1Companies Act 2013 Role & Responsibilities of Directors, Independent Directors, KMP Ashish Makhija AdvocateLLM (USA), LLM (India), FCA, FCMAStanding Counsel for the Official LiquidatorAttached to High Court of DelhiMember of:
2Looking Back Companies Act 1956 658 Sections (Effectively 881 Sections)16 Schedules66 Definitions34 set of Rules & Regulations
3Looking Forward Companies Bill 2009 426 Sections No Schedules 93 DefinitionsPhrase “as may be prescribed” appeared “235 times” in the Bill
4Looking Forward Companies Act 2013 470 Sections 7 Schedules 95 DefinitionsPhrase “as may be prescribed” appears “346 times” in the Act46 sections of Part IX A of Companies Act, relating to Producer Companies will continue to apply even after Companies Act, 1956 is repealed
5President’s Assent on 29th August 2013 Companies Act StatusPresident’s Assent on 29th August 201398 Sections notified on 12th September 2013Removal of Difficulties order issued on 20th September regarding implementation of Sections 24, 58 and 59Schedule VII & Section 135 notified on 27th February 2014183 Sections notified on 26th March 2014Companies 1st (Removal of Difficulties) Order, regarding clarification on Section 2(76), the definition of related partyCompanies 2nd (Removal of Difficulties) Order, 2014 regarding clarification on Section 92, the limit on Certification of Annual Return
6Clarification No. 1 – General Circular 15/2013 dated 13.09.2013 Companies Act StatusClarification No. 1 – General Circular 15/2013 datedS. 2(68) – MoA, AoA filed till can be registered as per definition of private company under CA 1956S.102 – Notices of general meetings issued on or after must comply with additional requirements as prescribed in S. 102S.133 – Existing Accounting Standards notified shall continue to apply till new one are notified u/s 133S.180 – Resolutions can be passed as ordinary resolution if general meeting notice has been issued prior to
7Clarification No. 2 – General Circular 16/2013 dated 18.09.2013 Companies Act StatusClarification No. 2 – General Circular 16/2013 dated“It is clarified that w.e.f , the relevant provisions of CA 1956, which correspond to the provisions of 98 sections of CA brought in force on , cease to have effect from that date.”
8Applies to whole of India Companies Act StatusApplies to whole of IndiaCentral Government will notify date of applicabilityDifferent dates may be appointed for different provisionsApplies to all banking, insurance and electricity companies also so long provisions are not inconsistent with Special Acts.
9Understanding Layout Divided in to 29 chapters Incorporation, MoA, AoA – Chapter II – Sections 3 to 22Prospectus – Chapter III – Sections 23 to 42Share Capital – Chapter IV – Sections 43 to 72Public Deposits – Chapter V – Sections 73 to 76Registration of Charges – Chapter VI – Sections 77 to 87Management & Administration – Chapter VII – Sections 88 to 122Dividend – Chapter VIII – Sections 123 to 127
10Understanding Layout Accounts – Chapter IX – Sections 128 to 138 Audit & Auditors – Chapter X – Sections 139 to 148Directors, Board & Remuneration – Chapters XI, XIII, XIII – Sections 149 to 205Inspection, Investigation – Chapter XIV – Sections 206 to 229Mergers – Chapter XV – Sections 230 to 240Oppression and Mismanagement – Chapter XVI – Sections 241 to 246Registered Valuers – Chapter XVII – Section 247
11Understanding LayoutRemoval of Names of Companies – Chapter XVIII – Sections 248 to 252Revival – Chapter XIX – Sections 253 to 269Winding –up – Chapter XX – Sections 270 to 378Companies Authorized to Register Under the Act – Chapter XXI – Sections 366 to 374Foreign Companies – Chapter XXII – Sections 379 to 393Government Companies – Chapter XXIII - Sections 394 & 395Registration Offices & Fees – Chapter XXIV – Sections 396 to 404Companies to furnish Information – Chapter XXV – Section 405Nidhis – Chapter XXVI – Section 406
12Understanding Layout NCLT – Chapter XXVII – Sections 407 to 434 Special Courts – Chapter XXVIII – Sections 435 to 446Miscellaneous - Chapter XXIX – Sections 447 to 470Schedule I – Table A to ISchedule II – DepreciationSchedule III – Balance SheetSchedule IV – Code for Independent DirectorsSchedule V – Managerial PersonnelSchedule VI – Infrastructural ProjectsSchedule VII – Activities for CSR Policy
13Definitions Definitions Companies Act, 1956 Companies Act, 2013 Board of DirectorsS. 2(6)--"Board of directors" or "Board", in relation to a company, means the Board of directors of the company;S. 2(10)-- “Board of Directors” or “Board”, in relation to a company, means thecollective body of the directors of the company;DirectorS. 2(13)-- "director" includes any person occupying the position of director, by whatever name calledS. 2(34)-- “director” means a director appointed to the Board of a company
14Definitions Definitions Companies Act, 1956 Companies Act, 2013 Interested DirectorS. 287(1)(b) "interested director" means any director whose presence cannot, by reason of section 300, count for the purpose of forming a quorum at a meeting of the Board, at the time of the discussion or vote on any matter.Broader Criterion specified—Holding Directorship or is a partner of a firmMore than 2% membershipRelative is a director, member, partner in a firmS. 2(49) “interested director” means a director who is in any way, whether by himself or through any of his relatives or firm, body corporate or other association of individuals in which he or any of his relatives is a partner, director or a member, interested in a contract or arrangement, or proposed contract or arrangement, entered into or to be entered into by or on behalf of a company;
15Definitions Definitions Companies Act, 1956 Companies Act, 2013 Key Managerial PersonnelNot definedS. 2(51) “key managerial personnel”, in relation to a company, means—(i) the Chief Executive Officer or the managing director or the manager;(ii) the company secretary;(iii) the whole-time director;(iv) the Chief Financial Officer; and(v) such other officer as may be prescribed;
16Definitions Definitions Companies Act, 1956 Companies Act, 2013 Managing DirectorS. 2(26)-- "managing director" means a director who, by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its Board of directors or, by virtue of its memorandum or articles of association, is entrusted with substantial powers of management which would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name calledS. 2(54)-- “managing director” means a director who, by virtue of the articles of a company or an agreement with the company or a resolution passed in its general meeting, or by its Board of Directors, is entrusted with substantial powers of management of the affairs of the company and includes a director occupying the position of managing director, by whatever name called.
