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© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Companies Act 2013: new concepts Copyright 2013 Lakshmikumaran &Sridharan
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN 2 © COPYRIGHT 2013 LAKSHMI KUMARAN & SRIDHARAN 2 Definitions: 94 “Associate company”: non subsidiary but has significant influence deemed to be control of over 20% or business decisions through an agreement “Control” : as per Takeover code &includes direct and indirect, in concert, control over policy decisions through management rights, shareholding or voting agreements or in any other manner “Foreign Company” any body corporate which conducts any business activity in India, whether by itself or through an agent, physical or electronic mode “Promoter” who has direct/indirect control over the affairs of the company, significant influence on Board “Key Managerial Personnel” CEO,CFO, MD, manager, company secretary, whole time director
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN New concepts Types of companies One Person: one person as a member Small company: paid up share capital INR 5 mn, TO INR 20 mn Private: maximum 200 members; restrictions on transfer of shares Mediation and conciliation Panel of experts to mediate between parties in proceedings before statutory authorities Minority shareholders: acquisition of stake If 90% of shareholders approve a merger, compulsory acquisition of dissenting shareholders unless Tribunal orders otherwise If a person acquires 90% shares, required to offer to acquire balance Valuation of share by registered valuer
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Private and public companies “Layering” restrictions Only two layers of investment companies except if required by law or for acquisition of foreign entities Rights issue now applicable to all private companies Many exemptions of private companies withdrawn Additional matters only at Board meetings and by special resolution Government can order investigation of foreign company Capital reduction only if no arrears on deposit & interest, 3 notice to statutory authorities, extended timelines Any offer to more than 50 persons will be “public” with full compliance on prospectus, disclosures, filing No default in deposit or interest repayment, statutory dues of employees essential for bonus issue
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Stakeholder protection rights Corporate Social Responsibility a must for all companies Only for projects in India but profits from foreign subs not excluded, preference to local area of operations No prescribed penalty for non compliance Silent on carry over or adjustment if not fully utilized in 1 year Concept of “group” spend not recognized Class action suits: oppression and mismanagement Shareholders & deposit holders may approach the Tribunal Compensation from directors, auditors, company or advisors Tribunal orders binding, imprisonment for non compliance Funding envisaged from Investor protection fund Whistleblower mechanism for employees & others to voice concern
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Stakeholder protection Transfer agreements between shareholders acknowledged Articles may contain higher bar for various provisions Strict norms for prohibiting insider trading KMP totally barred from forward dealing and options Penalties including imprisonment for breach Full, accurate and timely disclosure of all material events Postal ballot for all, electronic voting for some companies Quorum for shareholder meetings increased for large companies ( >5000 =30 members; >1000= 15 members) Source of promoter contribution in prospectus, details of holdings to be filed with RoC within 15 days Interested party cannot vote in a shareholder resolution Investor Protection and Education fund
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Board Minimum one third independent directors in listed entities Norms prescribed, “no pecuniary relationship of any nature” Appointed from approved data banks of Government after due diligence and recommendation from committee No stock options, only prescribed sitting fee and commission Maximum term 10 years, no reappointment for 3 years Maximum Board strength 15, increased by special resolution One director resident in India for 182 days in previous year One women director in specified companies Maximum 20 companies of which 10 may be public Vacates office if not present for any meeting in 12 months Duties prescribed
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Accounts and restructuring Dividend Transfer to reserves not required Interim dividend for loss making companies capped Payable only after compliance of issuance of deposit rules Mergers & restructuring Merger o Indian companies with foreign companies, jurisdiction to be notified Small and holding companies permitted without NCLT approval Exit option to dissenters, threshold for objection: 10 shareholders, 5% creditors Statutory authorities have the right to object to the merger Auditors, accounts and audit Rotation of partner and firm No non audit work directly or indirectly Liable for penal action in case of fraud and collusion Consolidated and stand alone statements, recasting allowed with tribunal approval Books may be maintained in electronic form; uniform accounting year
© COPYRIGHT 2012, LAKSHMIKUMARAN & SRIDHARAN Issues and concerns Scope for government rules: 417 places Exemptions withdrawn for private companies Mergers and amalgamations to be notified to all authorities Scope of foreign company very wide Restriction of layering may inhibit infra projects Independent directors only from data bank Every company to have one Indian resident as director Private placement restricted to 50, private companies allowed 200 members Provisions not aligned with SEBI
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