Transitory liberalisation of asset classification norms for MSMEs

/0 Comments/in , /by

by Yutika Lohia and Anita Baid (finserv@vinodkothari.com)

With the advent of GST in the Indian economy, all three sectors i.e. Agriculture, Industry and Service, have been facing several challenges. Majority of small entities in the country have been impacted in some way or the other, irrespective of whether they required registration under GST or not. MSMEs requiring registration faced difficulties due to disruption of their business for ensuring compliance with the new regime. Even unregistered MSMEs faced complications as they were dealing with businesses which were directly disrupted due to GST implementation eventually effecting their cash flows to honour financial obligations. In response to the worries of small enterprise, the government has introduced several relaxation so as to enable them to adopt themselves with the revolutionary change of indirect taxation scheme being implemented in the country. Certainly the cash flows of the micro, small, medium enterprises (MSMEs) sector has been adversely affected with this new GST regime and such entities whether registered or not under GST, who have taken financial assistance are definitely facing problems to pay off their debts. Read more →

Fair Market Value – as per Company Law perspective

/0 Comments/in , , , /by

By Nikita Snehil | nikita@vinodkothari.com

The term ‘Fair market value’ has been used hundreds of times in the Income Tax Act, 1961, however, the same has also been given due weightage under the Companies Act, 2013. The present Article intends to explain the meaning of the term ‘Fair Market Value’, its significance and its relevance as per Companies Act, 2013.

Meaning of Fair Market Value

In general parlance, Fair market value is the price agreed between a buyer and a seller for a specific asset. Both parties should be aware of the asset’s condition and willing to participate in the transaction with no force or conditions.

However, the term has been defined in para 9 the Ind AS 113[1], which states the following:

“Ind AS defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date.”

Therefore, the definition can be illustrated in the following way:

The concept of Fair Market Value has become all pervasive particularly after the introduction of International Financial Reporting Standards because there is greater stress on fair value today than in the past.

Provisions of the Companies Act, 2013 referring to fair valuation

The provisions of the Companies Act, 2013 (‘Act’) talks about the requirement of valuation in many cases, the following table shows the sections of the Act requiring valuations:

 

Section no. Valuation purpose  

Requirements in brief

 
54 Issuance of Sweat Equity Shares The sweat equity shares to be issued shall be valued at a price determined by a registered valuer as the fair price giving justification for such valuation.

 
62(1) (c) Preferential Offer When a company proposes to issue new shares, the price of such shares should be determined by the valuation report of a Registered Valuer.

 
192(2) Non-cash transaction involving directors Where there is a sale or purchase of any asset involving a company and its directors (or its

holding, subsidiary or associate company) or a person connected with the director for consideration other than cash, the value of the assets has to be calculated by a Registered Valuer.

 
230 & 232 Compromises, Arrangements and Amalgamations In case of compromise or arrangement between members or with creditors or any class of them, a valuation report in respect of shares, property or assets, tangible and intangible, movable and immovable of the company is required by a Registered Valuer.

 
236 Purchase of minority share holding Where an acquirer or person acting in concert with the acquirer acquires 90% or more of the equity capital in a company, then they can offer to the minority shareholder or the minority shareholder can offer to the acquirer, to acquire the minority shareholding at a valuation determined by the Registered Valuer.

 
281 & 305 Winding up of a company In case of winding up, the valuation of assets of the company prepared by the Registered Valuer is required.

 

Who can be valuer?

Though the Act does not specify anything regarding the eligibility of the registered valuers, the Companies (Share Capital and Debenture) Rules, 2014 provides the following:

For the purposes of these rules, it is hereby clarified that, till a registered valuer is appointed in accordance with the provisions of the Act, the valuation report shall be made by an independent merchant banker who is registered with the Securities and Exchange Board of India or an independent Chartered Accountant in practice having a minimum experience of ten years.

Thereafter, MCA had notified the provisions governing valuation by registered valuers [section 247 of the Act and the Companies (Registered Valuers and Valuation) Rules, 2017 (‘Rules’), both to come into effect from 18 October, 2017.

Valuation by Registered Valuers

As per the notified section 247(1), where a valuation is required to be made in respect of any property, stocks, shares, debentures, securities or goodwill or any other assets or net worth of a company or its liabilities under the provision of this Act, it shall be valued by a person having such qualifications and experience and registered as a valuer in such manner, on such terms and conditions as may be prescribed and appointed by the audit committee or in its absence by the Board of Directors of that company.

Proposal of MCA to have registered valuers

The definition of ‘Valuer’ in the said Rules, provides the following:

“valuer” means a person registered with the authority in accordance with these rules and the term “registered valuer” shall be construed accordingly.

Therefore, the valuer will have to obtain the Certificate of Registration after complying the qualification and eligibility criteria as specified in the Rules, in order to do the valuation.

Eligibility of Registered Valuers

As per Rule 3 of the said Rules, the following person shall be eligible to be a registered valuer if he-

  • Is a valuer member of a registered valuers organisation;

Explanation.- For the purposes of this clause, “a valuer member” is a member of a registered valuers organisation who possesses the requisite educational qualifications and experience for being registered as a valuer;

  • Is recommended by the registered valuers organisation of which he is a valuer member for registration as a valuer;
  • Has passed the valuation examination under rule 5 within three years preceding the date of making an application for registration under rule 6
  • Possesses the qualifications and experience as specified in rule 4;
  • Is not a minor;
  • Has not been declared to be of unsound mind;
  • Is not an undischarged bankrupt, or has not applied to be adjudicated as a bankrupt;
  • Is a person resident in India; .

Explanation.- For the purposes of these rules ‘person resident in India’ shall have the same meaning as defined in clause (v) of section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999) as far as it is applicable to an individual;

  • Has not been convicted by any competent court for an offence punishable with imprisonment for a term exceeding six months or for an offence involving moral turpitude, and a period of five years has not elapsed from the date of expiry of the sentence:

Provided that if a person has been convicted of any offence and sentenced in respect thereof to imprisonment for a period of seven years or more, he shall not be eligible to be registered;

  • Has not been levied a penalty under section 271J of Income-tax Act, 1961 (43 of 1961) and time limit for filing appeal before Commissioner of Income-tax (Appeals) or Income-tax Appellate Tribunal, as the case may be has expired, or such penalty has been confirmed by Income-tax Appellate Tribunal, and five years have not elapsed after levy of such penalty; and
  • Is a fit and proper person:

Further, with respect to a partnership entity or company, the following shall not be eligible to be a registered valuer if-

  • It has been set up for objects other than for rendering professional or financial services, including valuation services and that in the case of a company, it is not a subsidiary, joint venture or associate of another company or body corporate;
  • It is undergoing an insolvency resolution or is an undischarged bankrupt;
  • All the partners or directors, as the case may be, are not ineligible under clauses (c), (d), (e), (g), (h), (i), (j) and (k) as mentioned above;
  • Three or all the partners or directors, whichever is lower, of the partnership entity or company, as the case may be, are not registered valuers; or
  • None of its partners or directors, as the case may be, is a registered valuer for the asset class, for the valuation of which it seeks to be a registered valuer.

Applicability of the Rules

As per the transitional provisions specified in the Rules read with the MCA’s Notification[1] on extending the transitional period:

“Any person who may be rendering valuation services under the Act, on the date of commencement of these rules, may continue to render valuation services without a certificate of registration under these rules upto 30th September, 2018:

Provided that if a company has appointed any valuer before such date and the valuation or any part of it has not been completed before 30th September, 2018, the valuer shall complete such valuation or such part within three months thereafter.”

Therefore, the persons intending to act as the registered valuers must obtain the Certificate of Registration within September 30, 2018, as per the requirements of the Rules.

Issuance of Valuation Standards by ICAI

Recognising the need to have the consistent, uniform and transparent valuation policies and harmonise the diverse practices in use in India, the Council of the Institute of Chartered Accountants of India at its 375th meeting has issued the Valuation Standards vide the Press Release[2] dated May 25, 2018, mandating the compliance with the Standards for the Chartered Accountants providing valuation reports under various provisions of the Companies Act.

The Standards include the framework for the preparation of valuation report, valuation bases, approaches and methods, scope of work, analyses and evaluations, documentation and reporting, intangible assets and financial instruments, among several other aspects.