17Definitions Definitions Companies Act, 1956 Companies Act, 2013 OfficerS. 2(30)-- "officer" includes any director, manager or secretary or any person in accordance with whose directions or instructions the Board of directors or any one or more of the directors is or are accustomed to act.S. 2(59)-- “officer” includes any director, manager or key managerial personnel or anyperson in accordance with whose directions or instructions the Board of Directors or any one or more of the directors is or are accustomed to act.
18Definitions Definitions Companies Act, 1956 Companies Act, 2013 Officer in DefaultS. 2(31)-- "officer who is in default", in relation to any provision referred to in section 5, has the meaning specified in thatsection.S. 2(60)-- “officer who is in default”, for the purpose of any provision in this Act which enacts that an officer of the company who is in default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise, means any of the following officers of a company, namely:—(i) whole-time director;(ii)key managerial personnel;(iii)where there is no key managerial personnel, such director or directors as specified by the Board in this behalf and who has or have given his or their consent in writing to the Board to such specification, or all the directors, if no director is so specified;……………..Contd.
19Definitions Definitions Companies Act, 1956 Companies Act, 2013 Officer in DefaultS. 2(60)-- “officer who is in default”,(iv) any person who, under the immediate authority of the Board or anykey managerial personnel, is charged with any responsibility including maintenance, filing or distribution of accounts or records, authorises, actively participates in, knowingly permits, or knowingly fails to take active steps to prevent, any default;(v) any person in accordance with whose advice, directions or instructions the Board of Directors of the company is accustomed to act, other than a person who gives advice to the Board in a professional capacity;
20Definitions Definitions Companies Act, 1956 Companies Act, 2013 Officer in DefaultS. 2(60)-- “officer who is in default”,(vi) every director, in respect of a contravention of any of the provisions of this Act, who is aware of such contravention by virtue of the receipt by him of any proceedings of the Board or participation in such proceedings without objecting to the same, or where such contravention had taken place with his consent or connivance;(vii) in respect of the issue or transfer of any shares of a company, the share transfer agents, registrars and merchant bankers to the issue or transfer
21Definitions Definitions Companies Act, 1956 Companies Act, 2013 Related PartyNot definedS. 2(76)-- “related party”, with reference to a company, means—(i) a director or his relative;(ii) a key managerial personnel or his relative;(iii) a firm, in which a director, manager or his relative is a partner;(iv) a private company in which a director or manager is a member or director;(v) a public company in which a director or manager is a director or holds along with his relatives, more than two per cent. of its paid-up share capital;(vi) any body corporate whose Board of Directors, managing director or manager is accustomed to act in accordance with the advice, directions orinstructions of a director or manager;
22Definitions Definitions Companies Act, 1956 Companies Act, 2013 Related PartyS. 2(76)-- “related party”—………Contd(vii) any person on whose advice, directions or instructions a director or manager is accustomed to act:Provided that nothing in sub-clauses (vi) and (vii) shall apply to the advice, directions or instructions given in a professional capacity;(viii) any company which is—(A) a holding, subsidiary or an associate company of such company; or(B) a subsidiary of a holding company to which it is also a subsidiary;(ix) such other person as may be prescribed;
23Independent Directors (S. 149) Following Companies to have Independent DirectorsEvery listed public companyClass of companies – Public Companies satisfying any one of the following criterai as per last audited balance sheetPaid-up share capital of Rs. 10 Crore or moreTurnover of Rs. 100 Crores or moreIn aggregate outstanding loans, debentures and deposits, exceeding Rs 50 Crores
24Independent Directors (S. 149) At least one-third of the total number of directors must be independent directorsOne year transition period granted to comply with these provisionCasual vacancy to be filled in not later immediate next Board meeting or 3 months of vacancy, whichever is earlier.If a company ceases to fulfil any of the criteria in Rule 4 for 3 consecutive years it shall be exempted from complying with these provisions until such time as it meets such conditions
25Independent Directors (S. 149) Disclosure of Independence—First Board Meeting & thereafter at the first meeting of the Board in every financial year or whenever there is any change in the circumstances which may affect his status as an independent director, give a declaration that he meets the criteria of independenceNominee Director appointed by banks/ financial institutions/ government/or any other persons shall not be treated as Independent DirectorsNot entitled to any stock option and may receive remuneration by way of fee provided under sub-section (5) of section 197,Reimbursement of expenses for participation in the Board and other meetings and profit related commission as may be approved by the members.
26Independent Directors (S. 149) Term of OfficeFor five consecutive yearsShall be eligible for reappointment on passing of a special resolution by the company and disclosure of such appointment in the Board's report.Maximum TenureTwo consecutive termsshall be eligible for appointment after the expiration of three years of cessationshall not during the said period of three years, be appointed in or be associated with the company in any other capacity, either directly or indirectly
27Independent Directors (S. 149) No Retrospective effect: Any tenure of an independent director on the date of commencement of this Act shall not be counted as a termLiability: He shall be held liable, only in respect of such acts of omission or commission by a company which had occurred with his knowledge, attributable through Board processes, and with his consent or connivance or where he had not acted diligently.
