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Company law lecture chapter iii and iv version 1

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Prachi Wazalwar

The new Company Law Act introduces several new anti-fraud safeguards to address common types of fraud. It aims to prevent fraudulent practices like maintaining multiple demat accounts to obtain more shares than allowed, non-disclosure of important information in prospectuses, and diversion of funds raised from public. The Act also strengthens norms for private placements, debentures, corporate actions, ESOPs, sweat equity and buybacks. Several provisions now apply even to securities and aim to expand investor protections. However, some new terms introduced require clarification through reference to legal dictionaries to understand their true scope and implications.

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New Company Law A Paradigm Shift
Financial System
(h) securities include (i) shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature in or of any incorporated company or other body corporate eg. FCCB, GDR, OFCD (ii) Derivative like call options, put options, swaps, etc.. (iii) units or any other instrument issued by any collective investment scheme to the investors in such schemes Like MF units (iv) security receipt under SARFESI (v) units or any other such instrument issued to the investors under any mutual fund scheme ( but excludes ULIPs) (vi) any certificate or instrument (by whatever name called), issued to an investor by any issuer being a special purpose distinct entity which possesses any debt or receivable, including mortgage debt, assigned to such entity, and acknowledging beneficial interest of such investor in such debt or receivable, including mortgage debt, as the case may be;] (vii) Government securities; (viii) such other instruments as may be declared by the Central Government to be securities; and] (ix) rights or interest in securities;
Norms Extended to all securities Public offer Private Placement Transfer Transmission Maintaining Register Compulsory Listing Complying norms of Listing Insider Trading
Norms Extended to all securities Dematerialisaton Minimum Subscription Allotment Nomination Role of Tribunal Auditors Role
Greater Role of Government Private Placement within its purview Disclosures in Prospectus Norms for GDRs
Tussle between Government and SEBI Section 24 prescribed SEBIs powers CG has tried to encroach upon its power Power of investigation SEBI debarred from exercising powers which are given to CG under new Act
Anti Fraud Safeguards(AFS) 1 Fraud: Multiple Demat Accounts Stringent penalties for Fictitious Application and Multiple Applications It is a fraud u/s 447 Liable for 6 months -10 years imprisonment Plus fine = amount of fraud upto 3 ( amount of fraud) Plus Disgorgement
AFS2: Non Disclosures F: In 2011, SEBI found that promoters and directors of companies like Taksheel Solutions, RDB Rasyans, Onelife Capital Advisors, Brooks Laboratories, PG Electroplast, guilty of not make adequate disclosures in their initial public offers AFS: Government has retained powers to specify disclosures Any misstatement in prospectus constitutes a fraud so fine and imprisonment Cognisable Offence Additional charges for damages in civil proceedings Unlimited liability of directors, experts, promoters, etc Person who authorised the issue so even merchant bankers are under the garb
AFS3: Diversion of Funds F: In most of cases stated in earlier slide, SEBI also found that companies had diverted inter-corporate deposits to entities (mostly inter financial intermediaries) that used the money to buy shares of these companies. These shares, which were illegally procured, were sold at a premium to the issue price on the first day of listing. It was also found that some of these company had also wrongly utilised IPO proceeds to fund the losses incurred by certain trading clients on the first day of listing. Merchant bankers and QIBs were accessories to these frauds. AFS: Section 27: Variation in terms of Prospectus or in terms of contracts only by special resolution Cannot use IPO proceeds for trading in shares of listed companies Exit offer to shareholders
AFS 4: Frauds by Financial Intermediaries F: Misselling of financial Products is rampant. Many advisors give false promises of high returns. AFS: Mis-selling is a fraud under company law Cognisable Offence It extends to any security Safeguards against mis-selling of mutual funds is also included
AFS5: Sahara Case F: In Sahara Case, huge funds were collected ( to the extent of 25,000 cr and above) By Sahara Group companies by exploiting the ambiguities under old Act AFS: Section 42 : Private Placement 1. 2. 3. 4. New norms Concept made crystal clear Stringent provisions Stringent penalties
Private Placement Private Placement Of securities Select group of people Private placement offer letter Restriction of private placement in year Restriction of shares acquired by private placement Number of private placement
Private Placement Allotment Process Records and Disclosures Restriction of Fresh Offer
Prospectus Disclosures as per Government directions Shelf prospectus Applicable for securities Not applicable to GDR
Share Capital Types of shares unchanged Norms for preference shares changed Preference shares by infrastructure companies can be redeemable beyond 20 years Disabilities on account of default in redemption of preference shares Like inability to buy back Voting Rights no distinction between cumulative and non cumulative voting rights
Variation in Voting Rights Consent of 3/4th or SR of the class New Safeguards for other shareholders
Analysis of New Safeguard The Act has inserted a proviso wherein now a company needs to take into consideration the wishes of other classes of shareholders whose rights are affected by variation of rights of a class of shareholders. Will the approval be required only if the change has a negative impact on the shareholders? Or will it be required even if the change has a beneficial impact?
