Provisions relating to type of shares, voting rights, issue of securities and further issue shares of made applicable to private limited companies.

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1 KPMG FLASH NEWS KPMG IN INDIA New Companies Act, Insight Series Vol III 6 September 2013 Vol-III: Securities, issue/transfer thereof and Deposits Executive Summary Securities, issues and transfer thereof Provisions relating to type of shares, voting rights, issue of securities and further issue shares of made applicable to private limited companies. Passive variation of rights of shareholders specifically covered as variation of rights. Class Action Suits in case of misleading prospectus provided. Private placement to be at a price determined by a registered valuer. Issue of Bonus shares specifically introduced, it restricts the freedom to issue to some extent. Certain specified company is not allowed to use security premium for providing redemption premium payable on redemption of preference shares. Any contract or arrangement in respect of transfer of securities accepted as enforceable contract. This settles a controversy created by a recent judgement.

2 Consolidation of shares requires approval of National Company Law Tribunal (NCLT). Issue of convertible debentures requires approval of general meeting through special resolution. Acceptance of Deposit Only companies meeting turnover / net worth criteria can accept deposits from public. Non-qualifying companies can accept deposits only from its members. All deposits accepted before the New Act becoming operational and interest thereon to be repaid within a period one year from that date, whether it is due or not. This space is intentionally left blank

3 Background In this bulletin, we have dealt with the new concepts introduced and the changes made to existing provisions relating to Securities, issue/transfer thereof and Deposits. We have also discussed certain other provisions included in the Companies Act, 2013 (New Act and provisions are referred to as new provisions ), but only to the extent that they impact the Securities, issue/transfer thereof and Deposits. Overview We have dealt with certain general issues in detail in Volume-I which may also impact the discussion under this Bulletin, therefore, the issues and impacts thereof (No.1 and 2) are listed below for ready reference (For details pl. refer to Volume I): The discussion in this Bulletin is subject to the Rules to be issued by the Ministry of Corporate Affairs (MCA). In absence of transitional provisions and in view of Repeal and Savings provisions not providing sufficient clarity, there is uncertainty about the applicable provisions and mechanism to deal with non-conformity arising from application of old provisions as compared with the new provisions. This may be relevant for issues of securities in progress at the time of the New Act becoming operational. The New Act creates certain new procedures to be carried out through / approvals to be taken from the NCLT. As discussed in Volume-I there is no certainty about when NCLT will becomes operational. Therefore, the issue is how those procedures should be carried out / approvals obtained till the time NCLT becomes operational. Subject to the above, we have dealt with specific issues relating to provisions dealing with Securities, issue/transfer thereof and Deposits at relevant places. Types of Shares Following are the key changes in the provisions: The Companies Act, 1956 (existing Act) and provisions are referred to as existing provisions exempted private limited companies from applicability of provisions relating to types of shares, however, in the New Act there is no such exemption. Therefore, under the New Act private limited company can issue only equity or preference shares, but not any other kind of share. The New Act has not provided for transitional provision dealing with other types of shares already issued by such companies. Depository records are specifically defined to be prima facie evidence of interest of the beneficial ownership of a member. Voting Rights Following are the key changes in the provisions: Voting Rights are defined to mean the right of a member to vote in any meeting of the company or by means of postal ballot. (new) The existing provisions relating to voting rights were not applicable to private limited companies. However, new provisions will be applicable to private limited companies also. This change along with applicability of type of shares provision discussed above may impact or almost removes the structuring freedom available to a private limited company. Also with application of various other provisions, distinction, except for restriction on transferability of shares, between a private and a public company is significantly reduced. According to the existing provisions each equity share carried a voting right. Therefore, in relation to differential voting rights, there was an issue whether an equity share can carry less than one voting right. According to the new provisions requirement, one voting right per share is subject to the provisions of differential voting rights. Therefore, in case of shares with differential voting rights, one share may carry less than one voting right. Similarly, under the new provisions the requirement that voting right on poll need to be proportionate to share in paid-up equity capital also is subject to the provisions of differential voting rights. There is no change in relation to right of preference shareholders to vote on resolutions affecting their rights. However, the New Act provides that if dividend is not paid on a class of preference shares for a period of 2 years or more, such class of preference shareholders shall have a right to vote on all resolutions placed before a meeting of the company. The existing Act provided such right if dividend due has remained unpaid. The concept of due but not paid is removed in the New Act. Also, the separate time limit for cumulative preference shares and non-cumulative preference share under the existing Act for becoming eligible to vote along with equity shareholders is removed under the New Act.

