SEBI tightens its norm on resignation of auditors

– Priya Udita

resolution@vinodkothari.com

OVERVIEW

Observing that a lot of statutory auditors of the companies are abruptly resigning before completing their tenure either due to lack of cooperation or lack of information provided by the company, SEBI has taken the matter in its hand to strengthen the norms. Consequently, SEBI issued a Consultation Paper[1] on policy proposals with respect to resignation of statutory auditors from listed entities (‘Paper’) dated July 18, 2019. The Paper discussed the policy proposal with the twin objective of strengthening disclosures to the investors and clarifying the role of the Audit Committee. Our analysis of the Paper can be assessed here.

Based on the policy proposal and public comments, SEBI issued circular on Resignation of statutory auditors from listed entities and their material subsidiaries (‘Circular’)[2] dated October 18, 2019 defining compliance to be followed by the listed entity and its material subsidiary while appointing or reappointing the auditors.

KEY AMENDMENTS

  1. Applicability:

The Circular is applicable on listed entities and its material subsidiaries. The material subsidiaries can be a listed or an unlisted entity. However, it is interesting to comprehend the applicability of the Circular on the debt listed companies (analysed below in our comment section).

Further, the Circular has come into force with immediate effect from the date of its notification.

  1. Exception:

The provisions of this Circular  is inapplicable in case the auditor disqualified under section 141 of the Companies Act, 2013.

  1. Compliance for limited review or audit review while appointing or reappointing the auditors:
  2. Within 45 days from the end of quarter of a financial year- the auditor shall issue the limited review/ audit report for such quarter before resignation.

For Example: if the auditor resigns on May 28, 2019 then the auditor is required to submit limited review of quarter ending on June 30, 2019.

  1. Resignation after  45  days  from  the  end  of  a  quarter  of  a  financial year- then the auditor shall issue the limited review/ audit report for such quarter as well as the next quarter before resignation.

For Example: if the auditor resigns on August 25, 2019, then the auditor needs to issue limited review/audit report of quarter ending on September 30, 2019 as well as December 30, 2019.

  1. However, if the auditor has signed the limited review/ audit report for the first 3 quarters of a financial year- then the auditor shall issue the limited review/ audit report for the last quarter of such financial year as well as the audit report for such financial year before the resignation.
  2. Role of Audit Committee

Though the SEBI (Listing and Disclosure Obligations) Regulation, 2015 (‘SEBI LODR Regulations’) laid down the broad role of the audit committee inter alia the appointment, remuneration of the statutory auditors, but, there was not much for the audit committee to delve once the auditor resigns. Thus, with the intention to further enhance the role of audit committee, SEBI has laid down following procedures:

  1. For the auditors:
  2. In case of conflict with the management of the listed entity due to lack of cooperation or non-availability of information, the auditor can approach the chairman of the audit committee of the listed entity.
  3. Where the auditor proposes to resign, all concerns with respect to the proposed resignation, along with relevant documents should be given to the audit committee.
  4. Further where the proposed resignation is due to non-receipt of information/explanation from the company, the auditor will have to inform the audit committee of the details of information asked and not provided by the management.
  5. For the Audit Committee:
  6. In case of concern raised due to non-availability of information, audit committee must receive such concern directly and immediately without specifically waiting for the quarterly audit committee meetings.
  7. On receipt of information from the auditor relating to the proposal to resign, the audit committee/board of directors must deliberate on the matter as soon as possible but not later than the date of the next audit committee meeting and communicate its views to the management and the auditor.
  8. Disclaimer by the auditor:

Where the auditor does not receive the information demanded for the purpose of auditing, an appropriate disclaimer in the audit report must be provided in accordance with the Standards of Auditing as specified by ICAI/NFRA.

  1. Obligations of the listed entity/material subsidiary
  2. The listed entity/its material subsidiary are required to ensure that the new compliance is included in the terms of appointment at the time of appointment or reappointment of the auditors. In case of existing auditors, the appointment letter is needed to be modified to give such effect.
  3. The listed entity/its material subsidiary need to obtain the information about the auditor’s resignation in a format as specified in the Circular. Further, the listed entity has the obligation to ensure disclosure of the same under Sub-clause  (7A)  of  Clause  A  in Part  A  of Schedule  III under Regulation 30(2) of SEBI LODR Regulations.
  4. The listed entity/material subsidiary will provide all the relevant document or information as required by the auditor during the period from its proposal to resign and submission of the limited review/audit report.
  5. The listed entity will disclose the views of the audit committee to the stock exchange as soon as possible and not later than later than twenty four hours after the date of such audit committee meeting.

ANALYSIS

Firstly, we need to understand the current regulatory provisions governing the resignation of the auditors and the need felt by SEBI to issue this Circular.

Section 140(2) of the Companies Act, 2013 along with the Companies (Audit and Auditors) Rules, 2014 mandates the auditor to file a statement in a prescribed form to the company and to the Registrar citing reasons for resignation, within 30 days from the date of resignation. In addition to that, sub-clause (7A) of Clause A in Part A of Schedule III under Regulation 30(2) of the SEBI (LODR) Regulations prescribes that the listed entity shall disclose detailed reasons of the resignation to the stock exchange within 24 hours of such resignation. ICAI’s auditing standards (SA-705) enumerates that in a situation where the possible effects on the financial statements of undetected misstatements are both material and pervasive such that a qualification of the opinion would be inadequate to communicate the gravity of the situation, the auditor can resign. According to the Rule 5 of National Financial Reporting Authority Rules, 2018 (‘NFRA Rules’), every auditor of the entities covered by these rules are required to file an annual return in form NFRA 2 with the authority giving details with respect to the audit as well as resignations given in the past 3 years.

Though the law provided these rules and regulation, the rising trend on abrupt resignations by the auditor citing reason as ‘pre-occupation’ were leaving the investors vulnerable to various threats. Due to resignation of the large audit firms, SEBI was forced to review its listing and disclosure obligations. In order to enhance accountability of auditors and protect the investors from the insecure environment due to abrupt resignation, SEBI felt the dire need to regulate such resignations and took the step in a right direction by issuing this Circular.