Analysis of New Safeguard The meaning of the term affect has to be explored to answer these questions. Various dictionaries have defined affect as follows: Blacks Law Dictionary, Bryan A. Garner, Ninth Edition, 2009: Most generally, to produce an effect on; to influence in some way. Chambers 21st Century Dictionary: to have an effect on someone or something.
Transfer and Transmission Transfer of interest of member Transfer of securities Time limit for delivery of share certificate cannot be extended Free Transferability of all securities of public company Shareholders agreements recognised Power to approach Tribunal for rectification restricted only to members
Debentures Unchanged Conditions convertible debentures after special resolution DRRA Redemption Changed Conditions Failure to redeem Specific Relief Mandatory Appointment of Debenture Trustee only above 500
Corporate Actions Shares at a Premium 52 Shares at a Discount cannot be issued - interpreting discount to its price Powers to alter share capital 61 - The approval of Tribunal is required if consolidation or division of shares into shares of a larger amount results in changes in the voting percentage of shareholders. This is likely when a company has issued shares with differential voting rights.
Rights Issue Offer can be kept open for a Maximum period of 30 days This provision not extended to securities Provision is applicable to private companies unless exempted No CG intervention if the company fails to get SR
ESOP Director/officers/employees Company Holding company Subsidiary company ESOP can now be offered even to part time and non executive director ESOPs cannot be issued to Independent Directors
Sweat Equity Date of commencement important Definition of company changed
Sweat Equity Can a dormant company issue sweat equity? - No Can one person company issue sweat equity shares? Can sweat equity shares be issued for consideration other than cash to director? Can sweat equity shares be issued to promoters? Can sweat equity shares be issued at discount?
Sweat Equity When can sweat equity shares be issued? commenced business. However, under the new Act, the period of one year will begin from the date the company has commenced business. What constitutes commencement of business? Is the date of incorporation deemed to be the date of commencement of business of the company? Or is it the date when the declaration and verification are filed under section 11 of the new Act? These questions are not answered in the Act. Thus, we have to go to the dictionary meaning to assess its true meaning.
P Ramanatha Aiyer, - words commence and commencement of business Commence: to begin; to originate; to cause to begin; perform the first act of, inter upon; to do the first act in anything; to take the first step... Commence any business: commence any business does not mean merely the business for which the company was started, but any transaction including, sale, purchase, etc.
