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COMPANIES ACT, 2013

in light of the proposed amendments vide


The Companies (Amendment) Bill, 2016

New Delhi | Mumbai | Bengaluru | Hyderabad


April 8, 2016

Anshul Jain
Partner
General Corporate & Regulatory

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Structure

 Background

 Setting-up

 Capital Raising

 Corporate Social Responsibility

 Independent Directors

 Corporate Governance

 Miscellaneous Proposed Amendments

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Background

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Background
 The Companies Act, 1956 (‘1956 Act’) was the principal regulation governing the company law in India for more than six
decades. It was then replaced by a new legislation, Companies Act, 2013 (‘2013 Act’).

 Out of 470 sections, a total of 284 sections of the 2013 Act have been notified till date.

 The stakeholders were facing lots of difficulties in implementing the provisions of the new law and based on various
representations, MCA had already issued more than 180 clarifications, circulars and notifications in the 2013 Act and one
comprehensive round of amendment was also done in 2015. But despite of this, the concerns were subsisting.

 To address them, MCA constituted a Companies Law Committee consisting of representatives from the industry,
professional institutes and legal luminaries to examine the need for further amendments.

 The Committee had prepared a report, based on a broad based consultation process, and proposed more than 100
amendments in the 2013 Act. then submitted the same to the Government. Based on the report, The Companies
(Amendment) Bill, 2016 has been prepared and it has recently been introduced in Lok Sabha for their consideration and
approval.

 While most of the proposed changes are introduced in order to remove procedural inconsistencies across the law, there are
certain changes that are material in nature and cater to the intention of the Government to provide an environment for ‘ease
of doing business’ in India. Few of those changes are discussed in detail in the following slides.

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Setting-up

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Setting-up
Incorporation
Topic Existing provision / Current Issue / Concern Proposed amendments & its
Structure impact
Company • Detailed documents • The whole company • A Central Registration Centre
incorporation required to be submitted to incorporation process was a has been established with a
the RoC across various very complex and time target of reducing the
stages of incorporation consuming. A standard company incorporation
timeline for a company timeline from 1 month to 1
incorporation was around 1 day.
month from the date of filing
all the papers with the RoC. • MCA also modified INC-29
so as to enable foreign
• Even after the company is companies to reduce the
incorporated, the bank present cumbersome process
account opening process and into one single step.
obtaining basic tax and labor
registrations would take • MCA is in the process of
additional 1 – 1.5 months. developing an online system
where these basic registrations
can also be applied by the
company simultaneous to its
incorporation application.

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Setting-up
Main Objects

Topic Existing provision / Current Issue / Concern Proposed amendments &


Structure its impact
Main objects / activities • The 1956 Act specified that • The 2013 Act continued • The Bill has proposed to
of a Company MoA should state its objects to restrict the activities adopt the approach
which were required to be that can be undertaken by followed under English
bifurcated into ‘main’, companies by requiring Companies Act, 2006 by
‘incidental or ancillary’ and companies to provide enabling companies to
‘other’ objects. ‘specific’ set of objects in engage in any lawful act
its charter documents. or activity or business to
• The 2013 Act still wanted pursue any specific
the bifurcation of objects • Any deviation from the object(s), as per the law
into ‘main’ and ‘other’ specific set of objects for the time being in
objects’. would need a detailed force.
process to be complied.

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Capital Raising

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Capital Raising
Prospectus
Subject under 2013 Act Existing Provision Issue / Concern Proposed / recent
amendments & impact

Contents of ‘prospectus’ A detailed list of items is SEBI is in the process of simplifying Proposed to delete the
provided that should be the contents of prospectus by amending disclosure requirements from
mentioned in the prospectus the ICDR Regulations as the the Act and empower SEBI in
issued by a company. This is prescription under 2013 Act is quite this regard. This would make
over and above SEBI ICDR. detailed and repetitive. For this the prospectus more crisp and
purpose, an amendment of the 2013 cost efficient.
Act would be required.

Civil liability for mis- The 2013 Act prescribes civil The directors can be made liable for It is proposed to exclude
statements in prospectus liability for directors for misleading statements made by an directors from liability in cases
issuing misleading statements expert. where the misleading
in a prospectus. information in the prospectus is
made by an expert. This would
absolve the directors from
liability if they rely on the
statement of an expert.

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Capital Raising
Private placement of securities
Subject under Existing Provision Issue / Concern Proposed / recent amendments &
2013 Act impact
Making multiple The 2013 Act does not allow a This restriction takes away the Proposed to empower companies to,
offer / invitation company to make a fresh offer flexibility to raise funds as companies subject to conditions, make multiple
/ invitation if allotments for an may be required to simultaneously issues of securities. This would
earlier offer / invitation is issue different forms of securities. provide greater flexibility in raising
pending. capital.

