Only when there is fair play, markets are an effective instrument and sustainable means to promote trade. A critical element of fair play involves providing a level playing field to all buyers and sellers. If any one category of buyer or seller gains at the cost of the other, the market itself becomes unsustainable and fails. To revitalize markets, an external intervention is required in the form of regulations that is enforced. Prohibition of insider trading is a regulation introduced to revitalize stock markets and create a fair playing field. When enforced, it results in reduced cost of equity that spurs market activities. In fact, one multi-country research report that spans multi-decades has quantified reduction in cost of equity by about 5%, if the insider trading laws are strictly enforced.
For the regulators,enforcing prohibition of insider trading regulations is a tough task as circumstantial evidence alone is not enough to get conviction and they need more definitive proofs. Given the fact that stock markets become more attractive when the regulations are enforced, and its enforcement is tough, the behaviour of market participants, especially the companies who are the source of insider information is very critical.
Given this criticality, we have analysed the Policy on Prohibition of Insider Trading and the Code of Fair Disclosure of UPSI (Unpublished Price Sensitive Information) as formulated and disclosed by the Nifty 50 companies in their website.
2017 was the third year Indian companies have published Secretarial Audits Reports (SARs) after its introduction. We, at CimplyFive, are happy to share with you the findings of our Third Secretarial Audit Reports: Trends & Practices 2017. In contrast to the first year where there was no precedence for companies to follow, in the next two years companies had access not only to their peer-group reports but also to our report that compiled the different, distinct and diverse practices in the Secretarial Audit Reports for the years 2015 and 2016.
Like in the earlier two years, we have considered S&P BSE 500 Companies as the sample for this study. The geographical and sectoral diversity contained in S&P BSE 500 companies provides a reasonably representative indicator of the Indian Corporate Sector.
For the Indian corporate professional, Come September stands for much more than a famous romantic comedy film of the 1960s. The scale at which punitive action was taken against non-compliant Indian companies and their directors in September 2017 struck at the core of Indian corporate professionals, leaving them stunned. This research was in the planning stage for a long time, only for the events of September 2017 to trigger it by making this subject relevant to all India corporate professionals.
In any civilized society compliance with law is manda¬tory and non-negotiable. Despite this, in practice we see a strong co-relation between the penalties levied and the cost of compliance. Rational businesses invest in compliance cost to the extent it is justified by penalties they would be required to pay arising from remaining non-compliant. The penalties they use to evaluate is not the penal provisions enacted in law but what is seen in actual levy. Consequently the extent of compliance in any regulatory environment is directly related to the certainty of its enforcement reflected in the amount of penalties collected and number of convictions obtained for non-compliance.
The ratio of the Penalty paid for non-compliance to the Cost of compliance may be called the ‘Compliance Index’ Where the Penalty for non-compliance is equal to the Cost of compliance, the Compliance Index is 1, reflecting indifference to the state of compliance.
A very critical and an interesting strand in the history of corporate law is the evolution of regulations pertaining to RPT, for mal-governance often manifests itself though RPTs. Despite its role in hampering good governance, RPTs are not banned anywhere in the world, as this ‘cure’ is more harmful than the ‘disease’ itself. For if RPTs were to be banned, the very existence of corporate entity as a form of business could be threatened.
Given the interdependence between RPT and corporate entity, a key element of corporate law and good governance practice is visible in regulation of RPTs. Hence any study of corporate law, good governance practices or corporate secretarial practice needs to frequently and in depth evaluate the current state of RPT regulation as practiced. Evaluation of statutes provide insights of limited value, therefore we have in addition to statutes focused on the practices in the real world of corporate board rooms for only corporate practices reflect the true state of corporate governance and the health of corporate entities.
“Cimplyfive’s Report On The Policy For Dealing With Related Party Transactions” looks at the ‘Policy on Dealing Related Party Transactions’ of the Nifty 50 Companies as the policy is the primary means through which the RPTs are administered by the company for identifying, monitoring, assessing and deciding the validity of RPTs. We have picked the Nifty 50 companies as they represent the elite of the corporate world. Based on this study we have attempted to create a model Policy on Dealing with Related Party Transactions for companies to consider and adopt, with or without modification
SECRETARIAL AUDIT REPORTS: TRENDS & PRACTICES in 2016 carries an in-depth analysis of the Secretarial Audit Reports of companies that form part of S&P BSE 500 companies. The findings are reported under three major heads: findings on Secretarial Audit Reports, compensation of Company Secretaries and concentration of audits among Secretarial Auditors.
Some of the key findings in the report are:
- 480 of the S&P BSE 500 companies underwent a Secretarial Audit in 2016. Of this, 81% had an unqualified or ‘clean’ report, up from 72% in 2015. In absolute numbers the companies with unqualified report increased from 335 to 387.