Bonus Shares Additional Conditions can be issued by Government Company cannot withdraw grant of bonus once declared Defaults payment of interest or principal in repect fixed deposits Statutory dues
Reduction of Capital Single Procedure Representation of ROC/CG/SEBI Certificate not a conclusive proof Defaulters defaulting in repayment of deposits are not entitled to discount No any reduced No specific authoritisation in Articles necessary Auditors Certificate Fraud on Creditors
Buy Back Subsequent buy back One Year For Both Types Of Buy Back Defaults Subsisting 3 years thereafter Additional fetters Annual return Declaration/distribution of dividend Financial statement Board report CFS Serious implication of wring statements in Declaration of Solvency Odd lots
Company law lecture chapter iii and iv version 1
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Company law lecture chapter iii and iv version 1

  • 1. New Company Law A Paradigm Shift
  • 3. (h) securities include (i) shares, scrips, stocks, bonds, debentures, debenture stock or other marketable securities of a like nature in or of any incorporated company or other body corporate eg. FCCB, GDR, OFCD (ii) Derivative like call options, put options, swaps, etc.. (iii) units or any other instrument issued by any collective investment scheme to the investors in such schemes Like MF units (iv) security receipt under SARFESI (v) units or any other such instrument issued to the investors under any mutual fund scheme ( but excludes ULIPs) (vi) any certificate or instrument (by whatever name called), issued to an investor by any issuer being a special purpose distinct entity which possesses any debt or receivable, including mortgage debt, assigned to such entity, and acknowledging beneficial interest of such investor in such debt or receivable, including mortgage debt, as the case may be;] (vii) Government securities; (viii) such other instruments as may be declared by the Central Government to be securities; and] (ix) rights or interest in securities;
  • 4. Norms Extended to all securities Public offer Private Placement Transfer Transmission Maintaining Register Compulsory Listing Complying norms of Listing Insider Trading
  • 5. Norms Extended to all securities Dematerialisaton Minimum Subscription Allotment Nomination Role of Tribunal Auditors Role
  • 6. Greater Role of Government Private Placement within its purview Disclosures in Prospectus Norms for GDRs
  • 7. Tussle between Government and SEBI Section 24 prescribed SEBIs powers CG has tried to encroach upon its power Power of investigation SEBI debarred from exercising powers which are given to CG under new Act
  • 8. Anti Fraud Safeguards(AFS) 1 Fraud: Multiple Demat Accounts Stringent penalties for Fictitious Application and Multiple Applications It is a fraud u/s 447 Liable for 6 months -10 years imprisonment Plus fine = amount of fraud upto 3 ( amount of fraud) Plus Disgorgement
  • 9. AFS2: Non Disclosures F: In 2011, SEBI found that promoters and directors of companies like Taksheel Solutions, RDB Rasyans, Onelife Capital Advisors, Brooks Laboratories, PG Electroplast, guilty of not make adequate disclosures in their initial public offers AFS: Government has retained powers to specify disclosures Any misstatement in prospectus constitutes a fraud so fine and imprisonment Cognisable Offence Additional charges for damages in civil proceedings Unlimited liability of directors, experts, promoters, etc Person who authorised the issue so even merchant bankers are under the garb
  • 10. AFS3: Diversion of Funds F: In most of cases stated in earlier slide, SEBI also found that companies had diverted inter-corporate deposits to entities (mostly inter financial intermediaries) that used the money to buy shares of these companies. These shares, which were illegally procured, were sold at a premium to the issue price on the first day of listing. It was also found that some of these company had also wrongly utilised IPO proceeds to fund the losses incurred by certain trading clients on the first day of listing. Merchant bankers and QIBs were accessories to these frauds. AFS: Section 27: Variation in terms of Prospectus or in terms of contracts only by special resolution Cannot use IPO proceeds for trading in shares of listed companies Exit offer to shareholders
  • 11. AFS 4: Frauds by Financial Intermediaries F: Misselling of financial Products is rampant. Many advisors give false promises of high returns. AFS: Mis-selling is a fraud under company law Cognisable Offence It extends to any security Safeguards against mis-selling of mutual funds is also included
  • 12. AFS5: Sahara Case F: In Sahara Case, huge funds were collected ( to the extent of 25,000 cr and above) By Sahara Group companies by exploiting the ambiguities under old Act AFS: Section 42 : Private Placement 1. 2. 3. 4. New norms Concept made crystal clear Stringent provisions Stringent penalties
  • 13. Private Placement Private Placement Of securities Select group of people Private placement offer letter Restriction of private placement in year Restriction of shares acquired by private placement Number of private placement
  • 14. Private Placement Allotment Process Records and Disclosures Restriction of Fresh Offer
  • 15. Prospectus Disclosures as per Government directions Shelf prospectus Applicable for securities Not applicable to GDR
  • 16. Share Capital Types of shares unchanged Norms for preference shares changed Preference shares by infrastructure companies can be redeemable beyond 20 years Disabilities on account of default in redemption of preference shares Like inability to buy back Voting Rights no distinction between cumulative and non cumulative voting rights
  • 17. Variation in Voting Rights Consent of 3/4th or SR of the class New Safeguards for other shareholders
  • 18. Analysis of New Safeguard The Act has inserted a proviso wherein now a company needs to take into consideration the wishes of other classes of shareholders whose rights are affected by variation of rights of a class of shareholders. Will the approval be required only if the change has a negative impact on the shareholders? Or will it be required even if the change has a beneficial impact?
