better governance of all companies is expected which will lead to the transparency in the affairs of the Company and accountability of the directors.
DISCLAIMER: This write-up is based on the understanding and interpretation of author and the same is not intended to be a professional advice.
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