Share Capital & Borrowings

Transcription

1 Work Shop on Companies Act,2013 Share Capital & Borrowings

2 Authorized / Subscribed / Called up / Issued Share Capital Employees Stock Option Registrar Officer in Default / Registrar Shares / Sweat Equity Shares

3 Kinds of Share Capital Sec-43 Equity Share Capital defined first time With reference to any company limited by shares, means all share capital which is not preference share capital

4 Continues to be same.. Nature of Share & Debenture [S44] Distinctive no. Numbering of Shares [S45] Calls on shares made on Uniformbasis [S49] Company to accept unpaid share capital although not called up [S50] Payment of dividend in proportion to amount paid up on each shares [S51]

5 Certificate of Shares [Sec-46] Certificate issued under Common Seal Prima Facie Evidence [S46(1)] Records of Depository prima facie evidence of the interest of Beneficial Owner [S46(4)] When shares transferred by depository with the intention of fraud punishable under Sec-447 [S46(5)]

6 Certificate of Shares [Sec-46]

7 Voting Rights Sec-47 Equity Shareholder --- Vote on every Resolution [S47(1)] Preference Shareholder--- Vote on Resolutions directly affect their rights [S47(2)] Default in payment of dividend for 2 years or more on preference shares----vote on every Resolution(whether cumulative or non- cumulative ) [Sec-47(2)]

8 Variation of Shareholders Rights [Sec-48] Consent >= 3/4th of issued shares of that class or by Special Resolution at a separate meeting [S48(1)] If provision in MOA or AOA or, If no provision in MOA or AOA - -- then variation not prohibited by terms of issue of shares

9 Application of Premiums received on issue of shares [Sec-52] Issue of Bonus Share Writing off Preliminary Expenses Writing off expenses of, commission paid or discount allowed on issue of shares & debentures Premium on Redemption on any Redeemable Preference Share or any Debenture Purchase of its own shares or other securities [Sec-52(2)]

10 FLOW CHART Provisions in Articles Check Eligibility Criteria Board Meeting Approval Exhaustive Explanatory Statement Special Resolution in General Meeting Maintenance of Register %age Restriction Exhaustive Reporting in Board s Report Registered Valuer Return with Registrar

11 Issue of Sweat Equity Shares [Section-54] Share Capital & Borrowings Equity Shares with Differential Rights [S43(a)(ii) & R4.2(1)] <25%

12 Issue of Sweat Equity Shares [Section-54] Share Capital & Borrowings Issue of Sweat Equity Shares [S54 & R4.6] <15% or RS. 5cr, whichever is higher

13 Issue & Redemption of Preference Share Sec-55 Share Capital & Borrowings Issue & Redemption of Preference Share [S55(2) & R4.7]

14 ISSUES OF EMPLOYEE STOCK OPTIONS S62(1)(b) R4.10 Upto 1% Board; Beyond that SR in GM

15 ISSUES OF SHARES ON PREFERENTIAL BASIS S62(1)(c) R4.11 PROVISION OF MONEY BY COMPANY FOR PURCHASE OF ITS OWN SHARES BY EMPLOYEES OR BY TRUST FOR THE BENEFIT OF EMPLOYEES S67(3)(b) R4.14 BUY BACK OF SHARES OR OTHER SECURITIES S68(2)(g) R4.15

16 Not in position to redeem Preference Share Sec-55(3) Company may with the consent of holders of 3/4th in value of such Preference Share and With the approval of the Tribunal Issue further Redeemable Preference Shares equal to the amount due including dividend Unredeemed then would Redeemed

17 Transfer & Transmission of Securities S56(4) R4.9 Deliver Certificate Within 2 months from the date of incorporation- Subscriber to the Memorandum Within 2 months from the date of allotment Any other allotment In case of transfer & transmission Within 1 month form the date of receipt Within 6 months from the date of allotment Debentures

18 Transfer & Transmission of Securities S56(7) Fraud by Depository or Depository Participants Liable under Sec-447 [Sec- 56(7) Company Fine >=5000 extend to 25 lacs Penal Provisions Section-56(6) OID Fine >= extend upto 1 Lacs

19 Punishment for Personation of Shareholder Sect-57 Share Capital & Borrowings Punishment for Personation of Shareholder [S57] Imprisonment >= 1year extend upto 3 year And Fine >= 1 lac extend to 5 lacs

20 Sect-58 Share Capital & Borrowings Refusal of Registration & Appeal against such refusal [S58] The security & other interest in a public company - freely transferable Any refusal to transfer Appeal to Tribunal Any contract or arrangement between two or more persons in respect of transfer of securities - enforceable as a contract.

