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Nishith Desai Associates Legal & Tax Counseling Worldwide Mumbai | Silicon Valley | Bangalore | Singapore | Mumbai-BKC | New Delhi COMPANIES BILL, 2012 EXECUTIVE PRESENTATION February 15, 2013 © Nishith Desai Associates Client Attorney Privileged Communication
FRAMEWORK OF THE BILL Concise 29 Chapters with 470 Clauses and 7 Schedules as against 658 sections and 15 schedules under the Act Many new chapters have been introduced, viz., Registered Valuers (ch.17); Government companies (ch. 23); Companies to furnish information or statistics (ch. 25); Nidhis (ch. 26); National Company Law Tribunal & Appellate Tribunal (ch. 27); Special Courts (ch. 28) Present state Passed by the Lok Sabha – the lower house of parliament on December 18, 2012. Requires approval from the Rajya Sabha, the upper house of parliament and then the Presidential assent The Bill empowers the Central Government to make rules, etc. through delegated legislation (clause 469) Majority of the sections require rules and clarifications to be prescribed 2/7/2014 2 © Nishith Desai Associates
FRAMEWORK OF THE BILL Applicability The Central Government will notify as to when the Bill will come into effect. The Central Government has been authorised to introduce the Bill in piecemeal, as certain provisions have a fixed transition period Definitions New definitions are introduced in the Bill, some of which are accounting standards, auditing standards, associate company, CEO, CFO, control, deposit, employee stock option, financial statement, global depository receipt, Indian depository receipt, independent director, interested director, key managerial personnel, promoter, one person company, small company, turnover, voting right etc. 2/7/2014 3 © Nishith Desai Associates
INCORPORATION Types of entities Public company Private Company Introduction of One Person Company,Small Companies and Dormant Companies Companies with charitable and social objects also known as non –profit companies Private Companies Number of shareholders increased from the existing 50 to 200 Private company being a subsidiary of a public company will be deemed to be a public company Can accept deposits only from its members subject to certain compliances Exemptions and privileges of a private company curtailed with most provisions being applicable to all companies 2/7/2014 4 © Nishith Desai Associates
INCORPORATION Investment / Holding Companies Companies can make investment through only two layers of investment companies Subsidiary of a foreign public company may be a public company. No exemption as provided in existing Act vide section 4 (7) Process of Incorporation Process made more stringent Directors / shareholders to now give affidavits for various information provided Directors to file their interest in various companies whether directly or indirectly Incorporation of a company can be revoked / struck off if the information provided at the time of Incorporation are false or incorrect 2/7/2014 5 © Nishith Desai Associates
SHARE CAPITAL AND FUNDRAISING Security with Differential Rights Provides the issuance of equity shares with differential rights as to voting or dividend Provides that proposition of voting rights of equity shareholders now related to total capital of the company which includes even preference share capital First subscribers to get money within 180 days from the date of Incorporation Restriction on use of securities premium account For certain class of companies as may be prescribed, amount of securities premium cannot be used for writing off preliminary expenses or payment of premium on redemption of preference share or debenture Further issuance of share capital To any person (other than rights issue), vide a special resolution at a price determined by the valuation report of a Registered Valuer, subject to conditions as may be prescribed 2/7/2014 6 © Nishith Desai Associates
SHARE CAPITAL AND FUNDRAISING Restrictions on transfer Public company can provide restriction on free transferability based on contractual obligation Discount No shares may be issued at a discount other than sweat equity Manner of fund raising Public companies: public issue, private placement, bonus issue, rights issue Private companies: private placement, bonus issue, rights issue Disclosure made stringent. Timelines for allotment prescribed All preferential allotments require shareholder consent 2/7/2014 7 © Nishith Desai Associates
Number of directors Maximum number of directors in any company is increased to 15 A director can hold a maximum of 20 directorships (including a maximum of 10 in public companies) For the purpose of maximum directorships, even holding position as an alternate director is included Other requirements One woman director required only in prescribed classes of company One director must stay in India (Resident Director) for not less than 182 days during the preceding calendar year Resignation of Director shall be effective on date accepted by the company or date mentioned in resignation letter, whichever is later Directors to provide detailed reason for resignation while forwarding copy of resignation to the Registrar of Companies (RoC) 2/7/2014 8 © Nishith Desai Associates BOARD AND GOVERNANCE