Therefore, recognizing the importance of valuation, the Rules introduced by MCA and the standards introduced by ICAI will provide a benchmark to the professionals to ensure uniformity in approach and quality of valuation output.

[1] http://mca.gov.in/Ministry/pdf/INDAS113.pdf

[2] http://www.mca.gov.in/Ministry/pdf/CompaniesRules2018_12022018.pdf

[3] https://www.icai.org/new_post.html?post_id=14799&c_id=238

SEBI proposes to streamline the ICDR Regulations

/0 Comments/in , /by

By Pammy Jaiswal, (pammy@vinodkothari.com) & Nikita Snehil (nikita@vinodkothari.com)

The SEBI had constituted the Issue of Capital & Disclosure Requirements Committee (‘ICDR Committee) under the Chairmanship of Mr. Prithvi Haldea in June, 2017, to review the ICDR Regulations. The ICDR Committee suggested certain policy changes which were taken to the Primary Market Advisory Committee (‘PMAC’) of SEBI which comprises of eminent representatives from the Ministry of Finance, Industry, Market Participants, academicians, the Institute of Chartered Accountants of India and the Institute of Company Secretaries of India. Thereafter, pursuant to the recommendations made by the PMAC, SEBI vide its Press Release dated May 4, 2018[1], has come out with its Consultation Paper on Review of the SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009, on its website for public comments.

Approach adopted by the ICDR Committee

The Consultation Paper provides that the ICDR Committee while reviewing the Regulations and Schedules, adopted the following approach:

  1. Simplify language and structure of the regulations to enhance its readability;
  2. Separate the chapters on the basis of the type of offering so that all relevant information pertaining to the regulations relating to a particular type of offering are available at one place;
  3. Align the regulations in line with the various informal guidance/ interpretative letters/ frequently   asked   questions   regarding   interpretation   of   various provisions of the regulations, issued by SEBI from time to time;
  4. Update the regulations with the changes that have taken place in the last few years, including in the Companies Act, 2013, adoption of Indian Accounting Standards, various ICDR related circulars, SEBI (Share Based Employee Benefit) Regulations, 2014, SEBI (Substantial Acquisition of Shares and Takeover) Regulations, 2011, ASBA, abolition of MRTP, etc.;
  5. To identify policy changes in line with the present market practices and the prevailing regulatory environment.

In this regard, the present article, through the following table, portrays the major changes proposed by SEBI for issuance through rights issue, bonus, preferential allotment and QIPs, the rationale behind such changes and the impact of such proposed changes.


Chapter Existing Provision Proposed changes Rationale Remarks
Rights Issue
Rights Issue – Roll over of non-convertible portion of partly convertible of debt instruments

 

 21. (1) The non-convertible portion of partly convertible debt instruments issued by a listed issuer, the value of which exceeds fifty lakh rupees, may be rolled over, without change in the interest rate subject to compliance with the provisions of section 121 of the Companies Act, 1956 and the following conditions: 64. {21. (1)} The non-convertible portion of partly convertible debt instruments issued by a listed issuer, the value of which exceeds ten crore rupees, may be rolled over, subject to compliance with the provisions of the Companies Act, 2013 and the following conditions: It is proposed to increase the low threshold of Rs. 50 Lacs to Rs. 10 Crore. Proposed change will make debt securities with non-convertible portion lesser than Rs. 10 crores to become ineligible for roll-over.

Further, the reference to section 121 of the Companies Act, 1956 has been removed considering that the same is not present under the Act, 2013 and accordingly, the reference to the Act, 2013 has been made.
Rights Issue – Issue of warrants 4. (3) An issuer shall be eligible to issue warrants subject to the following: … (b) not more than one warrant shall be attached to one specified security (c) the price or conversion formula of the warrants shall be determined upfront and at least 25 of the consideration amount shall also be received upfront 67. {4. (3)} An issuer shall be eligible to issue warrants subject to the following: a) the tenure of such warrants shall not exceed eighteen months from their date of allotment in the rights issue; b) A specified security may have one or more warrants attached to it; c) the price or formula for determination of exercise price of the warrants shall be determined upfront and disclosed in the letter of offer and at least twenty-five per cent. of the consideration amount based on the exercise price shall also be received upfront; Provided that in case the exercise price of warrants is based on a formula, twenty-five per cent. consideration amount calculated as per the formula with reference date being the record date shall also be received upfront. d) in case the warrant holder does not exercise the option to take equity shares against any of the warrants held by the warrant holder, the consideration paid in respect of such warrant shall be forfeited by the issuer. It is proposed to introduce flexibility of having more than one warrant attached to a specified security and to clarify that the price or formula for determination of exercise price of the warrants shall be determined upfront and that if the warrant is not exercised, 25% of consideration will be forfeited The proposed change will allow more than one warrant to be attached to a specified security and the same shall enable more flexibility to the warrant holder in terms of conversion decision.

Further, 25% of the consideration based on warrant exercise price as paid shall be forfeited in case of non-exercise of option.
Rights Issue – Record Date 52. (1) A listed issuer making a rights issue shall announce a record date for the purpose of determining the shareholders eligible to apply for specified securities in the proposed rights issue. 68.(1) {52. (1)} The issuer shall announce a record date for the purpose of determining the shareholders eligible to apply for specified securities in the proposed rights issue at least seven working days prior to the record date or such period as may be specified in the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. It is proposed to make the provision of record date consistent with the SEBI LODR Regulations. Proposed change is made to align ICDR with Listing Regulations.
Rights Issue – Filing of the draft letter of offer and letter of offer 6. (1) No issuer shall make, (a) a public issue; or (b) a rights issue, where the aggregate value of the specified securities offered is fifty lakh rupees or more, unless a draft offer document, , along with fees as specified in Schedule IV, has been filed with the Board through the lead merchant banker, at least thirty days prior to registering the prospectus, red herring prospectus or shelf prospectus with the Registrar of Companies or filing the letter of offer with the designated stock exchange, as the case may be 71. (1) {6. (1)} Prior to making a rights issue, the issuer shall, except in case of a fast track issue, file a draft letter of offer, with the concerned regional office of the Board under the jurisdiction of which the registered office of the issuer company is located, in accordance with Schedule IV, along with fees as specified in Schedule III, with the Board and with the stock exchange(s), through the lead manager(s). It is proposed to clarify that filing of letter of offer with the Board is not required in case of a fast track issue, although the fee will be paid. The proposed change shall do away with filing of the offer letter with the exchange which seems to a welcome change considering the timeline under fast track issue.
Rights Issue – ASBA

 

 58. (5)} The issuer shall provide the ASBA facility in the manner specified by the Board where not more than one payment option is provided. Provided that in case of qualified institutional buyers and non-institutional investors the issuer shall accept submit their bids applications using the ASBA facility only. Retail individual investors may either apply through ASBA facility or make payment through cheque or demand draft. 76. {58. (5)} The issuer shall provide the ASBA facility in the manner specified by the Board where not more than one payment option is provided. Provided that the applicants in a rights issue shall be eligible to make applications through ASBA facility only if such applicant: (i) is holding equity shares in dematerialised mode; (ii) has not renounced entitlement in part or in full; and (iii) is not a renouncee It is proposed to clarify that applicants in a Rights Issue shall make applications only through ASBA facility and will have the provision to make a physical application in in certain specified scenarios. Proposed change will not allow applicants in a rights issue to participate in the following cases:

·     Applicant is holding equity shares in physical mode;

·     Applicant has renounced entitlement in part or in full; and

·     Applicant is not a renouncee.
Rights Issue – Underwriting 13. (1) Where the issuer making a public issue (other than through the book building process) or rights issue, desires to have the issue underwritten, it shall appoint the underwriters in accordance with Securities and Exchange Board of India (Underwriters) Regulations, 1993. 81. (1) {13. (1)} If the issuer desires to have the issue underwritten, it shall appoint the underwriters in accordance with the Securities and Exchange Board of India (Underwriters) Regulations, 1993.

Provided that the issue can be underwritten only to the extent of entitlement of shareholders other than the promoters and promoter group.

