CGVE/U1 Topic 6 Corporate Disclosure and Investor Protection in India
The Securities Exchange Board of India (SEBI), on September 2, 2015, issued SEBI (Listing and Disclosure) Regulations, 2015 (hereinafter referred to as ‘Regulations’) on listing of different segments of the capital market and disclosure norms in relation thereto. These regulations have been structured into one single document consolidating various types of securities listed on the stock exchanges.
The latest set of norms provides broad principles for periodic disclosures by listed entities, apart from incorporating corporate governance principles.
These regulations shall apply to the listed entity who has listed any of the following designated securities on recognized stock exchange(s):
- Specified securities listed on main board or SME Exchange or Institutional trading platform;
- Non-convertible debt securities, non-convertible redeemable preference Shares, perpetual debt instrument, perpetual non-cumulative preference Shares;
- Indian depository receipts;
- Securitized debt instruments;
- Units issued by mutual funds;
- Any other securities as may be specified by the Board.
The Disclosure aspect as in the framework of these Regulations has been discussed below in brief:
PRINCIPALS GOVERNING DISCLOSURES
The listed entities which have listed securities shall make disclosures and abide by certain obligations under these regulations, in accordance with the following principles:
- Information shall be prepared and disclosed in accordance with applicable standards of accounting and financial disclosure.
- The listed entity shall implement the prescribed accounting standards in letter and spirit in the preparation of financial statements taking into consideration the interest of all stakeholders and shall also ensure that the annual audit is conducted by an independent, competent and qualified auditor.
- The listed entity shall refrain from misrepresentation and ensure that the information provided to recognised stock exchange(s) and investors is not misleading.
- The listed entity shall provide adequate and timely information to recognised stock exchange(s) and investors.
- The listed entity shall ensure that disseminations made under provisions of these regulations and circulars made there under, are adequate, accurate, explicit, timely and presented in a simple language.
- Channels for disseminating information shall provide for equal, timely and cost efficient access to relevant information by investors.
- The listed entity shall 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 the Board and the recognized stock exchange(s) in this regard and as may be applicable.
- The listed entity shall make the specified disclosures and follow its obligations in letter and spirit taking into consideration the interest of all stakeholders.
- Filings, reports, statements, documents and information which are event based or are filed periodically shall contain relevant information.
- Periodic filings, reports, statements, documents and information reports shall contain information that shall enable investors to track the performance of a listed entity over regular intervals of time and shall provide sufficient information to enable investors to assess the current status of a listed entity.
DISCLOSURE IN CORPORATE GOVERNANCE REPORT:
The following disclosures shall be made in the section on the corporate governance of the annual report of the listed entities:
- A brief statement on listed entity’s philosophy on code of governance.
- Information, as prescribed in the Regulations, about the following:
- Board of directors,
- Audit committee,
- Nomination and Remuneration Committee,
- Remuneration of Directors,
- Stakeholders’ grievance committee,
- General body meetings,
- Means of communication,
- General shareholder information,
- Other Disclosures:
- Disclosures on materially significant related party transactions that may have potential conflict with the interests of listed entity at large;
- Details of non-compliance by the listed entity, penalties imposed on the listed entity by stock exchange(s) or the board or any statutory authority, on any matter related to capital markets, during the last three years;
- Details of establishment of vigil mechanism, whistle blower policy, and affirmation that no personnel has been denied access to the audit committee;
- Details of compliance with mandatory requirements and adoption of the nonmandatory requirements;
- Web link where policy for determining ‘material’ subsidiaries is disclosed;
- Web link where policy on dealing with related party transactions;
- Disclosure of commodity price risks and commodity hedging activities.
Where there is any non-compliance of any requirement of corporate governance report, reasons thereof also needs to be disclosed.
DISCLOSURE OF EVENTS OR INFORMATION
- Every listed entity shall make disclosures of any events or information which, in the opinion of the board of directors of the listed company, is material. Events specified in Para (A) of Part (A) of Schedule III of the Regulations are deemed to be material events and listed entity shall make disclosure of such events. The listed entity shall make disclosure of events specified in Para (B) of Part (A) of Schedule III, based on application of the guidelines for materiality, as specified.
- The listed entity shall consider the following criteria for determination of materiality of events/ information:
- the omission of an event or information, which is likely to result in discontinuity or alteration of event or information already available publicly; or
- the omission of an event or information is likely to result in significant market reaction if the said omission came to light at a later date;
- In case where the criteria specified in sub-clauses a) and b) are not applicable, an event/information may be treated as being material if in the opinion of the Board of Directors of listed entity, the event / information is considered material.
