Weekly Corporate Updates dated 11.10.2014

Law
Solicitors and Advocates
Saturday, 11th October, 2014
Weekly Corporate Updates
MCA News & Circulars
Version of forms DIR – 6, DPT – 4, MGT – 10, ADT – 3, 17 LLP, DIR – 12 was modified on 02nd
October, 2014.
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Companies which do not have any of their Directors/Signatory details registered in the
MCA 21 system and who are desirous of filing DIR – 3C Form are requested to get at
least one authorised signatory registered by contacting the concerned Registrar of
Companies. Instructions have already been issued to ROCs and RDs in this regard.
Form DIN – 3 is replaced by Form DIR – 3C.
In light of peak filing period, View Public Documents service would be disabled between 13th
Oct, 2014 to 18th Oct, 2014 (9.00 A.M. to 9.00 P.M.)
Other Updates
CLSS scheme is ending on 15 October, 2014, professionals are requested to file e-form DIR 3C
for updating Directors details of the Companies and thereafter file the overdue documents as
part of CLSS Scheme.
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Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
Articles………………………………….. lets better understand the Companies Act, 2013 together
by A. K. Kuchhal
APPOINTMENT AND REMUNERATION OF MANAGERIAL PERSONNEL
SECTION-196:-
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APPOINTMENT OF MANAGING DIRECTOR, WHOLE TIME
DIRECTOR OR MANAGER
In a Company, a Managing Director and a Manager cannot be appointed or employed
at the same time.
Term of appointment: - MD, WTD or Manager- a term not exceeding 5 year at a time.
(Provided no re-appointment shall be made earlier than one year before the expiry of
his term.
Requirement to be appointed as MD, WTD or Manager:1. Is not below the Age of 21 years or has attained the age of 70 years (
Appointment of a person who has attained the age of 70 years shall be made by
passing Special resolution along with Explanatory statement for appointment
with justification for appointment)
2. Is an undischarged insolvent/ has been adjudged as Insolvent at any time.
3. has at any time suspended payment to his creditors / made a composition with
Creditors
4. Should not be convicted by a court of an offence for a period of more than six
months.
Terms and conditions of appointment and remuneration should be approved by BOD
but subject to approval of Shareholders.
Approval of Central Government is also required if such appointment is at variance to
the conditions specified in Schedule V.
Matters to be included in Board Meeting and General Meeting Notice:1. Terms and conditions of such appointment
2. Remuneration payable
3. Such other matters including interest of director or directors in such
appointments
Return (Form) should be filed within 60 days in Form MR - 1.
If any appointment of MD, WTD or Manager is not approved by the Shareholders-Any
act done by him before such approval shall not be deemed to be invalid.
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
SECTION 197:-
OVERALL MAXIMUM MR AND MR- IN CASE OF
ABSENCE OF INADEQUACY OF PROFITS.
Total MR Payable by a Public Co. to its Directors, including MD, WTD and its Manager
in respect of a F.Y shall not exceed 11% of NP of the Company for that FY computed as
per Sec 198 except that the remuneration of the Director shall not be deducted from
the gross profits;
• For payment of Remuneration exceeding 11% - Authorization in General Meeting + CG
approval (Subject to the provisions of Schedule V)
• Without the approval of Shareholders in GM1. Remuneration payable to any one – MD/WTD or Manager shall not exceed
5% of NP
2. If more than one MD, WTD or manager- shall not exceed 10% of NP to all
such Directors and Manager taken together.
3. Remuneration payable to Directors (other than MD/Manager/WTD) shall
not exceed a) 1% of NP (if Company is having MD, WTD or manager)
b) 3% of NP (in any other case).
• The aforesaid percentage shall be exclusive of any sitting fee payable.
• If in any Financial Year there is no profit or inadequate profit – Remuneration to be
paid in accordance with Schedule V (and if not able to comply with such provisions
then with previous approval of CG)
• Remuneration payable shall be determined either by –
a) Articles of the Company; or
b) By resolution; or
c) If Articles so requires, by SR
(The aforesaid amount shall be inclusive of remuneration payable to him for the
services rendered by him in any other capacity – other than the services rendered
in professional capacity)
• A Director may receive remuneration by way of fee for attending Meetings of the Board
or Committee thereof – such sum as may be decided by the Board of Directors, which
shall not exceed Rs. 1 Lac per meeting.