 It is proposed to clarify that issue can be underwritten only to the extent of entitlement of public shareholders (and not for the entitlement of the promoters and promoter group). Proposed change prohibits underwriting the offer made to the promoters in a rights issue. The same is logical considering that if promoters portion is also required to be underwritten , then one obviously cannot be sure of the subscription to the non-promoters’ portion.
Rights issue – Fast Track Rights Issue – Eligibility Conditions 10. (1)(c the annualised trading turnover of the equity shares of the issuer during six calendar months immediately preceding the month of the reference date has been at least two per cent. of the weighted average number of equity shares listed during such six months‘ period Provided that for issuers, whose public shareholding is less than fifteen per cent. of its issued equity capital, the annualised trading turnover of its equity shares has been at least two per cent. of the weighted average number of equity shares available as free float during such six months‘ period 10. (1)(k) annualized delivery-based trading turnover of the equity shares during six calendar months immediately preceding the month of the reference date has been at least ten per cent. of the weighted average number of equity shares listed during such six months‘ period;

 

 99.(1) (d) ({10(1)(c)}- annualised trading turnover of the equity shares of the issuer during six calendar months immediately preceding the month of the reference date has been at least two per cent. of the weighted average number of equity shares listed during such six months‘ period: Provided that for issuers, whose public shareholding is less than fifteen per cent. of its issued equity capital, the annualised trading turnover of its equity shares has been at least two per cent. of the weighted average number of equity shares available as free float during such six months‘ period; 10(1)(k)} annualized delivery-based trading turnover of the equity shares during six calendar months immediately preceding the month of the reference date has been at least ten per cent. of the annualized trading turnover of equity shares during such six months‘ period; It is proposed to clarify the delivery turnover should be as a percentage of the trading turnover. The same is a clarificatory change.
Rights issue – Fast Track Rights Issue – Eligibility Conditions 10.(1)(f)(f) the impact of auditors‘ qualifications, if any, on the audited accounts of the issuer in respect of those financial years for which such accounts are disclosed in the offer document does not exceed five per cent. of the net profit or loss after tax of the issuer for the respective years.

 

 99.(2)(m) {10(1)(f)} there are no auditors‘ qualifications on the audited accounts of the issuer in respect of those financial years for which such accounts are disclosed in the letter of offer. To improve the requirements for fast track issues, it is proposed that for a company to be eligible to make a fast track rights issue, it should not have any audit qualifications.

 

 Proposed change will not allow companies having audit qualification to come up with fast track rights issue. Such change will have due implications on the compliance status of the listed company.
Bonus Issue
Bonus Issue No issuer shall make a bonus issue of equity shares unless it has made reservation of equity shares of the same class in favour of the holders of outstanding [compulsorily] convertible debt instruments[ if any,] in proportion to the convertible part thereof The equity shares so reserved for the holders of fully or partly compulsorily convertible debt instruments shall be issued at the time of conversion of such convertible debt instruments on the same terms or same proportion at which the bonus shares were issued An issuer shall make a bonus issue of equity shares only if it has made reservation of equity shares of the same class in favour of the holders of outstanding compulsorily convertible debt instruments, optionally convertible instruments, warrants, or lenders who loans are convertible into equity, if any, in proportion to the convertible part thereof. The equity shares so reserved for the holders of fully or partly compulsorily convertible debt instruments, optionally convertible instruments, warrants, or lenders who loans are convertible into equity, shall be issued at the time of conversion of such convertible debt instruments, optionally convertible instruments, warrants, or loans, as the case may be, on the same terms or same proportion at which the bonus shares were issued.

 

 All cases of convertible instruments, warrants and loans convertible into equity should be covered. There could be lenders (especially in cases of CDR, whereby lenders have the option to convert their loans to equity. In such cases, there should be a reservation for them.

 

 Proposed change may not be flexible considering that every convertible instrument may or may not be opted for conversion. In such cases where the option of conversion is not exercised, bonus issue reserved with respect to such instruments will turn futile.
Preferential Issue
Conditions for Preferential Issue 72. (2) The issuer shall not make preferential issue of specified securities to any person who has sold any equity shares of the issuer during the six months preceding the relevant date: … Provided that the above restriction shall not apply to any sale of equity shares by any person belonging to promoter(s) of the promoter group which qualifies for inter-se transfer amongst qualifying persons under Regulation 10 (1) (a) of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover Regulations), 2011

 

 159. (1) Preferential issue of specified securities shall not be made to any person who has sold any equity shares of the issuer during the six months preceding the relevant date:

Provided that the above restriction shall not apply to any sale of equity shares by any person belonging to promoter(s) of the promoter group which qualifies for inter-se transfer amongst qualifying persons under regulation 10 (1) (a) of Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover Regulations), 2011 or in case of transfer of shares held by the promoters or promoter group on account of invocation of pledge by a lender.

 This proviso was inserted to restrict any person from taking benefit of short swing profits which is not applicable in this case. It is now proposed that for transfer pursuant to invocation pledge by the lender may be excluded as this is an involuntary sale by the lender and the promoter is not a party to the sale decision. The proposed change seems to provide genuine relaxation in case of transfer pursuant to invocation pledge by the lender, as the promoter is not involved in the said transaction.
Disclosures for Preferential Issue 73. (1) The issuer shall, in addition to the disclosures required under section 173 of the Companies Act, 1956 or any other applicable law, disclose the following in the explanatory statement to the notice for the general meeting proposed for passing special resolution:

 

(e) the identity of the natural persons who are the ultimate beneficial owners of the shares proposed to be allotted and/or who ultimately control] the proposed allottees, the percentage of post preferential issue capital that may be held by them and change in control, if any, in the issuer consequent to the preferential issue.

 

Provided that if there is any listed company, mutual fund, bank or insurance company in the chain of ownership of the proposed allottee, no further disclosure will be necessary.

 163. (1) The issuer shall, in addition to the disclosures required under the Companies Act, 2013 or any other applicable law, disclose the following in the explanatory statement to the notice for the general meeting proposed for passing the special resolution:

 

identity of the natural persons who are the ultimate beneficial owners of the shares proposed to be allotted and/or who ultimately control the proposed allottees, the percentage of post preferential issue capital that may be held by them and change in control, if any, in the issuer consequent to the preferential issue:

 

Provided that if there is any listed company, mutual fund, scheduled commercial bank, insurance company registered with the Insurance Regulatory and Development Authority of India, foreign portfolio investor other than Category III foreign portfolio investor, foreign venture capital investor or alternative investment funds in the chain of ownership of the proposed allottee, no further disclosure will be necessary.

 

 There is a need to consider inclusion of Category I foreign portfolio investors, Category II foreign portfolio investor, foreign venture capital investors and alternative investment funds in the exclusions in this proviso. These categories are registered with SEBI and hence their KYC is already done at the time of their registration. The proposed changes seeks to do away with the double disclosure requirements or the Category I foreign portfolio investors, Category II foreign portfolio investor, foreign venture capital investors and alternative investment funds.
Adjustments in pricing – Frequently or Infrequently traded shares 76B. The price determined for preferential issue in accordance with regulation 76 or regulation 76A, shall be subject to appropriate adjustments, if the issuer:

(a) makes an issue of equity shares by way of capitalization of profits or reserves, other than by way of a dividend on shares;

(b) makes a rights issue of equity shares;

(c) consolidates its outstanding equity shares into a smaller number of shares;

e) divides its outstanding equity shares including by way of stock split;

f) re-classifies any of its equity shares into other securities of the issuer;

g) is involved in such other similar events or circumstances, which in the opinion of the concerned stock exchange, require adjustments.

 

 166. The price determined for a preferential issue in accordance with regulation 164 or regulation 164A, shall be subject to appropriate adjustments, if the issuer:

a) makes an issue of equity shares by way of capitalization of profits or reserves, other than by way of a dividend on shares;

b) makes an issue of equity shares after completion of a demerger wherein the securities of the resultant demerged entity are listed on a stock exchange;

c) makes a rights issue of equity shares; d) consolidates its outstanding equity shares into a smaller number of shares; e) divides its outstanding equity shares including by way of stock split;

f) re-classifies any of its equity shares into other securities of the issuer;

g) is involved in such other similar events or circumstances, which in the opinion of the concerned stock exchange, require adjustments.