4 There is no provision relating to dividend remaining unpaid partially. The New Act provides that on poll, voting right of a preference shareholder should be proportionate to his share in the paid-up preference capital and the voting rights between equity shareholders and preference shareholders should be in same proportion as paidup equity capital bears to paid-up preference capital. Under the existing Act, there was no clarity or there was confusion about computation of proportion. Private placement, or Rights or Bonus In case of listed company / intended to be listed company SEBI Regulations to be complied with. Private company can issue securities through following modes: Rights or Bonus or The New Act has not clarified about transitional / grandfathering issues. Therefore, prima facie the new provisions should be applicable even to existing shares and existing private limited companies. Thus, various structuring, especially joint venture structures may require revisiting. Through private placement. The new provisions are applicable to Issue of all types of securities whereas existing provisions were only dealing with issue of shares and debentures to some extent. Variation of Shareholders Right According to the new provisions, if the variation of rights of one class of shareholders affects the rights of any other class of shareholders, the consent of such other class of shareholders shall also be obtained and provisions relating to variation of rights shall apply to such consent. (new) Modes of Issue of Securities The new provisions have meaningfully arranged the provisions relating to issue of securities which were scattered under different provisions under the existing Act. According to the new provisions public limited company can issue securities through following modes: Through Prospectus (Public Offer) It includes, Initial public offer, further public offer or offer for sale by an existing shareholder, through issue of a prospectus. Companies making Public Offer are required to obtain permission from stock exchange to permit listing of shares. Therefore, Public Offer can be made only by listed companies or companies intending to get its securities listed, or Securities definition continues to be same as definition in the Securities Contracts (Regulation) Act, 1956 (SCRA). Unlisted companies are specifically allowed to issue new / convert existing securities in dematerialised form. Issue of Global Depository Receipt (GDR) in foreign country specifically provided subject to conditions and special resolution in general meeting. GDR is defined to means any instrument in the form of a depository receipt created by a foreign depository outside India and authorised by the issuing company. Above list of modes of issue seem to be exhaustive; however, this list does not cover direct allotments permitted under other provisions like allotment of shares on amalgamation. Public Offer Receipt of subscription money should be kept in separate bank account to be used either as adjustment against allotment amount or towards refund if securities are not allotted. In case of a person convicted of acquiring securities through multiple applications etc., Court may order seizure and disposal of such securities and deposit of disposal amount and or gains made by such person to the Investor Education and Protection Fund.

5 The New Act provides that the date indicated in the prospectus should be deemed to be the date of its publication. The existing Act provided that the date of publication should be deemed to be date of prospectus. Requirement relating to disclosures in prospectus is increased and includes disclosure of : Details of utilised and unutilised money out of earlier issue. Details about source of promoter s contribution as prescribed. Declaration about compliance with the New Act, SCRA, SEBI Act and regulations there under. In relation to the civil liability of a person to compensate subscribers as a result of misstatement in the prospectus, the existing Act provided mechanism for such person to recover it from other persons similarly liable but not sued by the subscribers. No such provision under the new Act. The existing Act provided that if omission of a matter in prospectus is expected to mislead, prospectus should be deemed to be misleading. There is no such provision in the New Act. A suit can be filed or any action can be taken by any person, group of persons or association of persons who have been affected by misleading statement or inclusion or omission of any matter in the prospectus. Class Action Suits in case of misleading prospectus introduced as a new concept. There seem to be no requirement for filling of prospectus by company not making public offer. Provisions relating to statement in lieu of prospectus under the existing Act are removed. The existing Act provided restriction that a company shall not, at any time, vary the terms of a contract referred to in the prospectus without approval of General body meeting. The New Act extends the restrictions even to objects for which the prospectus was issued and provides that: Notice of such meeting be advertised in newspapers. Such company shall not use any amount raised by it through prospectus for buying, trading or otherwise dealing in equity shares of any other listed company. The promoters should provide exit opportunity to those shareholders who have not agreed to vary the terms of contracts or objects in such manner and conditions as may be specified under the Securities and Exchange Board of India (SEBI) by making regulations in this behalf. The existing Act provided that in case company issues shares or debentures with the knowledge that the same may be offered for sale to public, the document of offer for sale should be deemed to be prospectus and all provisions applicable to prospectus should be applicable. The New Act extends it to all securities, and Also to offer made by the existing shareholders out of their existing holding. Such offer needs to be in prescribed manner. Such shareholders need to authorise the company to take all actions on their behalf and at their cost. Private Placement (new) The New Act has formally introduced the concept of Private Placement, which earlier was operating through practice and experience with support of certain provisions scattered over various sections. Private Placement is defined to mean offer of securities or invitation to subscribe to securities, to a select group of persons through private placement offer letter. (new) Private placement by private limited companies also requires issue of offer letter. Preferential allotment by listed company should be covered under private placement. There may be conflict between this provision and SEBI preferential issue guideline. Private placement in a financial year is allowed to be made to a maximum of 50 pesons or such number as may be prescribed and on such conditions (including the maximum amount to be raised) as may be prescribed.