  • 19. Analysis of New Safeguard The meaning of the term affect has to be explored to answer these questions. Various dictionaries have defined affect as follows: Blacks Law Dictionary, Bryan A. Garner, Ninth Edition, 2009: Most generally, to produce an effect on; to influence in some way. Chambers 21st Century Dictionary: to have an effect on someone or something.
  • 20. Transfer and Transmission Transfer of interest of member Transfer of securities Time limit for delivery of share certificate cannot be extended Free Transferability of all securities of public company Shareholders agreements recognised Power to approach Tribunal for rectification restricted only to members
  • 21. Debentures Unchanged Conditions convertible debentures after special resolution DRRA Redemption Changed Conditions Failure to redeem Specific Relief Mandatory Appointment of Debenture Trustee only above 500
  • 22. Corporate Actions Shares at a Premium 52 Shares at a Discount cannot be issued - interpreting discount to its price Powers to alter share capital 61 - The approval of Tribunal is required if consolidation or division of shares into shares of a larger amount results in changes in the voting percentage of shareholders. This is likely when a company has issued shares with differential voting rights.
  • 23. Rights Issue Offer can be kept open for a Maximum period of 30 days This provision not extended to securities Provision is applicable to private companies unless exempted No CG intervention if the company fails to get SR
  • 24. ESOP Director/officers/employees Company Holding company Subsidiary company ESOP can now be offered even to part time and non executive director ESOPs cannot be issued to Independent Directors
  • 25. Sweat Equity Date of commencement important Definition of company changed
  • 26. Sweat Equity Can a dormant company issue sweat equity? - No Can one person company issue sweat equity shares? Can sweat equity shares be issued for consideration other than cash to director? Can sweat equity shares be issued to promoters? Can sweat equity shares be issued at discount?
  • 27. Sweat Equity When can sweat equity shares be issued? commenced business. However, under the new Act, the period of one year will begin from the date the company has commenced business. What constitutes commencement of business? Is the date of incorporation deemed to be the date of commencement of business of the company? Or is it the date when the declaration and verification are filed under section 11 of the new Act? These questions are not answered in the Act. Thus, we have to go to the dictionary meaning to assess its true meaning.
  • 28. P Ramanatha Aiyer, - words commence and commencement of business Commence: to begin; to originate; to cause to begin; perform the first act of, inter upon; to do the first act in anything; to take the first step... Commence any business: commence any business does not mean merely the business for which the company was started, but any transaction including, sale, purchase, etc.
  • 29. Bonus Shares Additional Conditions can be issued by Government Company cannot withdraw grant of bonus once declared Defaults payment of interest or principal in repect fixed deposits Statutory dues
  • 30. Reduction of Capital Single Procedure Representation of ROC/CG/SEBI Certificate not a conclusive proof Defaulters defaulting in repayment of deposits are not entitled to discount No any reduced No specific authoritisation in Articles necessary Auditors Certificate Fraud on Creditors
  • 31. Buy Back Subsequent buy back One Year For Both Types Of Buy Back Defaults Subsisting 3 years thereafter Additional fetters Annual return Declaration/distribution of dividend Financial statement Board report CFS Serious implication of wring statements in Declaration of Solvency Odd lots