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The Companies Act, 2013: Important Provisions Relating To Shares, Debentures and Deposits
The Companies Act, 2013: Important Provisions Relating To Shares, Debentures and Deposits
The Companies Act, 2013: Important Provisions Relating To Shares, Debentures and Deposits
2013
IMPORTANT PROVISIONS RELATING TO
SHARES, DEBENTURES AND DEPOSITS
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CS Kalidas Vanjpe
Practising Company Secretary
FEATURES
Emphasis on rules.
Objective: to bring flexibility and adoption of
internationally
accepted
practices,
self
regulation with more disclosures, stringent
punishment for violation etc.
CS Kalidas Vanjpe
Practising Company Secretary
FEATURES (Contd.)
and
CS Kalidas Vanjpe
Practising Company Secretary
SHARE CAPITAL
be
issued
with
CS Kalidas Vanjpe
Practising Company Secretary
SHARE CERTIFICATES
ISSUE OF
SHARES/SECURITIES
A public company:
A) Public Offer
B) Private Placement
C) Rights Issue
D) Bonus Issue
A private company:
A) Rights Issue
B) Bonus Issue
C) Private Placement (sec 23)
Both can issue under Emp Stock Option scheme or
preferential issue (sec 62)
CS Kalidas Vanjpe
Practising Company Secretary
TRANSFER/TRANSMISSION OF
SHARES
Instrument of transfer duly stamped,
dated and executed to be delivered within
sixty days of execution.
Applicable to all companies including listed
ones.
No need to present to prescribed
authority.
CS Kalidas Vanjpe
Practising Company Secretary
TRANSFER/TRANSMISSION
(Contd.)
In case of refusal by pvt co, time limit for
sending notice is thirty days (earlier 2 m)
Appeal in such case- thirty days (earlier 2
m). If no notice is sent then sixty days
(earlier 4 m)
Only transferee can appeal (earlier
transferor or the person who gave
intimation of transmission were also there)
CS Kalidas Vanjpe
Practising Company Secretary
TEANSFER/TRANSMISSION
(contd.)
If a public co refuses to transfer within 30
days (2 m), then appeal within 60 days
(earlier 2 m). If no notice is sent, then 90
days (no period earlier).
Important penal provision: Contravention
of order of the Tribunal punishable with
imprisonment of not less than one year
and may be upto three years and fine mini
1 lakh maxi 5 lakh (earlier only fine)
CS Kalidas Vanjpe
Practising Company Secretary
PROSPECTUS
Not much changes in disclosures.
Any variations in the terms of the contract
referred to in prospectus or objects for
which the prospectus was issued shall be
made only with the approval of the
members accorded by way of a special
resolution.
Notice of meeting in 2 newspapers.
CS Kalidas Vanjpe
Practising Company Secretary
PROSPECTUS (Contd.)
Detailed explanatory statement to include:
original object
total amount raised and utilised, extent of
achievement of the object
unutilised amount
details of variation
reason and justification
time limit within which it will be achieved
CS Kalidas Vanjpe
Practising Company Secretary
PROSPECTUS (Contd.)
Such cos cannot use such amount for
buying , trading or otherwise dealing in
equity shares of any other listed company.
Dissenting shareholders should be given
exit offer terms etc to be decided by
SEBI
CS Kalidas Vanjpe
Practising Company Secretary
RIGHTS ISSUE
Earlier applicable to public companies.
Now applicable to private also.
Liberty to issue shares to anyone at any
time at such price is gone.
All conditions like letter of offer,
renunciation etc will apply. Easy target for
takeover or entry of outside shareholders
possible.
CS Kalidas Vanjpe
Practising Company Secretary
FURTHER ISSUE OF
CAPITAL
Earlier applicable to public cos, now to all
cos.
Earlier applicable only if the Company, at
any time after the expiry of two years
from the formation of the Company or
after one year from the allotment of
shares in that company made for the first
time after its formation, wants to increase
capital.
Now any time it wants to increase.
CS Kalidas Vanjpe
Practising Company Secretary
CS Kalidas Vanjpe
Practising Company Secretary
PRIVATE PLACEMENT OF
SECURITIES
private placement means any offer of
securities or invitation to subscribe
securities to a select group of persons by a
company (other than by way of public
offer) through issue of a private placement
offer letter and which satisfies the
conditions specified in section 42.
Thus applicable to all securities.
CS Kalidas Vanjpe
Practising Company Secretary
PRIVATE PLACEMENT
-REQUIREMENTS
Special resolution for each offer.
Explanatory statement to give justification
of price
Private placement offer letter
List of persons to whom the letter to be
sent
No offer to more than 200 persons in a fin
year excl qualified institutional buyers or
employees under stock option scheme
CS Kalidas Vanjpe
Practising Company Secretary
REQUIREMENTS (Contd.)
CS Kalidas Vanjpe
Practising Company Secretary
PRIVATE PLACEMENT
(Contd.)
No fresh offer unless previous offer
completed/withdrawn/abandoned. This is
applicable even if earlier offer is for
different kind of security.
Minimum investment size Rs. 20,000/face value.
Separate bank account for application
money.
No advt, no distribution channel.
CS Kalidas Vanjpe
Practising Company Secretary
ALLOTMENT
CS Kalidas Vanjpe
Practising Company Secretary
ALLOTMENT (Contd.)
