Q&As

Do sections 755–756 of the Companies Act 2006 prevent the grant of share options and awards?

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Published on LexisPSL on 19/07/2016

The following Share Incentives Q&A provides comprehensive and up to date legal information covering:

  • Do sections 755–756 of the Companies Act 2006 prevent the grant of share options and awards?
  • Prohibition of public offers by private company
  • Meaning of offer to the public
  • What is not an offer to the public
  • Financial Services and Markets Act 2000 and the Prospectus Rules

Prohibition of public offers by private company

Under the section 755(1) of the Companies Act 2006 (CA 2006), a private limited company must not:

  1. offer to the public any securities (ie shares or debentures) of the company, or

  2. allot or agree to allot any securities of the company with a view to their being offered to the public

Furthermore, CA 2006, s 755(2) confirms that, unless proved otherwise, an allotment or agreement to allot securities will be presumed to be made with a view to their being offered to the public if an offer of the securities (or any of them) to the public is made:

  1. within six months after the allotment or agreement to allot, or

  2. before the receipt by the company of the whole of the consideration to be received by it in respect of the securities

CA 2006, s 755 will not be contravened where a private company either:

  1. acts in good faith in pursuance of arrangements under which it is to re-register as a public company before the securities are allotted, or

  2. as part of the offer terms, undertakes to re-register as a public company within a specified period (such period being a period ending not later than six months after the day on which the offer is made or first made

Meaning of offer to the public

CA 2006, s 756(2) states that an

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