The listed entity shall frame a policy for determination of materiality, based on criteria specified above, duly approved by its board of directors, which shall be disclosed on its website.
- The board of directors of the listed entity shall authorize one or more Key Managerial Personnel for the purpose of determining materiality of an event or information and for the purpose of making disclosures to stock exchange(s) under this regulation and the contact details of such personnel shall be also disclosed to the stock exchange(s) and as well as on the listed entity’s website.
- The listed entity shall first disclose to stock exchange(s) of all events, as specified in Part A of Schedule III, or information as soon as reasonably possible and not later than 24 hours from the occurrence of event or information.
In case the disclosure is made after 24 hours of occurrence of the event or information, the listed entity shall, along with such disclosures provide explanation for delay. Disclosure with respect to the outcome of board meeting shall be made within 30 minutes of the conclusion of such board meeting.
- The listed entity shall, with respect to disclosures referred to in these regulations, make disclosures updating material developments on a regular basis, till such time the event is resolved/closed, with relevant explanations.
- The listed entity shall disclose on its website all such events or information which has been disclosed to stock exchange(s) under this regulation, and such disclosures shall be hosted on the website of the listed entity for a minimum period of 5 years and thereafter as per the archival policy of the listed entity, as disclosed on its website.
LISTING AGREEMENT UNDER THE REGULATIONS
“Listing agreement” shall mean an agreement that is entered into between a recognised stock exchange and an entity, on the application of that entity to the recognised stock exchange, undertaking to comply with conditions for listing of designated securities;
On and from the commencement of these Regulations, all previous circulars stipulating or modifying the provisions of the listing agreements including those specified in theses Regulations, shall stand rescinded.
Accordingly, as per these Regulations, every issuer or the issuing company desirous of listing its securities on a recognised stock exchange shall execute a listing agreement with such stock exchange.
Where issuer or the issuing company has previously entered into agreement(s) with a recognised stock exchange to list its securities shall execute a fresh listing agreement with such stock exchange within 6 months of the date of notification of Securities and Exchange Board of India (Listing Obligations and Disclosure Requirements) Regulations, 2015.
Investor Protection in India
The Companies Act, 2013 is enacted with the main aim to assure maximum protection to every section of investors irrespective of their classes. The Companies Act, 2013 has been embedded with several new provisions in regards to the protection of investor’s interest. Some of the provisions to protect investor’s interest under the Companies Act, 2013 are discussed hereunder.
- Acceptance of Deposits: The acceptance of deposit from the general public is not permitted under the Act, and violation of any of the provision is a punishable offense. Section 73 of the Act provides that no company shall accept or review deposit under this Act from the public except in a manner recognized under Chapter V of the Act and Companies (Acceptance of Deposit) Rule 2014.
- Misstatement in Prospectus: The prospectus is a written statement issued by the company to the general public containing brief information regarding companies profile and their investment proposals. Section 34 of the Act deals with the criminal liability for miss statement in the prospectus issued by a company. The prospectus issued, circulated or distributed, include any statement, which is untrue or misleading in form or context to induce people to make an investment, shall be liable for action u/S 447.
- Fraudulently Inducing Person to Invest Money: Section 36 of the Act deals with the punishment of the person who intentionally or recklessly induces the investor to make the investment through any agreement for the purpose or the pretended purpose of which to secure a profit. This kind of deliberate concealment of fact shall be liable for punishment u/s 447.
- Non-Payment Of Dividend: Declaration of the dividend is usually one of the items of agenda of every AGM. The dividend is nothing but profits earned by the company and divided among shareholders in proportion to the amount paid-up shares held by them, i.e., return on the investment made by shareholders. The Section 125 of the Act provides for the establishment of investors education and protection fund by the central government. This fund is credited with the unpaid/unclaimed amount of application money/matured money or mature deposits. Such accumulations of the fund are to be utilized for promotion of investor’s awareness and protection of investor interest. Section 123 of the Act state that the dividend should be credited in investors account within in five days after the declaration.
- Right to Demand Financial Statements: Section 136 of the Act provides for the right of a member to obtain copies of Balance-Sheet and Auditors Reports. In the case of default complying with this requirement, the company shall be liable for a penalty of twenty-five rupees and the authorized officer who is in default shall be liable for a penalty of five thousand rupees. Besides, this investor has the option to proceed against the company or its authorities in a court of law under the guidelines determined under Section 436 of the Act.