 

 It is proposed to include demerger where the equity shares of the resulting entity are listed post demerger. Through a demerger, an undertaking of the company is demerged into a separate company and such resulting company’s shares are listed. Post the listing of the resulting company, the value of the demerged company goes down and it trades accordingly. Hence, adjustment for pre-demerger market price needs to be made. The proposed amendment broadens the scope of these regulation to demerger as well, where the said adjustment is required post the demerger.
Payment of consideration 77. (1) Full consideration of specified securities other than warrants issued under this Chapter shall be paid by the allottees at the time of allotment of such specified securities:

 

Provided that in case of a preferential issue of specified securities pursuant to a scheme of corporate debt restructuring as per the corporate debt restructuring framework specified by the Reserve Bank of India, the allottee may pay the consideration in terms of such scheme.

 

{77.(2) and (3)}An amount equivalent to at least twenty five per cent. of the consideration determined in terms of regulation 76 shall be paid against each warrant on the date of allotment of warrants.

 169.(1) Full consideration of specified securities other than warrants, shall be paid by the allottees at the time of allotment of such specified securities except in case of shares issued for consideration other than cash.

 

Provided that in case of a preferential issue of specified securities pursuant to a scheme under the corporate debt restructuring framework specified by the Reserve Bank of India, the allottee may pay the consideration in terms of such scheme.

 

(2) In the case of warrants, an amount equivalent to at least twenty five per cent. of the consideration determined in terms of regulation 76 shall be paid against each warrant on the date of allotment of warrants and the balance seventy five per cent. of the consideration shall be paid at the time of allotment of the equity shares pursuant to exercise of options against each such warrant by the warrant holder. Alternately, twenty five per cent. of the consideration can be computed on the basis of the current market price and the balance can be paid based on the price at the time of exercise.

 

 It is proposed to remove the limit of attaching one warrant to a specified security and the issuer will have the flexibility to decide number of warrants to be attached to a specified security.

 

It is also proposed to clarify that the 25 per cent. consideration can be based on the pricing formula computed using the current market price, and the balance consideration can be paid at the time of exercise which can be subsequently determined at the time of final pricing.

 The proposed changes provide two things:

 

(a) relaxation- the flexibility to decide number of warrants to be attached to a specified security shall now vest with the issuer.

 

(b) Clarificatory – the same will remove any ambiguity regarding the pricing.
Qualified Institutions Placement
Restrictions on amount raised – QIP 89. The aggregate of the proposed qualified institutions placement and all previous qualified institutions placements made by the issuer in the same financial year shall not exceed five times the net worth of the issuer as per the audited balance sheet of the previous financial year. Deleted Companies suffer losses for a variety of reasons including slowdown in their sectors, which leads to erosion of their net worth.

 

These companies, while in the process of turning around are unable to raise funds through QIP as their pre-QIP net worth will be small or negative. As such, these companies have to look for other avenues for fund raising which may be time consuming and expensive options. QIB investors are in a better position to evaluate such opportunities and QIBs also are not required to be given any protection. Hence, it is proposed to delete this requirement.

 The proposed change will provide the companies an ease in raising the amount through QIPs.
Appointment of merchant banker – QIP 83. (2) The merchant banker shall, while seeking in-principle approval for listing of the eligible securities issued under qualified institutions placement, furnish to each stock exchange on which the same class of equity shares of the issuer are listed, a due diligence certificate stating that the eligible securities are being issued under qualified institutions placement and that the issuer complies with requirements of this Chapter. 174.(3) The lead manager(s) shall, while seeking in-principle listing approval for the eligible securities, furnish to each stock exchange on which the same class of equity shares of the issuer are listed, a due diligence certificate stating that the eligible securities are being issued under qualified institutions placement and that the issuer complies with requirements of this Chapter, and also furnish a copy of the preliminary placement document along with any other document required by the stock exchange. The issuer should have the choice of listing (and trading) eligible securities such as CCDs (other than equity shares) issued through the QIP process either at the time of allotment or at the time of conversion. If these remain unlisted, a clarification is needed that the in-principle listing approval has to be sought at the time of issuance but the same can be listed and traded on conversion of such securities. New clause has been added with a proviso to bring out that difference. As per the proposed changes, furnishing the preliminary document will provide detailed information. Further, the proposed changes provides the option to the issuer an option not to list the securities as well.
Minimum no. of allottees 87. (2) The qualified institutional buyers belonging to the same group or who are under same control shall be deemed to be a single allottee. Explanation: For the purpose of subregulation (2), the expression “qualified institutional buyers belonging to the same group” shall have the same meaning as derived from sub-section (11) of section 372 of the Companies Act, 1956; 180. (2) Qualified institutional buyers belonging to the same group or who are under same control shall be deemed to be a single allottee.

 

For the purpose of sub-regulation (2), the expression “qualified institutional buyers belonging to the same group” shall mean entities where

(i) any of them controls directly or indirectly, through its subsidiary or holding company, not less than fifteen per cent. of the voting rights in the other; or

(ii) any of them directly or indirectly, by itself, or in combination with other persons exercise control over the others;

(iii) there is a common director, excluding nominee director amongst the investor, its subsidiary or holding company and other investor.

 Given that the Companies Act, 2013 does not have corresponding provision for Section 372 of the Companies Act, 1956, it is proposed to define ‘same group’ to bring more clarity. The proposed changes seeks to align the Regulation with Companies Act, 2013 and to provide clarification in the absence of the corresponding provision in the Companies Act, 2013.

 

Conclusion

Owing to the various regulatory changes brought in for the listed entities, updating and aligning the SEBI ICDR Regulations is much required.   Therefore, the proposed amendments will help in merging all the previous SEBI Circulars related to these Regulations and updating the same with the requirements of the Companies Act, 2013 and the various SEBI Regulations, to maintain uniformity.

[1] https://www.sebi.gov.in/reports/reports/may-2018/consultation-paper-on-review-of-sebi-issue-of-capital-and-disclosure-requirements-regulations-2009_38859.html

Borrowing Cost from Company Law’s perspective

/0 Comments/in , , /by

By Abhirup Ghosh, abhirup@vinodkothari.com

& Nikita Snehil, nikita@vinodkothari.com

Proper flow of funds within an organisation can be termed as the lifeline of the organization. In the course of the operation, each and every organization stands in need of money over and above their capital. Therefore, in order to meet the financial needs, they are bound to depend on external sources for funding. The source of funds would typically depend on the purpose and duration for which the fund is required.

Say for instance, if the Company requires funds for making a capital expenditure it would go for long term finance like term loans or external commercial borrowings. However, if the company requires funding to meet its working capital needs, it would go for short term financing sources like working capital loans or overdraft facility from banks.

Apart from the tenure or purpose of fund raising there is one more factor which also affects the choice of funding source and that is the borrowing cost. Eventually, over the years, this factor has become the most important of all.

Companies try various kind of fund raising techniques to achieve the lowest borrowing cost and in this regard it is very important to take note of the regulatory aspects of raising funds. In this article we intend we will discuss the various legal and regulatory issues relating to the issuance of the securities or fund raising and borrowing costs.

Meaning of borrowing cost

Before we delve into further details, let us first understand what constitutes to be borrowing cost. In general, Borrowing Cost means the interest and other costs incurred by an organization in relation to the borrowing of funds. However, the same has also been defined in Accounting Standard 16 in the following manner:

‘3.1 Borrowing costs are interest and other costs incurred by an enterprise in connection with the borrowing of funds.’

xxx

4. Borrowing costs may include:

(a) interest and commitment charges on bank borrowings and other short-term and long-term borrowings;
(b) amortisation of discounts or premiums relating to borrowings;
(c) amortisation of ancillary costs incurred in connection with the arrangement of borrowings;
(d) finance charges in respect of assets acquired under finance leases or under other similar arrangements; and
(e) exchange differences arising from foreign currency borrowings to the extent that they are regarded as an adjustment to interest costs’.

To sum up, Borrowing Costs are the expenses incurred by the organization in borrowing the funds.

Modes of Borrowings

Next, with respect to modes of borrowing, the modes of funding can be distinguished majorly between long term borrowing and short term borrowing.

