Clause 49: Listing Agreement

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CORPORATE WORLD

Clause 49 of Listing Agreement on Corporate Governance
—Dilip Kumar Sen

SEBI has revised Clause 49 of the Listing Agreement pertaining to corporate governance vide circular dated October 29, 2004, which supersedes all other earlier circulars issued by SEBI on this subject. The article highlights important changes in the corporate governance norms.

C

lause 49 of the Listing Agreement, which deals with Corporate Governance norms that a listed entity should follow, was first introduced in the financial year 2000-01 based on recommendations of Kumar Mangalam Birla committee. After these recommendations were in place for about two years, SEBI, in order to evaluate the adequacy of the existing practices and to further improve the existing practices set up a committee under the Chairmanship of Mr Narayana Murthy during 2002-03. The Murthy committee, after holding three meetings, had submitted the draft recommendations on corporate governance norms. After deliberations, SEBI accepted the recommendations in August 2003 and asked the Stock Exchanges to revise Clause 49 of the Listing

recommendations and the same was put up on SEBI website on 15th December 2003 for public comments. It was only on 29th October 2004 that SEBI finally announced revised Clause 49, which will have to be implemented by the end of financial year 2004-05. These revised recommendations have also considerably diluted the original Murthy Committee recommendations. Areas where major changes were made include: ● Independence of Directors ● Whistle Blower policy ● Performance evaluation of nonexecutive directors ● Mandatory training of non-executive directors, etc. The changes in corporate governance norm as prescribed in the revised Clause 49 are as follows:

A. Composition of Board
The revised clause prescribes six tests, which a non-executive director needs to pass to qualify as an Independent Director. The existing requirement is that to qualify as an Independent Director, the director should not have, apart from receiving director’s remuneration, any other material pecuniary relationship or transactions with the company, its promoters, its management or its subsidiaries, which in the judgment of the Board may affect independence of judgment of the director. This requirement finds place in the revised clause also

Agreement based on Murthy committee recommendations. This led to widespread protests and representations from the Industry thereby forcing the Murthy committee to meet again to consider the objections. The committee, thereafter, considerably revised the earlier

The author is Vice President, Tata Tea Ltd. He can be reached at dilip.sen@tatatea.co.in THE CHARTERED ACCOUNTANT

806

DECEMBER 2004

CORPORATE WORLD
except that the relationship will now extend to its management, its holding company and its associates in addition to the existing list. Further the Board is no longer required to judge the independence status of a director as at present. Five new clauses have been added to determine independence of a director. These are: (i) He is not related to promoters or persons occupying management positions at the board level or at one level below the board; (ii) He has not been an executive of the company in the preceding three financial years; (iii) He is not a partner or an executive or was not partner or an executive during the preceding three years of (a) the statutory audit firm or the internal audit firm that is associated with the company; and (b) the legal and consulting firms that have a material association with the company. (iv) He is not a material supplier, service provider or customer or a lessor or lessee of the company, and (v) He is not a substantial shareholder of the company owning two percent or more of the block of voting shares. The new tests of ‘independence’, the readers would recall, were mostly included in the Companies (Amendment) Bill, 2003. The important and practical change that...
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