77A. Power of company
to purchase its own securities.— (1) Notwithstanding
anything contained in this Act, but subject to the provisions
of sub-section (2) of this section and section 77B, a company
may purchase its own shares or other specified securities
(hereinafter referred to as “buy-back”) out of—
(i) its free reserves; or
(ii) the securities premium account; or
(iii) the proceeds of any shares or other specified securities:
Provided that 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.
(2) No company shall purchase its own shares or other specified
securities under sub-section (1), unless—
(a) the buy-back is authorised by its articles;
(b) a special resolution has been passed in general meeting
of the company authorising the buy-back:
Provided that nothing contained in this clause shall apply
in any case where—
(A) the buy-back is or less than ten per cent. of the total
paid- up equity capital and free reserves of the company;
and
(B) such buy-back has been authorised by the Board by means
of a resolution passed at its meeting:
Provided further that no offer of buy-back shall be made
within a period of three hundred and sixty-five days recokned
from the date of the preceding offer of buy-back, if any.
Explanation .—For the purposes of this clause, the
expression “offer of buy-back” means the offer
of such buy- back made in pursuance of the resolution of the
Board referred to in the first proviso;
(c) the buy-back is or less than twenty-five per cent of
the total paid-up capital and free reserves of the company:
Provided that the buy-back of equity shares in any financial
year shall not exceed twenty-five per cent of its total paid-up
equity capital in that financial year;
(d) the ratio of the debt owed by the company is not more
than twice the capital and its free reserves after such buy-back:
Provided that the Central Government may prescribe a higher
ratio of the debt than that specified under this clause for
a class or classes of companies.
Explanation .—For the purposes of this clause, the
expression “debt” includes all amounts of unsecured
and secured debts;
(e) all the shares or other specified securities for buy-back
are fully paid-up;
(f) the buy-back of the shares or other specified securities
listed on any recognised stock exchange is in accordance with
the regulations made by the Securities and Exchange Board
of India in this behalf;
(g) the buy-back in respect of shares or other specified
securities other than those specified in clause (f) is in
accordance with the guidelines as may be prescribed.
(3) The notice of the meeting at which special resolution
is proposed to be passed shall be accompanied by an explanatory
statement stating—
(a) a full and complete disclosure of all material facts;
(b) the necessity for the buy-back;
(c) the class of security 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.
(4) Every buy-back shall be completed within twelve months
from the date of passing the special resolution or a resolution
passed by the Board under clause (b) of sub-section (2).
(5) The buy-back under sub-section (1) may be—
(a) from the existing security holders on a proportionate
basis; or
(b) from the open market; or
(c) from odd lots, that is to say, where the lot of securities
of a public company, whose shares are listed on a recognised
stock exchange, is smaller than such marketable lot, as may
be specified by the stock exchange; or
(d) by purchasing the securities issued to employees of the
company pursuant to a scheme of stock option or sweat equity.
(6) Where a company has passed a special resolution under
clause (b) of sub-section (2) or the Board has passed a resolution
under the first proviso to clause (b) of that sub-section
to buy-back its own shares or other securities under this
section, it shall, before making such buy-back, file with
the Registrar and the Securities and Exchange Board of India
a declaration of solvency in the form as may be prescribed
and verified by an affidavit to the effect that the Board
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 of the date of declaration adopted
by the Board, and signed by at least two directors of the
company, one of whom shall be the managing director, if any:
Provided that no declaration of solvency shall be filed with
the Securities and Exchange Board of India by a company whose
shares are not listed on any recognised stock exchange.
(7) Where a company buy-back its own securities, it shall
extinguish and physically destroy the securities so bought-back
within seven days of the last date of completion of buy-back.
(8) Where a company completes a buy-back of its shares or
other specified securities under this section, it shall not
make further issue of the same kind of shares (including allotment
of further shares under clause (a) of sub-section (1) of section
81) or other specified securities within a period of six months
except by way of 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.
(9) Where a company buy-back its securities under this section,
it shall maintain a register of the securities so bought,
the consideration paid for the securities bought-back, the
date of cancellation of securities, the date of extinguishing
and physically destroying of securities and such other particulars
as may be prescribed.
(10) A company shall, after the completion of the buy-back
under this section, file with the Registrar and the Securities
and Exchange Board of India, a return containing such particulars
relating to the buy-back within thirty days of such completion,
as may be prescribed:
Provided that no return shall be filed with the Securities
and Exchange Board of India by a company whose shares are
not listed on any recognised stock exchange.
(11) If a company makes default in complying with the provisions
of this section or any rules made thereunder, or any regulations
made under clause (f) of sub-section (2), the company or any
officer of the company who is in default shall be punishable
with imprisonment for a term which may extend to two years,
or with fine which may extend to fifty thousand rupees, or
with both.
Explanation.—For the purposes of this section,—
(a) “specified securities” includes employees’
stock option or other securities as may be notified by the
Central Government from time to time;
(b) “free reserves” shall have the meaning assigned
to it in clause (b) of Explanation to section 372A.
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