SEBI vide circular SEBI/CFD/DIL/CG/2/2008/23/10 dated 23rd October, 2008 has amended Clause 49 of the Equity Listing Agreement.
The original clause requires at least one third of the Board to comprise of independent directors where the chairman of such board is a non-executive director and where the chairman is an executive director, at least half of the Board to comprise of independent directors.
To the aforesaid clause, SEBI vide circular SEBI/CFD/DIL/CG/1/2008/08/04 dated 8th April, 2008 clarified that if the non-executive chairman is a promoter or is related to promoters or persons occupying management positions at the board level or at one level below the board, at least one-half of the board of the company should consist of independent directors.
However, the circular dated 8th April 2008 lacked clarity as to who shall be deemed to be related to promoters.
The prevailing circular failed to address the situation where the “promoter” is an “entity” thereby creating confusion on the listed and unlisted nature of such entities.
Therefore, in order to clarify the same, SEBI has issued a circular dated 23rd October, 2008 which provides for the inclusion of the following explanation to the relevant sub-clause:
“Explanation-For the purpose of the expression “related to any promoter” referred to in sub-clause (ii):
a. If the promoter is a listed entity, its directors other than the independent directors, its employees or its nominees shall be deemed to be related to it;
b. If the promoter is an unlisted entity, its directors, its employees or its nominees shall be deemed to be related to it.”
The circular provides an explanation to the expression ‘related to any promoter’ and seeks to define as to who shall be deemed to be so related. It provides that when a promoter is a listed entity, the directors (excluding independent directors), employees or nominees of the promoter entity shall be deemed to be persons so related to the promoter to determine the composition of the Board. In case of an unlisted entity or an entity which seeks to apply for listing at any recognized stock exchange, the term “related to any promoter” shall include its directors, employees or nominees.
Hence, if the non-executive chairman of the Board is one of the above persons, at least half of the Board would be required to comprise of independent directors.
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