Presentation on theme: "DIRECTORS, KMP’S & BOARD GOVERNANCE"— Presentation transcript:
1 DIRECTORS, KMP’S & BOARD GOVERNANCE Rashida AdenwalaFounder PartnerR & A AssociatesHyderabad, Gurgaon, Chennai
2 Coverage under the ActCHAPTER XI Appointment And Qualification Of Directors CHAPTER XII Meetings Of Board And Its Powers CHAPTER XIII Appointment & Remuneration Of Managerial Personnel
3 Max. 15 Directors (previously 12) > 15 directors by passing a SR No of DirectorshipsSec 149Min.1 Directorin case of OPC2 Directorsin case of Pvt. Co.3 Directorsin case of Public Co.Max. 15 Directors (previously 12)Co. may appoint> 15 directors by passing a SR
4 Woman Directors Section 149(3) Time Frame to appointWithin 1yr from date of commencement of Act (i.e., 01/04/2014)Intermittent vacancyAt the earliest but not later than immediatenext Board meeting or 3 months from such vacancy.ApplicabilityEvery listed Company andEvery other Public Co. havingPaid-up capital of Rs. 100 crs or more orTurnover of Rs. 300 crs or more.
5 Resident Director [Sec 149(2)] At least 1 director to be a person who has stayed in India for at least 182 days in the previous calendar year.Time Limit to Complywith immediate effect
6 Independent Director Section149 (5) Class or classes of Co.s to have at least 2 directors as Independent DirectorsPublic Co. having paid up Sh. Cap. Of Rs. 10 cr or morePublic Co. having Turnover of Rs. 100 cr or morePublic Co. which have, in aggregate, o/s loans, debentures and deposits, exceeding Rs. 50 crsEvery Co. within 1yr from such commencement or from the date of notification of the rules, comply with the requirements of the above provisions.
7 Independent Director Definition Section149 (5) Independent director means a director other than a Managing Director or a Whole time director or a nominee director and…..
9 Not having any Pecuniary Relationship* Company Holding Subsidiary Associate*During the 2 preceding Financial year or Current Financial Year.Not a Relative of Promoter or DirectorCompanyHoldingSubsidiaryAssociate^Amounting 2% or more of its gross total turnover^ or Rs. 50 Lakh which ever is lower^such amount as may be prescribed
10 Himself or his Relative CompanyHimself or his RelativeKMPEmployeeAssociateHoldingSubsidiaryImmediately for 3 preceding Financial year
11 Himself or his Relative Company SecretaryHimself or his RelativePartnerEmployeeProprietorAuditorCost AuditorLegal and ConsultingImmediately for 3 preceding Financial year
12 Appointment has to be approved by the Co. Independent Director Section149 (6) & 150in a general meetingas a Special Businessby Ordinary ResolutionAppointment has to be approved by the Co.To be selected from Data Banks maintained by any body..Detailed Explanatory Statement.No requirement to retire by Rotation.Two terms of 5 yrs each.Cool off period of 3 yrs.
13 Nominee Director/ Representative Director not to be considered as ID’s Letter of appointment sent to ID should give complete details of Terms and conditions as given in schedule VI.Any intermittent vacancy of an ID shall be filled-up not later than immediate next Meeting or 3 months from the date of such vacancy, whichever is later.where a Co. ceases to fulfill any of 3 conditions for 3 consecutive years, it shall not be required to comply with these provisions until such time as it meets any of such conditions.
14 Declaration by Independent Director Section149 (7) Independent director to give declaration atThe first board meeting as an Independent DirectorAt every first board meeting of financial year.
15 Remuneration Section149(8) Reimbursement of expenses incurred for attending meetingSitting feesCommission on profit not exceeding the limits prescribedNot eligible for ESOP’s
16 Professional conduct, Duties and Roles Schedule IV (1) (2) (3) Guidelines for Professional conductRoles and function definedDuties to be performed by Independent Directors
17 Separate Meetings Schedule IV (7) To conduct one meeting at least per year.Only Independent directors to be presentThe meeting shall discuss the performance evaluation of other Directors.