• For Independent Directors and Women Directors, the sitting fee shall not be less than the
sitting fee payable to other Directors.
• Director or Manager may be paid remuneration either by way of monthly remuneration
or at a specified % of NP of the Co
• An Independent Director shall not be entitled to any Stock Option. But is entitled for
receiving Sitting fee, reimbursement of expenses for attending the meeting ad Profit
related Commission as approved by the Board.
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Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
• If any Director draws or receives, directly or indirectly any sum in excess of limits
specified or without CG approval – by way of remuneration – He shall refund such
sums to the Company and until such sum is refund, hold it in trust for the Company. The
Company shall not waive the recovery of any such unless permitted by CG.
• In case where Schedule V is applicable on grounds of No profits or Inadequate Profits –
Any increase in Remuneration must be in accordance with the conditions as provided in
that schedule. And if such conditions are not complied – Approval of CG requires.
• Any insurance taken by Company for indemnifying its KMP against any liability in
respect of negligence, default, breach of duty or trust – Premium paid on such Insurance
not be treated as remuneration.
• But if such person proved to be guilty, then premium paid on such insurance shall be
treated as part of remuneration.
• Any Director, who is MD/WTD/Manager and is receiving any remuneration from the
Company – is not disqualified from receiving any remuneration or commission from any
holding or subsy Co. of such Co. subject to its disclosure in Boards report.
SECTION 198:-
CALCULATION OF PROFITS
Additional requirements as per Co’s Act, 2013:
For the purpose of computing remuneration of any Director or Managerial personnel the
following things to be deducted –
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Expenses incurred in that year,
Any excess of expenditure over the incomes of any previous years remain unsatisfied out of
the income of those years.
The balance income remaining after all such deductions should be the sum on which the
said % should be calculated.
SECTION 199:-
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RECOVERY OF REMUNERATION IN CERTAIN CASES
Where a Company is required to re-state its financial statements due to Fraud or noncompliance with any requirement of Act and the rules made thereunder –
Company recover from past/ present MD, WTD, Manager or CEO
Who during the period for which accounts are re-stated, received remuneration in excess
of what would have been paid.
SECTION 200:-
CENTRAL GOVERNMENT OR COMPANY TO FIX LIMIT WITH
REGARD TO REMUNERATION
In case of inadequate or no profits, the Central Government may fix remuneration within the
limits specified in the Act, at such amount or % of profits of the Company, as it may deem fit.
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
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While fixing the remuneration, the Central Government shall consider the following –
The Financial and operating performance of the Company during the 3 preceeding
Financial Years;
The relationship between remuneration and performance;
The remuneration or commission drawn by the individual concerned in any other capacity;
The remuneration or commission drawn by him from any other Company;
Professional qualifications and experience of the individual concerned;
The principle of proportionality of remuneration within the Company, ideally by a rating
methodology which compares the remuneration of Directors to that of other Directors on
the Board who receives remuneration and employees or executives of the Company;
Whether remuneration policy for Directors differs from remuneration policy for other
employees and if so, an explanation for the difference;
The securities held by the Director, including options and details of the shares pledged as at
the end of the preceding Financial Year.
SECTION 201:-
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FORMS OF AND PROCEDURE IN RELATION TO CERTAIN
APPLICATIONS
Every Application will be made in Form No. MR.2
Before any application is made by a Co. to CG, there shall be issued by or on behalf of Co.
general notice to Members, indicating nature of application proposed to be made.
Such notice shall be published at least 1 in principal language newspaper circulating in the
dist. Where the registered office is situated and at least 1 in English language newspaper
circulating in that dist.
Copies of the notices together with certificate by the Co. as to the due publication thereof
shall be attached to the application.
SECTION 202:MANAGER
COMPENSATION FOR LOSS OF OFFICE OF MD OR WTD OR
A company may make payment to a managing or whole-time director or manager, but not
to any other director, by way of compensation for loss of office, or as consideration for
retirement from office or in connection with such loss or retirement.
The compensation payable, shall not exceed the remuneration which he would have earned
if he had been in office for the remainder of his term or for three years, whichever is shorter,
calculated on the basis of the average remuneration actually earned by him during a
period of three years immediately preceding the date on which he ceased to hold
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
office, or where he held the office for a lesser period than three years, during such
period.