Minimum The 2013 Act allows private This restriction takes away the Proposed to delink the investment
investment size placement offer / investment flexibility to raise funds as higher from ‘face value’ and the minimum
provided the minimum valuations in angel or VC rounds may investment size increased to Rs.
investment size is INR 20,000 not be able to accomplish the minimum 20,000 (for equity and compulsorily
(face value). face value investment of INR 20,000. convertible securities) and Rs.
100,000 (in other cases)

Allotment of Not permitted The FDI policy permits issuance of Proposed to allow preferential
partly paid-up partly paid-up shares and warrants. allotment of partly paid-up shares.
securities Need for alignment between both the
laws.

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Capital Raising
Miscellaneous
Subject under Existing Provision Issue / ConcernProposed / recent amendments &
2013 Act impact
Deposit A company accepting deposits No insurance company offering It is proposed to omit the
insurance should provide for deposit such insurance products thereby requirement to provide for deposit
insurance. making it difficult to comply. insurance. This would be a big relief
for companies issuing deposits.

Acceptance of Private companies are permitted to It is proposed to remove these limits


deposits by start- accept deposits from their for raising of deposits from members
ups members’ not exceeding 100% of for ‘Start-ups’ which are private
their paid up capital and free companies for the first 5 years from
reserves its incorporation. This would ease
raising of funds for ‘Start-ups’

Private Requirements such as having Made the process cumbersome, It is proposed to make amendment to
placement prescribed offer letter and filing time consuming, requiring the 2013 Act to remove a number of
procedure, etc. thereof, valuation report and elaborate, sensitive and significant these unwanted procedural
details of person to whom offer is public disclosures requirements.
made with RoC.

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Corporate Social Responsibility

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CSR
Applicability & Quantum to be spent
Topic Existing provision / Current Issue / Concern Proposed amendments & its
Structure impact
Applicability Every company (including a All the three criteria are This ambiguity is proposed to
‘foreign company’) having: volatile and if a company be removed by replacing the
• Net-worth Rs. 5,000 MM; or complies with either of the words with ‘the immediately
• Turnover Rs. 10,000 MM; or criteria even once in its entire preceding financial year’.
• Net profit Rs. 50 MM life, then CSR provisions
during any financial year would be applicable.
Amount to be spent At least 2% of average net profits Companies on which the It is proposed that companies
made during three immediately aforesaid threshold ceases to which ceases to be compliant
preceding financial year apply were still required to with these threshold for any
spend on CSR for 3 subsequent financial year may not be
financial years required to spend on CSR for
that year
CSR Committee A committee needs to be Companies which were It is thus proposed that if a
constituted consisting of 3 or more otherwise not required to company isn’t required to
directors, out of which at least 1 appoint an independent appoint an independent
shall be independent. director were required to director u/s 149, it shall have
appoint an independent its CSR committee constituted
director specifically to comply with 2 or more directors (i.e.
with these provisions without an independent
director)

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CSR
Implementation
 CSR Policy: The committee shall formulate and recommend to the board of directors, a policy which shall indicate a list of
CSR projects / programs which the company plans to undertake and specifying the modalities of execution of such project or
programs, including amounts to be spent on such activities and implementation schedule for the same. The said policy shall
also include a transparent monitoring mechanism for implementation of the CSR projects.

 Undertaking CSR: Can be undertaken by the company, directly or:


 through a registered trust / society / section 8 company established by the company or its holding / subsidiary / associate
company or alongwith any other company
 through a registered trust / society / section 8 company, which is not established by the company, provided that such entity
should have an established track record of three years in undertaking similar programs
 through collaboration with other companies so that the CSR committees of respective companies are in a position to report
separately on such projects.

 Disclosure: CSR Policy shall be placed on the website, if any, of the company and disclosed in the directors’ report. If the
company fails to spend the CSR amount in a financial year, then adequate reasons should also be provided by the Board of
directors in their report. A format of the said statement is provided in the CSR Rules.

 Penalty: Non disclosure of CSR may attract a penalty of INR 50,000 – INR 2,500,000 on the company; and every officer of the
company who is in default can be punishable with imprisonment for a term which may extend to three years or with fine of
INR 50,000 – INR 500,000, or with both.

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CSR
Miscellaneous
 CSR spending within India would be recognized under the Act. Any activities undertaken outside India will be excluded.
Preference should be given to the local area around where the company operates, for spending the earmarked amount.

 Activities which are solely for the benefit of employees or their family members are excluded from the scope of CSR
activity.