 

A. Modes of Short Term Borrowings and the cost involved in raising the same:

1. Temporary loans like loans repayable on demand, cash credit facilities and overdraft arrangements

A loan is repayable on demand when:

(a) there is no time for repayment specified (and hence, the obligation to repay on demand is implied by law); or
(b) the parties actually express the obligation to repay on demand or request (i.e., the same is an express term).

Therefore, a loan with no repayment terms, or loan agreement with no repayment date, is a loan repayable on demand. The borrowing company is required to pay the loan along with the interest amount determined by the lender. Example of a demand loan can be the overdraft facilities provided by the Banks.

An overdraft is an arrangement by which a company is allowed to draw more than what is to the credit of its account at the bank. The charges for overdraft facility has to be paid by the company to the Bank, when such facility is utilised.

Cash credit is an arrangement by which a company borrows from its bankers up to a certain limit against a bond of credit by one or more securities or some other security. The company is charged interest on the amount actually utilized and not on the limit sanctioned.

2. Commercial Papers (CPs)

Commercial Papers are unsecured money market instrument which can be issued either in the form of a promissory note or in a dematerialised form through any of the depositories approved by and registered with SEBI. Further, commercial papers are instruments issued by the company, so as to fulfil the short-term fund requirement and have easy liquidity in the market with less compliance burden.

However, before issuing commercial paper, the eligible issuers must obtain the credit rating for the issuance of commercial paper from any one of the SEBI registered Credit Rating Agencies.

Raising finance through issuance of these would not qualify to be deposits for the purpose of Companies Act as the term deposits exclude any money received by issuing money market instruments.

3. Working capital loans

A working capital loan is a loan that has the purpose of financing the everyday operations of a company. Working capital loans are not used to buy long-term assets or investments and are instead used to finance the day to day expenses such as to buy inventory, cover payroll, wages, etc. The lender charges interest for lending the working capital loans.

4. Issuance of NCDs with less than one year maturity

Companies having a tangible net worth as per the latest audited balance sheet, of not less than Rs.4 crore can issue Non-Convertible Debentures (NCDs) of maturity less than one year. The eligible corporate intending to issue NCDs is required to obtain credit rating for issuance of the NCDs from one of the rating agencies specified by RBI and the companies are even required to ensure at the time of issuance of NCDs that the rating so obtained is current and has not fallen due for review. Therefore, raising such funds shall require fulfilment of eligibility criteria and expenses for credit rating.

Like commercial papers, these are also money market instruments. Therefore, raising of finance through issuance of NCDs would not be treated as money market instrument for the purpose of Companies Act.

5. Letter of Credit

A Letter of Credit (L/C) is a letter from a bank guaranteeing that a buyer’s payment to a seller will be received on time and for the correct amount. Here the banks act as disinterested third parties and they release funds only after certain conditions are met. Banks issue letters of credit when a company applies for the same and has the assets or credit to get approved.

6. Trade Credit

A trade credit is an agreement or understanding between agents engaged in business with each other, it allows the exchange of goods and services without any immediate exchange of money. When the seller of goods or service allows the buyer to pay for the goods or service at a later date, the seller is said to extend credit to the buyer. This is a type of instrument where no cost is involved. Sometime, the payment terms may also offer discount as an incentive for early payment.

B. Modes of Long Term Borrowings and the cost involved in raising the same:

1. Loan from Bankers

Long-term loans are a type of business financing in which the maturity date of the loan extends past a year and can even last for as long as 20 years (e.g. commercial property loans). This is used mainly to finance long-term projects such as business expansion, franchising, purchase of property, plant, and equipment and other fixed assets. Companies may also avail loan from Bankers on the basis of their credibility. The company has to pay interest on the full amount of the loan sanctioned by the bank, irrespective of the amount utilised by the company. The longer the tenure extends, the more amount of interest money has to be paid in total.

2. Issuance of Debentures

A debenture is a securitised loan and is backed by a certificate. It is the most important method of obtaining loan for a longer period by the companies. On the basis of coupon, the debentures can be classified into two categories – coupon bearing [These debentures are issued at face value and the specified rate of interest is earned by the holders of these securities] and zero coupon [These debentures are issued at a discounted price and redeemed at par; and these do not carry any coupon rate.]. Generally, the following types of debentures are issued by the companies:

(a) Compulsorily Convertible debentures (CCDs): These debentures are mandatorily converted into equity shares of the company, as per the terms specified at the time of issue or on the expiry of specified period.

(b) Non-convertible Debentures (NCDs): These debentures do not carry the option of conversion into equity shares and are therefore, redeemed on the expiry of certain specified period. Most commonly, entities issued NCDs for meeting their long term capex requirements.

NCDs issued to corporates or listed or fully secured do not qualify to be deposits for the purpose of Companies Act.

(c) Optionally convertible debentures (OCDs): The investor has an option to convert into shares at the pre-determined price and time.

3. Inter-Corporate Deposits

An Inter-Corporate Deposit (ICD) is an unsecured borrowing by corporates from other corporate entities registered under the Companies Act, 2013 (or the erstwhile Companies Act, 1956). Corporates having surplus funds lend to another corporate in need of funds.

Inter-corporate deposits are exempt from the definition of deposits under Companies Act. Therefore, this is a very widely used mode of finance.

However, the companies shall also consider applicability of the restrictions under section 185 (dealing with loan to directors etc.) and section 186 (dealing with loans and investments by companies) of the Act, 2013 on the lending as well as the borrowing companies.

4. External Commercial Borrowings (ECBs)

ECB is basically debt availed by Indian companies in foreign currency, from a non-resident lender, in accordance with the ECB Framework, issued by the Ministry of Finance. There are no restrictions on the use of such loans, except the items mentioned in the negative list in relation to the end use mentioned by BRI in the ECB framework. Once the RBI and Ministry of Finance approves a loan and its terms, no limitations are placed on interest and principal payments. However, entities are required to report to the RBI through its designated banker every time an interest payment is made.

RBI vide RBI/2017-18/169 A.P. (DIR Series) Circular No.25[1] dated April 27, 2018 has further liberalised certain norms of the framework. The erstwhile provision had prescribed separate all-in-cost ceilings for different tracks in ECBs which were linked to the maturity period. Now, a uniform all-in-cost ceiling of 450 basis points over the benchmark rate is stipulated irrespective of the maturity period of ECB. Further, the ECB Liability to Equity Ratio for ECB raised from direct foreign equity holder under automatic route has been enhanced to 7:1 (as against 4:1 earlier). Therefore, by liberalising the framework, the Government has broaden the scope of fund raising for the companies.

Further, earlier, proceeds of ECBS could be used only for the purpose of meeting capital expenditures, but vide the aforesaid change, the end use restriction has been liberalised and the ECBs can now be used for the purpose of working capital requirements as well.

Compliance for borrowings by a company under the Companies Act, 2013

The borrowing powers of a company is mentioned in section 179(3) and 180(1)(c) of the Companies Act 2013.

Section 179 (3) (d): The powers to borrow money can only be exercised by the Directors at a duly convened meeting of the board, to borrow moneys. However, the power to borrow money may be delegated by the Board by passing a resolution for such delegation at a duly convened Board Meeting, to any committee of directors, the managing director, the manager or any other principal officer of the company or in the case of a branch office of the company, the principal officer of the branch office.

Section 180 (1) (c): The provisions of this section prohibits the Board of Directors of a company from borrowing a sum which together with the moneys already borrowed by the company, exceeds the aggregate of its paid-up share capital and free reserves, apart from the temporary loans obtained by the company’s bankers in the ordinary course of business unless the company has received the prior approval of the shareholders of the company, through a special resolution in general meeting.

Therefore, the Board may continue borrowing within the limits approved by the shareholders, however, in order to borrow beyond the above-mentioned limit, the Board of Directors will have to obtain prior approval of the shareholders.

Meaning of the term ‘Temporary Loans’ in section 180(1)(C)
As per the explanation provided in section 180(1)(C), the expression “temporary loans”
means loans repayable on demand or within six months from the date of the loan such as short-term, cash credit arrangements, the discounting of bills and the issue of other short-term loans of a seasonal character, but does not include loans raised for the purpose of financial expenditure of a capital nature.

Borrowings by private companies

Private companies are exempted from the entire provisions of section 180 of Act, 2013 vide MCA Notification[2] dated June 5, 2015.