OUR COMMENT

The Circular was much needed as the rules governing the resignation of auditors across different forums were inadequate. The Circular, in addition to regulation of abrupt resignation, will give a helping hand to the auditors especially in case of lack of cooperation by the management, if any, faced by them. This will ultimately benefit SEBI to look into the matter for potential fraudulent or vulnerable transactions. Further the enhancing role of the audit committee is commendable.

However, the Circular has few gaps such as the applicability of Circular on debt listed entities. Now, there can be various scenarios. Suppose the listed entity ‘A’ has a material subsidiary ‘B’. The Circular will be applicable where ‘B’ is unlisted but a material subsidiary of ‘A’. The question arises where ‘B’ is a debt listed entity only, whether the Circular will be applicable? In our view, the Circular will be applicable in the instant case since B is a material subsidiary.

Further, it is important to note that the intimation requirements under the Circular are two-fold and both are parallel to each other serving different intents. In the first part, the listed entity has to inform the stock exchange within 24 hours of the resignation as per Sub-clause (7A) of Clause A in Part A of Schedule III under Regulation 30(2) of SEBI LODR Regulations, whereas in the second part the audit committee is required to inform the stock exchange as soon as possible from the date of resignation but not later than date of next audit meeting.  The intimation under the second part will carry the views of the audit committee on the concerns raised by the auditor before resignation whereas the intimation under Regulation 30 is an intimation of a material event. We shall be coming out with our set of FAQs on the Circular discussing the same at length from various perspectives.

[1] See the paper here.

[2] See the Circular here.

 

Core competencies of Directors: the new disclosure requirement for listed entities

By Munmi Phukon

Principal Manager, Vinod Kothari & Company

munmi@vinodkothari.com

Introduction

How does a person get into the board of directors of a listed entity? Simply because he happens to be a majority shareholder, or the son of the promoter, or a morning-walk friend of the promoter? Or, is it that a listed company is expecting supervisory leadership to come from a body consisting of individuals with diverse skills and competencies? What are those key competences and skill sets required from directors, and which of the company’s directors possess which of these abilities? These are questions that listed entities and their stakeholders might have either not put before themselves, or even if considered, may not have had structured answers to these questions. However, come this year, every listed entity shall give a list of core skills/ expertise/ competencies of the Board members, and come next year, the names of the directors who actually possess such skills/ expertise/ competencies.

In the above para, one is referring to a new provision under Para C of Schedule V pertaining to the contents of corporate governance report which reads as follows:

“C. Corporate Governance Report: The following disclosures shall be made in the section on the corporate governance of the annual report.

XXX

(h) A chart or a matrix setting out the skills/expertise/competence of the board of directors specifying the following:

(i) With effect from the financial year ending March 31, 2019, the list of core skills/expertise/competencies identified by the board of directors as required in the context of its business(es) and sector(s) for it to function effectively and those actually available with the board; and

(ii) With effect from the financial year ended March 31, 2020, the names of directors who have such skills / expertise / competence.

Importance & objectives of having a diverse Board

The importance of a diverse and skilled Board is recognised around the world. It is more than a necessity considering the complex and dynamic business environment. The Board is the set of leaders who provide comprehensive guidance, support and direction to the company towards its success. The objective of having skilled Board is manifold considering the involvement of public money, be it of the public shareholders, lenders or other creditors. Stakeholders are concerned about the attitude of the firm towards corporate governance as a diverse set of individuals collectively known as Board cannot take a casual approach on the management of the firm sitting on the pile of public money. Therefore, it is always required for the NRC to have a clear view as to what is being expected from the directors, what would be the set of skills, competencies, expertise, knowledge etc. that would be possessed by the directors, whether the same is broad based and also, to ensure an effective evaluation mechanism.

What does law require?

Till the amendments in the Listing Regulations coming into force, Regulation 36 required disclosure of the nature of the expertise in specific functional areas of a proposed appointee including a person seeking re-appointment to the shareholders. Further, Rule 5 of the Companies (Appointment and Qualification of Directors) Rules provided the qualification of the independent directors as persons who shall possess appropriate 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 the company’s business.

The new requirement of disclosure has been framed based on the Kotak Committee Recommendations whose rationale was primarily based on the fact that the existing requirement of law was not sufficient to the shareholders for their adequate analysis whether the Board of the company has sufficient mix of diverse expertise/ skill- sets.

The broad parameters[1]

The Board is responsible for shaping the future of the organisation within its fiduciary characteristics. Therefore, identifying the key competencies of the Board members is very much essential to ensure that the qualified persons undertake this cardinal role. Globally, identifying the key competencies of Board members is considered as the step towards a successful Board. Broadly, the parameters for identifying key competencies or skill- set can be categorised as follows:

Industry knowledge/ experience

Having experience in and knowledge of the industry in which the organisation operates is one of the key competencies of a Board member. This is required for achieving the objectives of the organisation while operating effectively, responsibly, legally and sustainably. The Board members are required to demonstrate an understanding of-

  • the relevant laws, rules, regulation policies applicable to the organisation/ industry/ sector and level/ status of compliances thereof by the organisation
  • the best corporate governance practices, relevant governance codes, governance structure, processes and practices followed by the organisation
  • business ethics, ethical policies, codes and practices of the organisation
  • the structures and systems which enable the organisation to effectively identify, asses and manage risks and crises
  • international practice

Technical skills/ experience       

To assist with the ongoing aspects of Board’s role, the members are required to possess technical/ professional skills and specialist knowledge. The directors need to be able to obtain, analyse, interpret and use information effectively to develop plans and take appropriate decisions. In order to assess possession of such skills, the person will be required to have knowledge about-

  • how to interpret financial statements and accounts in order to assess the financial health of an organisation
  • the sources of finance available to an organisation and their related merits and risks
  • how to assess the financial value of an organisation and potential business opportunities
  • importance of information technology in the organisation
  • marketing or other specific skills required for the effective performance of the organisation

