New Delhi, February 9, 2017

Capital markets regulator Sebi is planning to initiate a public consultation process for changes to the Debenture Trustee regulations, wherein an entity will not be prohibited from acting as a trustee if the government provides guarantees for the debenture issued. The proposed changes follow recommendations from a Sebi- appointed task force for examining the “challenges in performing the obligations and duties as Debenture Trustees (DTs) to protect the interests of the debenture holders”.

The amendments seek to fortify the existing provisions to enable the DTs to perform the task of securing the interest of investors and also harmonise the existing provisions with those of the Companies Act, 2013.

Several existing provisions in the DT Regulations currently have reference to the erstwhile Companies Act, 1956, which have been repealed and replaced by the new companies law.

Besides, it was felt that several existing provisions required changes to enable the DTs to perform the task of securing investors’ interest more effectively. It was also felt that the provisions regarding liability for action against the DTs with regard to default or non- compliance required to be modified to streamline them with other Sebi regulations so as to have consistency.

Sebi’s board, at its next meeting scheduled for Saturday, will consider initiating a public consultation process on the proposed amendments, sources said.

Among various changes, Sebi is proposing to change the definition of principal officer, who is entrusted with overseeing the activities of the DT, to include Key Management Personnel who in turn can be a CEO, managing director, company secretary, whole-time Director, CFO or such other officer.

The current rules provide that a person cannot act as a DT in case of any issue of debentures by an associate.

As per the proposed amendments, a person cannot be appointed as a DT if he beneficially owns shares in the company, is a promoter, director or KMP or an employee of the company or its holding, subsidiary or associate company.

Besides, a person cannot be appointed DT if he is beneficially entitled to money to be paid by the company other than remuneration payable to the DT, is indebted to the company or its subsidiary, holding or associate company, has furnished any guarantees in respect of the principal debts secured by the debentures, is relative of any promoter, director or KMP.

The prohibition will also apply if the person has any pecuniary relationship with the company amounting to 2 per cent or more of gross turnover or total income of Rs 50 lakh or a higher amount during the two preceding years or during the current fiscal.

However, it has been proposed that wherever the government provides guarantees for the debentures issued, the proposed prohibition to act as DT may not be be applicable.

[The Financial Express]