Allotment in Private Limited Company v/s Public Limited Company
There are many ways to issue shares like Right Issue of Shares, Private Placement of Shares, ESOP, Sweat equity shares, preferential allotment of shares etc.One of the main distinctions between a Private Limited Company and a Public Limited Company is the nature of allotment/ issuance of share. For a Private Limited Company, it is prohibited to issue any prospectus to invite the general public to subscribe towards share capital. Hence the shares can only be taken up privately by the promoters and their relatives or friends. On the contrary in the case of a Public Limited Company a proper procedure has been set up by the Companies Act issue and allotment of shares.
In terms of Section 179 of Companies Act, 2013, the power to issue securities have been vested on the Board of Directors of the company by way of passing a resolution at meetings of the Board.
As per Section 23 of the new Companies Act, 2013, a public or private company may issue securities in any of the following manners:
- To public through issue of Prospectus
- Private Placement
- Rights Issue or a Bonus Issue
- Rights or Bonus Issue
- Private placement
Section 42 of the new Companies Act, 2013 deals with a private placement. Any offer of securities or invitation to subscribe to securities to 200 persons or less (excluding qualified institutional buyers and employees) in a financial year will be a ‘private placement’ under Section 42(2) of the Companies Act, 2013. Reading the Rule 13 of the of Companies (Share Capital and Debentures) Rules, 2014 makes it is very clear that any preferential allotment by rights issue has to comply with a private placement.
This refers to 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 etc. Section 62(1) (c) deals with preferential allotment of shares.
Certain conditions for Preferential Allotment of Shares given in the Act are-
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.
There should be an authority in AOA of the Company to issue shares/ securities through PAS. If such power is absent then amend the clauses of AOA to insert power to PAS.
- 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 Right issue of shares means issue when new shares are offered to the existing shareholders in proportion to their current shareholding. The Right Issue of shares is governed by Section 62 of the Companies Act, 2013.
Dematerialised format regime brought about by new Companies Act, 2013
Under S ection 29 ;
- Every company making a public offer; and
- Such other class or classes of companies as may be prescribed
shall issue the securities only in the dematerialised form.
When any company issue its securities in dematerialised form, provisions of the Depositories Act, 1996 and regulations made under that Act shall be applicable.There is no bar for any other company to issue its securities in any form. Any other company may convert its securities into dematerialised form.
As per the requirement, all the public issues of size in excess of Rs.10 crore, are to made compulsorily in the demat more. Thus, if an investor chooses to apply for an issue (which are generally over Rs. 10 crores) that is being made in a demat mode, he has to logically have a demat account.
Certain Statutory compliances which need to be fulfilled
The company secretary has to see that the statutory conditions regarding the allotment of shares are fulfilled before the Board proceeds to allot the shares.The following are the statutory conditions which need to be fulfilled:
(i) Valid offer and acceptance: There should be a valid offer and acceptance for the allotment to be a valid one. Here the company is the offertory and the acceptors are the general public. If there is no company to offer then there would be no public to accept.
(ii) Unconditional Allotment: The allotment must be absolute and unconditional and also as per the terms and conditions mentioned in the application. The allotment should be unbiased, and not according to the caste, creed, religion. It is not that rich shareholders pay more on the shares and the poor shareholders pay less on the shares. All have to pay the same price for the shares.
(iii) Collection of minimum subscription amount: The minimum subscription amount as noted in the prospectus has been received within 120 days of the issue of the prospectus.
(iv) Receipt of application money: Not less than 5% of the nominal value of the share has been secured and has been received along with the applications.
(v) Deposition of application of money in a scheduled bank: All application money received along with the applications must be deposited in a scheduled bank. It cannot be withdrawn until the company gets a trading certificate or where such certificate is already received or till the minimum subscription amount is received.
(vi) Filing of prospectus with the registrar: A copy of the prospectus or statement in lieu of prospectus has been duly filed with the registrar and at least three days have elapsed after such filing before the allotment is taken up.
(vii) Time of allotment: No allotment of shares can be effected until the beginning of the fifth day from the date of issue of the prospectus. The subscription list must be opened for at least 3 days as disclosed in the prospectus.
(viii) Proper communication: The allotment must be duly communicated to the applicant through post i.e. registered post with necessary details.
(ix) Allotment strictly as per documents issued: The Board of Directors have to make the allotment of shares strictly as per the documents issued which include the prospectus and the application form. The provisions made in the Memorandum of Association and the Articles of Association must also be given due consideration.