- For the second year running, Mindtree Limited took the top spot for listing 230 mandates that they comply with. BASF India Limited with 92 and Geometric Limited at 91 ranked 2nd and 3rd.
- The average annual compensation for Company Secretaries in our sample was Rs.56.68 lakhs, an increase of 14% over the earlier year of Rs.49.61 lakhs. The highest compensation was of Rs.902.32 lakhs and the lowest was at Rs.3.00 lakhs.
- Gender-wise, Company Secretaries profession is well represented with women accounting for 43% of the total registered professionals. However among the S&P BSE 500 Companies, women CS accounted for only 16%, with their representation coming down sharply at 6% among the top 100 companies ranked by turnover and 4% among the top 25 companies.
- The average compensation for women CS was Rs.31.61 lakhs, which is 52% of the average compensation paid to men CS of Rs.61.34 lakhs. Factors contributing to this variance in compensation was the size of the company and multiple roles held by the CS.
- Top 6 Secretarial Auditors conducted 76 audits compared to 80 in 2015. The top ranked Auditor, Ms. Parikh & Associates Mumbai, conducted 19 audits.
- Mumbai/Thane was the most preferred location with 77 Secretarial Auditors located there, followed by New Delhi with 53 and Bangalore with 24.
The report, INDIA SECRETARIAL PRACTICES 2016 carries an in-depth analysis of the Secretarial Practices of companies that form part of the NIFTY 50® Index of the National Stock Exchange by studying their annual reports published in 2016. The analysis is focused on six distinct areas, namely: Board Composition and Sub-committees of the Board, Directors’ Report, Secretarial Audit, Profile of the Company Secretary, Corporate Social Responsibility spends and the AGM notice.
Some of the more significant findings in the report include:
- Nifty 50 companies spent Rs. 5082 crores on CSR, which is 92.7% of the mandated amount of Rs.5478 crores; This represents an increase of 27% over 2015 spends and with reference to mandated amount an increase of 13.7% from 79% in 2015.
- 25 of the 48 Nifty 50 companies did not spend their mandated CSR amount in 2016, an improvement from 32 companies in 2015.
- Company Secretaries of the Nifty 50 companies earned an average annual compensation of Rs.97 lakhs in 2016, a decline of 12% from 2015.
- The number of women Company Secretaries in the Nifty 50 companies doubled from 3 to 6.
- 25 Nifty 50 companies were audited by the top 6 Company Secretary Firms; the top firm audited 6 companies.
- 10 Nifty 50 companies had qualified Secretarial Audit Reports; of which 7 were public sector companies.
- Nifty companies identified 153 unique Acts, Rules, Regulations, Guidelines and Standards to which they were subject to in their Secretarial Audit Reports.
Board Evaluation Practices in India: A Study of Top 100 Companies in 2015
Captures an in-depth analysis of the Board Evaluation practice in India contrasted with global best practices to identify areas for improvement. We have developed a proprietary 5-Star Rating System for Board Evaluation and applied it to the top 100 companies India
Highlights of the Top 100 Companies evaluation using our proprietary 5-star rating system are:
- Companies got 3-Star rating, the highest rating given to the select group of companies. These companies disclosed positive results of their evaluation in addition to the evaluation criteria and evaluation process.
- 52 companies got 2-Star rating, as they reported both the evaluation criteria and the evaluation process
- 26 companies got 1-Star rating, as they reported either the evaluation criteria or the evaluation process
- 3 companies did not do Board Evaluation despite the mandate
- 17 companies were exempt from Board Evaluation being public sector companies. Despite exemption, 3 of them shared their evaluation process, criteria or outcome.
S&P BSE 500 Secretarial Audit Reports Analysis
Captures the different, distinct & diverse practices across the 500 companies to provide data for contemplation, reflection and learning. The report is divided into four distinct areas: the Auditee, the Auditor, the Report and the Mandates. A major highlight of this report is to draw lessons from the diverse practices and make concrete recommendations to the CS professionals and the Regulators
Some of the more significant findings in the report include:
- Company Secretaries of listed companies are now designated as the Chief Compliance Officer, in addition to being a Key Managerial Personnel. Given this responsibility and statute our analysis of the annual compensation paid to Company Secretaries show that in 59% of the companies, they earned less than Rs.50 lakhs. Further in 31% of the companies, the annual compensation was less than Rs.25 lakhs.
- Women Company Secretaries were found only in 61 (12%) companies.
- 272 Secretarial Auditors audited 463 companies. Mumbai/Thane accounted for 160 (35%) of the Secretarial Auditors, with New Delhi 90 (19%), Pune 36 (8%), Kolkata 32 (7%) and Bangalore 31 (7%) being the top five locations for Secretarial Auditors.
