Equity Investment Legal Mechanics in Bangladesh: A Detailed Overview

 

Equity investment in Bangladesh is governed by several regulatory frameworks, including the Bangladesh Securities and Exchange Commission Act, Companies Act 1994, Foreign Exchange Regulation Act 1947, and the Income Tax Ordinance 1984. Understanding the mechanics of equity investment in Bangladesh is crucial for investors, entrepreneurs, and businesses alike, as these regulations dictate the issuance, governance, and exit strategies for equity investment instruments. This article explores the different equity instruments available, legal considerations for issuing shares, investing in alternative markets, and the compliance required for such activities in Bangladesh.

1. Types of Investment Instruments in Bangladesh

In Bangladesh, equity investment can be categorized through a variety of financial instruments, each with unique rights and obligations:

•Ordinary Shares: These represent the basic ownership units in a company, granting voting rights and dividend entitlements based on the company’s profits. They are the most common form of equity issued to investors.

•Preference Shares: These shares offer preferential rights over ordinary shares, typically entitling shareholders to a fixed dividend and priority in the event of liquidation. However, they often come with limited or no voting rights.

•Convertible Loans: These are debt instruments that can be converted into equity after a specific period or under certain conditions. Convertible loans allow investors to initially hold debt with the option to later convert to equity if the company performs well.

•Debentures and Bonds: These are long-term debt instruments issued by companies, with debentures being unsecured and bonds usually secured by company assets.

2. Share Issuance Mechanics

Companies in Bangladesh can issue shares through various processes, including:

•Private Placements: Shares are issued to a select group of investors rather than to the general public, often through institutional investors or private equity firms.

•Public Offering: Companies may choose to offer shares to the public through the Dhaka Stock Exchange (DSE) or Chittagong Stock Exchange (CSE), making shares accessible to a broader range of investors.

•Rights Issue: Existing shareholders are offered the right to purchase additional shares at a predetermined price, allowing them to maintain their proportional ownership in the company.

•Bonus Issue: This involves the issuance of additional shares to existing shareholders without any cost, typically sourced from retained earnings or reserves.

•Employee Share Scheme: Companies in Bangladesh are increasingly adopting employee share schemes, such as Employee Stock Ownership Plans (ESOPs), to attract and retain talent. These plans enable employees to purchase or receive shares of the company, aligning their interests with company growth.

3. Alternative Investment in Bangladesh

In Bangladesh, alternative investment is primarily regulated under the Bangladesh Securities and Exchange Commission (Alternative Investment) Rules, 2015. This framework facilitates investment in high-potential ventures, such as venture capital (VC) funds, private equity (PE) funds, and impact funds, targeting start-ups, SMEs, and socially or environmentally impactful sectors. Here’s a breakdown of how these funds operate under Bangladeshi law:

a. Venture Capital Funds:

Venture capital funds in Bangladesh primarily invest in start-ups with less than two years of operational history or in early-stage companies engaged in innovative products, services, and business models. These funds are designed to accept high risk in exchange for the potential of substantial financial returns. Venture capital investors often look for high-growth industries, and under Bangladeshi rules, VC funds can also invest in companies that have been operating for up to three years  .

b. Private Equity Funds:

Private equity funds in Bangladesh target more mature companies, typically looking for opportunities to restructure or expand businesses. Investors typically seek to increase the company’s value before exiting, often through an IPO or a sale. The Bangladesh Private Equity and Venture Capital Association (BPEVCA) plays a significant role in promoting private equity investments, and PE firms are regulated by the BSEC . Recent amendments to the regulations have relaxed some investment rules, such as lowering the lock-in period for investments to two years .

c. Impact Funds:

Impact funds in Bangladesh seek to generate measurable social or environmental benefits alongside financial returns. These funds are part of the broader alternative investment category, focusing on sectors like education, health, and renewable energy .

d. Legal and Compliance Aspects:

To establish an alternative investment fund (AIF) in Bangladesh, both the fund manager and trustee must be registered with the Bangladesh Securities and Exchange Commission. The fund manager must adhere to various criteria, including minimum paid-up capital requirements and compliance with international accounting and reporting standards . Additionally, foreign entities wishing to manage such funds must incorporate a local company . Each AIF must have a lifespan of 5 to 15 years, and no fund can have more than 200 investors .

e. Exit Policy for Investors:

For investors in private equity and venture capital funds, common exit routes include IPOs and mergers or acquisitions. Bangladesh’s evolving financial landscape, including a proposed stock exchange for SMEs, aims to create more robust exit mechanisms . Regulatory changes have also reduced the lock-in period and introduced more flexibility in fund management .

4. Investing in the Securities Market

The Bangladesh Securities and Exchange Commission (BSEC) regulates the securities market, which comprises:

•Equity Securities: Investors can purchase shares of publicly traded companies listed on the DSE or CSE, which allows for liquidity and the opportunity to participate in the company’s financial growth.