28Manner & Selection of Independent Directors (S. 150) Independent director may be selected from a data bank containing names, addresses and qualifications of persons who are eligible and willing to act as independent directors, maintained by any body, institute or association, as may by notified by the Central GovernmentThe Agency shall put on their website for the use by the company making the appointment of such directors:The responsibility of exercising due diligence before selecting a person from the data bank referred to above, as an independent director shall lie with the companyThe appointment of independent director shall be approved by the company in general meeting as provided in sub-section (2) of section 152
29Independent Directors The explanatory statement annexed to the notice of the general meeting called to consider the said appointment shall indicate the justification for choosing the appointee for appointment as independent director.Section 152(5)—Explanatory statement shall include a statement that in the opinion of the Board, he fulfils the conditions specified in this Act for such an appointment.(152(5))Section 161(2)--no person shall be appointed as an alternate director for an independent director unless he is qualified to be appointed as an independent director under the provisions of this Act:
30Independent Directors Independent Director shall not be counted for the strength under Retirement by Rotation u/s 152(6)Section 173(3)Board Meeting on Shorter Notice subject to the condition, at least one independent director, if any, shall be present at the meetingin case of absence of independent directors from such a meeting of the Board, decisions taken at such a meeting shall be circulated to all the directors and shall be final only on ratification thereof by at least one independent director, if any.
31Committees Audit Committee Section 177(2) Requirement :Every Listed CompanyMinimum 3 Directors with majority IndependentNomination And Remuneration Committee And Stakeholders Relationship Committee.every listed company and such other class or classes of companies, as may be prescribed shall constitute the Nomination and Remuneration Committee consisting of three or more non-executive directors out of which not less than one-half shall be independent directorsCSR Committee—Atleast one Director on committee should be independent-Section 135
32Independent Directors – Companies Act 2013 Independent Director defined [S.149(6)]Integrity certificateDisqualificationsQualificationsOther than Nominee Director, Managing Director or Whole-time DirectorIntegrity & ExperienceIn the opinion of the Board is a person of integrity and possesses relevant experience and expertise
33Independent Directors – Companies Act 2013 DisqualificationsNot a promoter of the company, holding, subsidiary or associate companiesNot related to promoters or directors of the company, holding, subsidiary or associate companiesNo pecuniary relationshipCompany, holding, subsidiary or associate companyPromoters or directors of such companiesDuring 2 immediately preceding financial years or during current financial year
34Independent Directors – Companies Act 2013 DisqualificationsNone of the relatives has or had pecuniary relationship or transaction withCompany, holding, subsidiary or associate companyPromoters or directors of such companiesTransaction should not be more than 2 % or more of its gross turnover or total income or Rs. 50 lakhs or such higher amount as may be prescribed, whichever is lowerDuring 2 preceding financial years or during the current FY
35Independent Directors – Companies Act 2013 DisqualificationsNeither himself nor any of his relativesIs or was a KMP or Employee of company, holding, subsidiary or associate company in any of the 3 FY immediately preceding the financial year in which he is proposed to be appointedIs or was an employee or proprietor or partnerof a firm of auditors or company secretaries or cost auditors of the company or its holding, subsidiary or associate companyany legal or consulting firm that has or had any transactions of 10% or more of the gross turnover of such firmIn any of the 3 FY immediately preceding the financial year in which he is proposed to be appointed
36Independent Directors – Companies Act 2013 DisqualificationsHolds with relatives 2% or more of the total voting power of the companyChief Executive or Director, by whatever name called, of any non-profit organization thatreceives 25% or more of its receipts from that company or any of its promoters, directors, or holding, subsidiary or associate companyHolds more than 2% or more of the total voting power of the company
37Independent Directors – Companies Act 2013 QualificationsPossess appropriate balance of skills, experience and knowledge in one or more fields of finance, law, management, sales, marketing, administration, research, corporate governance, technical operations or other disciplines related to company’s businessDeclaration by Independent Director at first meeting after appointment and first meeting every FY or whenever there is change in statusCompany and Independent Director to abide by Schedule IV
38Independent Directors – Companies Act 2013 RemunerationNo stock optionsSitting FeeUpto Rs. 1 Lakh as decided by BoardReimbursement of expenses for attending board meetingProfit related commission, as approved by members
39Independent Directors – Companies Act 2013 5 year term, renewable for another 5 year by special resolution then 3 year cooling off periodTerm to start afresh – present tenure not to be countedMaking Independent directors liability proof unless fraud done with knowledge attributable through board processes, consent and connivance or not acting diligentlyCreation of panel or data bank by authorized institutionsProcedure of selection – ‘as may be prescribed’
40Schedule IV CODE FOR INDEPENDENT DIRECTORS Acts as a guide to professional conduct for independent directorsI. Guidelines of professional conductII. Role and functionsIII. DutiesIV. Manner of appointmentV. Re-appointmentVI. Resignation or removalVII. Separate meetingsVIII. Evaluation mechanism
41Schedule IV Guidelines of Professional Conduct An independent director shall:uphold ethical standards of integrity and probity;act objectively and constructively while exercising his duties;exercise his responsibilities in a bona fide manner in the interest of the company;devote sufficient time and attention to his professional obligations for informed and balanced decision making;not allow any extraneous considerations that will vitiate his exercise of objective independent judgment in the paramount interest of the company as a whole, while concurring in or dissenting from the collective judgment of the Board in its decision making;
42Schedule IV Guidelines of Professional Conduct not abuse his position to the detriment of the company or its shareholders or for the purpose of gaining direct or indirect personal advantage or advantage for any associated person;refrain from any action that would lead to loss of his independence;where circumstances arise which make an independent director lose his independence, the independent director must immediately inform the Board accordingly;assist the company in implementing the best corporate governance practices.