Behavioural competencies/ personal attributes

Displaying high standards of conduct, ability to take responsibility for their own performance etc. are some of the behavioural competencies which the directors are required to possess. Interpersonal skills such as good communication skills, relationship building capacity etc. will come under this category. In brief, the following will be sub- sets under this head-

  • Integrity and ethical standards
  • Mentoring abilities
  • Interpersonal relations
  • Managing people and achieving change
  • Curiosity and courage
  • Genuine interest
  • Instinct
  • Active contribution

Strategic expertise 

To create and implement effective strategies, a thorough knowledge of the strategic process is required. The ability to think strategically enables directors to propose ideas, options and plans that take advantage of available opportunities while reflecting a broad and future-oriented perspective. Having an understanding of the need for a clear vision and purpose to guide the strategy, models and methods of strategic analysis, option analysis the factors involved in successful strategy implementation by the directors is required for giving a strategic direction to the organisation. The sub- sets under this head may be as below:

  • Strategic thinking
  • Vision and value creation
  • Strategy Development
  • Strategy implementation and change

Mind- set or attitude

An ethical mind- set demonstrates a high standards of conduct. Further, professional attitude and independent mind- set enables director to provide the challenge and rigour required to help the Board achieve a comprehensive understanding of information and options, as well as high standards of decision-making. The head may be segregated into the following:

  • Ethical
  • Professional
  • Performance oriented
  • Independent
  • Aware of self and others

Other skills

Other skills may include decision making, communication, leadership, influencing, risk oversight, risk management, stakeholder relations etc. Good decision-making skills is required in order to arrive at a course of action in a timely manner that provides a clear direction and moves the organisation forward. Similarly, strong leadership skills enable directors to solve problems, cope up with the crises and change, and inspire others to follow them in pursuit of the values and goals of the organisation. The ability to build good networks and relationships within and beyond the organisation is important for the director to gain influence, have impact and progress organisational goals. The ability to communicate effectively through a variety of modes and channels and with a range of audiences is necessary for directors to work successfully with others and to fulfil their duties on the Board. Directors need to understand how to deliver effective leadership, build good stakeholder relations and develop a strategically aligned and values-based organisational culture in order to achieve good organisational performance. Therefore, the sub- sets hereunder may be-

  • decision making skills
  • communication skills
  • leadership skills
  • influencing
  • risk oversight
  • risk management skills
  • stakeholder relations

Suggestive format of reporting

Broad parameter Specific skills/ expertise/ competency

 

Director 1 Director 2 Director 3
 

 

 

 

 

 

 

 

Industry knowledge & experience

 

 

Understanding of the relevant laws, rules, regulation policies applicable to the organisation/ industry/ sector and level/ status of compliances thereof by the organisation

 

Understanding of the best corporate governance practices, relevant governance codes, governance structure, processes and practices followed by the organisation

 

Understanding of business ethics, ethical policies, codes and practices of the organisation

 

Understanding of the structures and systems which enable the organisation to effectively identify, asses and manage risks and crises

 

Understanding of international practice

 

Conclusion

The amendments require listing out of the key skills/ competencies of the Board as a part of the corporate governance report for FY 18-19. From subsequent FYs, the disclosure will have to be by way of a matrix signifying the directors actually carrying such skills. It is anticipated that such a disclosure will help the shareholders to analyse the diversity of expertise/ skill – sets of the Board. This is believed that disclosure of each of the skills against the directors will make them responsible for each of the skills. Therefore, a director will not be able to escape responsibility with the shield of immunity provided by law which is circumstantial.

 

[1] Source:

  1. https://www.asaecenter.org/resources/articles/foundation/2018/defining-board-competencies
  2. https://www.iod.com/Portals/0/PDFs/IoD%20Competency%20framework.pdf?ver=2017-10-06-135816-827
  3. https://www.effectivegovernance.com.au/services/director-skills-competency-assessment/
  4. https://aicd.companydirectors.com.au/resources/director-tools/practical-tools-for-directors/board-composition/key-competencies-for-directors
  5. https://www.effectivegovernance.com.au/services/director-skills-competency-assessment/

 

Trading window closure in case of debt listed company

CS Nitu Poddar, Senior Associate, Vinod Kothari & Company

corplaw@vinodkothari.com

 

SEBI (Prohibition of Insider Trading) Regulations, 2015 (‘Regulations’) is applicable in relation to securities listed and proposed to be listed. Companies having its debentures listed are also required to comply with the provisions of the Regulations. The intent of the Regulations is to prohibit trading in listed securities while in possession of Unpublished Price Sensitive Information (UPSI). UPSI has been defined to mean such information that is not generally available and which can materially affect the price of the securities on becoming generally available and includes information in relating to financial results, dividends, change in capital structure, restructuring and changes in key managerial personnel.

UPSI in case of debt listed entities

Sensitivity of an information largely depends on the kind of security it is associated with; Information that may be regarded as UPSI for an equity listed entity may not necessarily affect prices of the debt listed. For example, declaration of dividend is price sensitive information for an equity listed entity but may not have any impact on the debt listed. The reason for the same is that debentures receive fixed rate of interest and is not at the discretion of the management. However, default/ expected default in payment of interest on a loan is price sensitive information as it may result in non-service of obligations in relation to the debt listed too.

 

Generally speaking, the information with respect to the financial position of the company,revision in ratings, instance of defaultmade by the company in repayment of any debt or any such information which affects the payment of principal and /or interest of the debentures are probable price sensitive information for listed debt securities.

 

Given the uniform applicability of the Regulation for all listed companies, there are certain implementation issues with respect to the closure of trading window in case of debt listed company which has been discussed in this article.

 

Closure of Trading Window in case of Financial Results

 

Trading Window denotes a notional window used as an instrument of monitoring the trades of Designated Persons. A Designated Person is permitted to trade only when the Trading Window is not closed.

 

As per Para 4 of Schedule B to the Regulations, it is mandatoryfor all listed companies to close its Trading Windowfrom the end of “every quarter” till 48 hours after the declaration of financial results.

