Section 42 of the Companies Act, 2013, allows a company to engage in a private placement, which entails extending an offer to a specifically chosen group of individuals. In this context, private placements involve either offering the company’s securities to this select group or inviting them to subscribe to these securities, without resorting to a public offering. This invitation is typically made through a private placement offer letter.
The distribution of these securities through private placement is restricted to identified individuals, as determined by the company’s board. It’s important to note that a company conducting private placement cannot employ public advertising or engage marketing, media, or distribution agents or channels to disseminate information about this offering to the general public. If such advertising or marketing occurs, it would no longer be considered private placement but rather public offering by the company.
Private Placement Offer Letter Guidelines
Rule 14 of the Companies Prospectus and Allotment of Securities Rules, 2014, governs the private placement of securities by companies. According to these rules, the company must use a private placement offer letter in Form PAS-4 to offer or invite subscriptions to its securities.
Private placement offers are only allowed to individuals whose names are registered by the company before sending subscription invitations. The company must maintain a comprehensive record of these offers in Form PAS-5.
The company should send the private placement offer letter, along with a serially numbered application form, addressed in writing or electronically to the specific individual for whom the offer is intended. This mailing should occur within thirty days of recording the individual’s name.
The recipient of the private placement offer letter, as indicated in the application form, must formally accept the offer. Additionally, the company must submit all relevant information regarding the offer to the Registrar of Companies within thirty days of distributing the private placement offer letter.
Private Placement Approval Resolution
When a company plans to offer its securities through private placement, it must first gain the agreement of its shareholders. This agreement is obtained by approving a Special Resolution for each distinct securities offer or invitation to subscribe. These resolutions play a vital role in ensuring the company follows the required legal steps and protects the shareholders’ interests.
Maximum Limit of Private Placement
As per the rules for company registration set forth by the Companies Act, there exist specific constraints concerning the maximum count of eligible individuals and the worth of private placement. These restrictions are put in place to oversee the dissemination of securities through private placement, although certain exceptions apply.
Limit on the Number of Eligible Individuals
According to the Companies Act, a company can engage in private placements with a maximum of fifty individuals within a financial year, unless the Rules prescribe a higher number. It’s crucial to emphasise that this limit of fifty individuals excludes qualified institutional buyers and company employees receiving securities under an employee stock option scheme as outlined in Section 62 of the Act.
Aggregate Limit on Offer or Invitation
Furthermore, the Rules state that the offer or invitation for private placement should not extend to more than two hundred persons in the aggregate during a financial year, unless otherwise specified by the Rules. Similar to the previous limit, this two-hundred-person restriction excludes qualified institutional buyers and employees receiving securities through an employee stock option scheme as per Section 62 of the Act.
Value of Private Placement Offer
In addition to the limits on the number of persons, the value of the private placement offers or invitation for each person is regulated. It should be of an investment size equal to Rs. 20,000 of the face value of the securities.
Nevertheless, it’s vital to acknowledge that these limitations regarding the upper threshold for eligible individuals and the extent of private placements don’t pertain to certain entities. Specifically, non-banking financial companies registered under the Reserve Bank of India Act, 1934, and housing finance companies registered with the National Housing Bank under the National Housing Bank Act, 1987, enjoy an exemption from these constraints when involved in private placements.
Mode of Payment for Private Placements
Individuals interested in subscribing to private placements must complete the private placements application provided by the company. Along with this application, the subscription amount should be remitted using methods other than cash. Payment can be made through:
1. Demand Draft: Subscribers can pay by issuing a demand draft in favour of the company.
2. Cheque: Payment can also be made by issuing a cheque in favour of the company.
3. Banking Channel: Subscribers are encouraged to use secure banking channels for electronic funds transfer. This could include online transfers, wire transfers, or other electronic payment methods.
Allotment Process in Private Placements
When a company extends an invitation or offer for private placements, the allotment of its securities must follow these guidelines:
1. Allotment Timeframe: The company should complete the allotment of securities within sixty days from the receipt of the application monies for those securities.
2. Refund in Case of Non-Allotment: In the event that, for any given reason, the company cannot allocate the securities within the designated sixty-day window, it is obligated to promptly refund the application funds to the subscribers. This reimbursement should take place within fifteen days subsequent to the sixty-day period’s conclusion.
3. Segregated Bank Account: The company is obligated to keep the application money in a separate bank account with a scheduled bank. This account must be used exclusively for the following purposes:
a. Adjustment against the allotment of securities.
b. Repayment of application monies in cases where the company is unable to allot the securities.
Recording and Filing of Private Placement Offers
To ensure transparency and regulatory compliance in private placement, the company must maintain a comprehensive record of private placement offers using Form PAS-5. Furthermore, a copy of the record of offers and the private placement offer letter (in Form PAS-4) should be submitted to the Registrar of Companies within thirty days of circulating the private placement offer letter. This submission must be accompanied by the requisite fees, as stipulated in the Companies (Registration Offices and Fees) Rules, 2014. If the company is listed, it should also submit these documents, as specified, to the Securities and Exchange Board within the same timeframe.
Return of Allotment for Private Placement
Once securities have been allotted, the company is obligated to file a return of allotment in Form PAS-3 with the ROC within thirty days of the allotment. The filing should include the following information:
1. A comprehensive list of all security holders.
2. Full names, addresses, PAN (Permanent Account Number), and email addresses of these security holders.
3. The class of securities held.
4. The date of allotment of securities.
5. The number of securities held, the amount paid, and the nominal value of these securities.
6. Particulars of the consideration received, if the securities were issued in exchange for non-cash consideration.
Additionally, it’s important to note that the Form PAS-3 filed by the company (excluding One Person Companies and small companies) must be pre-certified by a practicing Certified Management Accountant (CMA), Chartered Accountant (CA), or Company Secretary (CS).
Penalty for Non-Compliance in Private Placements
In cases of non-compliance with the regulations governing private placements, a company, its directors, and promoters can face penalties. The extent of the penalty can be:
1. The penalty may extend to the amount involved in the invitation or offer, or
2. A sum of Rs. 2 crores, whichever is higher.
Additionally, when instances of non-compliance occur, the company carries the obligation of refunding all funds received from the subscribers within thirty days of the penalty order being enforced. These penalties and refund obligations serve as essential safeguards, ensuring adherence to the legal regulations governing private placement. They also play a pivotal role in safeguarding the interests of investors and maintaining the integrity of the financial system.
Final Thoughts
Private placement is a regulated method for companies to offer securities to a select group of investors. It provides a flexible approach to capital raising, following stringent guidelines for investor protection. Private placements include the issuance of offer letters, approval via special resolutions, transparent allotment procedures, and handling funds in designated bank accounts in compliance with the Companies Act. Non-compliance carries substantial penalties, emphasising the need for strict adherence. Ultimately, private placements offer an essential means for companies to secure capital while maintaining transparency and safeguarding investor interests.