 Activities, even if they fall within activities listed in Schedule VII, but are done by a company in normal course of its
business shall not be considered as CSR activities.

 CSR expenditure will not qualify as a business expenditure

 Payment in kind is not permitted as CSR

 Any excess expenditure of CSR in a particular financial year cannot be carried forward and adjusted against the subsequent
year’s obligation.

 If a company’s employees are engaged in the effective implementation of its CSR program then the company cannot
monetize the pro bono services of employees towards its CSR expenditure.

 Expenditure incurred by foreign holding company for CSR activities in India will qualify as CSR spend of the Indian
subsidiary if, the CSR expenditures are routed through Indian subsidary.

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CSR
FCRA Perspective

 In terms of section 2(h) of Foreign Contribution (Regulation) Act, 2010 (“FCRA”), the donation, delivery or transfer
made by any ‘foreign source’ of, inter alia, any currency, whether Indian or foreign, would be considered as ‘foreign
contribution’.

 Under section 2(j)(vi), a ‘foreign source’ includes, inter alia, a company within the meaning of the Companies Act, if more
than one half of the nominal value of its share capital is held, either singly or in the aggregate, by one or more of the
following, namely:

i. the Government of a foreign country or territory;


ii. the citizens of a foreign country or territory;
iii. corporations incorporated in a foreign country or territory;
iv. trusts, societies or other associations of individuals (whether incorporated or not), formed or registered in a
foreign country or territory;
v. foreign company.

 As per the FCRA regulations, any CSR contribution to an Indian organization from a foreign owned company would be
treated as FCRA money. The same applies to donations from Indian companies in which foreign investors hold more than
half of the nominal value of its share capital.

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CSR
FCRA Issue – current scenario

Foreign Co. Foreign Co.

49% 51%

Indian Co. Indian Co.

Donation for CSR Donation for CSR

NGO NGO

No issue under FCRA Issue under FCRA

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CSR
FCRA Issue – proposal

 The Finance Bill 2016 has proposed the following amendment to the FCRA:

“In the Foreign Contribution (Regulation) Act, 2010, in section 2, in sub-section (1), in clause (j), in sub-clause (vi), the
following proviso shall be inserted and shall be deemed to have been inserted with effect from the 26th September, 2010,
namely:— “Provided that where the nominal value of share capital is within the limits specified for foreign investment
under the Foreign Exchange Management Act, 1999, or the rules or regulations made thereunder, then, notwithstanding
the nominal value of share capital of a company being more than one-half of such value at the time of making the
contribution, such company shall not be a foreign source”

 The Finance Bill 2016 therefore proposes for the FCRA regulations to be amended, to essentially exclude foreign owned
Indian companies from the ambit of ‘foreign source’, as defined under the FCRA regulations. If passed, the amendment
would be a huge relief for foreign owned Indian companies which are currently required to comply with the FCRA
regulations while undertaking CSR activities. The contributions made by such companies would be regarded as a domestic
contribution (not being from a foreign source) and not require compliance with the FCRA regulations.

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Directors

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Directors
Independent Directors
 The 1956 Act did not define the term “independent director”. It placed independent directors on the same footing as any
other director for purposes of decision making and did not specify any privilege, duty or function which they ought to
perform or the liabilities they could incur for the actions of the board.

 However, the 2013 Act has codified the concept of Independent Directors and prescribed detailed eligibility requirements
for a director to be categorized as an Independent Director.

 One of such criteria is that the said person or his relative should not have any ‘pecuniary relationship’ with the company, its
holding, subsidiary or associate company, or their promoters or directors, during the two immediately preceding financial
years or during the current financial year. Due to its generic and ambiguous nature, it has the potential to disqualify large
number of persons who have insignificant pecuniary relationship with the company.

 The 2016 Bill has proposed amendments to Section 149 and defined the term ‘pecuniary relationship’ to exclude the
director’s remuneration or having transaction not exceeding 10% of his total income. In case of ‘relatives’ certain specific
thresholds are prescribed to determine if such relationship between the company and the relative would hamper the
independence of the director.

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Directors
Duties
 Under Section 166 of the 2013 Act the general duties of a director inter alia include:
• To act within the contours of the articles of a company;
• To act in good faith to promote the objects of the company for the benefit of its members, as a whole, in the best
interest of the company, its employees, the shareholders, the community and the environment;
• To exercise due and reasonable care, skill, diligence and independent judgment;
• To avoid situations where there is direct or indirect interest that conflicts with the interest of the company;
• To not achieve or attempt to achieve undue advantage for himself or his relatives/ associates;
• To not assign his office.