 

“Trading restriction period can be made applicable from the end of every quarter till 48 hours after the declaration of financial results”

 

 

An equity listed entity is required to submit financial results on a quarterly basis. In case of debt listed entity, listed entities are required to submit un-audited or audited financial results on a half yearly basis. If the debt listed entity is a subsidiary of an equity listed entity, in that case it is required to submit financial results on quarterly basis for consolidation purpose.

 

The quarterly results so submitted may not be published on the website of the debt listed entity; however, the information becomes generally available by forming part of the consolidated financial results.

 

Accordingly, few pertinent questions that arise are:

 

  1. Should the trading window of a debt listed entity be closed from the end of every quarter till the declaration of financial results by the company which will happen only after the completion of a half year?

 

  1. Should the debt listed company close the trading window every quarter while submitting results to holding company for consolidation purpose?

 

Possible interpretation:

 

Quarters/ Half Year Timeline for submission of results to stock exchange Period of trading window closure in case debt listed entity has not holding company. Period of trading window closure in case of submission of results for consolidation.
April to June (Q1) Not required From July 1 till 48 hours of declaration of consolidated results by holding company.
July-September (Q2)

 

April – September (HY 1)

 

November 14

 

 

From October 1 till 48 hours after declaration of financial results

From October 1 till 48 hours after declaration of financial results by debt listed entity.
October – December (Q3) Not required From January 1 till 48 hours of declaration of consolidated results by holding company.
January – March (Q4)

 

October – March (HY 2)

 

 

May 30

 

 

From April 1 till 48 hours after declaration of financial results.

From April 1 till 48 hours after declaration of financial results by debt listed entity.

 

It is to be noted that, with the amended[1] provisions in place, the tenure of closure of Trading Window got elongated and covers almost 180 days/ 6 months of the year. Now, if the provisions of PIT, for a debt listed company, are interpreted in a way that the window should be closed from the end of each quarter and opened once the financial results are declared after the half year, one can easily imagine that the window is closed for almost the 8-9 months of the year! Does that mean that the designated person of such companies will be allowed barely 3 months for trading? Taking such a view will be squarely impractical.

 

A debt listed company which is not a subsidiary of an equity listed holding company, cannot be mandated to close trading window every quarter merely to comply with Schedule B requirements. This will result in absolute impractical situation.

 

Where the debt listed company is required to share quarterly financials for consolidation purpose,standalone financial results of the debtlisted company are notpublished separately. Accordingly, the UPSI becomes published and publicly available, to the extent of consolidated figures, on declaration of results by the holding company and therefore, keeping up with the intent of closing of the Trading Window (to prohibit trading by designated person while in possession of UPSI) it will be appropriate to interpret that the trading window of such debt listed companies should be closed quarterly and opened after 48 hours of declaration of consolidated financial results by the holding company to public.

 

Compliances for sharing of financial result with the Parent company

 

So far as sharing of the quarterly results of the debt listed company with the holding company is concerned, the same being for legitimate purpose, certain compliances have to be ensured by the debt listed company in line with its code of conduct viz.

  • Promoters are regarded as Designated Persons under the Regulations. Therefore, signing of non-disclosure / confidentiality agreement with the holding company may not be required;
  • Designated Person shall not trade in the listed securities of the debt listed company until the information becomes generally available either pursuant to publishing of financial results by the debt listed entity or publishing of consolidated figures by holding company, as applicable.
  • Entry to be made in the structured digital database in relation to sharing of information with employees of the holding company.

[1]Securities and Exchange Board of India (Prohibition of Insider Trading) (Amendment) Regulations, 2018 (w.e.f. April 01, 2019)

Adjudication of penalties under SEBI: SC ruling gives controlled discretion to Adjudicating Officer

-Ruling of Bhavesh Pabari overrules Roofit Industries

By Smriti Wadehra (smriti@vinodkothari.com)

A three member Bench of the SC recently overruled its earlier decision in Roofit Industries Ltd vs SEBI, and provided a controlled discretion to the Adjudicating Officer in fixing penalties for offences under the SEBI Act as well Securities Contract Regulation Act (SCRA) as a result of  the ruling, the Adjudicating Officer shall not be constrained by the minimum extent of penalty laid in SEBI Act and may, where circumstances so warrant, either waive off the penalty completely or may assign a penalty less than the so called minimum. Thus, the adjudication of penalties may be expected to be more commensurate with the gravity of the offence, than was so far possible primarily due to the position arising out of Roofit ruling. Read more

SEBI proposes to restructure the issuance of shares with DVRs

By Nikita Snehil and Shaifali Sharma | corplaw@vinodkothari.com

Vinod Kothari & Company

The basic principle behind the issuance of shares with differential voting rights, commonly known as ‘DVRs’ in India and dual class shares or ‘DCS’ in the international context, is to enable the companies to raise capital without dilution of control and decision-making power in company. In promoter/ founder led companies where promoters/ founders are instrumental in the success of the company, such structures enable them to retain decision-making powers and rights vis-a-vis other shareholders either through retaining shares with superior voting rights or issuance of shares with lower or fractional voting rights to public investors.

The concept was first recognized under the Companies (Amendment) Act, 2000 followed by similar provisions adopted by the Companies Act, 2013. However, the current practical scenario depicts a different picture, as the provisions of SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 does not permit DVRs with higher or superior voting rights. However, subject to certain conditions, DVR shares with lower voting rights are permitted. Till date, only 5 listed companies have used this structure in India. Strict pre-condition and corporate governance norms, unavailability of investors due to lack of awareness are some grounds of company’s reluctance from adopting such idea.

SEBI’s Consultation Paper to restructure the issuance of DVRs

On December 19, 2018, Mr. Ajay Tyagi, Chairman of SEBI, had said in an interview that SEBI has made a sub-committee for reintroducing Differential Voting Rights on shares, which will make recommendation on the same by next month. Post this, SEBI on March 20, 2019, has come out with a Consultation Paper[1] on issuance of shares with Differential Voting Rights. The Consultation Paper provides that the matter of issuance of shares with DVRs was deliberated in the Primary Market Advisory Committee of SEBI (‘Committee’) and a group (‘DVR Group’) was constituted amongst the Committee members to do an in-depth study of the proposal of introduction of shares with DVRs in Indian Scenario.