Duties imposed Duties of Directors provided. Vacation of Office as a Director Director has to attend at least one meeting in twelve months, else even when leave of absence granted, he will have to vacate office. Meetings of Board of Directors One board meeting in each quarter with gap of not more than 120 days between two meetings First board meeting within 30 days of date of Incorporation Participation through video conferencing permissible and also considered for valid quorum Minimum seven days notice for board meeting 2/7/2014 9 © Nishith Desai Associates BOARD AND GOVERNANCE
Independent Directors Public companies on par with public listed companies. Central Government to specify the number of independent directors required in a public company Code for Independent Directors prescribed, which includes roles, functions and duties Corporate Social Responsibility Constitution of CSR Committee mandatory for companies having a net worth of INR 500 Crores (approx. US$ 5 billion) or more, or a turnover of INR 1,000 Crores (approx. US$ 10 billion) or more or net profits of INR 5 Crores (approx. US$ 50 million) At least 2% of the average net profits of the company made during the three immediately preceding financial years in pursuance of its CSR policy The company shall give preference to the local area and areas around it where it operates If the company fails to spend such amount, the Board shall, in its report specify the reasons for not spending the amount 2/7/2014 10 © Nishith Desai Associates BOARD AND GOVERNANCE
Auditors Mandatory auditor rotation for listed and other prescribed companies every 5 years Members of a company may resolve to provide that in the audit firm appointed by it, the auditing partner and his team shall be rotated at such intervals as may be specified in the resolution Auditor will be required to immediately report to the central government upon reasonable suspicion of any offence involving fraud Accounts Cash flow statement is mandatory part of Financial statements Shareholders to receive accounts not less than 21 days before the date of meeting Reopening and Recasting of books of accounts of Company on an application by Central Government, Income Tax, SEBI or other statutory / regulatory authority Voluntary revision of financial statements or Boards report 2/7/2014 11 © Nishith Desai Associates ACCOUNTS AND AUDIT
COMPROMISES, ARRANGEMENTS AND AMALGAMATIONS Short Form M&A for small companies and holding – sub M&As Arrangements between small companies and between holding company and wholly owned subsidiaries do not have to approach the Tribunal Permissions from RoC, Official Liquidator, Central Government and shareholder/creditors required Cross border mergers New Provisions for mergers between Foreign company and Indian company Consideration limited to IDRs and cash Approval of the RBI required and Rules to be prescribed in consultation with RBI Reverse Mergers constrained Mergers of listed companies into unlisted companies does not result in automatic listing for the unlisted company 2/7/2014 12 © Nishith Desai Associates
COMPROMISES, ARRANGEMENTS AND AMALGAMATIONS Procedural changes Shareholders below 10% and creditors below 5% cannot object to scheme of amalgamation Dispensation from calling of creditors meeting by the Tribunal if 90% in value agree and confirm Notice of amalgamation must be given to Central Government, RBI, SEBI (only for listed companies), CCI etc. Specific timelines given to the authorities to respond Voting to be in person or postal ballot or by proxy Disclosure obligations increased No treasury stock permitted Powers of the Tribunal Increased Tribunals may also pass orders for the following (i) protection of creditors (ii) exit option to dissenting shareholders 2/7/2014 13 © Nishith Desai Associates
INVESTOR PROTECTION Class action suits Any class of members or depositors, in specified numbers, may initiate proceedings against the Company, its directors if they are of the opinion that its affairs are being carried out in a manner unfairly prejudicial to the interests of the company Damages may be claimed against directors, auditors, expert or advisor or consultant. expert includes an engineer, a valuer, a chartered accountant, a company secretary, a cost accountant and any other person who has the power or authority to issue a certificate in pursuance of any law for the time being in force; Exit option to shareholders The Bill provides for instances where an exit option must be given to (dissenting) shareholders namely: In a scheme of M&A (especially where a listed company is merging into an unlisted company) If, in a public issue, the company changes the objects for which the capital was raised (at any point in time through a change in the MOA or otherwise) 2/7/2014 14 © Nishith Desai Associates
MISCELLANEOUS Financial Year April 1 st – March 31 st : Universal financial year format prescribed for all companies. Only certain companies with the prior approval of the Tribunal may have a different financial year Loans and Advances and Investment Restriction applicable to all companies including private companies Investments / loans / guarantees to subsidiary companies require corporate compliances Listed Companies Defined to mean a company which has any of its securities listed on any recognized stock exchange Insider Trading Prohibition of insider trading introduced for all companies, covering Directors, Key Managerial Personnel and Officers of the Company 2/7/2014 15 © Nishith Desai Associates