43Schedule IV Role & Functions The independent directors shall:(1) help in bringing an independent judgment to bear on the Board’s deliberations especially on issues of strategy, performance, risk management, resources, key appointments and standards of conduct;(2) bring an objective view in the evaluation of the performance of board and management;(3) scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance;(4) satisfy themselves on the integrity of financial information and that financial controls and the systems of risk management are robust and defensible;(5) safeguard the interests of all stakeholders, particularly the minority shareholders;
44Schedule IV Role & Functions (6) balance the conflicting interest of the stakeholders;(7) determine appropriate levels of remuneration of executive directors, key managerial personnel and senior management and have a prime role in appointing and where necessary recommend removal of executive directors, key managerial personnel and senior management;(8) moderate and arbitrate in the interest of the company as a whole, in situations of conflict between management and shareholder’s interest.
45Schedule IV-Duties The independent directors shall— undertake appropriate induction and regularly update and refresh their skills, knowledge and familiarity with the company;seek appropriate clarification or amplification of information and, where necessary, take and follow appropriate professional advice and opinion of outside experts at the expense of the company;strive to attend all meetings of the Board of Directors and of the Board committees of which he is a member;participate constructively and actively in the committees of the Board in which they are chairpersons or members;.
46Schedule IV-DutiesHe shall strive to attend the general meetings of the company;where they have concerns about the running of the company or a proposed action, ensure that these are addressed by the Board and, to the extent that they are not resolved, insist that their concerns are recorded in the minutes of the Board meeting;keep themselves well informed about the company and the external environment in which it operates;not to unfairly obstruct the functioning of an otherwise proper Board or committee of the Board;pay sufficient attention and ensure that adequate deliberations are held before approving related party transactions and assure themselves that the same are in the interest of the company
47Schedule IV-DuitesHe shall ascertain and ensure that the company has an adequate and functional vigil mechanism and to ensure that the interests of a person who uses such mechanism are not prejudicially affected on account of such use;He shall report concerns about unethical behaviour, actual or suspected fraud or violation of the company’s code of conduct or ethics policy;He shall be acting within his authority, assist in protecting the legitimate interests of the company, shareholders and its employees;He shall not disclose confidential information, including commercial secrets, technologies, advertising and sales promotion plans, unpublished price sensitive information, unless such disclosure is expressly approved by the Board or required by law
48Schedule IV Manner of Appointment Shall be independent of the company management;while selecting independent directors the Board shall ensure that there is appropriate balance of skills, experience and knowledge in the Board so as to enable the Board to discharge its functions and duties effectively.The appointment of independent director(s) of the company shall be approved at the meeting of the shareholders.The explanatory statement attached to the notice of the meeting for approving the appointment of independent director shall include a statement that in the opinion of the Board, the independent director proposed to be appointed fulfils the conditions specified in the Act and the rules made thereunder and that the proposed director is independent of the management.
49Schedule IV Appointment Letter The appointment shall be formalised through a letter of appointment, which shall set out :the term of appointment;expectation of the Board from the appointed director;Board-level committee(s) in which the director is expected to serve and its tasks;the fiduciary duties that come with such an appointment along with accompanying liabilities;
50Schedule IV Appointment Letter The appointment shall be formalised through a letter of appointment, which shall set out :provision for Directors and Officers (D and O) insurance, if any;the Code of Business Ethics that the company expects its directors and employees to follow;the list of actions that a director should not do while functioning as such in the company; andthe remuneration, mentioning periodic fees, reimbursement of expenses for participation in the Boards and other meetings and profit related commission, if any.
51Schedule IV Manner of Appointment & Re-Appointment The terms and conditions of appointment of independent directors shall be open for inspection at the registered office of the company by any member during normal business hours.The terms and conditions of appointment of independent directors shall also be posted on the company’s websiteRe-appointment:The re-appointment of independent director shall be on the basis of report of performance evaluation.
52Schedule IV Resignation or removal (1) Shall be in the same manner as is provided in sections 168 and 169 of the Act.(2) Shall be replaced by a new independent director within a period of not more than one hundred and eighty days from the date of such resignation or removal(3) Where the company fulfils the requirement of independent directors in its Board even without filling the vacancy created by such resignation or removal, as the case may be, the requirement of replacement by a new independent director shall not apply.
53Schedule IV Separate Meetings (1) At least one meeting in a year, without the attendance of non- independent directors and members of management;(2) All the independent directors of the company shall strive to be present at such meeting;(3) The meeting shall review the performance of :(a) non-independent directors and the Board as a whole;(b) the Chairperson of the company, taking into account the views of executive directors and non-executive directors;(c) And shall assess the quality, quantity and timeliness of flow of information between the company management and the Board that is necessary for the Board to effectively and reasonably perform their duties.
54Schedule IV Evaluation Mechanism (1) The performance evaluation of independent directors shall be done by the entire Board of Directors, excluding the director being evaluated.(2) On the basis of the report of performance evaluation, it shall be determined whether to extend or continue the term of appointment of the independent director.