6 Computation of number of persons should not include qualified institutional buyers as defined under SEBI (Issue of Capital and Disclosure Requirement) Regulation and employees to whom stock options are issued. No provision prescribes any limit on number of private placement in a financial year. In case offer is made to persons exceeding the limits or not in compliance with provisions applicable to Private placement, the offer shall be deemed to be Public offer and provisions relating to Public offer should apply. In case of private company, its status as private limited may be lost. Subsequent Private placement is not allowed unless earlier one is either completed or withdrawn or abandoned. Receipt of subscription money (new) Not allowed in cash. Should be kept in separate bank account to be used either as adjustment against allotment amount or towards refund if securities are not allotted. The private placement should be offered to such persons as recorded prior to invitation and details of private placement needs to be filed with Registrar within 30 days of circulation of offer letter. Further issue of Share Capital The provisions are applicable to private limited companies also. (New) Provisions are applicable to all issues. The existing Act provided some time-line in relation to incorporation providing that the provisions should be applicable to issue after such timelines. The existing Act permitted further issue of shares: To existing shareholders: The New Act provides that the notice of issue should be dispatched at least 3 days before opening of the offer. No such timeline under the existing provisions. In case the existing shareholder do not accept the offer, under the new provisions the directors should dispose of such shares in a manner non dis-advantageous to the shareholder and company. The existing provisions required disposal in a manner beneficial to company or to any persons auothorised through special resolution by general body meeting. Under the existing provisions, if the approval was given by simple majority, Central Government could have allowed the issue if it was shown to be most beneficial to the company. However, such option is removed in the New Act. The Company shall file with the Registrar a return of allotment. Under the existing Act there was a separate section dealing with filing of return of allotment. Under the new Act there is no separate provision, but it is provided in certain section dealing to allotment of shares. Therefore, there is no clarity about filing of return of allotment in relation to allotment securities under sections not having specific requirement of filing return of allotment. In case money is accepted in contravention of the above provisions, Promoter/ Directors will be liable to penalty and company will be required to refund the money. The New Act provides that the pricing should be determined by a registered valuer subject to the prescribed conditions. (new) In relation to preferential issue by a listed company, there may be conflict between the two valuations. The New Act also allows such issue to employees, subject to prescribed conditions, under a Scheme of Employee Stock Option approved by general body meeting. Under the New Act, above provisions are not applicable to increase in capital due to conversion of debenture or loan. Provided the terms of debenture / loan were approved through a special resolution in general meeting. The existing Act required approval of Central Government also.

7 The New Act provides that authorised capital of the company should stand increased to the extent of issue of shares on conversion and memorandum should stand amended to that extent. Under the existing Act such provision was applicable only to certain specific type of conversions. Issue of Bonus Shares (new) The New Act introduced provisions enabling issue of Bonus Shares to the members, in any manner out of its free reserves; According to the New Act the term free reserves should not include any change in carrying amount of an asset or of a liability recognised in equity, Therefore, it may not include the reserve arising on recording of assets and liabilities, pursuant to amalgamation, under purchase method of accounting. Consequently, such reserve may not be available for issue of Bonus shares. The Security premium account or The Capital Redemption Reserve Account. No issue of bonus shares shall be made by capitalising reserves created by the revaluation of assets. Issue of bonus shares not allowed: In lieu of dividend. The existing Act allowed issue of shares at a discount upto 10 percent, if approved by CG. Issue and redemption of Preference shares The New Act allows issue of preference shares redeemable after 20 years for infrastructure projects subject to prescribed conditions. (new) Where a company is not in a position to redeem any preference shares or to pay dividend, the New Act provides mechanism for issue of new preference share to the extent of such unredeemed preference shares and dividend thereon subject to approval of shareholders holding 3/4th majority in value of such preference shares, and on the issue of such new shares, the unredeemed preference shares shall be deemed to have been redeemed. (new) The New Act provide that prescribed type of companies having Accounting Standard compliant financial statements can provide for premium payable on redemption of preference shares only out of profit. (new) In case of other companies redemption premium can be provided out of profit or securities premium account. Under existing Act, there was no such distinction and redemption premium was allowed out of both, profit as well as securities premium account. Transfer of Securities / Interest Unless authorised by Articles of Association. Unless it is recommended by the Board of Directors and approved in general meeting. If there is default in payment of interest or principal in case of debt and in payment of statutory dues of employees. Issue of Shares at Discount Issue of shares at discount, except as Sweat equity, is prohibited. Document of transfer to be submitted within 60 days of execution. (new) Under the existing provisions the transfer form was required to be presented to prescribed authority for stamping before execution and time limit for use of form was prescribed with reference to the date of stamping. Such procedure is not provided in the New Act. Such procedure may not even be relevant in view of timeline specified for submission. The existing Act provided that securities or other interest of any member in a public company shall be freely transferable. Sweat equity means equity shares issued to directors or employees at a discount or for consideration, other than cash, for providing their know-how or making available rights in the nature of intellectual property rights or value additions. The New Act further provided that any contract or arrangement between two or more persons in respect of transfer of securities shall be enforceable as a contract. This settles a controversy created by a recent High Court decision.