- Based on the number of audits undertaken, the top ranked Secretarial Auditor conducted 17 (4%) audits, while the top 5 auditors conducted 64 (14%) and the top 10 auditors conducted 100 (22%) audits.
- Women Secretarial Auditors conducted the audit only in 42 (9%) companies out of the 463 companies analysed.
- 460 mandates were listed in the 463 SARs reviewed. It comprised of 241 (51%) Acts, 89 (19%) Rules, 52 (11%) Regulations and 78 (17%) others consisting of Circulars, Codes, Conventions, Directions, Guidelines, Orders, Policy, Schemes and Standards
The report, INDIA SECRETARIAL PRACTICES 2015 carries an in-depth analysis of the Secretarial Practices of companies that form part of the NIFTY 50® Index of the National Stock Exchange by studying their annual reports published in 2015. The analysis is focused on six distinct areas, namely: Board Composition and Sub-committees of the Board, Directors’ Report, Secretarial Audit, profile of the Company Secretary, Corporate Social Responsibility spends and the AGM notice.
Some of the more significant findings in the report include:
- Nifty companies spent Rs.3989 crore on CSR, which is 79% of the prescribed amount of Rs.5046 crore; 32 Nifty companies (64%) did not spend their prescribed amount.
- Company Secretary of the Nifty companies’ earned an average annual compensation of Rs.110 lakhs.
- 44% of the Nifty companies were audited by the top 5 Company Secretary Firms; 52% of Nifty companies by the top 7 Company Secretary Firms.
- Nifty companies identified being subject to 157 unique Acts, Rules, Regulations, Guidelines and Standards in their Secretarial Audit Reports.
- 13 (28%) of the 47 Nifty companies which disclosed Secretarial Audit Reports had qualified Reports; of which 7 were public sector companies.
As per the Companies Act, 2013, Indian companies have started making director pay-ratio disclosures in annual reports. This report analyses the pay-ratio disclosures made by Nifty-50 companies and provides key-takeaways. The report also compares Indian pay-ratio disclosure regulations with those in the US.
Highlights of this report are:
- 34 Nifty-50 Companies disclosed Pay-ratios. Pay of 95 Directorships is analysed in this study
- 3 Companies – Bajaj Auto, Bosch and Maruti Suzuki shied away from making any such disclosures
- PSUs are exempted from Pay-Ratio Disclosures. Nifty-50 has 10 PSUs
- 11 Directors’ Remuneration exceeds 400 times the median employee pay of their companies. This includes 3 Directors each of Hero MotoCorp and Lupin
- 70% of the top-10 Highest Paid Directors of Nifty companies are Promoter individuals
- Mr. Kumar Mangalam Birla was the only Non-executive Director among the top-10 highest paid directors. He is Non-executive Chairman of 4 Nifty companies and was paid a total of Rs. 40.5 Crores in FY15 from these companies
- Rs. 9.00 Crore: Average remuneration of an Executive Director of Nifty Company
- Rs. 5.87 Lakh: Average Median Employee Remuneration
- 170 times: Average ratio of Pay of Executive Directors to the Median Employee Remuneration
- 8 Directors paid more than 1% of the standalone net profits with the highest being 2.33%
The India Proxy Season 2015 came to an end on September 30, 2015. InGovern collated meeting details of 1,228 companies listed on NSE and BSE. These meetings included Annual General Meetings (AGMs), Extraordinary General Meetings (EGMs), Court Convened Meetings (CCMs) and Postal Ballots (PBs) and were held during the period of January 1, 2015 to September 30, 2015.
Listed below are some of the statistics of the Proxy Season 2015:
- A total of 9,909 resolutions were proposed by these 1,228 companies
- This included 8,620 resolutions through AGMs, 231 resolutions through EGMs, 49 resolutions through CCMs and 1,009 resolutions through PBs
- 7,048 resolutions were classified as ordinary resolutions while 2,861 were special resolutions
- 8,333 resolutions were proposed by the management while 1,576 resolutions were proposed by shareholders
- Around 42% of the total resolutions proposed were of ordinary businesses
- Ordinary business includes resolutions for adoption of accounts, dividends, re-appointment of directors retiring by rotation and appointment of statutory auditors
- September was the busiest month with 4,774 resolutions being tabled at the meetings
- August (2,202 resolutions), July (1,383 resolutions) were the second and third most busiest months respectively
The report also contains sections on:
- Resolutions tabled by companies such as Siemens, JSW Holdings, Apollo Hospitals, Adani Ports, Yes Bank, United Spirits, etc., which faced investors’ scrutiny and were voted against by more than 20% of voting institutional shareholders
- Increasing activism by institutional investors
- Updates brought during the year by SEBI, Ministry of Corporate Affairs and others