Borrowings by banking companies:
As per the proviso provided in section 180(1)(C), the acceptance of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise, in the ordinary course of its business by a banking company, shall not be deemed to be borrowing of monies by the banking company.

Ultra Vires Borrowings
As per the provision of section 180 (5), where a company borrows in excess of its borrowing limits as approved by the shareholders, then such borrowing in excess of the limit shall not be valid or effectual unless the lender proves that he advances the loan in good faith without knowledge that the limit imposed by the law has been exceeded.

Conclusion

The above mentioned various modes of borrowings provide the various option of fund raising by the companies. The various options of borrowing further depends on the need of the companies and the nature of borrowings. The most relevant part is the basic idea is to identify and explore the avenues to reduce the borrowing costs for companies. Identifying low cost avenues is a joint responsibility of the treasury department and the compliance team, while the treasury team should opt to explore new avenues, the compliance team should see if the same fits into the existing regulatory framework.

[1] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11267&Mode=0

[2] http://www.mca.gov.in/Ministry/pdf/Exemptions_to_private_companies_05062015.pdf

Sudden prohibition for CA Valuers

/0 Comments/in , , , , /by

By Yutika Lohia, (yutika@vinodkothari.com) (finserv@vinodkothari.com)

Introduction

The income tax laws of our country have witnessed a lot vicissitudes over the years. Responding to the changing reforms as well as practices, the law makers have always tried to pace up with the dynamic economy. Chartered Accountants, in India, are widely accepted as tax professionals and in that capacity they play a very important role in the comprehending the income tax laws for the commoners. But a recent change by the IT Department would certainly not please the CA fraternity in the country. Read more →

Additional items to be taken up in AGM of 2018- recent regulatory changes!

/0 Comments/in , /by

By Munmi Phukon, Principal Manager, Vinod Kothari & Company (corplaw@vinodkothari.com)

MCA vide notification dated May 7, 2018[1] has notified 28 Sections of the Companies (Amendment) Act, 2017 (Amendment Act) in Phase III. The same has been made effective from May 7, 2018[2]. SEBI also, pursuant  to  the  recommendations  made  by  Uday  Kotak  Committee  Report,  notified the SEBI (Listing Obligations and Disclosure Requirements) (Amendment)  Regulations,  2018  (Amendment  Regulations)  on  May  9,  2018. Though the amended sections of the Amendment Act are effective immediately, the applicability of the Amendment Regulations are not immediate but shall be on specific dates provided for specific regulation. The reason behind providing such different applicable dates can be taken as to provide a smooth transitioning period so that the amendments can be complied with or proper mechanism can be put in place before the same comes into force. In view of the same, the companies are required to take up certain actions with immediate effect including obtaining approval of the shareholders. Since the companies are planning to convene their AGMs of FY 2017-18 in next few months, this article covers what all additional items may be taken up to such AGM in view of the recent regulatory changes as aforesaid.

A.     Additional matters under the Companies (Amendment) Act, 2017

In view of the amendment Notification, the following additional matters may be taken up in the AGM 2018:

  1. Considering the amendments made in Section 185, the companies may seek approval of shareholders by way of a special resolution in the ensuing AGM if it is intending to provide loan, including any loan represented by a book debt to, or give any guarantee or provide any security in connection with any loan taken by following persons/ entities:
  • any private company of which any such director is a director or member;
  • any body corporate at a general meeting of which not less than twenty five per cent. of the total voting power may be exercised or controlled by any such director, or by two or more such directors, together; or
  • any body corporate, the Board of directors, managing director or manager, whereof is accustomed to act in accordance with the directions o instructions of the Board, or of any director or directors, of the lending company

The explanatory statement to the notice shall disclose the full particulars of the loans given, or guarantee given or security provided and the purpose for which the loan or guarantee or security is proposed to be utilised by the recipient of the loan or guarantee or security and any other relevant fact. Please note the amendment shall not affect the private companies covered under the MCA Notification dated 5th June, 2015 providing exceptions/ exemptions from applicability of certain provisions of the Act.

  1. The companies may further remove the item pertaining to ratification of the appointment of the statutory auditors in view of the omission of the proviso to section 139(1) of the Act.

B.     Additional matters under the Amendment Regulations

In view of the proposed amendments in the Listing Regulations, the following additional matters seem to get included in the notice of the ensuing AGM 2018:

  1. In terms of Regulation 17 (1) (a), the listed companies shall have to appoint woman independent director. Though the requirement was already there in the Act as well as the Listing Regulations earlier, however, the same was limited to only a woman director and such director was not necessarily required to be an independent director too. Therefore, companies having a non- independent woman director shall be required to take up the same in the AGM. The amendment shall be applicable based on the market capitalization of the company i.e. if the company falls under top 500 listed entities then the same shall be effective from April 1, 2019 and if it falls under top 1000 listed entities then w.e.f. April 1, 2020.
  2. Regulation 17 (1) (c) requires top 1000 listed entities to have minimum 6 directors w.e.f. April 1, 2019 and top 2000 listed entities w.e.f. April 1, 2020. Though most of the listed entities shall already be in compliance of this requirement, however, the ones who have 5 or lesser number of directors will be required to appoint in the current FY if such listed entity falls in the list of top 1000 entities.
  3. Regulation 17 (6) (ca) provides the requirement to obtain approval of shareholders by special resolution every year, in  which  the  annual  remuneration payable  to  a  single  non-executive  director exceeds fifty per cent of the total annual remuneration payable to all non-executive directors, giving details of the remuneration thereof. Since the clause uses the  word  ‘payable’,  it seems to indicate  that  listed  entities  who  will  have  payable  to single  NED annual remuneration for FY 2018-19 exceeding 50% of that payable to all other NEDs. Therefore, such listed entities will have to obtain shareholders’ approval by special resolution every year. Since the provision is effective from April 1, 2019, if there is a certainty on the same, the approval shall be obtained in AGM 2018 itself enabling it to make payment to such NEDs for FY 2018-19.
  4. Regulation 17 (1A) requires a special resolution for appointing/ continuing the directorship of any person  as  a  non-executive  director  who  has  attained  the  age of  seventy five  The explanatory statement annexed to the notice for such motion shall indicate the justification for appointing such a person. The provisions shall be effective from April 1, 2019 and also applicable to all listed entities. Since the provision includes continuation of the directorship also, in  case  the  NEDs/  IDs  of  such  listed  entities  are  individuals  who  have already attained the age of seventy  five years or will be attaining the age before April 1, 2019, such listed entities will have to seek approval of shareholders by special resolution in the ensuing AGM itself .
  5. In terms of Regulation 17 (6) (e), if the fee or compensation  payable  to  executive  directors  who  are  promoters  or  members  of promoter group is in excess of the thresholds i.e. rupees 5 crore or 2.5% of the net profits for one such director, whichever is higher and 5% of the net profit in aggregate for all such directors, then the listed entity shall have to obtain approval of shareholders by special resolution. Since the same is effective from April 1, 2019, the approval shall be obtained in the ensuing AGM itself enabling the company to pay remuneration to that extent for FY 2018-19. The listed entities which had already taken approval of the shareholders for payment of remuneration within the limits provided under the Act shall also get covered under this clause if the resolution so passed was not a special resolution.

Apart from the aforesaid, we have separately covered the actionables arising out of the aforesaid amendments. The actionables arising out of the Companies (Amendment) Act, 2017 can be viewed at http://vinodkothari.com/blog/actionables-from-28-notified-sections/ and the actionables arising out of the Amendment Regulations can be viewed at http://vinodkothari.com/blog/actionables-for-lodr-amendment-regulations-2018/.

 

[1] http://www.mca.gov.in/Ministry/pdf/CompaniesAmendmentNoti_07052018.pdf

[2] http://egazette.nic.in/WriteReadData/2018/185193.pdf

Non-compliance of Listing Regulations may lead to compulsory delisting

/0 Comments/in , , /by

by Munmi Phukon ,(corplaw@vinodkothari.com)

Introduction and Background

SEBI, on May 3, 2018 came out with a Circular[1] (the “Circular” or “New Circular”) on uniform structure for imposing fines as a first resort for non-compliance with certain provisions of the Listing Regulations and the standard operating procedure (SOP) for suspension of trading. This circular is issued in supersession of the previous two Circulars dated November 30, 2015[2] (May Circular) and October 26, 2016[3] (June Circular) (collectively “Previous Circulars”) and shall be effective from the compliance periods ending on or after 30th September, 2018 i.e. from the quarter ending on the said date.

