31 May

Introduction / What is a share buyback? / Off-market or on-market? /  Initial considerations / How does a share buyback affect existing shareholders? / Share buybacks for employees' share schemes / Financial assistance / Other considerations / Conclusion 

Introduction: Private limited companies have the option to buy back their own shares, known as a share buyback. This article explores the key considerations and regulations surrounding private company share buybacks. 

What is a share buyback? A share buyback, also known as a share repurchase, is a process in which a company purchases its own shares from existing shareholders. 

This means that the company becomes the owner of the shares it buys back, effectively reducing the number of shares available in the market. 

Share buybacks can be carried out by both public and private companies, but the regulations and procedures may vary depending on the company's legal structure and jurisdiction. 

There are several reasons why a company may choose to undertake a share buyback. It can be a way to return excess cash to shareholders, signal confidence in the company's financial position, increase earnings per share by reducing the number of shares outstanding, or provide an exit strategy for shareholders who wish to sell their shares. 

Share buybacks can be conducted through different methods, such as open market purchases, tender offers, or off-market transactions. 

The specific approach chosen will depend on various factors, including legal requirements, available funds, and the company's objectives. 

It's important to note that share buybacks are subject to regulatory and legal considerations, such as the Companies Act and other relevant laws and regulations. Companies must comply with these requirements and ensure that the buyback is carried out in a fair and transparent manner. 

Overall, a share buyback is a mechanism that allows a company to repurchase its own shares from shareholders, providing various benefits and opportunities for both the company and its shareholders. 

Off-market or on-market? For private limited companies, off-market share buybacks are the only option available. Off-market purchases involve buying shares directly from shareholders, rather than through a public market. 

Initial considerations: Before proceeding with a share buyback, private limited companies should carefully consider several factors:  

  1. Reasons for undertaking the share buyback, especially if it is related to an employees' share scheme.
  2. Power to undertake the buyback, which requires checking the company's articles of association and any shareholders' agreements.
  3. Share capital requirements, ensuring that the company will still have at least one non-redeemable share in issue after the buyback.
  4. Approvals needed for the share buyback, in addition to the resolution approving the buyback contract.
  5. Relevance of provisions relating to substantial property transactions, transaction at an undervalue, and unlawful financial assistance.
  6. Potential restrictions from banking facilities and compliance with financial promotion laws.
  7. Consent requirements from the Financial Conduct Authority (FCA) or Prudential Regulation Authority (PRA).
  8. Clearance from the Pensions Regulator, if applicable.
  9. Application of the City Code on Takeovers and Mergers (Takeover Code).
  10. Financing options for the share buyback.
  11. Potential tax issues arising from the buyback.

How does a share buyback affect existing shareholders?

 A share buyback can have several effects on shareholders, depending on the specific circumstances and objectives of the company. Here are some ways in which a share buyback can impact shareholders:  

  1. Increased ownership percentage: When a company buys back its own shares, the total number of shares in circulation decreases. As a result, the ownership percentage of existing shareholders increases. This can be beneficial for shareholders who choose not to sell their shares during the buyback, as their stake in the company becomes relatively larger.
  2. Increased earnings per share (EPS): By reducing the number of shares outstanding, a share buyback can lead to an increase in earnings per share. This is because the company's earnings are divided among a smaller number of shares, resulting in a higher EPS. This can be seen as a positive outcome for shareholders, as it indicates improved profitability on a per-share basis.
  3. Potential capital appreciation: A share buyback can potentially lead to an increase in the company's stock price. With a reduced number of shares available in the market, the demand for the remaining shares may increase, driving up the stock price. This can result in capital appreciation for shareholders who continue to hold their shares.
  4. Return of excess cash: Share buybacks are often used as a means to return excess cash to shareholders. By repurchasing shares, the company effectively distributes its available funds to shareholders. This can be seen as a form of cash return or dividend, providing shareholders with a direct benefit.
  5. Improved financial ratios: A share buyback can positively impact certain financial ratios, such as earnings per share, return on equity, and book value per share. These improved ratios can enhance the company's financial profile and potentially attract more investors, which can indirectly benefit existing shareholders.

 It's important to note that the impact of a share buyback on shareholders can vary depending on individual circumstances and market conditions. Shareholders should carefully evaluate the company's intentions and consult with financial advisors to assess the potential effects on their investment. 

Share buybacks for employees' share schemes: If a share buyback is for the purposes of, or pursuant to, an employees' share scheme, the procedure is simplified and certain requirements are relaxed. 

A contract to buy back shares is not required, and payment for the shares can be deferred. Approval for payment out of capital can be obtained through a simplified procedure.  

Financial assistance: While private companies can give financial assistance for the acquisition of their own shares, public companies and their subsidiaries face restrictions. However, there is an argument that a share buyback itself is not prohibited as unlawful financial assistance. 

Care should be taken to ensure that financial assistance is not given in connection with the share buyback. For a more detailed understanding of financial assistance regulations, consult the provided Practice Note. 

Other considerations: In addition to the above, private companies should also consider banking restrictions, compliance with financial promotion laws, FCA and PRA consent requirements, Pensions Regulator clearance, and the application of the Takeover Code. Each of these factors may have specific implications for a share buyback and should be carefully evaluated. 

Conclusion: Private company share buybacks involve several legal and regulatory considerations. It is crucial for companies to thoroughly assess their specific circumstances and seek professional advice to ensure compliance with the Companies Act 2006 and other relevant regulations. By understanding the requirements and implications, private limited companies can navigate the share buyback process successfully. 

Also see our related articles on:

Reduction of capital and share buybacks

Reduction of share capital- reasons & procedure

Financing private company share buybacks

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Registered Office: 71-75, Shelton Street, Covent Garden, London, WC2H 9JQ

Note: This publication does not necessarily deal with every important topic nor cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. The information contained in this document is intended to be for informational purposes and general interest only. 


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