18 Evaluation Mechanism Schedule IV (8) Performance evaluation of Independent DirectorsExtension of term of appointment.
19 Liability Section149 (11)Liable for omissions or commissions held withHis knowledgeAttributable to whole BoardWith his consent and convenience
21 Rights & Duties of Director Section152 Act in accordance with the Articles of the companyAct in good faith in order to promote the objects of the Co.To exercise duties with due & reasonable care, skill and diligenceNot to achieve any undue gain/advantagePenalty for contravention of the provisions of the Co.: Min Rs. 1L which may extend to Rs. 5L
22 The proposed person gets elected as a Director Right of persons other than retiring Directors to stand for directorship Section 160Notice in writing > 14 days before the meetingdeposit of Rs. 1 L or such higher amount as may be prescribedThis deposit amount shall be refunded to such person/member, as the case may be, if-The proposed person gets elected as a DirectororGets more than 25% of total valid votes cast either on show of hands or on poll on such resolution
23 Alternative Director Section 161 In his absence of a Directors from India for a period not less than 3 months. Shall vacate the office on return of the director to India.
24 Vacation of Director Section167 Absent for BMs for a period of 12 months, with or without Leave of absence.Contravention of provisions of Sec. 184Disqualifications U/S 164Ceases to hold any office or other employment in the holding, subsidiary or associate by virtue of which he was appointed.Convicted by a court, whether involving moral turpitude and sentenced to imprisonment for > 6monthsBecomes disqualified by a order by a Court or Tribunal.
26 Audit Committee Section 177 ApplicabilityListed CompaniesPublic CompaniesPaid up Capital of Rs. 10 Cr.Turnover of Rs. 100 Cr.Outstanding loans of Rs. 50 Cr.
27 Audit Committee Section 177 Transition period of 1 year provided.Composition with minimum 3 directors with majority of Independent DirectorsThe meeting shall discuss the performance evaluation of other Directors.To establish Vigil Mechanism and protect interest of Whistle BlowersTo Investigate into the affairs of the Company.
28 Audit Committee Duties Section 177 (4) Terms of appointment of Statutory Auditors.Review of Statutory Auditors Performance.Examination of Financials and Auditors Report.Examination of Related Party Transactions.Scrutiny of Inter Corporate LoansEvaluation of Internal Financial controlMonitoring the use of Funds raised from Public Offers.
29 Nomination & remuneration Committee Section 178 ApplicabilityListed CompaniesPublic CompaniesPaid up Capital of Rs. 10 Cr.Turnover of Rs. 100 Cr.Outstanding loans of Rs. 50 Cr.
30 Nomination & remuneration Committee Section 178 Transition period of 1 year provided.Composition with minimum 3 directors with majority of Independent DirectorsIdentification of Qualified persons for DirectorshipFormulate policy for appointment & remuneration of DirectorsPolicy to be disclosed in Board’s Report
31 Stakeholders Relationship Committee Section 178 Any Company having more than 1000Share holderDebenture HoldersDeposit HoldersAny other SecuritiesTo consider and resolve the grievances of Securities Holders.
32 Penalty Company: Officer in Default: Minimum fine - Rs. 1.00 Lac Maximum fine – Rs.5.00 LacsOfficer in Default:Minimum fine Rs. 25,000; Maximum fine Rs.1.00 Lac orImprisonment – Maximum 1 year orboth fine and imprisonment.
33 Company shall form CSR Committee CSR Committee Section 135Company shall form CSR CommitteeNet worth > 500 Cr.Net Profit > 5Cr.Turnover > 1000Cr.
34 CSR Committee Section 135 Minimum of 3 Directors or more At least 1 Independent director to be present.Appointment of Independent Director not required if Company doesn’t have to appoint such Director.A private Company with 2 directors can form committee with such directors.
35 CSR Duties Section 135 Duties of Committee Duties of Board formulate and recommend a CSR policy to the boardrecommend the amount of expenditure to be incurredmonitor CSR policy from time to time.Duties of Boardconsider & approve CSR policy recommended by committee.Ensure that activities included in CSR policy are undertaken.Ensure that company spends, in every financial year, at least 2% of the average net profits
36 CSR Committee Section 135The Board shall spend 2% of the average net profits for last 3 financial years.CSR Activities shall be conducted as per Schedule VII.Disclosures as per the CSR rules should be given in Board’s Report and Website of Company.Procedure to conduct activities are detailed in rules.