The Consultation Paper addresses the norms for issuance of shares with DVRs under two categories –

  1. issuance by companies whose equity shares are already listed on stock exchanges;
  2. companies with equity shares not hitherto listed but proposed to be offered to the public.

The basic moto behind allowing shares with differential voting rights is to raise equity without dilution of promoter control i.e., to allow the promoters/ founders to maintain control as they would hold shares with superior voting rights.

Therefore, considering SEBI’s proposed structure, there shall be four categories of companies which can issue DVRs:

  • Equity listed cos – as per this Consultation Paper;
  • Unlisted cos, which are intending to get their equity listed — as per this Consultation Paper;
  • Unlisted cos, not intending to list their equity shares – as per Section 43 of the Companies Act, 2013 (‘Act’) read with Rule 4 of the Companies (Share Capital and Debenture) Rules, 2014;
  • Private Cos — exempted from applicability Section 43 of the Act, if either its memorandum or articles of association so provides- vide notification number G.S.R. 464(E) dated 5th June 2015.

Need for DVRs in India

In order to maintain the current growth phase in India, it is pertinent for the companies to raise capital to sustain this growth. For companies with high leverage or asset light models, they may prefer equity over debt capital. Raising DVRs will reduce the dilution of founder/ promoter stake which would otherwise be a case in capital raised by equity.

The protection of founder/ promoter’s stake/ control is especially relevant for new technology entities which have asset light models, with little or no need for debt financing. However, these entities generally raise funds through equity which dilutes the promoter’s/ founder’s stake, thereby diluting control. Considering the issue, the Consultation Paper states that retaining founder’s interest & control in the business is of great value to all shareholders and the same can be achieved by:

  1. Issue of shares with superior voting rights (‘SR’) to founders and/or
  2. Issue of shares with lower or fractional voting rights (‘FR’) to raise funds from private/ public investors.

International Scenario

The global market has witnessed a mixed response to the concept of DVRs, while many countries have permitted the listing of companies with Dual Class Shares or DCS (internationally used term for DVRs), some countries like UK, Australia, Spain, Germany and China do not permit the Issuers with DCS structure for listing. Singapore and Hong Kong have recently permitted DCS structures with detailed checks and balances. Considering the international scenario, the Consultation Paper has provided a detailed comparison of the issuance & listing of DCS structure in internal jurisdictions, the summary of which is presented below:

  • 700 public companies in the US have DCS structures, predominant listed ones being Google, Facebook, Snapchat, Nike and Alibaba. There is ongoing debate in the SEC about the continuation of DCS[2].
  • Hong Kong and Singapore recently allowed DCS to encourage more new technology firms to list.
  • In the UK[3], DCS structures were used in the 1960s to protect corporations from hostile takeovers or for the Queen to have ‘golden share’, before institutional investors expressed strong opposition to such structures. DSC is presently not allowed in the UK.
  • Over the past decade, a number of European governments have implemented or debated the use of different voting rights.
  • US, Canada, HK, Singapore, Denmark, Spain, Sweden and Italy allow dual-class shares. Germany, Spain, China, Australia disallow listing of shares of companies with DCS structures.

Recommendations of the DVR Group

Ø Pre-conditions

A company would be entitled to issue DVR Shares, subject to following pre-conditions:

  • issue of DVR Shares must have been be authorized in the AoA of the company; and
  • the issue of DVR Shares should be authorized by a special resolution passed at a general meeting of the shareholders.
  • for companies already listed, by way of e-voting as per Companies Act, 2013
  • The notice should mention specific matters, including but not limited to, size of issuance, ratio of the difference in the voting rights, rights as to differential dividends, if any, sunset clause, coattail provisions, etc., as made applicable by SEBI regulations to be notified in this regard.

Ø Requirements for both the categories

Category I: Companies whose equity shares are already listed – issuance of FR Shares;

Category II: Companies whose equity shares are proposed to be listed – issuance of SR shares.

Eligibility

 

Requirements for Category I Requirements for Category II
Conditions Cos whose shares have been listed on a SE for atleast a year, may issue FR Shares.

 

Note: listed cos are still not allowed to issue SR Shares.

Unlisted cos may issue SRs, only to promoters.
 

First issuance of FR/ SR shares

Type of issuance Through a) rights issue; b) bonus issue pro rata to all equity shareholders; or c) a Follow-on Public Offer (“FPO”) of FR shares. An unlisted co. where the promoters hold SR Shares shall be permitted to do an Initial Public Offer (“IPO”) of only ordinary equity shares provided the SR Shares are held by the promoters for more than one year prior to filing of the draft offer document with SEBI.
 

Subsequent issues of FR Shares once FR Shares are already listed

Type of issuance A company that has already listed FR Shares shall be eligible to do:

a) rights issue; b) bonus issue; c) preferential issue; d) QIP of FR Shares of the same class;

 

A company whose SR Shares and ordinary equity shares are already listed shall be permitted to issue FR Shares in terms of the applicable provisions for issue of FR Shares by listed companies – which means same as Category I.

 

Note: Issuance of SR shares not allowed post listing.

Depository Receipts A company whose FR Shares are listed for at least one year shall be eligible to issue depositary receipts where the underlying shares are FR Shares.
Convertible Instruments A company can issue convertible instruments which will convert into FR Shares subject to applicable regulatory considerations.
Voting and other rights The FR shares shall not be treated at par with the ordinary equity shares.

 

Max ratio

 

The FR Shares shall not exceed a ratio of 1:10, i.e. one vote as applicable to one Ordinary Equity Share, would be voting entitlement on 10 FR Shares. The ratio can be in full numbers from 1:2 to 1:10.

 

 

At any point of time, the co. can only have one class of FR Shares.

The SR Shares shall be treated at par with the ordinary equity shares in every respect except in the case of voting on certain matters.

