SEBI’s Consultation Paper: Streamlining ‘Promoters’ and ‘Promoter Group’ Definition

By Sinhani Prem, Student at Jindal Global Law School, and Sukriti Bhagat, Associate at IndusLaw

Introduction

With an objective of aligning and addressing the on-going issue of promoter/promoter group and requirements in an IPO, Securities and Exchange Board of India’s (SEBI) floated a new consultation paper dated 11 May 2021 and proposed four main changes— (1) Reduction in IPO lock-in periods, (2) Definition of the term ‘promoter group’, (3) Streamlining disclosure requirements of ‘group companies’ under the SEBI Issue of Capital and Disclosure Requirements (ICDR) Regulations, 2018, (4) replacing the term ‘promoter’ with ‘person in control’. While the replacement of the term ‘promoter’ with ‘persons in control’ seems to receive extensive scrutiny on account of the fundamental implications it may have on boilerplate corporate law principles in the one-tier structure of corporate governance in India, we believe it is also important to delve into the three other proposals within this consultation paper.

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BRSR- Promoting Sustainability and Transparency in the Indian Corporate Reporting Framework

By Tanya Ganguli (Advocate, currently pursuing LLM from Jindal Global Law School) and Shubham Agrawal (Advocate)

Background

Owing to rapid globalisation and emerging social and environmental concerns, the focus of business reporting procedures have become more people-centric. That is, the public has become aware and vigilant, the responsibility towards social and environmental objectives, need for sustainability and accountability to the people has increased manifold. In 2019, the Securities and Exchange Commission (SEC) issued the “Sustainability Reporting Guidelines for Publicly Listed Companies” highlighting the information that the eligible companies will have to disclose in relation to their non-financial performance across the economic, environmental and social aspects of their organisations on a “comply or explain” basis, starting 2020. Securities and Exchange Board of India (SEBI) on 10th May 2021 vide circular no. SEBI/HO/CFD/CMD-2/P/CIR/2021/562 has introduced new reporting requirements on Environmental, Social and Governance (ESG) parameters called the Business Responsibility and Sustainability Report (BRSR). With effect from the financial year 2022-2023, filing of BRSR shall be mandatory for the top 1000 listed companies (by market capitalization) and shall replace the existing Business Responsibility Report (BRR). The current disclosure ecosystem offers limited opportunities to review a company’s historical performance and draw a comparison amongst companies for specific disclosures or ESG performance indicators. To standardise and organise information availability, BRSR has introduced uploading of the BRSR disclosure on the Ministry of Corporate Affairs portal. This will enable the ESG rating agencies to take note of the companies which were not making structured ESG disclosures previously. From the company’s point of view, higher ESG ratings facilitate companies to get better access to capital, which is vital for corporate growth and expansion.

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Never-ending Controversy of Investor Advisers’ Implementation Services & Fees

By Gaurav Pingle, Practising Company Secretary ( gp@csgauravpingle.com )

Introduction

Regulation 22A was introduced to the SEBI (Investment Advisers) Regulations, 2013 (‘SEBI (IA) Regulations’) by an amendment introduced in 2020. The said regulation relates to ‘Implementation of advice or execution’. This article is an analysis of the provisions relating to the newly introduced Regulation – Implementation of advice or execution by Investment Advisers (IAs) along with an analysis of several interpretative letters under SEBI (Informal Guidance) Scheme, 2003.

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SEBI Clears Air Over Remuneration to Promoter-Executive Director

Gaurav Pingle, Practising Company Secretary

Remuneration or compensation to the directors of the company is one of the crucial aspects of corporate governance. The amount of remuneration or increase in the remuneration to directors is usually based on the profitability of the company and its performance for the corresponding financial year. By the amendments introduced by the Companies (Amendment) Act, 2019 and the Companies (Amendment) Act, 2020, the provisions relating to remuneration to non-executive directors / independent directors have been amended. Remuneration to promoter directors (executive directors or managing directors) has always been a matter of discussion.

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Poison Pill: A Vaccine for Hostile Takeovers in India?

Aastha Agarwalla and Lavanya Gupta

Prefatory

The coronavirus outbreak has undisputedly pushed corporate entities to vulnerable positions wherein entities have become attractive targets for hostile acquisitions because of the plummeted stock prices. This tension has spurred debates across the globe, including India, on tactical strategies that should be adopted by potential target-entities to thwart such hostile takeovers. There are several anti-takeover strategies, inter-alia, shark-repellant, golden-parachute, staggered-board; however, amongst others, the ‘poison pill strategy’ is being advocated as a successful mechanism to combat hostile takeovers. Many US companies have recently resorted to poison pills, including Hexcel Corp, Woodward Inc., etc. 

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Structuring Distressed M&A Deals: Regulating the Unregulated Opportunistic Behaviour

Tanuj Agarwal, Institute of Law, Nirma University, Ahmedabad

All intelligent investing is value investing, acquiring more that you are paying for.

-Charlie Munger

(Vice-Chairman, Berkshire Hathaway)

Merger & Acquisition (M&A) deals have witnessed robust challenges, firmly because of financial distress posed due to the Covid-19 outbreak. Where the companies have observed their all-time high valuations and market capitalisation in a momentous bull market, the Covid-19 pandemic has led to the deterioration of the commercial activities and financial market to a great extent. Many desirable and credit-worthy companies are unable to discharge their financial obligation owing to the economic fallout. This will surge the M&A activity in these financially distressed companies.

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Disclosure Regime: SAT lays down parameters for timely disclosures

Gaurav Pingle, Practising Company Secretary and Renucka Vaiddya, Research Associate, Gaurav Pingle & Associates

The ‘Principles Governing Disclosures and Obligations of Listed Entity’ have been prescribed in Chapter II, Regulation 4 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015. According to the provisions, a listed entity shall provide adequate and timely information to recognized stock exchange(s) and investors. However, what is adequate information is not very easy to determine and prescribe. It is very subjective – depending upon the nature of the transaction, the volume of transaction, and the company. Further, the Regulations provide that a listed entity shall refrain from misrepresentation and ensure that the information provided to recognized stock exchange(s) and investors is not misleading. A listed entity shall make the specified disclosures and follow its obligations in letter and spirit taking into consideration the interest of all stakeholders. The listed entity is also under an obligation to abide by all the provisions of the applicable laws including the securities laws and also such other guidelines as may be issued from time to time by SEBI and the recognised stock exchange(s) in this regard and as may be applicable.

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