Return of Allotment PAS 3- thirty days.
complete list of all security holders
containing the full name, address,
Permanent Account Number (PAN) and Email ID of such security holder, the class
of security held, the date of allotment etc.
No benami holding in view of PAN
CS Kalidas Vanjpe
Practising Company Secretary
PREFERNTIAL ISSUE
CS Kalidas Vanjpe
Practising Company Secretary
DEBENTURES
The Co can issue debentures with an
option to convert. For such option special
resolution is necessary
No debentures with voting rights
Only secured debentures or compulsorily
convertible debentures can be issued.
Secured debentures maximum tenure 10
yrs. But for infra it is 30 yrs
CS Kalidas Vanjpe
Practising Company Secretary
DEBENTURES (Contd.)
Appointment of debenture trustee.
Elaborate rules.
Trust deed form SH 12
Debenture redemption reserve
Maintenance of liquid assets of 15% of
debentures maturing during the year. Inv
by 30th April. This can be used only for
redemption and should not fall below 15%
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS
DEPOSITS (Contd.)
All cos can accept deposits from members.
Limit 25% of the aggregate of the paid up
capital and free reserves. For companies
covered under sec 76, limit is 10%
Period mini 6 m maxi 36 m. To meet short
term requirements they can accept
deposits of shorter tenure of not less than
3 m. such dep should not exceed 10% of
puc and free reserves.
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS (Contd.)
public companies having a net worth of
not less than one hundred crore rupees or
a turnover of not less than five hundred
crore rupees (eligible companies) can
accept deposits from public (sec 76
companies)
Special resolution required. Ordinary
resolution will do if aggregate of
borrowings do not exceed the aggregate of
puc and free reserves
CS Kalidas Vanjpe
Practising Company Secretary
LIMIT ON PUBLIC
DEPOSITS
Sec 76 cos can borrow up to 10% from
members and 25% from public.
For Govt co., the limit is 35%
CS Kalidas Vanjpe
Practising Company Secretary
PROCEDURE
Every co to issue a circular to members by
RPAD/Speed post or electronic mode (form
DPT1). In addition, advt of circular in two
newspapers for sec 76 cos
Credit rating must.
In case of adverse change in rating,
depositors to be given exit option
Sec 76 co to follow the procedure of advt,
filing the text with ROC etc
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSIT INSURANCE
Compulsory for all companies.
at least thirty days before the issue of
circular or advertisement or at least thirty
days before the date of renewal. The
amount deemed to include principal and
int.
maximum cover Rs. 20,000/ Premium to be borne by the Co and
cannot be recovered from depositors
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSIT INSURANCE
(Contd.)
CS Kalidas Vanjpe
Practising Company Secretary
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS (Contd.)
For sec 76 co., the provisions of creation
of security will apply only in case of
secured deposits
In case of deposits which are secured, the
amount of such deposits and the interest
payable thereon shall not exceed the
market value of such assets as assessed
by a registered valuer
Security to be created in favour of trustee
(similar to debenture trustee)
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS (Contd.)
Creation of Deposit Repayment Reserve
mandatory. This is in the form of liquid
assets. Amount equivalent to 15% of
deposits maturing during the year and
next year.
Earlier Private companies were not
required to maintain liquid assets. Now
even for deposits from members, it is
compulsory.
They also have to file return of deposits.
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS (Contd.)
In case of deposits held by existing
companies, they have to be repaid within
the due date or one year.
National
Company Law Tribunal can
extend time for repayment.
Rules however have given respite to cos.
They can repay the deposit and interest as
per the terms on which they are accepted.
That will be sufficient compliance. But if
they fail, then penal provisions will apply.
CS Kalidas Vanjpe
Practising Company Secretary
DEPOSITS (Contd.)
A statement of deposits to be filed with
ROC within 3 months of commencement of
Act or from the date on which such
payment is due.
Practical problem for Pvt cos.
Statement to be certified by auditor
May lead to cash flow problems or
disputes among shareholders
CS Kalidas Vanjpe
Practising Company Secretary
Some Exemptions:
Advance for supply of goods/services should be
appropriated within 365 days
Advance for sale of property should be adjusted
against property
Supply of capital goods exempted but if any of
the above all cases, if the company has to refund
money as the Co did not have necessary
permissions/approvals to deal in the goods etc,
then the amount will be treated as deposit.
Security deposit for performance of contract.
CS Kalidas Vanjpe
Practising Company Secretary
EXEMPTION (Contd.)
Unsecured loan from promoters/relatives
in the form of quasi equity.
Security deposit from employee not
exceeding his annual salary and it should
be non-interest bearing.
Govt loans or govt guaranteed loans
Inter corporate deposits, bank loans etc
Bonds or debentures either secured or
compulsorily convertible into eq shares
CS Kalidas Vanjpe
Practising Company Secretary
EXTREMELY IMPORTANT
PENAL PROVISION:
OTHER POINTS
Enhancement
in
penalty,
appointment
of
prosecutors for courts and adjudicating officers
for trying offences. This means enforcement of
the provisions would be done seriously.
Hence, a change in mindset necessary. Chalta
Hai attitude needs to be abandoned.
Likely effects:
a) cost of compliance
b) increase in business of insurance co.
c) increase in litigation, cash flow problems for
private cos.
CS Kalidas Vanjpe
Practising Company Secretary
THANK YOU.
CS Kalidas Vanjpe
Practising Company Secretary