(x) SEBI nominee: If the issue is oversubscribed, the shares are allotted on a proportionate basis. SEBI's nominee is associated while finalizing the basis of allotment. The purpose is to see that the allotment is done on a fair and just basis. The allotment also needs to be approved by a leading stock exchange.
Process of Allotment of Shares
Appointment of allotment committee
The secretary informs the Board, that the share applications are received and are ready for allotment. If the issue is just subscribed or undersubscribed, the Board will do the allotment of shares, but if the issue is oversubscribed, the Board appoints an allotment committee to do the allotment work. The allotment committee will study the problem, prepare a report and submit to the Board.
Board meeting for finalization of allotment formula
A meeting of the Board of Directors will be called to finalize the allotment formula, which is being prepared by the allotment committee. If the shares are listed, the allotment formula is to be finalized with the approval of the concerned Stock Exchange Authorities.
SEBI's association with allotment work
A representative of SEBI needs to be associated while finalizing the allotment formula. For this, the company has to request SEBI to nominate a public representation for allotment work. SEBI's nominee is necessary when the issue is oversubscribed.
Signature of chairman on the application and allotment list
The secretary has to see that every sheet of application and allotment list is signed by the chairman. The secretary also has to sign the application and allotment lists.
Resolution of the Board for allotment
The secretary has to see that the Board passes a resolution regarding the allotment of shares and authorizing him to issue letters of allotment and letters of regret.
Issue of letters of allotment and letters of regret
After the Board's resolution to allot shares, the secretary prepares the allotment list. Then he will send allotment letters to those who have been allotted shares and regret letters to those who could not be allotted shares.
Refund / Adjustment of application money
The secretary has to make suitable arrangement for the repayment of application money sent by the applicant. The refunded application money is made to those shareholders who could not be allotted shares. The refund order is sent along with the letters of regret. If an applicant has been allotted a smaller number of shares than the number applied for, the secondary has to adjust the excess amount with the amount due on allotment.
Collection of allotment money
The secretary has to make suitable arrangements with the Company's Bankers for the collection of allotment money against the allotment letters.
Arrangement relating to letters of renunciation
To renounce means to give up. Certain applicants who are being allotted shares do not want them, so they return the shares back to the company. this is known as renunciation. The blank form of a letter of renunciation and letter of request for allotment along with the letter of renunciation duly executed and the original letter of allotment from the renounces, the secretary has to make necessary changes in the Application of Allotment list in order to enter the names of the new allottees.
Arrangement relating to the splitting of allotment letters
Splitting means putting the shares in one or more names. In case any allottee requests for a split of the allotment letter, the secretary places such a request before the Board for approval. Once the Board approves the splitting of the allotment letter, the secretary has to enter the details of the split in a separate list of split allotments and issue the necessary 'split' letters.
Submission of return of Allotment
Every company whether public or private and having a share capital and within 30 days of allotment is required to send to the Registrar, a document known as the "Return of Allotment". The return of allotment contains various details on allotment of shares such as the nominal value of shares allotted, names and addresses of allottees, the amount paid or payable on each share and particulars of bonus shares and shares issued at discount. The secretary has to see that these documents are prepared and submitted in time to the Registrar.
Preparation of Register of members and issue of share certificates:
The secretary has to prepare the Register of members from the Application and Allotment lists. He has to see that the shares certificates are properly printed, sealed, signed and distributed to all the allot-tees within three months after the allotment of shares. He has also to see that the share certificates are issued against the letters of allotment.
Companies Act, 2013 provides for time limits within which shares are to be allotted once the company has received the share application money. Timelines have been summarised below-
Where the company fails to allot shares within time:
60 days - Allotment shall be done within 60 days of receipt of application money.
Refund in 15 days- If the allotment is not done within 60 days then refund the whole application money within next 15 days.
- Liability if not refunded within 15 days- Refund application money along with interest @12% p.a. after the expiry of 60 days.
Where shares are allotted and share certificate has to be issued:-
Section 56(4) of the Companies Act, 2013 contains the provisions related to time limits for the delivery of the certificates of all securities allotted, transferred or transmitted.
In case of subscribers to memorandum- Within 2 months from the date of incorporation.
In case of allotment of shares- Within 2 months from the date of allotment
- In case of transfer or transmission of securities- Within 1 month from the date of receipt by the company of the instrument of transfer or intimation of transmission.
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