55Creation of databank for Independent Directors--Rules A body authorised by CG shall create and maintain a data bank of persons willing and eligible to be appointed as independent directordata bank shall be placed on the website of the Ministry of Corporate Affairs or on any other websiteThe data bank shall contain following details in respect of persons as Independent Directors(a) DIN (Director Identification Number);(b) the name and surname in full;(c) income-tax PAN ;(d) the father’s name and mother’s name and Spouse’s name (if married) ;
56Small Shareholders (S. 151) Applicable to Listed CompaniesListed Company may have one director elected by small shareholders as may be prescribedSmall Shareholders means a shareholder holding shares of nominal value of not more than twenty thousand rupees or such other sum as may be prescribed.Rule 7 of the Companies (Appointment and Qualification of Directors) Rules, 2014
57Databank (e) the date of Birth; (f) gender; (g) the nationality; (h) the occupation;(i) full Address with PIN Code (present andpermanent);(j) phone number;(k) id;(l) the educational and professional qualifications;(m) experience or expertise, if any;
58Databank (n) any legal proceedings initiated or pending against such person;(o) the list of limited liability partnerships in which he is or was a designated partner along with –the name of the limited liability partnership;(ii) the nature of industry; and(iii) the duration- with dates;
59Databank (p) the list of companies in which he is or was director along with -(i) the name of the company;(ii) the nature of industry;(iii) the nature of directorship – Executive orNon-executive or Managing Director orIndependent Director or NomineeDirector; and(iv) duration – with dates.
60DatabankDisclaimer ---that a company must carry out its own due diligence before appointment of any person as an independent director and “the agency” shall not be held responsible for the accuracy of information or lack of suitability of the person whose particulars form part of the databank.Application under DIR-1 if anyperson wishes to include his name in Database of Independent DirectorsReasonable feeThe person whose name is in database shall intimate the agency within 15 days regarding any changes in his particulars
61Key Managerial Personnel Section 2(51)“key managerial personnel”, in relation to a company, means—(i) the Chief Executive Officer or the managing director or the manager;(ii) the company secretary;(iii) the whole-time director;(iv) the Chief Financial Officer; and(v) such other officer as may be prescribed;Key Managerial Personnel be treated as following:Officer- S. 2(59)Officer in default- S. 2(60)Related Party- S. 2(76)
62Key Managerial Personnel S. 203 Appointment of KMPEvery company belonging to such class or classes of companies as may be prescribed shall have the following whole-time key managerial personnel,—(i) managing director, or Chief Executive Officer or manager and in their absence, a whole-time director;(ii) company secretary; and(iii) Chief Financial Officer :
63Key Managerial Personnel S. 203 Return be filed with ROC within 60 days of appointment in MR. 1Class of Companies— Rule 8 of Companies (Appointment and Remuneration of Managerial Personnel) Rules, 2014.Listed company andPublic company having a paid-up share capital of Rs. 10 Crore or more shall have whole-time key managerial personnel.
64Return of Appointment RETURN OF KEY MANAGERIAL PERSONNEL [S. 170(2)] A return containing such particulars and documents as may be prescribed, of the directors and the key managerial personnel shall be filed with the Registrar within thirty days in DIR.12 from the appointment of every director and key managerial personnel, as the case may be, and within thirty days of any change taking place.Return of Appointment-Rule 3 of RulesA Company shall file a return of appointment of a MD, WTD, Manager, CEO, CS, CFO within 60 days of appointment with the Registrar in Form No. MR. 1
65Procedure of Appointment. Pass a Board ResolutionFile Form MGT. 14 for registering of resolution of appointment of KMP and taking on record the disclosure of interest from the proposed KMPFile DIR. 12 within 30 days of appointmentFile MR. 1 as the return of appointment to the Central Government within 60 days of appointmentIn case the listed company wishes to seek approval for waiver of excess remuneration, appointment or re-appointment in cases of losses in Form MR. 2
66Key Managerial Personnel (S. 203) Limit on number of positionsWhole-time key managerial personnel shall not hold office in more than one company except in its subsidiary company at the same time. He can be a director of any other company with the permission of the Board.Unanimous consent of all directors for the aforesaid resolutionSpecial notice has to be given to all the directors then in India.Vacancy in officethe resulting vacancy shall be filled-up by the Board at a meeting of the Board within a period of six months from the date of such vacancy.Penalty on contravention of Section 203Company with fine not less than Rs. 1 Lacs which may extend to Rs. 5 LacsEvery Director & KMP who is in default with fine which may extend to Rs. 50,000/- and where contravention is a continuing one, with a further fine which may extend to Rs for every day after the first during which the contravention continues.
67Key Managerial Personnel REGISTER OF KEY MANAGERIAL PERSONNEL [S. 170(1)]Every company shall keep at its registered office a register containing such particulars of its directors and key managerial personnel as may be prescribed, which shall include the details of securities held by each of them in the company or its holding, subsidiary, subsidiary of company’s holding company or associate companies.Register of contracts or arrangements in which directors are interested [S. 189]Every Company shall keep such registerEvery KMP shall within 30 days of his appointment or relinquishment of his office disclose to company the particulars specified in sub-section (1) of section 184Relating to his concern or interest in the other associations which are required to be included in the registerShall be kept at Registered office & be placed in every Board meeting & open for inspection during business hoursBe kept open for inspection at general meetingEvery director who fails to comply with the provisions of this section and the rules made thereunder shall be liable to a penalty of twenty-five thousand rupees.
