Companies Act, 2013 Procedure

Procedure for Issue of Debentures

Nupur Rathore Nupur Rathore
Nupur Rathore

Published on: Dec 5, 2020 / Updated on: Dec 21, 2020

Introduction

Debenture includes debenture stock, bonds or any other instrument of a company that is evidence of a debt, whether it has or not constituted a charge on the assets. [Section 2(30)]

Mandatory Requirements

  1. Debentures cannot be issued with voting rights.
  2. A Company cannot issue debentures to more than 500 people without appointing a debenture trustee, whose duty would be to protect the interest of Debenture Holders and redress their grievances.
  3. On issue of debenture, a Company shall create a Debenture Redemption Reserve (DRR).
  4. If there is any default in repayment of amount in the event of maturity or default in payment of the interest thereon then the Tribunal will be approached by the Debenture Trustee to take appropriate measures

Following Procedure is to be followed

  1. Intimation to the Stock Exchange [Regulation 29 of the SEBI (LODR) Regulations, 2015]
    Listed Companies shall give prior intimation to the stock exchange about the meeting of the Board of Directors in which the proposal for issue of debentures through Private Placement is due to be considered at least 2 working days in advance, excluding the date of intimation and date of meeting.
  2. Convene a Meeting of Board of Directors [As per section 173 & SS-1]
    • Issue Notice of Board Meeting to all the Directors of Company at their addresses registered with the Company, at least 7 days before the date of Board Meeting. A shorter notice can be issued in case of urgent business.
    • Attach Agenda, Notes to Agenda and Draft Resolution with the Notice.
    • Hold a meeting of Board of Directors of the Company and pass the necessary Board Resolution
      • to consider and approve issue of debentures through private placement.
      • to approve Private Placement Offer Letter.
      • to identify the group of persons to whom Private Placement shall be made.
      • to fix day, date, time and venue for holding General Meeting of the Company.
      • to approve the draft notice of General Meeting along with explanatory statement annexed to the notice as per requirement of the Section 102 of the Companies Act, 2013.
      • to authorize the Director or Company Secretary to sign and issue notice of the General Meeting and to do such acts, deeds and things as may be necessary to give effect to the Board’s decision.
    • Listed Company shall submit the outcome of Board Meeting within 30 minutes from the conclusion of the Board Meeting and post the same on the website of the Company within 2 working days. [Regulation 30 & 46(3) of the SEBI (LODR) Regulations, 2015]
    • Prepare and Circulate Draft Minutes within 15 days from the conclusion of the Board Meeting, by Hand/Speed Post/Registered Post/Courier/E-mail to all the Directors for their comments. [Refer the Procedure for Preparation and Signing of Minutes of Board Meeting]
  3. File Form MGT-14 with ROC
    Company shall file copy of Board Resolution to ROC in Form MGT-14 within 30 days of passing of resolution in Board Meeting.
  4. Obtain Shareholders’ Approval
  5. Convene General Meeting [Section 96, 100 and SS-2]
    • Notice of General Meeting shall be given at least clear 21 days before the actual date of a General Meeting in writing, by hand or by ordinary post or by speed post or by registered post or by courier or by facsimile or by e-mail or by any other electronic means or a Shorter Notice can be issued with the consent of at least majority in number and ninety five percent of such part of the paid up share capital of the company giving a right to vote at such a meeting in accordance with Section 101.
    • Notice will be sent to all the Directors, Members, Auditors of Company, Secretarial Auditor, Debenture Trustees and to others who are entitled to receive the notice of the General Meeting.
    • Notice shall specify the day, date, time and full address of the venue of the Meeting and contain a statement on the business to be transacted at the Meeting.
    • Hold the General Meeting on fixed day and pass Special Resolution for issue of debenture through Private Placement.
    • Listed Companies shall disclose the proceedings of General Meeting to the Stock Exchange within 24 hours from the conclusion of General Meeting and same shall be posted on the website of the company within 2 working days. [Regulation 30 and 46(3) of the SEBI (LODR) Regulations, 2015]
