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“NOWHERE”

“Governance
Initiatives

&
Accountability”
12/28/2013
Satyam Vada Dharmam Chara
- Taittariya Upanishad

12/28/2013
“Forever speak the truth and follow the dharma”

12/28/2013
Truth : Disclosure of Actual State of Affairs
(Transparency in operations and transactions)

12/28/2013
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
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
Outline
Part - A

Strengthening Broad Framework

Part - B

Stakeholder Interest Protection
Part - C

Transparency and Disclosure
Part - D

Impact of Change

12/28/2013
Novelties

Corporate Social
Responsibility

Auditing
standards
Secretarial
Audit
Related party

Fraud

Special courts
&
Conciliation
panel
Securities

Code for ID’s
KMP
Listed Company

Secretarial
Standards

12/28/2013
Part - A

Strengthening Board Framework
12/28/2013
Board of Directors and its Meeting

12/28/2013
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
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
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
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
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
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
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
New and Mandatory Committees

12/28/2013
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
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
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
Appointment and Qualification of Directors

12/28/2013
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)
Enhanced Duties, Responsibilities

12/28/2013
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
Powers of Board

12/28/2013
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
Restrictions on powers of Board

12/28/2013
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
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
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
Appointment and Removal of
Managerial Personnel

12/28/2013
Definitions

Key Managerial Personnel -2(51) (Notified)
CEO

OR

Managing Director

OR

Whole time Director

+
Company Secretary

+
CFO

12/28/2013

OR

Manager
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
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
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
Part - B

Stakeholder Interest Protection
12/28/2013
Prospectus & Allotment of Securities

12/28/2013
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
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
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
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
Acceptance of deposits

12/28/2013
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
Management & Administration

12/28/2013
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
Unpaid Dividend & Shares - IEPF

12/28/2013
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
Introduction to CSR

12/28/2013
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
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
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
Prevention of Oppression and Mismanagement

12/28/2013
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
Part - C

Transparency and Disclosures

12/28/2013
Transparency and Disclosures

12/28/2013
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
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
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
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
Accounts of Company

12/28/2013
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
Audit and Auditors

12/28/2013
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
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
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.
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
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
Inter Group Financing

12/28/2013
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
Related Party Transactions

12/28/2013
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
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
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
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
Secretarial Audit

12/28/2013
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
Fraud and Penal Provisions

12/28/2013
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
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
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
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
Part - D

Impact of Change

12/28/2013
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
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
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 –
Our Technological Move

12/28/2013
Thank You
Pavan Kumar Vijay

Corporate Professionals Group
D-28, South Extension –I, New Delhi-110 049
Ph: +91.11.40622200; Fax: +91.11.40622201; E: pkvijay@indiacp.com

12/28/2013

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Corporate Governance - Initiatives and Accountability

  • 2. Satyam Vada Dharmam Chara - Taittariya Upanishad 12/28/2013
  • 3. “Forever speak the truth and follow the dharma” 12/28/2013
  • 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
  • 8. Novelties Corporate Social Responsibility Auditing standards Secretarial Audit Related party Fraud Special courts & Conciliation panel Securities Code for ID’s KMP Listed Company Secretarial Standards 12/28/2013
  • 9. Part - A Strengthening Board Framework 12/28/2013
  • 10. Board of Directors and its Meeting 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
  • 18. New and Mandatory Committees 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
  • 22. Appointment and Qualification of Directors 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
  • 28. Restrictions on powers of Board 12/28/2013
  • 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
  • 32. Appointment and Removal of Managerial Personnel 12/28/2013
  • 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
  • 37. Part - B Stakeholder Interest Protection 12/28/2013
  • 38. Prospectus & Allotment of Securities 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
  • 47. Unpaid Dividend & Shares - IEPF 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
  • 53. Prevention of Oppression and Mismanagement 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
  • 55. Part - C Transparency and Disclosures 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
  • 78. Fraud and Penal Provisions 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
  • 83. Part - D Impact of Change 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 –
  • 88. Thank You Pavan Kumar Vijay Corporate Professionals Group D-28, South Extension –I, New Delhi-110 049 Ph: +91.11.40622200; Fax: +91.11.40622201; E: pkvijay@indiacp.com 12/28/2013