8 Alteration of Capital The Existing Act permitted consolidation of shares in to larger amount through an ordinary resolution in general meeting. Creation of charge over properties of the company in relation to secured deposits as may be prescribed. The New Act further provides for approval of tribunal if such consolidation results into change in voting percentage of shareholders. Non-compliant companies are not allowed to invite, accept or renew deposits except from its members subject to prescribed rules and the following: (new) The New Act provides for notice to be given to Registrar in relation to increase in authorised capital and redemption of redeemable preference shares. Resolution in general meeting approving acceptance of deposit. Notice for consolidation, conversion into stock etc. as provided under the existing Act is not provided. Issue of Debentures Special resolution of members for the issue of debentures with the conversion option (wholly or partly) is required. Appointment of Debenture Trustee compulsory for public issue of debentures through prospectus or to more than 500 members. Deposits Deposit is defined to include any receipt of money by way of deposit or loan or in any other form, but does not include such amounts as may be prescribed. The definition is same as under the existing Act. Only public company meeting with prescribed turnover or net worth criteria can invite and accept deposits from public subject to prescribed rules and following: (new) Resolution in general meeting approving acceptance of deposit. Issue circular giving prescribed details after filing same with the Registrar. Deposit at least 15 percent of the amount of deposits maturing during current financial year and next financial year in a scheduled bank as deposit repayment reserve account to be used only for repayment of deposits. There was no default in repayment of deposits or interest payable thereon. Issue circular giving prescribed details after filing same with the Registrar. Deposit at least 15 percent of the amount of deposits maturing during current financial year and next financial year in a scheduled bank as deposit repayment reserve account to be used only for repayment of deposits. There was no default in repayment of deposits or interest payable thereon. Providing security, if any. In relation to deposits accepted prior to the commencement of the New Act and such deposits remains unpaid on that date or becomes due thereafter: The company shall: File a Statement of total deposits etc and arrangement for repayment with the Registrar within 3 months from commencement of the Act. Repay outstanding deposits, along with interest, whether it is due or not within one year from due date or from commencement of the Act whichever is earlier. Terms of acceptance of deposit are irrelevant. On an application by the company, the NCLT may allow further time for repayment. In case the company defaults in repayment and if fraud is proved, every officer of the company who is in default will be personally liable for any damage incurred by the depositor. Providing security, if any. Obtaining credit rating for informing to the public at the time of inviting the deposits and every year thereafter. Concept of small depositors and related provision under existing Act are removed.

9 Ahmedabad Safal Profitaire B4 3rd Floor, Corporate Road, Opp. Auda Garden, Prahlad Nagar Ahmedabad Tel: Fax: Bangalore Maruthi Info-Tech Centre 11-12/1, Inner Ring Road Koramangala, Bangalore Tel: Fax: Chandigarh SCO (Ist Floor) Sector 8C, Madhya Marg Chandigarh Tel: /781 Fax: Chennai No.10, Mahatma Gandhi Road Nungambakkam Chennai Tel: Fax: Delhi Building No.10, 8th Floor DLF Cyber City, Phase II Gurgaon, Haryana Tel: Fax: Hyderabad /2 Reliance Humsafar, 4th Floor Road No.11, Banjara Hills Hyderabad Tel: Fax: Kochi 4/F, Palal Towers M. G. Road, Ravipuram, Kochi Tel: Fax: Kolkata Infinity Benchmark, Plot No. G-1 10th Floor, Block EP & GP, Sector V Salt Lake City, Kolkata Tel: Fax: Mumbai Lodha Excelus, Apollo Mills N. M. Joshi Marg Mahalaxmi, Mumbai Tel: Fax: Pune 703, Godrej Castlemaine Bund Garden Pune Tel: Fax: The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. The KPMG name, logo and cutting through complexity are registered trademarks of KPMG International Cooperative ( KPMG International ), a Swiss entity.

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