How is it different from the Previous Circulars?

Evidently, the Circular is a combination of the Previous Circulars. While the May Circular covered the details of fine for respective regulations and SOP for suspension of trading, it however, did not cover the manner of freezing of the shareholding of promoters and promoter group entities of the defaulting entity. Thereafter, the June Circular was issued providing the manner to be followed by the depositories for freezing of shareholding of promoters and promoter group entities which was to be read with the May Circular.

The primary differences between the Circular and the Previous Circulars seem to be the following:

  1. The Circular covers 18 regulations of the Listing Regulations as against only 4 regulations covered by the May Circular which were primarily concerned with filing of periodic reports;

 

  1. The Circular provides uniform fine structure for non- compliance while the May Circular segregated the fine structure based on an initial non- compliance and a subsequent and consecutive non- compliances. Further, there was additional fine structure based on the paid- up capital of the defaulting entity if the non- compliance continues for more than 15 days;

 

  1. The Circular provides for the freezing of entire shareholding as well as other securities holding of the promoter and promoter group while the May Circular covered only shareholding.

 

  1. The Circular requires the listed entity to place before the Board, the details of non- compliance and action taken by the stock exchange and informing about the comments made by the Board thereon to the stock exchange for public dissemination. This was not there in the Previous Circulars.

 

  1. Moving of the scrip of the listed entity to “Z” Category was required in case of two or more consecutive defaults made within 15 days of the date of notice of the stock exchanges which has now been aligned with the failure for two consecutive quarters.

Contents of the New Circular

The New Circular may be segregated into the following parts-

  1. Structure of fines to be imposed for each of the Regulations covered thereunder;
  2. Freezing the entire shareholding in the entity and other security holding in demat form of the promoter and the promoter group;
  3. Moving of scrip to ‘Z Category;
  4. Suspension of trading of securities;
  5. Revocation of suspension;
  6. Delisting of the entity.

Each of the aforesaid are described as follows:

Part A: Structure of fines to be imposed

The Circular covers 18 Regulations for which fine shall be imposed. Further, the fines shall be accrued till the date of compliance made by the listed entity. The table below contains the said Regulations and respective fines against each of them.

Sl. No. Regulation Fine

 

 Remarks
1.        Regulation 6(1)-

Non-compliance with requirement to appoint a qualified company secretary as the compliance officer.

 

 ₹ 1,000 per day

 

 New insertion.
2.        Regulation 7(1)-

Non-compliance with requirement to appoint share transfer agent.

 

 ₹ 1,000 per day New insertion.

 
3.        Regulation 13-

(1)  Failure to ensure that adequate steps   are   taken for expeditious redressal of investor complaints.

(3)  Non-submission  of  the statement on Shareholder complaints within the  period prescribed under  this Regulation or  under  any  circular issued  in  respect  of redressal  of investor grievances.

 

 ₹ 1,000 per day New insertion.

 

However, sub- regulations (2) & (4) have not been taken into consideration. Sub- regulation (2) is w.r.t registration on the SCORES platform. Since the Circular does not cover this clause, accordingly, the listed entities will still require to observe the requirements of SEBI Circular dated December 18, 2014[4] which entrusts the responsibility of ensuring compliance with same on the Board of the listed entity.

 

Further, sub- regulation (4) is related to sub- regulation (3) wherein the statement of shareholders complaint is required to be placed before the Board on quarterly basis.

 
4.        Regulation 17(1)

Non-compliance with the requirements pertaining to the composition of the Board including failure to appoint woman director.

 

 ₹ 5,000 per day New insertion. Non- compliance due to casual vacancies of directors shall also get covered in this.
5.        Regulation 18(1)

Non-compliance with the constitution of audit committee.

 

 ₹ 2,000 per day New insertion. Non- compliance due to casual vacancies of directors shall also get covered in this.
6.        Regulation 19(1)/ 19(2)

Non-compliance with the constitution of nomination and remuneration committee.

 

 ₹ 2,000 per day New insertion. Non- compliance due to casual vacancies of directors shall also get covered in this.
7.        Regulation 20(2)

Non-compliance with the constitution of stakeholder relationship committee.

 

 ₹ 2,000 per day New insertion.
8.        Regulation 21(2)

Non-compliance with the Constitution of risk management committee.

 

 ₹ 2,000 per day New insertion.
9.        Regulation 27(2)

Non-submission of the Corporate governance compliance report within the period provided under this regulation.

 

 ₹ 2,000 per day Previously there were different figures for the 1st and the subsequent non-compliances i.e. Rs. 1000 and Rs. 2000 respectively. But as per the new circular overall ₹ 2,000 per day will be charged.

 
10.   Regulation 29(2)/29(3)

Delay  in  furnishing  prior intimation about  the  meeting  of  the  board  of directors

 

 ₹ 10,000 per instance of non-

compliance per item.

 

 Sub- regulation (2) is related to sub- regulation (1). Sub- regulation (1) enlists 6 items for which the prior intimation to stock exchange is required. Further, sub- regulation (3) provides 2 more items requiring prior intimation.

 

The fine shall be per item, per instance and also on lump sum basis. Therefore, day count shall not be applicable.

 
11.   Regulation 31

Non-submission of shareholding pattern within the period prescribed.

 

 ₹ 2,000 per day Previously there were different figures for the 1st and subsequent non-compliances i.e. Rs. 1000 and Rs. 2000 respectively. Further, for continuous non- compliance for more than 15 days, additional fine was provided of 0.1 % of paid up capital of the entity or ₹ 1 crore, lower. But as per the new circular overall ₹ 2,000 per day will be charged.

 
12.   Regulation 32(1)

Non-submission of deviations/ variations in utilization of issue proceeds.

 

 ₹ 1,000 per day New insertion.
13.   Regulation 33

Non-submission of the financial results within the period prescribed under this regulation.

 

 ₹ 5,000 per day Previously there were different figures for the 1st and the subsequent non-compliances. i.e. 5000 and 10000 rupees respectively. Further, for continuous non- compliance for more than 15 days, additional fine was provided of 0.1 % of paid up capital of the entity or ₹ 1 crore, lower.

 

As per the new circular overall ₹ 5,000 per day will be charged.

 
14.   Regulation 34

Non-submission of the Annual Report within the period prescribed under this regulation.

 

 ₹ 2,000 per day Previously there were different figures for the 1st and the subsequent non-compliances i.e. 1000 and 2000 rupees respectively. However, the initial fine was to accrue only if the non- compliance continues for 5 days or more unlike for other regulations wherein from the very first day the fines are imposed.

 

As per the new circular overall ₹ 2,000 per day will be charged.

 
15.   Regulation 39(3)

Non-submission of information regarding loss of share certificates and issue of the     duplicate certificates within the period prescribed under this regulation.

 ₹ 1,000 per day

 

 

 

 

 

 New insertion.
16.   Regulation 42(2)

Delay in/ non-disclosure of record date along with the purpose thereof.

 

Regulation 42(3)

Failure/ delay in dividend declaration within prescribed timeline.

 

Regulation 42(4)

Non-compliance with ensuring the prescribed time gap between two record dates.

 

Regulation 42(5)

Non-compliance with fixing of book closure dates and ensuring the prescribed time gap between two book closures.

 

 ₹10,000 per instance of non-

compliance per item

 

 New insertion.
17.   Regulation 44(3)

Non-submission of the voting results within the period provided under this regulation.

 

 ₹10,000 per instance of non-

Compliance

 New insertion.
18.   Regulation 46

Non-compliance with norms pertaining to functional website and disclosure of information thereon.

 

 1st step:

Advisory/warning letter per instance of non-compliance per item.

 

2nd step:

 

₹10,000 per instance for every

Additional advisory/ warning

letter exceeding the four advisory/ warning letters in a financial year.

