GENERAL MEETING:
AGM (Sec 96 & 97)
Applicability: Every Company other than One Person Company.
Key Provisions:
Every Company to which this section applies shall hold its 1st AGM within 9 months from the closure if financial year and subsequent AGM within 6 months form the closure of financial year. The gap between two meetings shall not be more than 15 months and in case of first AGM, it is not necessary to hold AGM in the year of incorporation. ROC has power to give extension upto 3 months for holding AGM except first AGM on special reason.
Every AGM shall be called during business hour i.e. 9.00 a.m. to 6.00 p.m. on any day except national holiday and shall be held at registered office or other place within the city, town or village in which the registered office of the company is situated.
Central Govt. has power to exempt any company form the provision of subsection (2) of section 96 of the Act, 2013.
In case of default in holing AGM, Tribunal may call AGM on application of any member of the company and give ancillary or consequential directions as it may think expedient and such directions may include a direction that one member can present in person or by proxy shall constitute quorum.
REPORT ON AGM (Sec 121)
Apart from minutes of AGM, Listed Companies are required to prepare report on each AGM in a manner prescribed in rule 31 of Companies (Management & Administration) Rules, 2014 including the confirmation to the effect that the same was convened, held and conducted as per the provisions of this Act and rules made there under. The copy of report shall be filed with ROC within 30 days from the date of conclusion of AGM failure to submit that report attract fine on Company of Rs. 1 lakh minimum which may extend to five lakh and on every defaulting officer of Rs. 25 thousand minimum which may extend to 1 lakh.
MEETING BY TRIBUNAL (Sec 98):
In case of impracticality to call the meeting of company other then AGM, the Tribunal may either suo-motu or on application of any director or member of the company who would be entitled to vote at the meeting order a meeting of the company to be called, held and conducted in such manner as Tribunal may think fit and give any ancillary or consequential directions modifying or supplementing in relation to the calling, holding and conducting of the meeting, the operation of provisions of Act or Articles of the Company. Such directions may include that one member in present or proxy shall be deemed quorum.
EGM: (Sec 100)
By Board:
Board may whenever think necessary may call general meeting of the Company.
By Requisition:
Sec 100 with Rule No. 17 of Companies (Management & Administration) rules 2014
Board shall proceed to call EGM at the requisition made by members holding on the date of receipt of requisition atleast 1/10 of share capital carrying voting right (in case of company having share capital) or 1/10 of total voting power (in case of company not having share capital) as on the date of receipt of requisition. If Board fail to proceed to call an EGM within in a period of twenty one day from the date of receipt of valid requisition in regard to any matter on a day not later than 45 days from the date of receipt of such requisition, the meeting may be called and held by requisitionist themselves within a period of three months form the date of requisition. Requisition shall set out the matter for which meeting is to be called and shall be singed by requisitionsts and shall be sent to the registered office of the Company. EGM called by requisition will canceled if adjourned due to want of quorum.
NOTICE OF GENERAL MEETING (SEC 101 WITH RULE NO. 18 OF COMPANIES (MANAGEMENT & ADMINISTRATION) RULES, 2014:
21 clear days notice either in writing or through electronic mode* (E-mode) in such manner as prescribed in rules.
Notice shall specify the day, date, time and place and the hour of the meeting and a statement of business to be transacted at such meeting and shall be given to Every Member of the Company, Legal representative of any deceased member or the assignee of an insolvent member and to the auditors and every director of Company.
Accidental omission to give notice or non-receipt of such notice shall not invalidate the proceeding of the meeting.
*Rule 18 of: Companies (Management & Administration) Rules, 2014
E-mode shall mean any communication sent by a Company through its authorized and secured computer programme which is capable of producing confirmation and keeping record of such communication. Notice may be sent through e-mail as text or as an attachment to e-mail or as notification providing electronic link or URL for accessing such notice.
E-mail shall be addressed to the person entitled to receive such e-mail as per records of company or as provided by depository. Company shall provide an advance opportunity at least once in a financial year, to member to register his e-mail address and changes therein.