 Additional roles and responsibilities for independent directors prescribed u/s 149 read with Schedule IV. The SEBI
LODR Regulations, 2015 also lay down certain duties on the directors of companies who have listed their equity or
convertible securities. An indicative list is provided in Annexure I and II to this presentation.

 But the issue which is still not answered is whether section 166 of the Companies Act, 2013 is exhaustive regarding
duties or company directors, or whether directors are also bound by additional common law duties?

 The widely accepted view (including the view of the JJ Irani Committee) is that section 166 is a partial codification of
directors’ duties and the statutory provisions lay down only broad and basic principles. The principles of common law are
preserved through implication and operate in addition to the statutory provisions or to at least aid in their interpretation.

 Therefore, it seems that the intent of the legislature was not to provide an exhaustive list, thereby leaving doors open for
common law remedies.

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Directors
Liabilities
 Section 2(60) of the 2013 Act provides for the concept of an “officer who is in default”, for fixing liability under certain
provisions of the 2013Act. An Officer in Default inter alia includes every director, in respect of a contravention of any of
the provisions of this Act, who is aware of such contravention by virtue of the receipt by him of any proceedings of the
Board or participation in such proceedings without objecting to the same, or where such contravention had taken
place with his consent or connivance.

 Personal Liability- Under 2013 Act, directors could be held personally liable without any limitation on liability, to third
parties for fraudulent activities. These include:
 Issue of prospectus with an intent to defraud
 Failure to repay deposit or interest and it is proved that deposits were accepted with an intent to defraud
 Report by inspector that fraud has taken place in a company, and director has taken undue advantage or benefit
 If during winding up, it appears that business of the company has been carried on with intent to defraud

 Class Action Suit: Direct claim can be made against directors for unlawful or wrongful acts.

 Liabilities Other than as an officer in default:


 Liability of first directors in relation to incorporation by inter alia furnishing false information
 Mis-statements in prospectus or breach of private placement norms
 Default in disclosing or insufficiently disclosing benefit accruing pursuant to resolution in explanatory statement
 Failure to distribute dividends
 Non-compliance with requirements for related party transactions, maintenance of accounts or financial statements.

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Directors
Key Pointers & Risk Mitigation Strategies
 Knowledge –through board process  Willful act or failure to exercise skill, care and
Key ingredients  Connivance diligence
for fixing liability  No due diligence  Fraudulent conduct; unaccounted personal
 In charge of the affairs of the company at the gains; inducement or willful misrepresentation
relevant point in time when the offence is/was  Acting in-spite of a conflict
committed
 Lack of knowledge  Dissenting vote; denial of consent – direct or
 Exercise of due diligence indirect
Defenses
 Raising of objections  Acted honestly and reasonably

 Adequate participation by directors in affairs • Investment banker or valuer on crucial


of the company transactions
 Raise relevant questions / concerns / • Maintain communication between board and
objections on the board and pursue “red flags” management
Practical – consider asking queries on email  Employ stringent risk management measures
Tips  Establish detailed internal monitoring and  Review draft minutes and provide comments,
reporting systems and induce proper if any
disclosure and transparency measures  Consider industry-specific practices and
 Place reliance on relevant employees and safeguards, especially for sensitive sectors
experts  Directors & officers liability insurance
 Appoint separate (independent) legal counsel  Indemnity by company

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Corporate Governance

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Corporate Governance
Loan to directors, etc.
Topic Existing provision / Current Issue / Concern Proposed amendments & its impact
Structure
Loans to directors • Prohibits granting loans to Difficulties being faced in • It is proposed to allow companies to
and persons in directors (excluding MD / genuine transactions due advance loans to any person in
whom a director WTD) and to persons in to complete embargo on whom the director is interested
is interested whom the directors are providing loans to subject to the prior approval of
interested. subsidiaries with common shareholders by way of a special
directors. resolution.
• Also it allows granting of
loans to WoS but prohibits • Allow companies to provide loans to
providing loan to a subsidiary subsidiaries, provided that such loan
is used by the borrowing company
for its principal business activity
only.

Companies which in the ordinary Such companies have two Align the interest rate with the interest
course of its business provides different benchmark rates rate prescribed u/s 186(7) so as to bring
loans or gives guarantees or and the higher of the two uniformity across the law.
securities for due repayment of rates have to be applied
loan at an interest rate of not less making the other
than bank rate declared by RBI redundant

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Corporate Governance
Loans and investment by company
Topic Existing provision / Current Issue / Concern Proposed amendments & its impact
Structure
Loans & A company, unless otherwise These restrictive It may be noted that companies are
Investments by prescribed, shall not make any provisions likely to hit already required to obtain information
companies investment through more than legitimate business regarding beneficial ownership of
two layers of investment structures and putting shares from the members and also
companies. In other words, it Indian companies at a maintain a register in respect of the
curbs one’s ability to set up more disadvantage vis-à-vis same. In this regard, it is proposed to
than two layers of investment their international remove this embargo of not having
companies. counterparts more than two layers of investment
companies.

