Why no buyback. Courtesy of 1manband.
A share repurchase (or buyback) is considered to be a distribution to common shareholders. In order to do that legally, a company may only use assets which are already owned by the common shareholders. Common shareholders are dead last in line for assets. The debtors are first, then creditors, then preferred shareholders, and finally common shareholders. Which means, the company must be in a positive asset position - the Company must have enough net assets (assets minus liabilities, including any amounts due preferred shareholders, which is important to recognize) to pay 100% of what is owed to all the classes in front of the common shareholders before they can buy back shares. And then they can only use the assets above that threshhold. AND, the company must have current financial statements which prove this is the case - no "take our word for it".
The Company must also have sufficient current assets to meet its obligations as they come due. A company having a lot of fixed or intangible assets, but little cash, is unlikely to meet this requirement as those assets are not readily convertible to cash to pay off debt maturing or its current liabilities.
Those 3 criteria (positive assets, current financial statements and sufficient current assets) are the 3 legal criteria a company must meet in order to repurchase shares under State laws. BUT, there is another consideration. Note that almost every contractual agreement for the issuance of toxic death spiral convertibles specifically states the Company is prohibited from repurchasing shares while any part of the debt remains unpaid. And this is important. We know most of these toxic convertible buyers will sue issuers immediately if they violate the purchase contracts. But recently, a lot of toxic death spiral issuers have issued news releases, and 8-K's, announcing repurchases plans when not only are they broke, but they cannot legally repurchase shares under the legal criteria above, AND they are prohibited from doing so under their contractual agreements. But yet the toxic note holders do nothing. Why? Because the fake "buybacks" are almost certainly being orchestrated by the toxic note holders as a scheme to pump the stock and increase buying volume which they can then convert and dump into. I have seen it quite a bit recently, and they all involve the same group of toxic note holders. And in each case, the Company in question is on life support and unquestionably near death. The bogus buyback announcement is the last gasp which gives the note holders one last dumping opportunity before the Company disappears for good.
You can lead a horse to water. But you can't make him get down on one knee and do an Al Jolson impression!