 

Max ratio

 

The SR Shares shall be of a maximum ratio of 10:1, i.e. ten votes for every SR Share held. The ratio can be in whole numbers from 2:1 to 10:1. A ratio once adopted by a company shall remain valid for any subsequent issuances of SR Shares.

 

A co. can issue only one class of SR Shares.

 

Any rights or bonus issue by the co. post-listing shall be offered only as ordinary equity shares

to the holders of the SR Shares.

 

On certain matters to be notified by regulations, the SR Shares would be treated as having only one vote. The initial list of the same is set out in the coattail provisions set out in the Committee Report (the same has been explained later in this Article).

 

Dividends The company may, at its discretion, decide to pay additional dividend per FR Share compared to dividend paid on ordinary Equity Share, which shall be higher than the dividend per

ordinary Equity Share and the same shall be stated in the terms of the offering. No dividend may be payable on FR Shares for such years where no dividend has been declared by the company for the ordinary equity shares.

 

Post IPO, the SR shares shall be eligible for the same dividend and other rights as ordinary equity shares, except for superior voting rights.
Minimum Public Shareholding The co. should comply with the req of Securities Contracts (Regulation) Rules, 1957 (“SCRR”) and other applicable regulations formulated in this regard. The co. shall comply with the SCRR and other applicable regulations formulated, for the ordinary equity shares that will be listed.

 

Post-listing, the voting rights with the promoters through the SR Shares and ordinary equity shares shall not exceed 75% of the total voting rights.

Pricing The pricing of FR shares shall be in accordance with regulatory considerations applicable to

mode of issuance of FR Shares

Face Value The face value of a company’s FR Shares shall be the same as that of its

ordinary equity shares.

The face value of a company’s SR Shares shall be the same as of that of the ordinary equity shares.
Number of FR / SR Shares The number of FR Shares that may be issued by a company shall be subject to

provisions of the Companies Act, 2013 and the rules framed thereunder

A company shall be permitted to issue any number of SR Shares of the same class prior to an IPO, subject to provisions of the Companies Act, 2013.
Lock-in period All SR Shares shall remain under a perpetual lock-in after the IPO.
Pledge of shares Creation of any encumbrance over SR Shares including pledge, lien, negative lien, non-disposal undertaking, etc. shall not be permissible.

In other words, no third-party interest may be created over the SR Shares and any instrument purporting to do so would be void ab initio.

Fasttrack issuance

 

A company shall be eligible to issue FR Shares in a rights issue or an FPO through the fasttrack method in case it meets the eligibility criteria of fast-track issuances.
Conversion of FR / SR shares

 

[Also known as ‘Sunset Clause in case of SR Shares]

The FR Shares can be converted into ordinary equity shares only in cases of schemes of

arrangement.

The validity of SR shares is 5 years from the date of listing of ordinary shares. Which means, such shares shall be compulsory converted into ordinary shares on the 5th year anniversary of the listing of such ordinary shares i.e. superior rights will fall under the standard rule of ‘one-share one-vote’. Conversion shall be done in the following manner:

 

For promoters: at any time prior to the 5th year anniversary of the listing of the Ordinary Shares or such extended period as decided by the shareholders by passing special resolution.

 

For other than promoters: on completion of the 5th year anniversary of the listing of the Ordinary Shares or such extended period of 5 years with the approval of shareholders by way of special resolution in the meeting where all members vote on one-share-one vote basis.

 

Besides the aforementioned validity of 5 years, the SR shares shall be converted into ordinary shares on the merger or acquisition of the company or sale of such shares by the identified promoters who hold such shares or in the case of demise of the promoter(s).

Extinguishment The FR Shares can be extinguished only through buy-back by the company or reduction of capital in accordance with applicable laws.
Delisting The company can delist the FR Shares in accordance with the SEBI (Delisting of Equity Shares) Regulations, 2009. However, in the event ordinary equity shares of the company are delisted, the company shall be mandatorily required to delist the FR Shares.
Listing and Trading The FR Shares shall be held in dematerialized form. However, FR Shares can be

issued in physical form, if such FR Shares have been issued pursuant to a bonus issue and the underlying shares are held in physical form.

 

The FR Shares shall be listed and traded on all SEs where ordinary equity shares of the co. are listed with a separate identifier from the ordinary equity shares.

All SR Shares shall be held in dematerialized form and shall be listed on the main board platform of the recognized SEs.

For listing of SR Shares, exemption will be granted from Rule 19(2)(b) of SCRR.

 

The SR Shares, however, cannot be traded except upon conversion into ordinary equity shares.

Post-Issue Disclosures The shareholding pattern filed by the co. with the SEs shall provide the details of the FR Shares separately and in the format specified by SEBI and the SEs The shareholding pattern to be filed by the co. with the SEs shall provide the details of both ordinary equity shares and SR Shares in the format specified by SEBI and the stock exchanges.
ESOPs A co. can issue ESOPs of FR Shares post the listing of such shares, subject to applicable laws.
Bonus issue by the co. which has issued FR shares If a co. which has issued FR shares, issues bonus shares, then it shall issue to FR shareholders bonus FR shares in the same proportion in which bonus shares are issued on ordinary equity shares.
Applicability of other SEBI Regulations SEBI regulations in respect of buy-back, and takeovers shall apply to FR Shares, subject to such modification as may be required in the context of FR Shares. The FR Shares once listed shall not be delisted on a standalone basis and may be delisted as and when the ordinary equity shares are delisted. SEBI regulations in respect of buy-back, and takeovers shall be applicable to SR Shares, subject to such modification as may be required in the context of SR shares.

 

Ø ”Coattail”  Provisions for issuance of SR shares

Post-IPO, the SR Shares shall be treated as ordinary equity shares in terms of voting rights (i.e. one SR share-one vote) in the following circumstances:

  1. provisions relating to appointment or removal of independent directors and/or auditor;
  2. in case there is a change in control of the company;
  3. any contract or agreement of the company with any person holding the SR Shares, in excess of the materiality threshold prescribed under Regulation 23 of the SEBI (Listing Obligations and Disclosure Requirement) Regulations, 2015;
  4. voluntary winding up of the company;
  5. any material changes in the company’s AoA or MoA, including but not limited to, undertaking variation in the voting rights of the shareholders, changing the principal objects of the company, granting special rights in favour of a particular shareholder or shareholder groups and such other items as may be prescribed by the SEBI;
  6. initiation of a voluntary resolution plan under the Insolvency and Bankruptcy Code, 2016;
  7. extension of the validity of the SR Shares post completion of 5 years from date of listing of ordinary equity shares; and
  8. any other provisions notified by SEBI in this regard from time to time.