37 Meetings of the Board Section 173 & 174 First Board Meeting days after incorporation of the Company.At least four board meetings every year with the gap time of 120 days between two board meetings.At least Four Board Meetings every year.Notice : 7 days prior notice in writing to every director by hand or by post or by courier or by or by any other electronic.Shorter Notice - allowed if at least one Independent director is present and if no independent director is present, decisions taken be circulated to all the directors and be finalized only on ratification thereof by at least one independent director.Quorum1/3rd of the total strength of the board or two directors, whichever is higher.Participation through video conferencing counted for the purpose of quorumPenalty for contravention: Every officer fine of Rs 25000
38 Restrictions On Powers of The Board Sec.180 Applicable to all classes of companies.Special Resolution of shareholder required for:Sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of companyTo Invest otherwise in trust securities amount of compensation received on merger or amalgamationTo borrow moneyTo remit or give time for the repayment of, any debt due from a directorContribution to Charitable funds as donation-shifted to new section – Sec.181
39 Restrictions On Powers of The Board Sec.180 “Undertaking” shall mean in which the investment of the company exceeds 20 % of its net worth or which generates 20 % of the total income of the company during the previous financial year.“Substantially the whole of the undertaking” in any financial year shall mean 20% or more of the value of undertaking as per the audited balance sheet of the preceding financial year.General Penalty under section 450Company and Every officer of the company who is in default or such other person shall be punishable with fine upto Rs.10,000 andContravention is continuing one, further fine upto Rs.1,000 for every day after the first during which the contravention continues
40 Key Managerial Person (KMP) Section 203 Who is KMP?the Chief Executive Officer or the managing director or the manager;the Company Secretary;the Whole-Time Director;the Chief Financial Officer.ApplicabilityEvery Listed company.Public companies having paid-up share capital of Rs. 10 Crore or more.RestrictionWhole-time key managerial personnel not to hold office in more than one company except in its subsidiary company
41 Obligations of KMPInterest of the KMP to be disclosed in the explanatory statement to be annexed to the notice calling the general meeting (Section 102)Prohibition on forward dealings in securities of the company by KMP (Section 194)Prohibition on insider trading of securities by a KMP (Section 195):Officer in default
42 Duties and liabilities of Chief Financial Officer (CFO): Safe keeping and maintenance of books of accountsEnsure the financial statement gives true and fair view of the affairs of the companyEffective compliance of accounting standards.Manitain the financial statement in the form as provided under schedule III and to specify deviations if anyFinancial statement is laid before the members at AGM.Preparation of consolidated financial statements in case of subsidiaries.In case of contravention: Imprisonment which may extend to 1 year or fine of minimum Rs. 50,000/- and maximum Rs. 5,00,000/- or with both
43 Duties and liabilities of Chief Financial Officer (CFO) Sign the financial statement including the consolidated financial statement, ifsigned copy of every financial statement is issued circulated or published along with the auditor’s report, boards report and any notes forming part thereof (In case of contravention: penalty of Rs. 5,000/-).Copy of every financial statement along with all the documents to be attached is filed with the registrar within 30 days of the AGMIn case the AGM is not been held, financial statement are filed along with statement of facts and reasons for not holding AGM within 30 days of due date for holding AGM(In case of contravention: Imprisonment which may extend to 6 months or with fine of minimum Rs. 1,00,000/- and maximum of Rs. 5,00,000/- or with both).Certification as to the financial statements of the company pursuant to clause 49 of the listing agreement.
44 Functions of Company Secretary Section 205 Report to the board about the compliance with the provisions of the Companies Act, 2013 and rules made there under and other laws applicable to the company.Complies with the applicable secretarial standards.Provide to the directors guidance with regard to their duties, responsibilities and powersFacilitate the convening of meetings and attend Board, committee and general meetings and maintain the minutes of these meetings.Obtain approvals from the Board, general meeting, the government and such otherRepresent before various regulators, and other authorities in connection with discharge of various dutiesTo assist the Board in the conduct of the affairs of the company.To assist and advise the Board in ensuring good corporate and best practices.
45 Annual General Meeting Section 96 AGM shall be heldDuring business hours i.e., between 9 A.M. And 6 P.M.The day should not be a National Holiday
46 Quorum Section 103 For Private Companies – 2 members. For Public Companies –5 Members where total members < 1000.15 Members where total members are between30 Members where the total members are > 5000.
47 Proxies Section 105A Section 8 Co. can’t appoint a Proxy other than its members.Proxy Form should be in Form MGT. 11 & be deposited with Company 48 hours before meeting.Proxy forms can be inspected by member before 24 hours of General Meeting by providing 3 days prior notice to the Company.A proxy can’t act as proxy for more than 50 members & holding more than 10% of total Share Capital.