I gave a lecture at ICSI on GOVERNANCE - Initiative and Accountability.
I believe that Corporates are expected to use their Capacity, Knowledge and Resources towards Maximization of stakeholders' value and well-being and progress of humankind.
There are four parts of this presentation-
1. Strengthening Board Framework
2. Stakeholder Interest Protection
3. Transparency and Disclosure
4. Impact of Change
4. Truth : Disclosure of Actual State of Affairs
(Transparency in operations and transactions)
12/28/2013
5. Dharma: “ Dharma is for the stability of
society, the maintenance of social order
and the general well being and progress of
humankind.”
-Karan Parva of the Mahabharata. Verse -58 in Chapter 69
12/28/2013
6. Corporates are also expected to use their
Capacity, Knowledge and Resources
TOWARDS
Dharma
Maximization of stakeholders’ value and well-being and
progress of humankind
THROUGH
Truth
Transparency, accountability and truthful disclosure of state of
affairs
12/28/2013
7. Outline
Part - A
Strengthening Broad Framework
Part - B
Stakeholder Interest Protection
Part - C
Transparency and Disclosure
Part - D
Impact of Change
12/28/2013
11. Audit and Auditors Sec 141
Board Composition
Audit and Auditors - Sec 143
Woman
Director
Resident
Director
12/28/2013
Independent
Director (ID)
Small
Shareholder
Director
12. Audit and Auditors Sec 141
Bird’s eye view to Provisions
Audit and Auditors - Sec 143
Candidate failed to be appointed
as director by member shall not be
appointed as Additional Director
Alternate Director shall be appointed
only if the original director is out
of India for not less than 3 months
Concept of Independent director
introduced for the first time in
Companies Act, 2013
Resigning Director shall be liable
for the acts done by him during
his tenure
Nomination of Director by member
has been made Costlier
Rubber Stamp Directors: Absence
in meeting for a consecutive
Period of 12 months shall made his
Office vacant.
12/28/2013
13. Directorship of directors –Section 165
Director in maximum 20 companies including Alternate Directorship
Public Companies or Subsidiaries
of Public Companies
Maximum 10
No. of Directorships can be reduced by passing special resolution by members
12/28/2013
14. Meeting of Board –Section 173
Notice to be sent to all the directors,
through electronic means or others
Board
of
Directors
may
participate
through video conferencing
Presence of at least 1 ID required in the
meeting called at shorter notice.
Else decision to be circulated to all the
directors and to be valid only after
ratification by at least one ID
12/28/2013
15. Meeting through Video Conferencing
Participation in meeting through video
conferencing allowed
Confirmation of accuracy of draft minutes
by every directors who attended meeting
within 7 days of receipt of draft minutes
Matters not to be dealt in meeting through
video conferencing
To approve the annual financial
statements; and
To approve the board’s report
12/28/2013
16. Quorum for Board Meeting –Section 174
Insufficient quorum shall now be not
allowed
as
compliance
a
with
Board meeting
12/28/2013
defense
for
frequency
non
of
17. Quorum for Board Meeting in case of Interested Director
Board
Meeting
where
“Interested
Director” ≥ 2/3 of the total strength of
the Board of Directors
Quorum = non interested Directors
present at the meeting, being not less
than 2
12/28/2013
19. Audit Committee –Section 177
In Every Listed Company
Public Company
Paid up capital of INR 100 Crores or
more or;
Deposits
/
Loans /
Debentures
exceeding INR 200 Crores or more
Composition:-
Min
3
directors
with
majority of ID
Provision
of
establishment
of
vigil
mechanism
1 year transition period for constitution /
reconstitution of Audit committee
12/28/2013
20. Nomination and Remuneration
Committee –Section 178
In Every Listed Company
Public Company
Paid up capital of INR 100 Crores
or more or;
Deposits / Loans / Debentures
exceeding INR 200 Crores or more
Composition:- Min 3 Non executive
directors. ≥ ½ comprising IDs.