Conclusion

The major benefits of DVRs structure highlighted in the DVR Group Report are as follows:

  1. DVRs promote fund raising without diluting control;
  2. In a promoter led companies, DVR structure will enable such promoters to retain control, the decision-making powers and other rights in the company;
  3. DVRs structure acts as defense mechanism for hostile takeover.

The recommendations by DVRs Group seems to extend a hand of opportunity to listed companies and those companies including, newly incorporated companies, who intend to issue DVRs but do not have a consistent track record of distributable profits as stated in the existing ICDR regulations, i.e. 3 years.

The Sunset Clause in case of SR shares shall keep a check on the tenure of the DVRs, however, the provisions requiring companies issuing the DVRs to observe better corporate governance practices is missing in the proposed structure of DVRs. Further, there might be instances where the interest of minority shareholders could be adversely affected by the holder of SR shares, therefore, certain checks and balances to prevent the misuse of the instruments should be imposed by SEBI to protect the interest of the shareholders as well as the genuine issuers.

[1] https://www.sebi.gov.in/reports/reports/mar-2019/consultation-paper-on-issuance-of-shares-with-differential-voting-rights_42432.html

[2] http://www.pionline.com/article/20180216/ONLINE/180219888/sec-commissioner-calls-for-curb-on-dual-class-forever-shares#

[3] https://ecgi.global/sites/default/files/working_papers/documents/SSRN-id2138949.pdf

Guidelines for Review of Loans and Investments by the Audit Committee

Team Vinod Kothari & Company
corplaw@vinodkothari.com

Background

 

Securities and Exchange Board of India (Listing Obligations and Disclosure Requirement) Regulations, 2015 (‘Listing Regulations’) as well as Companies Act, 2013 (‘Act, 2013’) specify the role of the audit committee and mandates the audit committee to mandatorily review certain matters. Among the matters to be reviewed by the audit committee, section 177 of the Act, 2013 provides for review of inter-corporate loans and investments. Additionally, under Regulation 18 read with Schedule II and Regulation 24 of the Listing Regulations, the audit committee shall review the utilization of the loans/advances given to subsidiaries which exceed a certain threshold and shall also review the financial statements of its unlisted subsidiary.

 

The intent of audit committee review is to provide an independent view of the strength, objectivity and transparency of long-term investments made by the company and financial exposures taken by the company into other entities. Additionally, the audit committee may also review whether the loans/investments are still serving the purpose that they were intended to achieve, and whether the health/fair value of the loans and investments has substantially been affected over time. The audit committee’s review may also become the basis for strategic decisions on continuing the said financial exposures.

 

In case of subsidiaries, they are a part of the extended enterprise led by the holding entity. The holding entity puts in capital and other resources into subsidiaries. The subsidiaries are engaged in specific activities/verticals based on the business model of the enterprise. The subsidiaries may make further downstream investments and thus, create a network, once again, within the larger group objective of the enterprise. However, the review by the audit committee ensures that the subsidiaries are serving the larger group objective that they were designed to serve.

 

The following is a guideline as to what should be the perspective of the review and the specific areas of concern for such loans and investments which are placed for review/scrutiny before the audit committee; when such review is to be made etc. Further, the perspective and purpose of the audit committee is different while reviewing the loans and investments to its subsidiaries and that given to others.

Relevant provisions of Listing Regulations:

 

Regulation 24(2):

 

“The audit committee of the listed entity shall review the financial statements, in particular, the investments made by the unlisted subsidiary.”

 

Para A of Part C of Schedule II:

 

“The role of the audit committee shall include the following:

  1. Scrutiny of inter-corporate loans and investments.

XX

  1. reviewing the utilization of loans and/ or advances from/investment by the holding company in the subsidiary exceeding rupees 100 crore or 10% of the asset size of the subsidiary, whichever is lower including existing loans / advances / investments existing as on the date of coming into force of this provision”

Parallel provisions of Companies Act, 2013:

 

Section 177(4) 

“Every audit committee shall act in accordance with the terms of reference specified in writing by the board which shall, inter alia, include:

(v) Scrutiny of inter-corporate loans and investments;

…”

 

Clarification on the terms loans, advances and investment

 

Need to review inter corporate loans and investments by the audit committee:

 

Inter corporate loans and investments made by the company implies a long term financial exposure. Generally speaking, unless the company is into the business of making investments, the inter-corporate investments are not directional investments; they are strategic in nature. Similarly the inter-corporate loans, except in case of companies engaged in the business of lending, are not intended for reaping interest income. Therefore, the review of these long-term financial exposures to be taken by the audit committee is to ensure that these outlays of funds do not lead to long-term resources of the entity being diverted to a purpose which is not congenial or related to the corporate objective. The objective also includes review of the health and integrity of these loans and investments. Where required, disinvestment calls may also have to be taken based on review by the audit committee.

 

While the law requires the audit committee to review the inter-corporate loans and investments, there seems to be no reason for excluding the review of guarantees/ securities provided by the company in connection with the loan.

 

Need to review investments in and made by the unlisted subsidiaries:

 

The holding company invests in the capital of subsidiaries. While the need for reviewing the investment in subsidiaries does not come from the Companies Act, 2013, the Listing Regulations specifically requires the listed holding company to review the investments of its unlisted subsidiaries. The investments made by the subsidiaries are indirect investments of the holding company itself. Where the subsidiaries are listed entity, the investments made are subject to similar review by their audit committee. However, in case of unlisted subsidiaries, there is less likelihood that the subsidiary will have its own audit committee. Irrespective, the audit committee of the holding listed entity is entrusted with the responsibility of monitoring and reviewing the investments made by such subsidiaries. The audit committee of the holding company has to review such investments to understand if there is any diversion from the objectives of the investment. Further, in case of downward investment by the subsidiary, the audit committee shall review whether the larger objective of the holding company is being served.