COMPLIANCE – PRIVATE LIMITED COMPANY First board meeting to be held within 30 days of incorporation No business to be carried out or any borrowing to be made, unless the initial capital has been brought in and declaration filed with RoC Capitalization of the Company to be completed and declaration filed within 180 days Time period between two board meetings shall not exceed 120 days, and a minimum of one board meeting to be held every quarter Notice to Board meetings to be sent 7 days in advance to all directors unless the directors consent to a Board meeting convened at a shorter notice A minimum of one director must be present in India for a period of 182 days or more in the previous calendar year Director to be present, in at least one Board meeting, during a calendar year. Presence through video conferencing counted for quorum 2/7/2014 16 © Nishith Desai Associates
COMPLIANCE – PRIVATE LIMITED COMPANY Managing Director to be appointed for not more than 5 years at a time. Director to be appointed in a general meeting, other than Additional director and Alternate director Appointment of persons other than retiring director needs to deposit INR 100,000 DIN and consent, mandatory prior to appointment as Director Declarations on concern or interest and about the eligibility to continue as director to be provided upon appointment and at the end of each financial year Resignation of a director shall take effect from the date on which the notice is received by the company or the date, if any, specified by the director in the notice, whichever is later Resigning director to provide detailed reasons in the resignation letter and file the same with RoC within 30 days of resignation 2/7/2014 17 © Nishith Desai Associates
COMPLIANCE – PRIVATE LIMITED COMPANY Directors report disclosures cover most corporate actions Directors responsibility statement to mention that proper systems are devised to ensure compliance with the provisions of all applicable laws and that such systems were adequate and operating effectively Appointment of Auditors to be on rotational basis. 10 years appointment, in case of a firm and 5 years appointment for individuals Audited accounts must be placed before Shareholders within six months from the date of ending of financial year of the company. Financial statements to be sent to members 21 days before annual general meeting. Annual general meeting shall be called during business hours, that is, between 9 a.m. and 6 p.m. on any day that is not a National Holiday 2/7/2014 18 © Nishith Desai Associates
COMPLIANCE – PRIVATE LIMITED COMPANY Financial statements, to be signed by the Chairperson of the company or by two directors out of which one shall be Managing Director and the Chief Executive Officer, if he is a director in the company, the Chief Financial Officer and the Company Secretary of the company, wherever they are appointed. Financial statements, to be filed with the RoC within thirty days Annual return based on financial year, to be filed with the RoC, within sixty days Secretarial Compliance Certificate is now part of Annual return Further issue of shares, including Stock options requires shareholders consent (other than rights issue) Related party transactions require an approval from the Board of Directors and in certain cases, prior approvals from the Company by a Special Resolution Related party transactions cover almost every contract for supply of goods, materials and services including property by lease or sale 2/7/2014 19 © Nishith Desai Associates
COMPLIANCE – PRIVATE LIMITED COMPANY Loans and Investments require shareholders approval Sale of undertaking, borrowings etc. require shareholders approval Deposits / Loans only from Shareholders. (unless provided otherwise in rules, if any) Delayed filings up to 270 days beyond the original date allowed without prosecution on payment of additional fees Delays beyond additional time, attracts severe penalties Penalties and liabilities for non-compliance increased manifold Imprisonment provisions in over 50 clauses 2/7/2014 20 © Nishith Desai Associates
COMPLIANCE – PUBLIC LIMITED COMPANY Minimum three directors to be appointed on the Board Quorum for a General meeting - Five members personally present No loan or guarantee, security or otherwise, any financial assistance for purchase or subscription for any shares in the company or in its holding company Two thirds of the board of directors, liable to retire by rotation Managing director remuneration should be in accordance with the Act A casual vacancy in board can be filled in by Board meeting Company Secretary to provide a report to the Board that compliances under all applicable laws have been made by the Company Audit committee, Nomination and Remuneration committee, Independent Director 2/7/2014 21 © Nishith Desai Associates
MUMBAI Tel: +91 22 6669 5000 SILICON VALLEYBANGALORESINGAPORE MUMBAI - BKC NEW DELHI Tel: +1 650 325 7100Tel: +91 80 6693 5000Tel: +65 6550 9855Tel: +91 22 6159 5000Tel: +91 11 4906 5000 Thank You! firstname.lastname@example.org Nishith Desai Associates Legal & Tax Counseling Worldwide Mumbai | Silicon Valley | Bangalore | Singapore | Mumbai-BKC | New Delhi © Nishith Desai Associates Client Attorney Privileged Communication
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