68Duties & Liabilities of KMP Section 21—Authentication of Documents or contracts(a) a document or proceeding requiring authentication by a company; or(b) contracts made by or on behalf of a company, may be signed by any key managerial personnel or an officer of the company duly authorized by the Board in this behalfSection 92(1)(e)—Annual returnAnnual return should specifythe details of KMP alongwith changes therein related with previous financial yearRemuneration of KMPSection 102—Explanatory StatementShould disclose the nature of concern or interest, financial or otherwise, if any, in respect of each items of KMPIf any benefit accrued due to non-disclosure KMP shall compensate the same to companyIf default in complying then every promoter, director, manager or other key managerial personnel who is in default shall be punishable with fine which may extend to fifty thousand rupees or five times the amount of benefit accruing to the promoter, director, manager or other key managerial personnel or any of his relatives, whichever is more
69Duties & Liabilities of KMP Section 192--Prohibition on forward dealings in securities of company by director or key managerial personnel. KMP shall not buy in the company, or in its holding, subsidiary or associate company—a right to call for delivery or a right to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures; ora right, as he may elect, to call for delivery or to make delivery at a specified price and within a specified time, of a specified number of relevant shares or a specified amount of relevant debentures.Imprisonment for a term which may extend to two years or with fine which shall not be less than Rs1 lakh but which may extend to Rs5 lakh or with bothSection 195--Prohibition on Insider trading of securitiesKMP of a company shall not enter into insider tradingImprisonment for a term which may extend to five years or with fine which shall not be less than Rs5 lakh but which may extend Rs25 crore or three times the amount of profits made out of insider trading,whichever is higher,or with both.
70Key Managerial Personnel Effect of being a KMPCannot become a Auditorif relative is a KMP of the CompanyIf he himself is a KMP in preceding 3 financial yearsRight to be heard at Audit Committee MeetingsSection 177(7)—KMP shall have the right to be heard in the meetings of the Audit Committee when Auditor considers its report but shall not have the right to vote.Section 178--The Nomination and Remuneration Committee shall--Recommend to the Board a policy, relating to the remuneration for the key managerial personnelEnsure that remuneration to KMP shall involves a balance between fixed and incentive pay reflecting short and long-term performance objectives appropriate to the working of the company and its goals
71Key Managerial Personnel Disclosure in Board’ Report as under Rulescomparison of the remuneration of the Key Managerial Personnel against the performance of the companycomparison of the each remuneration of the Key Managerial Personnel against the performance of the company
72Directors Who is a Director? Section 2(34)-- “director” means a director appointed to the Board of a companyWhen a Director shall become interestedSection 2(49) “interested director” means a director who is in any way, whether by himself or through any of his relatives or firm, body corporate or other association of individuals in which he or any of his relatives is a partner, director or a member, interested in a contract or arrangement, or proposed contract or arrangement, entered into or to be entered into by or on behalf of a company;
73Minutes of Meetings (S. 118) Prepared and signedBoard or Committee – Chairman of the meeting or next meetingKept within 30 days of conclusion of board meetingDissents to be recorded with names of directors dissentingChairman enjoys absolute discretion as regards inclusion or exclusion of any matter in the minutes – defamatory, irrelevant, detrimental to the interest of the company.
74Board Meetings First Board Meeting within 30 days 4 Board Meetings every year by each companyGap between two meetings - not more 120 daysBoard Meeting through Video Conferencing or audio visual meansMinimum 7 days’ noticeQuorum – higher of 1/3rd or 274
75To appoint more than 15, Special Resolution is required Directors (S.149)MinimumPublic – 3Private – 2OPC – 1Maximum – 15To appoint more than 15, Special Resolution is requiredOne director to be ordinarily resident in India – 182 days in India in preceding financial year
76At least one Women Director Directors (S. 149)At least one Women DirectorListed CompanyPublic Company havingPUC – Rs 100 Crores or more; orTurnover – Rs. 300 Crores or moreListed Companies to comply within one year of commencement of this provisionOther Public Companies to comply within 3 years of commencement of this provision
77Maximum number of directorship (S.165) Directors (S. 165)Maximum number of directorship (S.165)Overall 20 including private companiesDirectorship in Public Companies cannot exceed 10Private Companies, which are subsidiary or holding of a public company, will be counted in the figure of 10 meant for public companiesIncludes Alternate Directorship alsoDirector to choose companies within one year if he holds directorships in more companiesIntimate Company and Registrar of his resignation due to Section 165
78Directors 1/3rd directors to be independent Listed CompaniesPublic CompaniesPUC – Rs. 100 Crores or more; orTurnover –Rs. 300 Crores or more;Aggregate of loans, borrowings, debentures, deposits – Exceeding Rs. 200 CroresExisting Companies – To comply within 1 year
79Directors (S. 164) If he is of undischarged insolvent DisqualificationIf he is of undischarged insolventHe has applied to be adjudicated as an insolventHe has been convicted by a court of any offence, whether involving moral turpitude or otherwise and sentenced in respect thereof to imprisionment for not less than six months and a period of 5 years has not elapsedIf a person is convicted and sentenced for seven years or more, then he cannot become a director in any companyOrder disqualifying him for appointment has been passed by Court or TribunalHas not paid for qualification shares & 6 months have elapsed
80Directors (S. 164)DisqualificationIf a person is convicted of offence dealing with related party transactions under section 188 acontinous period of 3 financial yearst any time during the last preceding 5 yearsHas not taken DIN NoIs a director of a Company which has :Not filed Filed financial statements or annual returns for any continous period of 3 financial yearsFailed to repay deposits accepted or intersts thereon
81Directors(S. 164) Disqualification provisions under Rules Every Director shall inform to the Company about his disqualification in form DIR-8 before appointment or re-appointmentIf Company fails to file the financial statements or annual return or repay its deposits or redeem its debentures it shall intimate ROC in Form DIR-9If Company fails to file DIR-9 within 30 days officers of the Company u/s 2(60) shall be officers in defaultApplication for removal of disqualification be made in Form DIR-10
82Directors (S. 167) Vacation of Office by a Director (a) If disqualified under section 164;(b) he absents himself from all the meetings of the Board of Directors held during a period of twelve months with or without seeking leave of absence of the Board;(c) he acts in contravention of the provisions of section 184 relating to entering into contracts or arrangements in which he is directly or indirectly interested;(d) he fails to disclose his interest in any contract or arrangement in which he is directly or indirectly interested, in contravention of the provisions of section 184;(e) he becomes disqualified by an order of a court or the Tribunal;
83Directors (S. 167) Vacation of Office by a Director (f) he is convicted by a court of any offence, whether involving moral turpitude or otherwise and sentenced in respect thereof to imprisonment for not less than six months:Provided that the office shall be vacated by the director even if he has filed an appeal against the order of such court;(g) he is removed in pursuance of the provisions of this Act;(h) he, having been appointed a director by virtue of his holding any office or other employment in the holding, subsidiary or associate company, ceases to hold such office or other employment in that company.