 

Need to review loans given to unlisted subsidiary

 

The audit committee the holding company is required to review whether the loans granted by it to its subsidiary is being utilized for the approved purpose or not. Any case of diversion of funds has to be brought to the notice of the audit committee since any sort of funding to the subsidiary is always with an intent of expanding or stabilizing the operations of the holding company. Further, the audit committee while reviewing needs to check whether the terms on the loan are reasonably fair and at arm’s length.

 

Scope of ‘loans’ to be reviewed by audit committee:

 

The audit committee of the listed entity is required to scrutinize inter-corporate loans availed/ granted by the listed entity. Inter- corporate loans for the purpose of review shall include-

 

  • Inter-corporate guarantees given by the listed entity;
  • Inter-corporate security provided by the listed entity;
  • Loans with terms and conditions substantially at variance with the loans ordinarily provided;
  • Guarantees with terms and conditions substantially at variance with the guarantees usually provided;
  • Loans other than in the ordinary course of business

 

Loans/ guarantees which are granted or security provided in the ordinary course of business or to exempted categories need not be reviewed by the audit committee.

 

Scope of ‘Investments’ to be reviewed by audit committee:

 

Investments as are assets held by an enterprise for earning income by way of dividends, interest, and rentals, for capital appreciation, or for other benefits to the investing enterprise. Assets held as stock-in-trade are not ‘investments’.

 

Investments which shall be reviewed by the audit committee of the listed entity will include strategic investments made with the motive to earn yield or regular investment income. Investing the funds reduces the investible funds of the entity, funds available for business and therefore it is necessary to review the same. Investments should not be restricted to investments in securities only. Investment in the assets/property should also be covered within the ambit. Certain investments, as specified here under, need not be included within the ambit:

 

  • Trade investments made by the listed entity or its unlisted subsidiary;
  • Investments made in the ordinary course of business;
  • Statutory investments made under applicable law;

 

Specific concerns for review by the audit committee:

 

The perspective of the audit committee is different while scrutinizing loans and investments of the listed entity as well as while reviewing the investments made in/by the unlisted subsidiary. For this purpose the following points should be included by the audit committee in its review –

 

1.      Specific concerns for loans to other entities

 

  • Purpose of loan, how does it serve the business interest of the company;
  • Tenure of loan;
  • Where the company has raised any money by issuing any shares/ debentures, does the giving of the loan amount to utilization of issue proceeds for a purpose other than that disclosed in the offer document;
  • Rate of interest appropriate in view of credit risk of investee;
  • Security interest and liquidity;
  • Whether the loan is being serviced or has become impaired;
  • Whether the quality of the borrower has deteriorated;
  • Whether repayment happens as per stated repayment schedule;
  • Whether there exists a scope for premature repayment;
  • Whether there exists any reason to opt for premature repayment;
  • If loan is not to a related party, how and why the transaction emanate;
  • Whether the loan has been extended on reasonably fair terms and conditions and at arm’s length.

2.      Specific concerns for investment in other entities

 

  • Purpose of investment, how does it serve the business interest of the company;
  • Whether there has been any diversion in utilizing the investment of the company from the objects and purposes approved by the audit committee;
  • Whether the subsidiary has made any downstream investment and whether such downstream investment is at par with the objectives of the investment of the company
  • Performance of investment – in terms of yield, returns;
  • Likely performance of the investment in future;
  • Liquidity of the investment;
  • Any reason to seek liquidation/ exit from investment.

  

  1. Specific concerns in case of subsidiaries

 

While many of the above may not be relevant in case of subsidiaries, the following areas of concern shall be looked into by the audit committee in case of loans and investment made:

 

Loans

 

  • Whether the loan is being utilized for the purposes approved by the company;
  • Is there any diversion in the end use of the loan;
  • Covenants of the loan, particularly, with a view to ensure that there are no chances of diversion of funds from the purpose for which they are purportedly intended to be provided.

 

Investment

 

  • Whether there has been any diversion in utilizing the investment of the company from the

objective and purposes approved by the audit committee;

  • Whether the subsidiary has made any downstream investment and whether such downstream investment is at par with the objectives of the investment of the company;
  • Whether the investment made is a fit case for impairment considering the performance of the investee company.

On-going review by audit committee:

 

As per Regulation 24(2), investments of the unlisted subsidiary shall be reviewed by the audit committee of the holding listed entity at the time of review of financial statements of the unlisted subsidiary. Financial statements are prepared annually; therefore, the review shall be done on an annual basis for the investments made by unlisted subsidiaries during the year.

 

Further, as per Clause 9 of Para A, Part C of Schedule II to Listing Regulations the loans/ investments of the listed entity shall be subject to scrutiny by its audit committee before making investment/disbursing loans, to the extent possible or after the same have been made.

 

Furthermore, the holding company also reviews the following in case of its unlisted subsidiary, on an on-going basis:

 

  • Whether the subsidiary has sufficient accumulated reserves while considering its performance;
  • Whether the dividend policy of the subsidiary is in line with the larger objectives of the holding company;
  • Whether the subsidiary has large amount of surplus lying in its books so as to enable it to plan a buy back.

 

Format for reporting to the audit committee

 

There is no specific format for reporting the performance / status report to the audit committee for enabling the committee to review the same. However, the same may be reported in the following manner:

 

Sr. No Particulars of investment / loan

 

[Name of the party, date of investment or loan, purpose, tenure, etc.]

Concerns Amount involved Performance / Update
    Whether Secured or unsecured    
What is the yield
Whether liquid or illiquid
Market price of the securities
Whether there is any potential risk associated with the investment /loan
Servicing / repayment schedule
Any change in the credit rating of the investee company

 

Impact of the amendments in SEBI Regulations and the Companies Act, 2013 on the Policies and Codes of the Companies