Mandate of the Committee:• Identification of qualified Directors
and senior management personnel
•
•
12/28/2013
Performance evaluation of directors
Recommend to the Board policy for
remuneration of Directors, KMPs
and other employees
21. Stakeholders Relationship Committee –Section 178
In Every Company having more that
1,000 debenture / deposit / security
holders.
Composition:- to be decided by BoD.
Chairperson to be an NED.
Mandate of the Committee:• Consider and resolve the grievances
of Securities holders.
12/28/2013
23. Audit and Auditors Sec 141
Independent Director Sec 149 & 150
Audit and Auditors - Sec 143
Applicability
• Every Listed Company to
have at least 1/3 of board
consisting of independent
directors
• Prescribed
classes
of
unlisted Companies also to
have independent directors
on its board
Term
• Can be Appointed for a term
of 5 years in 1st Instance
• Can be re-Appointed for
another term of 5 years
• Cooling off period of 3 years
for after 2 consecutive terms
12/28/2013
Criteria
• Criteria for independence
similar to existing clause 49
of LA
• Nominee
director
not
considered as independent
• Independent
director
to
furnish
declaration
of
independence
on
yearly
basis
Others
• No Stock Option
• Separate meeting of ID
• Appointment to be approved at
a
general
meeting
with
explanatory statement justifying
appointment
• Liability only in respect of
omission & commission with
the knowledge of ID
For the first
time code of
conduct
prescribed for
Independent
Directors
(Schedule IV)
25. Duties of Director –Section 166
To act in accordance with the company’s Articles
To act in good faith in order to promote the objects of the company
Exercise his duties with due and reasonable care, skill and
diligence.
Not to have a direct or indirect interest that conflicts, or possibly
may conflict, with the interest of the company.
Director shall not achieve or attempt to achieve any undue gain or
advantage either to himself or to his relatives, partners, or
associates.
Shall not assign his office and any assignment so made shall be
void
12/28/2013
27. Matters to be considered only at meeting of the Board
Following powers shall be exercised by
the Board only at their meeting:•
Issue
of
Securities
–
Equity,
Preference, Debentures
•
Give guarantee or provide security in
respect of loans
•
Approve financial statements and
Director’s report
•
•
To fill a casual vacancy in the board
•
To commence a new business
•
12/28/2013
To make political contribution
To appoint internal auditor
29. Restrictions on powers of Board –Section 180 (Notified)
Restriction
for
sale
of
undertaking
applicable to all classes of companies
Term “Undertaking” and “Substantial
Undertaking” has now been defined
Borrowing in excess of the paid –up
capital & free reserves
A special resolution is required to
be
passed
resolution
12/28/2013
instead
of
Ordinary
30. Restrictions on Non-Cash Transactions
- Section 192 (Notified)
Director of a company or of its holding/
subsidiary/Associate company or any
connected
person
can
not
acquire
assets for consideration other than cash
from the company & vice versa.
Approval
at
a
general
meeting
is
required
If the Director or connected person is
director
of
holding
company
then
approval of holding company in general
meeting is also required
Valuation of the assets by registered
valuer
12/28/2013
31. Prohibition on Forward Dealing / Insider Trading
- Section 194 (Notified)
Forward dealing in the shares and
debentures of a company, its holding,
subsidiary or associate by Directors
and KMPs is prohibited
Banned contracts include both forward
contracts and option contracts
Securities acquired in violation to be
surrendered to company
Restriction on Directors, KMP and any
order person for indulging in Insider
trading
Communication required in ordinary
course
of
exempted
12/28/2013
business
or
under
law
33. Definitions
Key Managerial Personnel -2(51) (Notified)
CEO
OR
Managing Director
OR
Whole time Director
+
Company Secretary
+
CFO
12/28/2013
OR
Manager
34. Appointment of MD/WTD/Manager
- Section 196 & 203
• Now applicable to Private Company also
• Minimum age 21 years (25 years) and maximum
70 years
• Notice of BM/GM – T&C of appointment,
remuneration and other matters to be included
• Consent for appointment to be filed by directors
of private company to the ROC
12/28/2013
35. Appointment of KMP
•
KMP not to hold office in > 1 Company
except in Subsidiary Company at the
same time
KMP
can
be
director
with
permission of BOD
•
KMP vacancy to be filled up by BOD
within 6 months at BM
•
To
appoint
or
remove
managerial personnel
12/28/2013
any
key
36. Vacation of office of directors –Section 167
When Director fails to attend all Board
Meetings for consecutive period of 12 months.