 

 The stock exchange shall circulate advisory or warning letter as a first course of action. If such letter is sent for more than 4 times in a financial year, a lump sum of rupees 10000 shall be paid by the entity as fine for every such instances per item. This is to be noted that the Regulation enlists 17 items.

 

All of the aforesaid fines shall accrue till the time of rectification of the non- compliance to the satisfaction of the concerned recognized stock exchange or till the scrip of the entity is suspended from trading for non-compliance with the aforesaid provisions.

Part B: Freezing of shareholding and security holding of the promoter and the promoter group

Review of compliance by stock exchange

The New Circular provides for review of compliance status of the listed entities by the stock exchanges based on the receipt of information. However, the same is not clear on what will constitute an information or who will provide such information. If the term ‘information’ is to mean those information which are required to be submitted by the listed entities, the requirement will be incomplete as the regulations covered aforesaid do not only related to submission of information but also certain other compliances such as, disclosure of information on the website. In this regard, the May Circular was clear on the fact that the review by stock exchanges shall be based on the due date for compliances of respective regulations which should have retained in the new Circular too.

Notice in view of compliance status

Based on the review of compliance status of the entities, the stock exchange shall send notice to the concerned entity to comply with the relevant regulation and pay fine within 15 days. Such notice shall also be forwarded to other stock exchanges where the shares of the entity are listed.

Freezing

Upon failure to comply with the requirements of the notice, the depositories shall be approached by the stock exchange to freeze the shareholding of the promoters and promoter group in the concerned entity and also of the holding in other securities in the demat accounts. This is to be noted that the May Circular did not cover other security holdings.

Unfreezing

If the non-compliant listed entity pays the fine levied, the same shall be displayed on their website by the concerned stock exchange. The stock exchange shall also intimate the depositories to unfreeze the shareholding and security holding after one month from the date of compliance.

Duties of Board of Directors of the listed entity

The Board of Directors (BoD) of the listed entity has been entrusted with the duty to review the nature of the non- compliance and to comment thereon. The comments of BoD shall also be intimated to the stock exchanges.

Part C: Moving of Scrip to ‘Z Category

Which all regulations are covered?

The stock exchange, in addition to the imposition of fine, shall also move the scrip of the listed entity to ‘Z Category’. In that case the share shall be traded only on ‘trade for trade’ basis. However, this is applicable only for certain regulations and that too on failure to comply with the requirements of those regulations for two consecutive quarters. The regulations covered hereunder are as follows-

  1. Regulation 17(1);
  2. Regulation 18(1);
  3. Regulation 27(2);
  4. Regulation 31;
  5. Regulation 33;
  6. Regulation 34;
  7. Submission of information on  the  reconciliation  of  shares  and capital audit report;
  8. Receipt of  the  notice  of  suspension  of  trading  of  that  entity  by  any other recognized stock exchange on any or all of the above grounds.
Prior intimation to the investors

The stock exchange shall give 7 days prior public notice to the investors before moving the scrip to Z category along with simultaneous intimation to the other stock exchanges.

Moving back of the scrip

The stock exchange shall move back the scrip to normal trading category on compliance with respective provisions and payment of relevant fines thereof. However, the same can be done only if the trading has not been suspended. Other stock exchanges shall also be intimated by the stock exchange.

Part D: Suspension of trading of securities

The regulations for taking action of suspension of trading are same as provided in Part C above.

Procedure of suspension

Before suspension, a written notice shall be sent to the non-compliant listed entity in order to pay the appropriate fine within 21 days of the date of intimation. A public notice shall be placed on the website of the recognised stock exchange providing details of the same. The recognised stock exchange shall also inform other recognised stock exchange where the securities are listed in order to ensure uniformity in case of suspension.

If the entity fails to comply with the respective requirements and pay fine within the stipulated period, the trading in the shares shall be suspended. The entire shareholding and security holding of the promoter and promoter group shall remain frozen during the period of suspension.

Uniform suspension

While suspending trading in the shares of the non- compliant entity, the stock  exchange(s) shall  send  intimation  of  suspension  to other  stock  exchange(s)  where  the  shares  of  the  non- compliant  entity  are  listed to  ensure  that  the  date  of  suspension  is uniform across all the recognised stock exchange(s).

If the fine is paid before suspension

If the fine is paid within two working days before the proposed date of suspension, the suspension of securities shall not take place and public notice to this effect shall be published on the website of the stock exchange. Other stock exchange shall also be intimated of the same.

Further, the stock exchange shall also intimate the depositories to unfreeze the entire shareholding and security holding of the promoter and promoter group so frozen earlier. However, the shareholding and security holding shall be unfreezed only after one month from the date of compliance.

Post suspension trading

After 15 days of suspension, trading in the shares of the entity may be allowed on a ‘Trade for Trade’ basis. Such trading shall be allowed on the first trading day of every week for 6 months. Necessary instruction in this regard shall be issued by the stock exchange to the trading members.

Part E: Revocation of suspension

When revocation happens?

If the non-compliant entity complies with the requirements and pays the fine post suspension of trading in the shares, the stock exchange shall revoke the suspension and a public notice in this regard shall be displayed on its website informing about the same. The revocation of suspension shall be made after 7 days from the date of the notice and also inform other stock exchanges where the shares of the entity are listed.

Trading post revocation

After such revocation of suspension, the trading of shares shall be permitted only in ‘Trade for Trade’ basis for a period of 7 days from the date of revocation and thereafter, trading in the shares of the entity shall be shifted back to the normal trading category.

Unfreezing of share and security holding of promoter and promoter group

The  stock  exchange(s)  shall  intimate  the  depositories to unfreeze the entire shareholding of the promoter and promoter group in the entity as well as all other securities held in the demat account of the promoter and promoter group, after three months from the date of revocation of the suspension.

Part F: Compulsory delisting of the company

If the non-compliant entity fails to adhere to the requirements of the New Circular or fails to pay the applicable fine within 6 months from the date of suspension, the process of compulsory delisting of the non-compliant listed company will take place which will be commenced by the stock exchanges in accordance with the provisions of the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2009 read with the Securities Contracts (Regulation) Act, 1956, the Securities Contracts (Regulation) Rules, 1957 as amended from time to time.

Conclusion

Evidently, the New Circular is more stringent than the Previous Circulars in many ways. Earlier, only shareholding of the promoters and promoter group in the listed entity were covered for freezing while the New Circular covers other security holding also. Accordingly, this shall include the debt securities, preference shares etc. held in the listed entity as well as in other entities if held in demat form. Further, the Board of Directors has been entrusted with an additional duty to review the compliance status and to provide comments thereon. The non- compliance for 6 months shall also lead to compulsory delisting of the listing entity. Accordingly, the Compliance Officer of the listed entity shall have to observe all these requirements to avoid the stringent consequences.

[1] https://www.sebi.gov.in/legal/circulars/may-2018/non-compliance-with-provisions-of-sebi-listing-obligations-and-disclosure-requirements-regulations-2015-and-standard-operating-procedure-for-suspension-and-revocation-of-trading-of-specified-securi-_38841.html

[2] https://www.nseindia.com/content/equities/SEBI_Circ_30112015_6.pdf

[3] https://www.nseindia.com/content/equities/SEBI_Circ_26102016.pdf

[4] https://scores.gov.in/scores/Docs/Circular%20-%20Redressal%20of%20Investor%20Grievances%20through%20SCORES.pdf

ROC goes fishing for companies with subsidiaries beyond two layers

/0 Comments/in , , /by

Munmi Phukon, Principal Manager, Vinod Kothari & Company (corplaw@vinodkothari.com)

The country had witnessed the bulk of show cause notices sent to companies last year seeking evidence on their CSR expenditure, reporting, disclosure etc., though the Ministry’s stand on such notices and replies thereof is not yet known. After CSR, MCA has now seemed to shift its surveillance to the layers of Indian companies and recently started issuing show cause notices to the companies. As claimed in such notice itself, the basis of the same is the annual return filed by the companies. What concerns the most at this time is that, when most of the companies in the country are busy with convening the ensuing AGMs, the preparation/ documentation of bulky reports, aligning themselves with the recent amendments made in the corporate laws, be it the Companies (Amendment) Act, 2017 or the Listing Regulations, the show cause notice is posing as an additional burden. Read more →