E-mail shall state name of company, type of notice of meeting, place and the date of meeting. If mail is sent in the form of a Non-editable attachment to the e-mail, such attachment shall be in the portable document format or in a non-editable format together with a link or instruction for receipt for downloading relevant version of software. Mail may send through in-house facility or its registrar and transfer agent or any other Authorised agency for providing bulk email facility.
Notice of General Meeting of the Company shall be simultaneously placed on the website of the Company, if any, and on the website notified by C.G.
STATEMENT TO BE ANNEXED TO NOTICE (Sec 102)
In case of any business other than Ordinary Business a statement setting out following material facts concerning each item of business to be transacted at a general meeting shall be annexed to the notice convening such meeting, namely:
(i) Nature of concern or interest, financial or otherwise, if any, in respect of each items of every director and the manager, if any and every other KMP and relatives of the Director, manager or KMP.
(ii) Any other information and facts that may enable members to understand the meaning, scope and implications of the items of business and to take decision thereon.
(iii) Where any special business in the meeting of Company affects or relates any other company then shareholding of promoter, directors, manager and KMP shall be stated in the said statement, if that shareholding is 2% or more.
(iv) Where any item of business refers to any documents, which is to be considered at the meeting, the time and placed where the documents can be inspected shall also be specified in the statement.
Special Business in AGM means all businesses other than consideration of financial statements, report of Board and Auditors, declaration of any dividend, appointment of Directors in place of retiring and appointment of and fixation of remuneration of Auditors.
In case of any other General Meeting all business shall be special.
In case of benefit arises due to non-disclosure of aforesaid material facts in the statement by promoters/directors/ manager/ KMP than the same shall be held in trust for the benefit of the Company.
Default in complying the provisions of this section every promoter, director, manager or other KMP who is in default shall be penalize with fine which may extend to Rs. 50000 or five times of amount of benefit accruing to promoters/directors/manager/KMP or any of their relatives, which ever is more.
QUORUM: (Sec 103)
In case of public Company if on date of meeting:
- Members <_ 1000 then 5 members personally present.
- Members>1000 but upto 5000 then 15 members personally present.
- Members>5000 then 30 members personally present.
In case of Private Company 2 members personally present shall constitute quorum.
Articles may provide larger quorum
If quorum is not present within half an hour then meeting shall adjourned in same day in the next week on same time and place or such other time and place as board may determine but atleast 3 days notice is required to be given to members either personally or by newspapers advertisement in English and one vernacular language having circulation at the place where registered office of the company is situated. In case of absence of quorum at adjourned meeting, the members present shall be quorum.
Meeting called by requisition shall be canceled in case of absence of quorum.
APPOINTMENT OF CHAIRMAN OF GENERAL MEETING (Sec 104)
Members personally present at the meeting shall elect one of themselves to be the Chairman thereof on show of hands.
In case of poll is demanded, it shall be taken forthwith in accordance with provisions of this Act and the Chairman elected on show of vote shall be chairman until some other person is elected as a result of poll and that other person shall be chairman for rest of the meeting.
Articles of a Company can provide different manner for appointing Chairman.
PROXIES
(Sec 105 with rules 19 of Companies (Management & Administration) rules, 2014))
Member entitled to attend and vote at a meeting of company shall be entitled to appoint another person as proxy to attend and vote at the meeting. Proxy shall not have right to speak and vote except on a poll.
C.G. may prescribe the companies whose member shall not appoint proxy other then member of that company and C.G. has prescribed the company registered under section 8.
A person can act as proxy of maximum 50 members if their aggregate holding is not exceeding 10 % of total share capital of company caring voting rights. A member who holds more then 10 % of total share capital carrying voting rights may appoint a single person as his proxy but that proxy shall not act as proxy of other person. Appointment of proxy shall be in form MGT-11.
Notice of Meeting shall contain a statement that a member entitled to attend and vote is entitled to appoint a proxy or where that is allowed, one or more proxies to attend and vote instead of him and that proxy need not be member. Default of mentioning of such statement every officer of company in default shall be liable to fine upto Rs. 5000.
Provisions in articles requiring longer period then 48 hours before the meeting for a depositing of proxy or other document relating to proxy with company shall be deemed as 48 hours.
