Independent Directors in Private Debt-Listed Companies

[The following guest post is contributed by Niddhi Parmar of Vinod Kothari & Co.]Earlier under Companies Act, 1956 (section 2(23A)) the term “listed public companies” was in a manner that clearly excluded private companies. Consequently, listed private companies were exempt from certain provisions that were exclusively applicable to listed public companies. However, the Companies Act, 2013 (section 2(52)) defines the term ‘listed company’ as one “which has any of its securities listed on any recognised stock exchange”, so as to encompass even a private listed company whose debt securities are listed. This requires such private debt-listed companies to comply with provisions that are applicable to all listed companies.This post analyzes whether independent directors are required to be appointed on the board/committees of private debt-listed company. Provisions under Companies Act, 2013In accordance with Section 149(4) of the Companies Act, 2013, “Every listed public companyshall have at least one-third of the total number of directors as independent directors and the central government may prescribe the minimum number of independent directors as in case of any class or classes of public companies.”Under Rule 4 of the Companies (Appointment of Directors) Rules, 2014, the following class or classes of companies shall have at least two directors as independent directors – (i) the public companies having paid up share capital of ten crore rupees or more; or(ii) the public companies having turnover of one hundred crore rupees or more; or(iii) the public companies which have, in aggregate, outstanding loans, debentures and deposits, exceeding fifty crore rupees.Further, in order to comply with sections 177 and 178 relating to Audit Committee and Nomination and Remuneration Committee, respectively, every listed company and the class or classes of company specified under the rule 6 of the Companies (Meeting of Board and its powers) Rules, 2014, need to appoint independent directors.Provisions under Listing AgreementEvery listed company is required to comply with the provisions under Clause 49 (i.e. Corporate Governance) of the equity listing agreement. As per the listing agreement, every listed company needs to appoint independent directors depending upon the character of the chairperson, i.e. whether such person is executive or non-executive or related to the promoter group. According to sub-clause III and IV of clause 49, the Audit Committee and Nomination and Remuneration Committee need to have independent directors for better functioning and transparency in the company. However there is no similar requirement under the Debt Listing Agreement. So, what if a company gains the status of the listed company just because its debt securities are listed on the stock exchange?Do private companies need to appoint independent directors on their Board or committees?Even if private companies had their debt securities listed, by virtue of section 2(68) of the Companies Act, 2013, the securities of such companies cannot be offered to public. Hence, even the debt securities of listed private companies are privately placed. The intent behind appointing independent directors is to ensure that the company functions independently and the decisions taken by the company do not get influenced by the management. It is with the sole intention to safeguard the interests of the stakeholders that independent directors are appointed. Although one may argue that in case of listed companies also the interest of outsiders is involved, however, in the case of debt securities in private companies that are privately placed, the scope of publics interest is also considerably limited.Further, Section 177 and 178 of the Companies Act, 2013 requires every listed company to constitute an Audit Committee and Nomination and Remuneration Committee respectively and to appoint independent director on their committee. Looking at these sections, one may argue that the provisions contained therein pre-suppose the existence of an independent director. However, as discussed above, the intent behind appointment of independent directors is completely lost in case of private companies even if their debt securities are listed.ConclusionThe concept of appointing an independent director was introduced for enhancing corporate governance in the company. To strictly adhere with the letter of law, one is compelled to say that private debt-listed companies should also appoint independent directors.  However, going by the overarching spirit of law, one needs to a take prudent call in this regard to say that private listed companies need not appoint independent directors. This is also backed by the fact that the debt listing agreement does not require independent directors to be appointed on the board of a private listed company. – Niddhi Parmar

Source: Corporate

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