This even when the leave of absence has been
granted
When Director is disqualified by an order of
court or Tribunal under any Act not only the
Companies Act.
When all directors have vacated the office:
the promoter shall appoint minimum
number of members
Central
Directors
Government
till
may
appoint
company
makes
appointment in General Meeting
12/28/2013
39. Public Issues
Liability for Mis-statements
Liability
Mis-statement
Civil - Sec 34
Untrue
Statement
Misleading
Statement
Compensate
those who have
suffered loss or
damage
Civil Liability for
Mis-statements
12/28/2013
Criminal -Sec 35
Min 6
mths
Max 10
Yrs
Min Amt
Involved
Max 3x Amt
Involved
Withdrawal of consent after issue but before allotment now not a
defense
In case of a fraud every person involved personally liable without
limitation of liability
40. Public Issues
Impersonation – Sec 38 (Notified)
Impersonation
Fictitious Name
Multiple Applications
Different Names
Different Combination
Consequences:•
For the first time, provisions introduced for disgorgement of gains made by
convicted
•
Amount received from disgorgement of gains to be credited to IEPF
12/28/2013
41. Public Issues
Fraudulent Inducement for Investing money -Sec 36 (N)
• Scope of section extended to obtaining credit facilities
from banks or financial institutions
• The offence made non compoundable
• Stringent punishment prescribed under section 447
Allotment of Securities – Sec 39 (Partially Notified)
• Return of allotment to be filed for issue of any kind of security
• Power given to SEBI to modify the minimum amount to be paid
on application which shall not be less that 5% of the nominal
amount
• Minimum subscription to be received in 30 days as against
earlier 120 days. Power to SEBI to modify the same
12/28/2013
42. Public Issues
Variation in terms of Contracts or Objects – Sec 27
Its easy pass a
ordinary resolution in
general meeting
I want to change the terms of
contracts referred to in prospectus
or objects of the Issue ?
Its no
longer easy
Revised Process
Approval of
members by
Special Resolution
12/28/2013
Notice of GM to be
published in
newspapers giving
justification for
variation
Dissenting
Shareholders to be
given an exit offer
by promoters/
controlling
shareholders
Amount raised in
IPO cannot be used
for buying, trading
or dealing in equity
shares of another
listed Company
44. Public Deposits – Tougher…
Section 73
Accepting Deposits
Repayment
• All companies can accept deposits only
from members (Directors & their relatives
excluded)
•
All
the
outstanding
deposits
on
commencement of the Act have to be repaid
within 1 year from date of maturity or 1 year
from commencement if already matured
• Prior approval of members required for
Conditions
accepting deposits
• Deposit to be invited by issue of circular to
• Only prescribed classes of companies having
members
• Where deposits are unsecured it has to be
specifically
quoted
in
every
document
inviting deposit
net worth of INR100 crore or turnover of INR
500 crore are allowed to raise deposits from
public
• Credit rating of deposits compulsory
Accepting deposit from public no longer
easy. Strict requirements to ensure
protection of depositor’s interests
12/28/2013
• Compulsory creation of charge on the assets
of the company within 30 days of acceptance,
if deposits are secured
46. Quorum of General Meeting – Sec 103 (Notified)
Quorum (Members to
be personally present)
in pub co
No. of members on the
day of meeting
5
≤ 1000
15
> 1000
≤ 5000
30
> 5000
3 days notice (either individually or in
newspaper), in case of adjournment of
GM due to lack of quorum or change in
day, time or place of adjourned meeting
Single person not to be proxy for more than 50 members
Proxy cannot vote by show of hands
Member of Private Limited company cannot appoint more than 1 proxy
to attend on same occasion
12/28/2013
48. Unpaid Dividends - Sec 124
Information relating to unclaimed dividends to be uploaded on the website of the company
and CG within 90 days of transfer to unpaid dividend account
Along with the unclaimed amounts, the shares in respect to which they relate are to
transferred to IEPF