POSTAL BALLOT (Sec 110 read with rule no. 22 of Companies (Management & Administration) Rules 2014)
Notwithstanding anything contained in this Act. A Company shall in respect of items of businesses as the C.G. may by notification, declare to be transacted only by means of postal ballot and if Company voluntary want in respect of any item of business, other than Ordinary Business and any other in respect of which Directors or Auditors have a right to be heard at any meeting, transact by means of postal ballot in such manner as prescribed in rule 22 of Companies (Management & Administration) Rules 2014) instead of transacting at General Meeting.
MEETING OF BOARD OF DIRECTORS AND COMMITTEES OF BOARD
BOARD MEETING (Sec 173)
Applicability for all Companies including OPC
Provisions:
First Board Meeting: within thirty days of the date of its incorporation.
Subsequent Board Meeting: 4 Board meeting in ever year and maximum gap between two Meetings shall be 120 days.
One Person Company, Small Company and Dormant Company may convene Board meeting at least once in half calendar year and gap between two meetings is not less then ninety days.
Power of central government
C.G. has power to direct that the provisions of sub-section (1) of Section 173 shall not apply in relation to any class or description of Company or shall apply subject to such exceptions, modifications or conditions.
Board of Director may participate either personally or by video conferencing or other audio-video means, as prescribed in Rule No. 3 of Companies (Meeting of Board and its Power) Rules, 2004, which are capable of recording and recognizing and storing.
C.G. may specify by notifications of such matter which may not be dealt with by video conferencing or other audio-video means.
Notice of Meeting:
Not less then 7 days notice writing to every director at his usual address registered with company and such notice shall be sent by hand delivery or by post or by e-mode. Board meeting may be called at shorter notice to transact urgent business subject to condition that atleast one independent director, if any, shall be present at the meeting and in case of absence of independent directors from such a meeting of board, decisions taken at such a meeting shall be circulated to all directors and shall be final only on ratification thereof by atleast one independent director, if any.
Failure to give notice may attract penalty of Rs. 25000/- on every officer whose duty is to do so.
Section 173 (5) is not applicable to OPC in which only one director is on the board.
Quorum of Board Meeting
1/3rd of total strength or 2 whichever is higher and participation by video conferencing shall also be counted.
Continuing Directors may act notwithstanding any vacancy on the Board, but if and so long as their number is reduced below the quorum fixed by the Act for a meeting of Board, continuing director may act for the purpose of increasing the number of directors to that fixed for quorum or of summoning a General Meeting and no other purpose.
Where at any time interested directors exceed 2/3 or equal to 2/3rd of total strength then those who are not interested and present at the meeting being not less then two shall be quorum during such time.
Where meeting of board couldn’t be held for want of quorum and articles is silent in that then the meeting shall automatically stand adjourned to the same day at the same time and place in the next week or if that day is national holiday, till the next succeeding day, which is not a national holiday, at the same time and place.
For calculation of quorum any fraction of a number shall be rounded off as one and total strength shall not include directors whose places are vacant.
AUDIT COMMITTEE MEETING (Sec 177 read with rule 6 of Companies (meeting of Board and its power)
Applicability:
- All Listed Companies
- All public Companies with a paid-up capital of 10 crore or more
- All public Companies having turnover of 100 crore rupees or more
- All public companies, having in aggregate, outstanding loans or borrowings or debentures or deposit exceeding 50 crore or more as existing on the date of last audited financial statements.
Composition: Minimum 3 directors with majority of directors shall be independent. Majority of members of audit committee including chairperson shall have ability to read and understand the financial statement.
Timeline:
Every audit committee of a company existing before the commencement of this Act shall be reconstituted as per the provisions of this Act within one year form the commencement of this Act.
Power & Function
Audit committee shall accordance with the terms of reference specified in writing by board which shall include:
a) The recommendation for appointment, remuneration and terms of appointment of auditors;
b) Receive and monitor the auditor’s independence and performance and effectiveness of audit;
c) Examination of financial statement and the report of auditors;
d) Approval of any subsequent modification of transactions of the Company with related parties;
e) Scrutiny of inter corporate loans and investments;
f) Valuation of undertakings or assets of Company wherever necessary;
g) Evaluation of internal control and risk management systems;
h) Monitoring of end use of funds raised through public offers and related matters.
i) Audit Committee shall have authority to investigate into any matters in relation to matters abovementioned a) to h) or any other matters refereed to it by Board and for these purpose to obtain external professional advice and full access to the information and records.
