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Evaluating the Contours of Permissible Remuneration for directors of a company in India

Background and Introduction

All companies incorporated in India are mandated to constitute a board of directors,[1] to which companies appoint different kinds and classes of directors – managing director (“MD”), independent director (“ID”), non-executive and non-independent director (“NED”), whole time director (“WTD”) or executive director (“ED”). Given the pivotal role that a company’s directors play in the governance and operations of companies, the Companies Act, 2013 (“Act”), regulates different facets of a directorship from the appointment, duties, and responsibilities to the remuneration. This blog discusses the contours of remuneration limits to evaluate the length and breadth of permissible director remuneration. “Remuneration” has been defined as “any money or its equivalent given or passed to any person for services rendered by him and includes perquisites as defined under the Income-tax Act, 1961[2]”.[3]Continue Reading Evaluating the Contours of Permissible Remuneration for directors of a company in India

Adding an ‘E’ to the (E)-Adjudication Process under Companies Act

Introduction

“Compliances” are inevitable certainties for companies. The provisions of the Companies Act, 2013 (“Act”) and various rules formulated under it prescribe the various compliances and the way companies[1] must fulfil them. The Act provides for 4 (four) meetings of the board of directors to be held in a year[2]and…

True and Fair View of Financial Statements: Who will finally bell the cat?

One of the most important communications by a company to its shareholders is its financial statements. It is a key document on which shareholders rely while making their decision on whether to stay invested in a company or not, as it highlights the financial health of the company. The regulators also understand the importance of financial statements, due to which the issuance of the same is heavily regulated and scrutinized. Section 129 of the Companies Act, 2013 (“CA 2013”), provides that the financial statements shall give a ‘true and fair view’ of the state of affairs of a company, while also complying with the accounting standards notified under Section 133 and be in the form as provided in Schedule III of CA 2013.Continue Reading True and Fair View of Financial Statements: Who will finally bell the cat?

A Fine Balance: A Perspective on recent RoC Orders

Introduction

India is in its “vocal for local” and “ease of doing business” (“EoDB”) era. Yet the slew of show cause notices and penalty orders the jurisdictional registrar of companies (“RoC”) has issued against Indian companies and its directors in the recent past[1] for alleged non-compliance of significant beneficial ownership (“SBO”) disclosures,[2] corporate social responsibility (“CSR”) contributions,[3] etc. under the Companies Act, 2013 (“Companies Act”), reflect the need for a well-balanced system.Continue Reading A Fine Balance: A Perspective on recent RoC Orders

Is the NCLT’s approach in the Philips India case too literal?

Introduction

The Kolkata Bench of the National Company Law Tribunal (“NCLT”), on September 19, 2024, dismissed an application filed under Section 66 of the Companies Act, 2013 (“Companies Act”), in Philips India Limited[1] (the “Order”), on the grounds that Section 66 of the Companies Act cannot be invoked for capital reduction when the circumstances mentioned in Section 66(a) or 66(b) of the Companies Act are not met. The NCLT held that Section 66, which provides for reduction of share capital, cannot be used merely to provide liquidity or exit to minority shareholders, or to save on administrative costs. The Order attempts to justify the same on the grounds that the proposed share capital reduction was only incidental to the main objective of buy-back of shares.[2] However, this observation is in stark contrast to a catena of NCLT and National Company Law Appellate Tribunal (“NCLAT”) orders, as well as decisions of various High Courts that have time and again noted that a company may reduce its share capital in any manner as it deems fit, and courts have limited role in such schemes of capital reduction.Continue Reading Is the NCLT’s approach in the Philips India case too literal?

Virtual General Meetings – Should it be legislated?

Context

Shareholder meetings form the bedrock of shareholder democracy in a corporate institution. It provides shareholders with the opportunity to participate in the affairs of a company, allowing them to vote in favour or against resolutions, and empowers them to question the policies and working of the management of a company. Majority and minority shareholders have the right to attend meetings, and in case of any difficulty, even designate a proxy to attend meetings on their behalf. Primarily, there are two types of shareholder meetings in India:Continue Reading Virtual General Meetings – Should it be legislated?

Share transfer restrictions under SHA: The need to revisit Section 58(2) of CA 2013

Context

A fundamental trait that distinguishes a private company from a public company is the concept of ‘transferability of shares,’ such that while the former may restrict transferability of shares, the shares of the latter, are generally considered to be ‘freely transferable’.Continue Reading Share transfer restrictions under SHA: The need to revisit Section 58(2) of CA 2013

Reimagining Workforce Retention Strategies through Employee Co-Ownership

Companies in the twenty-first century use unique workforce retention strategies, especially long-term incentives that involve direct/indirect co-employee ownership. This post aims to discuss the regulatory framework governing share-linked and share-based employee benefits that companies offer.[1]Continue Reading Reimagining Workforce Retention Strategies through Employee Co-Ownership

Vote-Pooling Arrangements between Shareholders – Deeper Reflections

Cardinal Principle:

The cardinal principle of Company law, as enshrined under Section 47 of the Companies Act, 2013 ( “the Act”)provides that every equity shareholder shall have the right to vote on every resolution placed before the company and his voting right on a poll shall be in proportion to his shares in the paid-up equity share capital of the company.Continue Reading Vote-Pooling Arrangements between Shareholders – Deeper Reflections

Proposal to make Companies with Outstanding Stock Appreciation Rights (SARs) eligible to undertake an IPO

Background

Historically, companies have provided employees with share-based incentives by way of employee stock options (“ESOPs”). However, with evolving corporate incentive structures, various new models have emerged, especially driven by start-ups. These incentives models include Stock Appreciation Rights (“SARs”), Restricted Stock Units (RSUs), Performance Stock Units (PSUs), Employee Share Purchase Schemes (“ESPS”), Phantom Stock Units (PSU), Save As You Earn Share Schemes (ShareSave), Non-qualified stock options (NSOs), Management Stock Options (MSOP), etc. Generally, employees look forward to an “exit event” to realise gains from these incentive structures, with an Initial Public Offering (“IPO”) being one of the most common “exit events”. Continue Reading Proposal to make Companies with Outstanding Stock Appreciation Rights (SARs) eligible to undertake an IPO