21 Rectification of register of members [S59(1)]

22 Publication of Authorized, Subscribed & Paid-up Capital Section-60 Penalty

23 Power of Limited Company to alter its Share Capital [S61] New Provision Prior permission of Tribunal is required In Consolidation or Division of share capital results in change in voting percentage of shareholders

24 Issue of Bonus Shares Section-63 Share Capital & Borrowings Issue of Bonus Shares [S63]

25 Notice given to Registrar for Alteration of Share Capital [S64] On Company & OID

26 Unlimited company to provide for reserve share capital on conversion into limited company S(65)

27 Reduction of Share Capital Section-66 Share Capital & Borrowings Reduction of Share Capital [S66] Reduction of Share Capital Powers of Tribunal

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29 Power of Company to purchase its own securities [S68]

30 Debentures Section-71 Share Capital & Borrowings Debentures [S71] Corporate Counsel &

31 Debentures Section-71 Share Capital & Borrowings Debentures Section-71 Rule 4.16 Offer made to public or its members exceeding 500

32 Restrictions on Powers of Board Section-180 Continues to be same Temporary Loans Defined

33 Restrictions on Powers of Board Section-180

34 FORMS, FROMATS AND REGISTERS AT GLANCE

35 FORMS, FROMATS AND REGISTERS AT GLANCE

36 OPPORTUNITIES FOR COMPANY SECRETARIES 1. Debenture Trustee [S71(5)R4.16(2)]; 2. Drafting of Debenture Trust Deed [S71(13)R4.16(5) F4.12] 3. Subsequent Nomination by Security holders [S72(1&2)R4.17(1) F 4.13] 4. Supersession of Nominee [S72(3)R4.17(9)F 4.14]

37 OPPORTUNITIES FOR COMPANY SECRETARIES 5. Registered Valuer (services will be required at the time of SES, ESOS, Pref. Shares, SwDR, Conversion, Buy Back, etc. 6. Custodian Services in Future 7. Employee Trustee S67(3)(b)

38 CHALLENGES AHEAD 1.Issue of Shares At Discount 2.Issue of Sweat Equity Shares 3.Board Report becoming voluminous document 4.% ages under various categories 5.Cumbersome Certifications 6.Severe Penalties

39 The Way Out: 1.Individual Level - Professional Liability Insurance 2. Corporate Level - Professional Liability Insurance for KMPs 3. ICSI Level - Company Secretaries Professional Liability Fund (CSPLF) on the pattern of CSBF

40 Comments for MCA 1.Rule 4.1, Second Line Add of India at the end. 2.Explanation to Rule 4.1, need more elaboration 3. Rule 4.2(1)(g) first line the word convicted to be replaced with peanlised 4.Rule 4.2(2)(g), numbering (1) (a) and (b) need to be differently numbered.

41 Comments for MCA 5.The word Private Corporate Bodies need to be replaced with Private Bodies Corporate in tables given at 4.2(2)(l), 4.11(2)(d)(xiv) 6.The word Public Bodies Corporate need to be inserted in tables given at 4.2(2)(l), 4.11(2)(d)(xiv) 7.The word Company need to be prefixed with the word secretary in second line of 4.4(3)(c), fourth line of 4.5(1)(c) 8.Form No need to be renumbered as 4.15 in 4.17(10)

42 Comments for MCA 9The phrase wherein Company Secretary is appointed under the provisions of the law otherwise with need to be inserted in place of the word or at 4.4(3)(b), 4.6(13)(c), 4.10(10)(c), 4.15(12)(b) & (c), The word Public Bodies Corporate need to be inserted in tables given at 4.2(2)(l), 4.11(2)(d)(xiv) 10The word preference shares need to be inserted in 4.11(1)(b) Exp.(ii) 11 a debenture trustee need to be replaced with debenture trustee(s) in 4.16(1)(c) first line

43 Ajay Garg