Audit Committee may call comments of auditors about internal control systems, the scope of audit, including observation of auditors and review of financial statement before their submission to the Board and may also discuss any related issues internal or statutory auditors and management of company.
Disclosure in Board Report
Board report shall disclose the composition of audit committee and shall also disclose the fact of not accepting its recommendation and the reason thereof.
VIGIL MECHANISM: (Sec 177 with rule no. 7 of Companies (Meeting of Board and its Power) rules, 2014
Applicability:
- Every Listed Company
- Every Company which accept deposit from public or which have borrowed money form Banks and PFIs in excess of Rs. 50 crore
Shall establish a vigil mechanism for their Directors and employees to report their genuine concerns or grievances. The vigil mechanism shall provide adequate safeguard and mechanism against victimization of persons who use such mechanism and make provision to direct access to chairperson of Audit Committee in appropriate and exceptional cases.
Companies which are required to constitute audit Committee shall oversee the mechanism through the committee and if any of the members of the committee have a conflict of interest in a given case they should rescue themselves and the others on the committee would deal with the matter on hand.
In case of other companies, Board of Directors shall nominate a Director to play the role of audit committee for the purpose of vigil mechanism to whom other Directors or employees may report about their concern.
NOMINATION / REMUNERATION / STAKEHOLDERS RELATIONSHIP COMMITTEE
Applicability:
- All Listed Companies
- All public Companies with a paid-up capital of 10 crore or more
- All public Companies having turnover of 100 crore rupees or more
- All public companies, having in aggregate, outstanding loans or borrowings or debentures or deposit exceeding 50 crore or more as existing on the date of last audited financial statements.
Composition:
3 or more non-executive Directors out of which atleast ½ shall be independent. And Chairperson of the Company may be member but shall not be appointed Chairperson of such committee.
Function:
Nomination & Remuneration committee shall identify persons who are qualified to become Directors or may be appointed in senior management in accordance with criteria laid down and recommend to the Board for their appointment or removal and shall carry out their evaluation. The Committee shall formulate criteria for determining qualifications, positive attributes and independence of directors and recommend to the board a policy relating to remuneration for directors, KMP and other employees and while formulating the policy ensure reasonableness and sufficiency of remuneration to retain and motivate Directors and quality to run Company relationship of remuneration to performance and remuneration of Directors, KMP and other senior management.
The Policy shall be disclosed in Board Report also.
STAKEHOLDERS COMMITTEE
Applicability:
Company which consist of more than 1000 shareholders, Debenture holders, Deposit holders and any other security holders at any time during a financial year.
Composition: Such members as may be decided by Board and the Chairperson shall be a non-executive Director
Function:
The Committee shall consider and resolve the grievances of security holders and the Chairperson of each of the Committees constituted under section 178 or in his absence any other member of the committee authorized by him in its behalf shall attend the General Meetings of the Company.
Penalty for contravention of section 177 and 178:
Fine of minimum Rs. 1 lakh and may extend to 5 lakh on Company and on every officer who is in default shall be punishable with imprisonment for a term which may extend to 1 year or with fine no less than Rs. 25000 which may extended to 1 lakh or with both.
RESOLUTION BY CIRCULATION (SEC 175 WITH RULE 5 OF COMPANIES (BOARD MEETING AND ITS POWER) RULES, 2014
Resolution by circulation shall not be deemed valid unless it is circulated in draft together with necessary documents related thereto to all directors or members of the committee as the case may be, at their address registered with company in India by hand delivery/post/courier/ e-mode (may include email / fax) and has been approved by majority of Directors or members of committee who are entitled to vote on the resolution.
If 1/3 or more of total number of directors require that any resolution by circulation must be decided at Board meeting, the Chairperson shall put the same to be decided at a meeting of Board. Resolution passed by circulation shall be noted at subsequent Board meeting and form part of minute of such meeting.
By: Raju Balodi
Company Secretary
CAclubindia