84Duties of Directors Section 166 Subject to the provisions of this Act, a director of a company shall act in accordance with the company’s articles.A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interest of the company.A director of a company shall exercise his duties with due and reasonable care, skill and diligence.A director of a company shall not involve in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company.
85Duties of Directors (Section 166) A director of a company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to his relatives, partners, or associates.A director of a company shall not assign his office and any assignment so made shall be void.Any director who contravenes the provisions of this section shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
86Resignation (S. 168)Acceptance of Resignation by the Board is not mandatoryDirector resigning to intimate the Registrar within 30 days of his resignationResignation takes effect from the date on which notice is received by the company or the date specified by the director, whichever is later
87New Definitions Board of Directors [2(10)] Director [2(34)] Means the collective body of the directors of the companyDirector [2(34)]Director means the director appointed to the Board of Directors of the CompanyDirector under Companies Act, 1956 [2(26)]Director includes any person occupying the position of a director by whatever name called
88New Definitions Control [2(27)] Includes Right to appoint majority of the directorsControl the management or policy decisionBy person or persons, acting individually or in concert, directly or indirectlyBy virtue of shareholding or management rights, or shareholders agreement or voting agreements or in any other manner
89New Definitions Interested Director [2(49)] Means A Director, who is in any way, himself orThrough any of his relatives or firm , body corporate or another association of individuals in which he or any of his relatives is a partner, director or a memberInterested in a contract or arrangement or proposed contract or arrangementEntered into or proposed to be entered into by or on behalf of the company
90New Definitions Managing Director [2(54)] Director entrusted with substantial powers of the management of the companyIncludes a director or occupying the position of a managing director, by whatever name calledBy virtue of an agreement, articles, board or shareholder’s resolution
91New Definitions Officer in default [2(60)] Whole-time Director Key Managerial PersonnelNo KMP, then specified director, else all directorsAny person who –under the immediate authority of the Board or any key managerial personnelIs charged with any responsibility including maintenance, filing or distribution of accounts or recordsAuthorizes, actively participates in, knowingly permits, or knowingly fails to take actives stepsTo prevent any default
92New Definitions Officer in default [2(60)] Any person in accordance with whose advice, directions or instructions, the Board is accustomed to act (Excludes advice given in a professional capacity)Every Director, who is aware of such contravention by virtue of receipt of any proceedings of the Board or participation in such proceedings without objecting to the same, or where such contravention takes place with his consent or connivanceShare Transfer Agents, Registrars and Merchant Bankers, in respect of issue or transfer of any shares
93New Definitions Related Party [2(76)] Director or his relative KMP or his relativeFirm in which a Director, Manager or relative is partnerPrivate Company in which a Director or Manager is a member or directorPublic Company in which a Director or Manager is a director or holds more than 2% either himself or through his relativesBody Corporate or Person – Company is accustomed to act under their direction – Excludes Professional Advise
94New Definitions Related Party [2(76)] Holding, Subsidiary or Associate CompanySubsidiary of a holding company to which it is also a subsidiarySuch other person , as may be prescribeda director or key managerial personnel of the holding, subsidiary of such company or his relative;
95New Definitions Relative [2(77)] Members of HUF Husband and wife Related in a manner as may be prescribed8 categories prescribedFather (Step Father), Mother (Step Mother), Son (Step Son), Son’s wife, Daughter, Daughter’s husband, Brother (Step Brother), Sister (Step Sister)14 Removed – Father’s father, Father’s mOther, Mother’s father, Mother’s mother, Son’s son, Son’s daughter, Son’s son’s wife, Son’s daughter’s husband, Daughter’s son, Daughter’s Son’s wife, Daughter’s daughter, Daughter’s daughter’s husband, Brother’s wife, Sister’s husband
96New Definitions Small Company [2(85)] Other than a Public Company PUC does not exceed 50 lakhs or as may be prescribed (not exceeding 5 Crores)Turnover does not exceed Rs. 2 Crores or prescribed amount (not exceeding Rs. 20 Crores)Not applicable to holding or subsidiary company or licensed company (Section 8)
97Directors Minimum Maximum – 15 Public – 3Private – 2OPC – 1Maximum – 15To appoint more than 15, Special Resolution is requiredOne director to be ordinarily resident in India – 182 days in India in preceding financial year
98Directors At least one Women Director Listed CompanyPublic Company havingPUC – Rs 100 Crores or more; orTurnover – Rs. 300 Crores or moreListed Companies to comply within one year of commencement of this provisionOther Public Companies to comply within 3 years of commencement of this provision
99Directors Maximum number of directorship (S.165) Overall 20 including private companiesDirectorship in Public Companies cannot exceed 10Private Companies, which are subsidiary or holding of a public company, will be counted in the figure of 10 meant for public companiesIncludes Alternate Directorship alsoDirector to choose companies within one year if he holds directorships in more companiesIntimate Company and Registrar of his resignation due to Section 165
100Directors 1/3rd directors to be independent Listed CompaniesPublic CompaniesPUC – Rs. 100 Crores or more; orTurnover –Rs. 300 Crores or more;Aggregate of loans, borrowings, debentures, deposits – Exceeding Rs. 200 CroresExisting Companies – To comply within 1 year
101Nominee Director Nominee Director Not defined in Companies Act, 1956 A director nominated by any financial institution pursuant to law, agreement or appointed by Govt. or any other person to represent its interests
102Duties166Subject to the provisions of this Act, a director of a company shall act in accordance with the company’s articles.A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interest of the company.A director of a company shall exercise his duties with due and reasonable care, skill and diligence.