No such payment shall be made to the director in the event of the commencement of the
winding up of the company, whether before or at any time within 12 months after, the date
on which he ceased to hold office, if the assets of the company on the winding up, after
deducting the expenses thereof, are not sufficient to repay to the shareholders the share
capital, including the premiums, if any, contributed by them.
SECTION 203:•
APPOINTMENT OF KMP
APPLICABILITY
1. Every listed company and every other public company having a paid-up share capital
of Ten Crore rupees or more.
2. A Company other than a Company covered above which has a paid – up Share Capital
of Rs. 5 crore or more shall have a whole time Company Secretary.
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KMP INCLUDES
MD, or CEO, or Manager and in their absence a WTD
Company Secretary; and
CFO
An individual shall not be appointed or re-appointed as the Chairperson of the Company,
as well as MD/CEO of the Company at the same time.
Except:
a) The Articles of such a Company provides otherwise; or
b) The Company does not carry multiple businesses.
The above said provisions are not applicable on Companies engaged in multiple businesses
and which has appointed one or more CEO for each such business.
Other Provisions:
Every whole time KMP of a company shall be appointed by means of a Board Resolution
containing the terms and conditions of appointment including the remuneration.
A whole Time KMP shall not hold office in more than one Company except in its Subsidiary
Company at the same time.
Nothing contained in this sub – section shall disentitle a KMP from being a Director of any
Company with the permission of the Board.
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected]m www.indiacorplaw.com
Whole time KMP holding office in more than 1 Company at the same time on the
commencement of this Act shall within a period of 6 months from such commencement
choose 1 Company hold office of KMP.
Company may appoint or employ a person as its MD, if he is the MD or Manager of one and
of not more than 1 other Company and such appointment/employment is approved by the
resolution passed at a meeting of the Board unanimously and of which meeting and of the
resolution to be moved thereat specific notice has been given to all Directors then in India.
In case the office of KMP is vacated – Resulting vacancy to be filled up by the Board within
6 months from the date of such vacancy.
SECTION 204:•
SECRETARIAL AUDIT FOR BIGGER COMPANIES
APPLICABILITY
1. Every Listed Company
2. Every public company having a turnover of two hundred fifty crore rupees or more.
3. Every public company having a paid-up share capital of fifty crore rupees or more
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COMPLIANCES TO BE DONE
1. Secretarial Audit Report in Form No. MR.3
2. To be annexed with Board Report
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SIGNING
1. By a Company Secretary in practice
• PENAL PROVISIONS
1. Company, every office in default
2. Fine not less than One Lakh and may extend to Five Lakh rupees.
It shall be the duty of the Company Secretary to give all assistance and facilities to the PCS
for auditing the secretarial and other records of the Company.
The Board of Directors, in their report made in terms of sub – sec (3) of Sec 134 shall
explain in full any qualification or observation or other remarks made by the PCS in his
report.
SECTION 205:
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FUNCTIONS OF COMPANY SECRETARY
The functions of the Company Secretary shall include:To report to the Board about compliance with the provisions of this Act, the rules made
thereunder and other laws applicable to the Company;
To ensure that the Company complies with the applicable secretarial standards;
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com
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to provide to the directors of the company, collectively and individually, such guidance as
they may require, with regard to their duties, responsibilities and powers;
to facilitate the convening of meetings and attend Board, committee and general meetings
and maintain the minutes of these meetings;
to obtain approvals from the Board, general meeting, the government and such other
authorities as required under the provisions of the Act;
to represent before various regulators, and other authorities under the Act in connection
with discharge of various duties under the Act;
to assist the Board in the conduct of the affairs of the company;
to assist and advise the Board in ensuring good corporate governance and in complying
with the corporate governance requirements and best practices; and
to discharge such other duties as have been specified under the Act or rules; and
such other duties as may be assigned by the Board from time to time.
Thanking You,
Team Indiacorp
0120 - 421 4372, 9650826950, 9810894275
[email protected], [email protected]
www.indiacorplaw.com
Disclaimer:
This publication contains information in summary form and is therefore intended for general
guidance only. It is not intended to be a substitute for detailed research or the exercise of
professional judgment. Neither India Corp Law nor any other member of the India Corp Law
organization can accept any responsibility for loss occasioned to any person acting or refraining
from action as a result of any material in this publication. On any specific matter, reference
should be made to the appropriate advisor.
Indiacorp Law
0120-4214372, 9650826950, 9810894275 [email protected], [email protected] www.indiacorplaw.com