    • Listed Companies shall submit to the stock exchange the details of the voting results within 48 hours from the conclusion of the meeting and post the same on the website of the Company. [Regulation 44 of the SEBI (LODR) Regulations, 2015]
    • Prepare the minutes of General Meeting, get them signed and compile accordingly. [Refer the Procedure for Preparation and Signing of Minutes of General Meeting].
  6. File Form MGT-14 with ROC
    Company shall file Form MGT-14 with the ROC within 30 days of passing Special Resolution in General Meeting along with fee as specified in the Companies (Registration offices and fees) Rules, 2014 and with the following attachments
    • Certified True Copies of the Special Resolution passed along with Explanatory Statement.
    • Copy of the Notice of meeting sent to members along with all the annexure
    • Shorter Notice Consent Letters from the members in case the General Meeting was convened at shorter notice.
    • Copy of Attendance Sheet of General Meeting
    • Any other attachment as may be applicable.
  7. Open Separate Bank Account
    Company shall open a separate Bank Account in a Scheduled Bank for keeping the monies received on the application.
  8. Preparation and Filing of Private Placement Offer Letter
    • Company shall record the names of the persons to whom the debenture through Private Placement shall be offered.
    • Company shall make a Private Placement Offer Letter in Form PAS-4 and shall send these offer letters either in writing or in electronic mode within 30 days of recording of names of such person with an application form serially numbered to the person to whom it is made.
    • Company shall maintain a complete record of persons to whom the private placement offer letter is sent in Form PAS-5.
  9. Receive the Amount of Subscription
    • Company shall receive the amount of subscription through cheque or demand draft or other banking channels from the Bank Account of the person subscribing to debentures except in case of issue of debentures for consideration other than cash.
    • Company shall keep the record of the Bank account from where such payments for subscriptions have been received.
  10. Allotment of securities by Private Placement
    After closing the Private Placement Offer, Company shall
    • Convene a Board Meeting, OR
    • Pass a Board Resolution by Circulation [Refer the Procedure for Passing a Resolution by Circulation] within 60 days from the date of receipt of the application money.
      Convene a Meeting of Board of Directors [As per section 173 & SS-1]
      • Issue Notice of Board Meeting to all the Directors of Company at their addresses registered with the Company, at least 7 days before the date of Board Meeting. A shorter notice can be issued in case of urgent business.
      • Attach Agenda, Notes to Agenda and Draft Resolution with the Notice.
      • Hold a meeting of Board of Directors of the Company and pass the necessary Board Resolution
        • to consider the allotment of debentures through Private Placement.
        • to authorize the Director or Company Secretary to file the return of allotment with the ROC.
      • Prepare and Circulate Draft Minutes within 15 days from the conclusion of the Board Meeting, by Hand/Speed Post/Registered Post/Courier/E-mail to all the Directors for their comments. [Refer the Procedure for Preparation and Signing of Minutes of Board Meeting]
  11. Make necessary Entries in Registers
    Private Company shall make necessary entries in the Register of debenture holders in Form MGT-2 within 7 days of the Board Meeting in which the allotment of Debentures was approved.
  12. File Return of Allotment with ROC
    Company shall file return of allotment within 15 days from the date of allotment in Form PAS-3 with the Registrar of Companies (ROC) along with following attachments
    • List of allottees, separate list for each allotment is mandatory
    • Copy of Board or Shareholders’ resolution approving allotment of debentures is mandatory in all cases
    • Complete record of private placement offers and acceptances in Form PAS-5 is mandatory in case of private placement
    • Any other information can be provided as an optional attachment(s).
  13. Issue the Relevant Certificates
    Private Companies which has not allotted Debentures in demat format shall issue and deliver the debentures certificates within a period of 6 months from the date of allotment.

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