103DutiesA director of a company shall not involve in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company.A director of a company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to his relatives, partners, or associates.A director of a company shall not assign his office and any assignment so made shall be void.
104DutiesAny director who contravenes the provisions of this section shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.
105Resignation (S. 168)Acceptance of Resignation by the Board is not mandatoryDirector resigning to intimate the Registrar within 30 days of his resignationResignation takes effect from the date on which notice is received by the company or the date specified by the director, whichever is later
106Board Meetings First Board Meeting within 30 days 4 Board Meetings every year by each companyGap between two meetings - not more 120 daysBoard Meeting through Video Conferencing or audio visual meansMinimum 7 days’ noticeQuorum – higher of 1/3rd or 274
107Other Public Company having Audit Committee (S. 177)Listed CompanyOther Public Company havingPUC of Rs. 100 crores or moreBorrowings of Rs. 200 crores or moreAudit Committee3 Directors – Independent directors in majorityMajority of directors shall be financially literateReconstituted within one year
108Audit Committee Terms of Reference Auditor Appointment Review independence and performance of AuditorExamination of financial statementRelated Party TransactionScrutiny of Inter-corporate loans and investmentsValuation of undertakingsInternal ControlEnd Use of Public Funds
109Audit Committee Vigil Mechanism [S. 177(9)] Listed Company Class of companiesDeposit from Public ;andBorrowings from Banks and Fis in excess of Rs. 50 croreTo report genuine concerns of directors and employeesSafeguard against victimization of whistle blower
110Resolution at Board Meetings only – Additional business Powers of Board (S.179)Resolution at Board Meetings only – Additional businessApproving Financial Statement and Board ReportDiversification of BusinessApproving Amalgamation, merger or reconstructionTakeover or Acquisition in another companyIssue of Securitiesto make political contributions;to fill a casual vacancy in the Board;to enter into a joint venture or technical or financial collaboration or any collaboration agreement;
111Resolution at Board Meetings only – Additional business Powers of Board (S.179)Resolution at Board Meetings only – Additional businessto commence a new business;to shift the location of a plant or factory or the registered office;to appoint or remove key managerial personnel (KMP) and senior management personnel one level below the KMP;to appoint internal auditors; to adopt common seal;to take note of the disclosure of director’s interest and shareholding;
112Resolution at Board Meetings only – Additional business Powers of Board (S.179)Resolution at Board Meetings only – Additional businessTo sell investments held by the company (other than trade investments), constituting five percent or more of the paid – up share capital and free reserves of the investee company;to accept public deposits and related matters and;to approve quarterly, half yearly and annual financial statements.
113CSR S. 135 – Every company Net worth – 500 crores or more Turnover – 000 crores or moreNet Profit – 5 Crores or moreConstitute CSR Committee of 3 directors – at least one to be independent directorBoard Report to disclose constitution of CSR Committee
114CSR Committee Formulate and Recommend to Board CSR Policy Recommend the amount of expenditure to be incurredMonitor CSR PolicyBoard to ensure spent of at least 2% of average net profits of the company made during 3 immediately preceding financial yearsPreference to be given to local areasFailure to spend – give reasons
115Board’s Report Board Report to include Extract of Annual Return Number of board meetingsDirectors’ Responsibility StatementStatement on declaration given by Independent DirectorsCompany’s policy on directors’ appointment and remunerationComments on Qualifications, Reservations, Adverse Remark or Disclaimer
116Board’s Report Board Report to include Conservation of Energy, Technology Absorption, Foreign Exchange Earnings & OutgoListed Company and Public Company with PUC of 25 Crores or more – Manner of annual evaluation by Board, Committees and DirectorsParticulars of contracts, arrangements with related parties as per Form AOC-2CSR Initiatives as per Section 135 & Rules made thereunder
117Board’s Report Board Report to include Directors or KMP appointed during the yearDeposit detailsSignificant and Material orders passed by the Regulators or courts or tribunals impacting the going concern status and company’s operations in futureDetails in respect of adequacy of internal financial controls with reference to the Financial Statements
118Copies of Audited Financial Statements Companies to send copies of Financial Statements to all members at least 21 days before the meeting.Listed Companies –May not send copies to all members unless demandedStatement containing salient features of documents in prescribed form is sent as per Form AOC-3Inspection to be allowedTo be placed on website
119Copies of Audited Financial Statements Filing of Financial Statements with RoC within 30 days of AGMIf not adopted at AGM, file unadopted Financial StatementsOPC to file within 180 days of the close of Financial YearIf AGM not held, statement of facts and reasons to be filed with RoCFailure to file – Company – Rs. 1000/ per day – Max. 10 lakhsMD/CEO/Director in charge or else all board members – Imprisonment – 6 months or fine – Min 1 Lakh, Max. 5 lakhs or both
120Manner of Circulation of Financial Statement Listed Companies and Public Companies having net worth of more than Rs 1 Crore & Turnover more than Rs. 10 Crore the financial statement may be sentBy electronic mode to members whose shareholding is in demat form and whose ids are registered with DepositoryOtherwise to non-demat holders who have consented in writing for receiving in electronic formIn all other cases, by despatch of physical copies through Post, Regd. Post, Speed post or Courier
121Thank you for your patience Thank you for your patience! Ashish Makhija #