•Debt Securities: Government and corporate bonds are issued to investors seeking fixed returns over time, and they are an important alternative to equity investments.

•Derivatives: Bangladesh has limited but growing derivative markets, including options and futures, allowing investors to hedge against risks associated with equity and commodity prices.

5. Employee Share Scheme in Bangladesh

In Bangladesh, employee share schemes such as Employee Stock Option Plans (ESOPs) or Employee Stock Purchase Plans (ESPPs) are increasingly becoming a part of the compensation landscape, especially in tech and startup sectors. These schemes are generally governed under the Companies Act 1994, which mandates that the issuance of such shares must be approved by both the company’s board of directors and its shareholders to ensure transparency and compliance.

ESOPs in Bangladesh provide employees the right to purchase shares of the company at a future date, usually at a predetermined price. This mechanism serves as an incentive for employees to stay with the company and contribute to its long-term growth, aligning their interests with the company’s performance. However, under the Companies Act, there are restrictions, such as the prohibition on public companies providing direct financial assistance for the purchase of their own shares. This provision aligns with the principle of capital maintenance, which prevents companies from eroding their share capital inappropriately.

However, some issues exist in Bangladesh, such as complications with regulatory procedures at the Registrar of Joint Stock Companies (RJSC), particularly regarding the issuance of shares at zero value or for in-kind services provided by employees. The current legal framework makes this process cumbersome, though there are ongoing discussions about the need to streamline these processes to foster greater use of ESOPs in Bangladesh  .

Thus, while the law supports employee share schemes, practical difficulties and certain legal restrictions may limit their implementation in the country. There is growing advocacy for legal reform to simplify and encourage the use of such schemes.

 

6. Preference Shares

Preference shares in Bangladesh grant investors priority over common shareholders when it comes to dividends and assets during liquidation. They may be cumulative or non-cumulative, and redeemable or non-redeemable:

•Cumulative Preference Shares: These allow unpaid dividends to accumulate and be paid out before any dividends are given to ordinary shareholders.

•Redeemable Preference Shares: The issuing company can redeem these shares at a predetermined date or event, giving them more flexibility.

7. Convertible Loans

Convertible loans are debt instruments with the option to convert into equity after a certain period or milestone is achieved. This structure allows for risk mitigation on the investor’s part, as they are initially protected by the terms of the loan but can enjoy upside potential if the company performs well.

8. Share Buyback Options

The Companies Act 1994 allows companies to repurchase their shares under specific conditions, such as returning excess capital to shareholders or consolidating ownership. This must be approved by the shareholders and conform to BSEC regulations, which ensure that buybacks are not used to manipulate the company’s share price.

9. Derivative Finance Mechanics

Although Bangladesh’s derivative market is still underdeveloped, derivative instruments like futures contracts and options are available on a limited basis. These financial instruments allow companies and investors to hedge against market risks, such as fluctuating commodity prices or interest rates. The growth of the market depends on further regulatory support and the introduction of sophisticated financial products.

10. Exit Policies for Investors in Bangladesh

For equity investors, exit strategies can involve various mechanisms:

•Initial Public Offering (IPO): Investors can exit by selling their shares to the public during an IPO, providing liquidity for early investors.

•Secondary Sale: Shares can be sold to other investors in a private transaction, which is often seen in private equity or venture capital-backed companies.

•Mergers and Acquisitions: Investors can exit through mergers or acquisitions, wherein the company is sold to another firm, and the equity is converted into cash or shares of the acquiring company.

•Share Buybacks: As previously mentioned, companies can buy back shares from investors, providing them with an exit mechanism, especially if market conditions are unfavorable for public offerings.

11. Legal Compliance for Equity Investments

Equity investments in Bangladesh require compliance with several regulations to ensure transparency and accountability:

•Foreign Exchange Regulation Act (FERA) 1947: Governs foreign investments and repatriation of profits. Foreign investors must register their investments with the Bangladesh Investment Development Authority (BIDA) to benefit from legal protections.

•Income Tax Ordinance 1984 and Income Tax Act 2023: Investors are subject to capital gains tax, and companies must withhold tax on dividends and submit returns to the National Board of Revenue (NBR).

•Companies Act 1994: Dictates the legal structure of companies, their rights to issue shares, and corporate governance requirements.

•Bangladesh Securities and Exchange Commission (BSEC): All equity investments must comply with BSEC regulations, particularly when dealing with public companies and securities listed on the stock exchanges. The BSEC also has a framework for Alternative Investment Funds (AIFs), ensuring that they operate transparently and within the law.

Conclusion

Equity investment in Bangladesh offers a variety of instruments and mechanisms for both local and foreign investors. From traditional share issuance to alternative investments and derivative finance mechanics, investors have numerous avenues to explore. Understanding the legal framework and compliance obligations is essential for maximizing returns and minimizing risks. As Bangladesh continues to develop its financial markets, the regulatory landscape will likely evolve, offering even more sophisticated instruments and investment opportunities for equity investors.

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