Secretarial Standards 3 – a voluntary guideline for companies!

-By Megha Saraf (corplaw@vinodkothari.com)

Introduction

The Institute of Company Secretaries of India (“ICSI”) vide its earlier notification had brought an exposure draft on Secretarial Standards-3 (“SS-3/Standards”) on Dividend which was put forward for public comments. After considering the suggestions/comments received on the draft, ICSI has finalized the Standard and has made it enforceable from 1^st January, 2018. Although, SS-3 is getting enforced, however being voluntary in nature the question of adopting the same is uncertain by the companies.

This article is an attempt to jot down the major highlights of the Standards covering its scope which shall present an idea on the list of compliance for a company.

Applicability

The Standard is applicable on all companies except a company limited by guarantee and a company declaring dividend under liquidation.

Major highlights of the Standards

1. Dividend to be declared only once the deposits accepted under the Act has been repaid with interest, debentures and preference shares issued have been redeemed with interest, term loan with any bank or financial institution have been repaid with interest.

   Hence, companies may be able to declare dividend only once they have met all their liabilities towards other security holders.

2. The Standard specifically exempts Government companies from complying with the conditions laid down for declaring dividend where there are inadequate profits or no profits in the company provided the entire paid up share capital is held by the Central Government or State Government(s) or jointly by both. Further, such exemption has been made in line with the exemption provided under the Companies Act, 2013 (“Act, 2013”).

   Further, the Standard also exempts Government Companies from the condition of depositing the dividend amount in a separate bank account within 5 days of its declaration. However, it does not exempt such Government Companies from the condition of paying dividend to the shareholders within 30 days of the declaration.

   Therefore, such exemption has been made in line with the exemption provided under the Act, 2013 to the Government Companies.

3. The Standard prohibits declaration of dividend by any Committee or by resolution by circulation except by the Board at a Board Meeting.

   Considering that the decision of declaring dividend is one of the major decisions for a company which is ultimately correlated to the shareholders of the company, it is utmost important for the Board of Directors of a company being at the top most hierarchy of a company after the shareholders, to think twice before taking such decision.

   Therefore, the provision may be said to empower only the board members to take such informed decision after following a lengthy discussion compared to any Committee or merely passing it through resolution by circulation.

4. The Statement containing details of the Members whose dividend has remained unpaid or unclaimed required to be maintained by a company was earlier required to be maintained and updated by the company on a quarterly basis.

   However, considering the tediousness of the work and suggestions made by the stakeholders, ICSI has left the timeline for such updation on the convenience of the company itself without prescribing for quarterly review.

Provisions relating to Investor Education and Protection Fund (“IEPF”)

Almost after an year, Ministry of Corporate Affairs (“MCA”) and the Depositories have made effective the transfer of shares to IEPF by issuing operational guidelines and filling up the technical gaps that was present in the earlier notifications brought in by the MCA w.r.t IEPF. For the purpose of effecting transfer of shares to IEPF, the foremost criteria is that dividend on the underlying shares must have remained unpaid and unclaimed for a period of 7 consecutive financial years.

Although, the provisions of the Standards has been kept aligned with the provisions of the Act, 2013 and IEPF (Accounting, Audit, Transfer and Refund) Rules, 2016 (including any amendment made thereto), there are still certain major loopholes in the provisions of the Standards which can be said cumbersome for a company intending to comply with the provisions of the Standard voluntarily. One such loophole is the requirement of sending individual notices to the Members before transferring any unpaid or unclaimed dividend atleast 3 months’ before the due date for such transfer.

Where on one side the provisions of IEPF (Accounting, Audit, Transfer and Refund) Rules, 2016 mandates for giving notice to those Members whose underlying shares are liable for transfer on which dividend has remained unpaid or unclaimed for 7 consecutive years, the provisions of the Standard provides for giving notice to the Members before transferring any unclaimed or unpaid dividend to the IEPF.

Thus, the provision of the Standard seems to be cumbersome for companies to follow requiring them to give notice every year before transferring any unpaid or unclaimed dividend to the IEPF.

Additional compliance for Listed companies

The Standard where on one side is a voluntary guideline for companies, it also mandates certain additional compliance on the part of listed companies alongwith the compliance of other laws applicable on such listed company such as SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 (“LODR Regulations, 2015”). Some of the additional compliance mentioned under the Standards provides that:

1. Equity shares allotted by a company shall rank pari passu alongwith the existing equity shares in the company for the purpose of payment of dividend.
2. Prior intimation to the Stock Exchange of the Board meeting in which dividend is supposed to be recommended or declared.
3. Prior intimation to the Stock Exchange of the record date fixed for the purpose of payment of dividend.
4. Recommendation/ declaration of dividend prior to the record date fixed for the purpose
5. Intimation about the outcome of the Board meeting, in which dividend is recommended or declared, to the Stock Exchange.
6. Formulation of Dividend Distribution Policy by top 500 companies based on market capitalization.
7. Disclosure of the dividend payment date in the Corporate Governance Report.

It is to be noted here that the above stated compliance as said to be additional for a company are nothing but mandatory compliance for any listed company in terms of the provisions of LODR Regulations. Thus, it can be said that the above mentioned compliance are nothing but re-iteration of the provisions of LODR Regulations, 2015 which are mandatory to be followed by a listed company and therefore are not burden for a company.

Conclusion

Though ICSI has made the Standards effective from 1^st January, 2018, compliance of the same is a voluntary practice for any company. Further, as the major provisions of the Standards has been kept aligned with the provisions of other laws such as the Act, 2013 or the LODR Regulations, 2015, the provisions of the Standards does not make compliance a tedious work for a company.

Therefore, compliance with the provisions of the Standards shall indirectly lead a company as a well-compliant company in terms of mandatory laws.