The claimants can now apply to IEPF for claiming unpaid amounts/share due/belonging to
them
Shares transferred to IEPF shall not have voting rights- Draft Rules
12/28/2013
50. CSR – Sec 135
Turnover ≥ 1000 Crs or
Networth ≥ 500 Crs or
Net Profits ≥ 5 Crs
CSR spend of at least 2% of avg. net
profits made during 3 immediately
preceding FYs
COMPLY
OR
EXPLAIN
12/28/2013
Committee shall formulate and
recommend CSR policy and
amount of expenditure as well
as monitor CSR activities (CSR
policy on web)
Preference to local areas in
which the company operates
To promote welfare Initiatives
CSR
Committee
to
be
constituted (3+ Dir incl. at least
1 ID)
Areas specified in Schedule VII
51. CSR – Promoting Welfare Initiatives
• Applicable to all types of companies including private
companies
• Net profits before tax to be considered
• Applicable from F/Y 14-15
• Income tax Act does not provide any deduction so far
• Surplus Income generated out of CSR activities not
part of business profits of company
• No penalty for noncompliance of the provision
12/28/2013
52. CSR – Promoting Welfare Initiatives
•
CSR Activities to be undertaken as projects or
programmes
•
Excluding activities undertaken in pursuance of the
normal course of business of a company
•
In the area nearby the operations of the company
•
May implement the same through trust/society set up by
company or otherwise having track record of three years
•
Activities to be undertaken within India
•
Activities not exclusively for the benefit of employees or
their family members
•
Nature of projects/programmes to be covered for
eradicating extreme hunger and Poverty, for promotion
of education…..etc as given in schedule VII
12/28/2013
54. Class Action Suit –Section 245
Who Can File
•
100 Members or 10% of the total number of members or depositors
(whichever is less)
Where to File
•
NCLT
Why to File
•
To protect the interest of minority shareholders
Against Whom
•
Company or its Auditors, Experts, Advisors or Consultants
12/28/2013
57. Annual Return – Section 92
Additional information required to be provided in Annual Return
Principal business
activity with
particulars of holding,
subsidiary and
associate company
Info up to FY
closure only
Details about other
securities issued by
company
Details of Foreign
Institutional Investors
if shares held by them
or on their behalf
Remuneration of
Directors and KMP
Details of
Promoters/KMP along
with changes since
closure of last FY
12/28/2013
Details of meetings of
members/class
thereof/BOD/various
committee along with
attendance details
Details related to
certification of
compliance,
disclosures, etc
Such other matters as
may be prescribed
Details of
penalties/punishment
on Co/ directors/
officers/
compounding of
offence/ appeals
58. Return to be filed with Registrar in case
Promoter’s stake changes – Sec 93
Listed company to file Return in prescribed form with RoC within 15 days in case of change
in number of shares held by the Promoters or top 10 shareholders
12/28/2013
59. General Meeting – Sec 100 (Notified)
OPC not required to hold AGM
First AGM to be held within 9 months from
closure of first FY
AGM to be held on between business
hours i.e. 9 AM to 6 PM
Notice of GM may be sent through electronic mode
To be sent to all Directors
21 clear days notice to be given
In case of AGM Shorter notice can be given by
consent of 95% of members who are entitled to
vote (like for EGM)
Secretarial Standards mandated
Report of AGM, prepared in prescribed manner,
to be filed with RoC
12/28/2013
60. Statement to be annexed with Notice – Sec 102 (Notified)
Explanatory Statement in case of
special business to specify
Liability in case of non-disclosure or
insufficient disclosure in
Explanatory Statement
Nondisclosure
/insufficient
disclosure
Nature of
interest/
concern
Financial
Interest
Director
and
Manager
Other
Interest
KMP
Relatives
Explanatory statement to specify shareholding % of
Promoters/directors/manager/KMP whose shareholding is not
less than 2% of paid up capital, incase the special business
transacted is to affect other Company
12/28/2013
Benefit
Promoter
Profit
Director
and
Manager
KMP
Liable to compensate to Company to
the extent of such profit/benefit