The proposed amendment would bring


flexibility to companies to structure
transactions albeit with a higher set of
disclosure and reporting requirements.

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Corporate Governance
Related Party Transactions
Topic Existing provision under Existing provision under Proposed amendment & its
Companies Act LODR impact
Interested Pursuant to circular no. 30/2014, All related parties to abstain It is proposed to withdraw this
shareholder to related party as may be a related from voting irrespective circular and bring the provisions
abstain from party in the context of the whether the entity is a related of Companies Act in line with
voting contract / arrangement for which party to the particular that of LODR.
the resolution is being passed transaction or not
shall abstain from voting.

Exemptions Transactions entered into by the No such exemption is available -


company in its ‘ordinary course
of business’ and ‘an arm’s length
basis’ are exempted

No. of Only seven categories of All related party transactions are -


transactions and transactions are covered; covered within the ambit of
thresholds individual materiality thresholds LODR; common materiality
prescribed for each of the threshold (i.e. 10% of annual
transaction to obtain consolidated turnover of listed
shareholder’s approval company) prescribed for
shareholder’s approval

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Corporate Governance
Remuneration of Directors
Topic Existing provision / Current structure Issue / Concern Proposed amendment & its
impact

Private companies No restriction - -

Public (listed & %age limits of remuneration prescribed - -


unlisted) – profit
making

Public (unlisted) – Limits of remuneration and other terms - -


loss making / prescribed under Schedule V; can pay more than
inadequate profits the said limits if shareholder’s approval and
certain other conditions are complied
Public (listed) – loss Limits of remuneration and other terms The process of obtaining ‘special Proposed to enhance existing limits
making / inadequate prescribed under Schedule V; can pay more than resolution’ from the shareholders and change the shareholder’s
profits the said limits if approval from shareholder’s and in case of professional directors approval requirement to an ordinary
Central Government is obtained and approval from Central resolution (for professional
Government was a very directors) and do away with the
cumbersome process requirement of CG approval

Independent Can be remunerated by sitting fees, In case of loss making company, -


Directors reimbursement of expenses and profit linked only sitting fees and
commission reimbursement of expenses can be
made

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Miscellaneous Proposed
Amendments

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Miscellaneous Proposed Amendments
Venue of general meetings
Subject under Existing Provision Issue / Concern Proposed / recent amendments & impact
2013 Act

Venue of AGM • Either at registered • This does not provide enough • The 2016 Bill has proposed to allow unlisted
office of company or flexibility to companies to companies to hold their AGMs at any place in
some other place hold their AGMs outside the India provided approval of 100% shareholders is
within the city, town local jurisdiction even though obtained in advance. This would provide much
or village where the members of the company greater flexibility to closely held unlisted
registered office is were not within the said local companies (including joint ventures and wholly-
situated. jurisdiction. owned subsidiaries) to hold their AGMs
anywhere in India.

• This does not provide enough • The 2016 Bill has proposed to allow wholly-
Venue of EGM • Anywhere in India flexibility to companies to owned subsidiaries of a company incorporated
hold their EGMs outside outside India to hold their EGMs anywhere
India even in cases where all within or outside India. This would provide much
the members of the company greater flexibility to such companies to hold their
are non-residents. EGMs outside India as well.

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Miscellaneous Proposed Amendments
Board committees & Disclosures
Subject under Existing Provision Issue / Concern Proposed / recent amendments & impact
2013 Act

Constitution of • Private limited • Inclusion of private companies is • Proposed to exempt these private
Audit and companies whose draconian to the functioning of the companies and the same would bring in the
Nomination & securities (other than company as such a company much needed relief for such companies.
Remuneration equity shares) are listed would also be required to appoint
Committee on stock exchanges are ‘independent directors’ and adhere
required to constitute to higher level of corporate
such committees. governance.

• Extract of annual return, • Duplication of information • Proposed to allow companies to place a


Disclosure remuneration policy and reported to shareholders and copy of the annual return, remuneration
requirements CSR policy to be part of thereby making the documents policy and CSR policy on the website, if
the Board’s report lengthier and also resulting in any and to allow companies to disclose
inefficient use of time and web address of such documents in the
resources Board’s report along with salient features
of the remuneration policy and CSR policy

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and continued…..

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