Default in sending or providing disclosure in explanatory
statement shall attract fine extending up to Rs. 50000 or 5
times of profit or benefit, whichever is more
62. Consolidation of Accounts – Sec 129
Mandatory consolidation of accounts in case of subsidiary, Associate and
Joint Venture
Every company to place separate audited accounts for each subsidiary on its
website, if any
Subsidiary to include associates and joint ventures
12/28/2013
64. Definitions
Financial Statement – Section 2(40) (Notified)
Includes
Balance Sheet
12/28/2013
Profit & Loss
Account
Cashflow
Statement
Statement of
changes in Equity
explanatory
notes
65. Definitions
Financial Year – Section 2(41)
Incorporated before 1st Jan
Yes
31st March of Current Year
•
•
No
31st March of next Year
Transition period of 2 years for existing Cos
Cos having foreign holding or subsidiary cos can follow different year with prior approval of
tribunal
12/28/2013
66. Audit and Auditors
Appointment of Auditor – Sec 139
Every Company to appoint auditor for a term of
5 years provided the same shall be ratified by
members at every AGM
Listed company shall not appoint or re-appoint
individual or firm as a auditor for more than 5 or
10 consecutive years respectively
Rotation of audit partner & team at such
intervals as may be prescribed
Cooling period for re-appointment as auditor is
5 years
Transition period of 3 years provided from
commencement of the Act
Special resolution required for appointing
auditor other than the retiring auditor or not reappointing auditor
Company to intimate RoC and Auditor within 15
days of the appointment
12/28/2013
Rotation of auditors including audit firms
is being considered for introduction in
EU, US, UK and Malaysia.
67. Restrictions for the Auditors – Section 144
Restriction for the auditors to undertake following specialized services by himself or his
subsidiary or associate company or any other form of entity
Accounting
and book
keeping
services
Internal Audit
Investment
advisory
services
Actuarial
services
Rendering of
outsourced
financial
services
Design and
implementation
of any financial
information
system
Investment
banking
services
Whether following services may be undertaken ?
o Tax consultancy and representation
o Project
12/28/2013 financing assignment
o Restructuring assignment
Management
services
68. Mandatory Internal Audit – Section 138
Every Listed
Company
Every public company
having paid-share capital
of Rs. 10 crores or more
Any other public company
having borrowings from
banks/financial institutions/
deposits of Rs. 25 crores
or more
12/28/2013
70. Loan to Directors & persons in whom
director is interested – Section 185 (Notified)
No Company can give loan/ security/
guarantee in favour of
• Directors
• Any person in whom director is
interested
Now also applicable to private
Companies
There is no facility of seeking
approval of Central Government
12/28/2013
72. Definitions
Related Party – Section 2 (76) (Notified)
Company
Director or
his Relative
KMP or his
Relative
Holding
Company
Subsidiary &
Associate
Fellow
Subsidiaries
Director, manager or
his Relative
Partnership
Firm in
which
partner
Private
Company in
which
member or
director
Public
Company in
which
member or
director
Body
Corporate
Advised
Directed or
instructed
Related Parties under various legislations
12/28/2013
Person who
Advises
Directs or
instructs
73. Related Party Transactions – Section 188
Prior approval of CG for any RPT or appointment to
any office or place or profit NOT required
Transaction related to any kind of property are also
covered
Exemption granted to transactions in ordinary
course of business made at arm’s length price
Member who is a related party shall not vote on the
resolution
12/28/2013
74. Related Party Transactions
Transactions to be Approval by Special Resolution :
RPTs for companies having paid up capital of
1crore rupees; or
If Transaction exceeds 5% of annual turnover or
20% of net worth of company which ever is
higher; or
Transaction relates to appointment to any office
or place of profit at a monthly remuneration
exceeding 1 lakh rupees; or
Remuneration of underwriting of subscription
exceeding 10 lakh rupees.
12/28/2013
75. Disclosures of related party transaction
Disclosure in explanatory statement to be annexed
to the notice
name of the related party ;
name of the director or key managerial
personnel who is related, if any;
nature of relationship;
nature, material terms, monetary value and
particulars of the contract or arrangement;
any other information relevant or important
for the members to take a decision on the
proposed resolution.
Every RPT shall be reported in the Board’s Report
along with justification for entering into the same
12/28/2013
77. Secretarial Audit – Sec 204
Secretarial Audit
Listed Company
•
•
•
•
&
Public Co. having paid-up
capital of Rs. 100 Crore or
more
Audit to be conducted by a Practising Company
Secretary
Audit of secretarial and related records
Secretarial Audit Report to form a part of Board
Report
BOD to explain in full any qualification or
observation or other remarks made in the report
Same Powers & Duties as of Statutory Auditor
12/28/2013
79. Fraud – Section 447 (Notified)
Fraud
Act
Omission
Concealment of fact
Abuse of position
With intent to
Deceive
Gain undue advantage from
Injure
Interests of
Company
Shareholders
Creditors
Whether or not there is
Wrongful gain
12/28/2013
Wrongful loss
Any other person
80. Fraud
“wrongful gain” means the gain by unlawful means of property to which the person gaining is
not legally entitled
“wrongful loss” means the loss by unlawful means of property to which the person losing is
legally entitled.
All offenses covered u/s 447 cognizable and non bailable unless excepted
Punishment
Min 6 mths
Max 10 Yrs
12/28/2013
Min Amt Involved
Max
3x
Amt
Involved
81. Investigation into the affairs of the Company
by SFIO – Section 212
Powers
Receipt of Report
from Registrar/
Inspector u/s 208
Special
Resolution for
investigating the
affairs of the
company
Public Interest
Request from
any department
of Central Govt
or State Govt
Search and Seizure
Power to Arrest
may order
Central
Govt
Serious Fraud
Investigation
Office
may direct SFIO
to initiate
prosecution
against the
company &
officer
Investigation
officer will
investigate the
affairs of the
company
Investigation Report
• SFIO commands authority over other Investigation Agencies of CG/State Govt
• SIFO to provide copy of Investigation Report to other agencies who were carrying out
investigation
12/28/2013
82. Acts punishable as Frauds
Particulars
Section
Furnishing any false or incorrect particulars of any information or suppression any
material information in relation to incorporation
7(5),(6)
Fraudulent conduct of affairs of a charitable company
8(11)
Untrue or misleading statement in prospectus
34 (N)
Fraudulently inducing persons to invest money
36 (N)
Personation for acquisition, etc., of securities
38(1) (N)
Issue of duplicate certificate of shares with an intent to defraud
46(5)
Transfer of shares by depository or depository participant, with an intention to defraud
56(7)
Furnishing False statement, mutilation, destruction of documents statement during
inspection, inquiry or investigation
229
Fraudulent application for removal of name
251(1)
Fraudulent conduct of business of Company being wound up
339(3)
False statement or omission in any return, report, certificate, financial statement,
prospectus, statement or other document required by, or for, the purposes of this Act
448 (N)
12/28/2013
84. Impact of Change
Quality of
functioning
company will increase
of
the
Beginning of new era of Board
Governance
Enhanced
responsibility
w.r.t.
disclosures and transparency
Increase in trust of investors and
stakeholders
12/28/2013
85. What we can do
Saam:
Diplomacy of Corporation and Mutual Respect
Daam:
Stay on budget
Spasht Kaam:
Transparency / Ethics in work, operations and process
Satarkata:
Vigilance
Vigyaan:
Using the Technology to serve Clients
Paband:
Time Commitment
These are not the weapons, but the intention of its handler
that counts
12/28/2013
86. Governing as per Indian eSource
CORPORATES SHOULD ACT LIKE HONEYBEE WHICH SUCK
THE NECTAR OF THE FLOWERS WITHOUT AFFECTING ITS
FRAGRANCE AND PRODUCE HONEY FOR THE
BEING OF SOCIETY .
12/28/2013
WELL –