Clarification on passing of ordinary and special resolutions by companies under Companies Act,2013 and rules made thereunder on account of the threat posed by COVID-19

> CircularClarification on passing of ordinary and special resolutions by companies under the Companies Act,2013 and rules made thereunder on account of the threat posed by COVID-19 [Ministry of Circular No – 14/2020 dated April 08, 2020.]

> Background – Considering the lockdown by the Government of India due to COVID-19 pandemic and the inability of the Companies to conduct physical meetings to approve certain urgent transactions, the Ministry has specified entire procedure for conducting EGM, that are to be followed by the Companies-

> Applicability

a) For Listed Companies and Companies with 1,000 shareholders –

MCA allows listed companies and companies with 1000 shareholders which were required to provide e-voting facility under the Companies Act, 2013 – can conduct EGM through Video Conferencing (“VC”) / Other Audio Visual Means (“OAVM”) and e-Voting.

b) For other Companies – Easy of Compliance -Highly Simplified Mechanism for voting through registered emails has been put in place.

c) Shareholders are not required to assemble at a common

d) Ordinary and special resolutions to be passed through postal ballot/e-voting route without holding a physical general

> Exculsion – The said circular covers only EGM and excludes Annual General Meetings from its

> Timelines – EGM can be held as per the guidelines specified in this circular upto June 30, 2020.

> Procedure to be adopted for conducting such a meeting:

Sr. No Particulars For companies which are  required to provide the facility of e-voting under the Act, or any other   company   which   has opted for such facility –

(Applicable – Public Companies, Listed Companies)

For companies which are not required to provide the facility of e- voting under the Act

(Applicable – Private Companies or Deemed Private Companies)

1. Recording and Publication of Transcript EGMs, wherever unavoidable, may be held through VC or OAVM and the recorded transcript of the same shall be maintained in safe custody by the company. In case of a public company, the recorded transcript of the meeting, shall as soon as possible, be also made available on the website (if any) of the company. EGM, wherever unavoidable, may be held through VC or OAVM and the recorded transcript of the same shall be maintained in safe custody by the company. In case of a public company, the recorded transcript of the meeting, shall as soon as possible, be also made available on the website (if any) of the company.
2. Convenience of Meeting as per different Time Zone Convenience of different persons positioned in different time zones shall be kept in mind before scheduling the meeting. Convenience of different persons positioned in different time zones shall be kept in mind before scheduling the meeting
3. Facility                      for conducting VC or OAVM a) All care must be taken to ensure that such meeting through VC or OAVM facility allows two way teleconferencing or webex for the ease of participation of the members and the participants are allowed to pose questions concurrently or given time to submit questions in advance on the e-mail address of the company.

b) Such facility must have a capacity to allow at least 1000 members to participate on a first-come-first-served basis.

c) The large shareholders (i.e. shareholders holding 2% or more shareholding). promoters, institutional investors, directors, key managerial personnel,  the chairpersons of the Audit Committee. Nomination and Remuneration Committee and Stakeholders Relationship Committee, auditors, etc. may be allowed to attend the meeting without restriction on account of First-come first-served principle.

a) All care must be taken to ensure that such meeting through VG or OAVM facility allows two way teleconferencing or webex for the ease of participation of the members and the participants are allowed to pose questions concurrently or given time to submit questions in advance on the e- mail address of the company.

b) Such facility must have a capacity to allow at least 500 members or members equal to the total number of members of the company (whichever is lower) to participate on a first-come- first-served basis.

c) The large shareholders (i.e. shareholders holding 2% or more shareholding), promoters, institutional investors, directors, key managerial personnel. the chairpersons of the Audit Committee, Nomination and Remuneration Committee and Stakeholders Relationship Committee, auditors, etc. may be allowed to attend the meeting without restriction on account of first-come-first- served principle.

4. Timelines for joining the meetings The facility for joining the meeting shall be kept open at least 15 minutes before the time scheduled to start the meeting and shall not be closed till the expiry of 15 minutes after such scheduled time. The facility for joining the meeting shall be kept open at least 15 minutes before the time scheduled to start the meeting and shall not be closed till the expiry of 15 minutes after such scheduled time.
5. Remote E-voting (Remote e-Voting where voting  is performed within the voter’s sole influence, and is not physically supervised by representatives of governmental authorities (e.g.   voting   from one’s personal computer, mobile phone, television via the internet) Before the actual date of the meeting, the facility of remote e-voting shall be provided in accordance with the Act and the rules  

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6. Attendance /Quorum Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under section 103 of the Act. Attendance of members through VC or OAVM shall be counted for the purpose of reckoning the quorum under section 103 of the Act.
7. Only those members, who are present in the meeting through VC or OAVM facility and have not cast their vote on resolutions through remote e-voting and are otherwise not barred from doing so, shall be allowed to vote through e-voting system or by a show of hands in the meeting  

8. Appointment of Chairman of the Meeting as per Articles Unless the articles of the company require any specific person to be appointed as a Chairman for the meeting, the Chairman for the meeting shall be appointed in the following manner:

a. Where there are less than 50 members present at the meeting. the Chairman shall be appointed in accordance with section 104.

b. In all other cases. the Chairman shall be appointed by a poll conducted through the e-voting system during the meeting.

Unless the articles of the company require any specific person to be appointed as a Chairman for the meeting, the Chairman for the meeting shall be appointed in the following manner

a. Where there are less than 50 members present  at  the  meeting,  the Chairman shall be appointed in accordance with section 104;

b. In all other cases, the Chairman shall be appointed by a poll conducted in a manner provided

Where less than 50 members are present in a meeting, the Chairman may decide to conduct a vote by show of hands, unless a demand for poll is made by any member in accordance with section 109 of the Act. Once such demand is made, the procedure provided shall be followed.

9. Facility of e- voting The Chairman present at the meeting shalt ensure that the facility of e- voting system is available for the purpose of conducting a poll during the meeting held through VC or OAVM Depending on the number of members present in such meeting, the voting shall be conducted in the following manner;

a. where there are less than 50 members present at the meeting, the voting may be conducted either through the e-voting system or by a show of hands, unless a demand for poll is made in accordance with section 109 of the Act, in which case, the voting shall be conducted through the e-voting system,

b. in all other cases, the voting shall be conducted through e-voting.

 

10. Proxy A proxy is allowed to be appointed under section 105 of the Act to attend and vote at a general meeting on behalf of a member who is not able to attend personally. Since general meetings under this framework will be held through VC or OAVM, where physical attendance of members in any case has been dispensed with, there is no requirement of appointment of Accordingly, the facility of appointment of proxies by members will not be available for such meetings. However, in pursuance of section 112 and section 113 of the Act, representatives of the members may be appointed for the purpose of voting through remote e- voting or for participation and voting in the meeting held through VC or OAVM. A proxy is allowed to be appointed under section 105 of the Act to attend and vote at a general meeting on behalf of a member who is not able to attend personally. Since general meetings under this framework will be held through VC or OAVM, where physical attendance of members in any case has been dispensed with, there is no requirement of appointment of proxies Accordingly, the facility of appointment of proxies by members will not be available for such meetings. However, In pursuance of section 112 and section 113 of the Act, representatives of the members may be appointed for the purpose of voting through remote e-voting or for participation and voting in the meeting held through VC or OAVM.
11. Authorised Representatives of Companies attending Meeting At least one independent director (where the company is required to appoint one), and the auditor or his authorized representative, who is qualified to be the auditor shall attend such meeting through VC or OAVM Atleast one independent director (whore the company is required to appoint one), and the auditor or his authorized representative, who is qualified to be the auditor shall attend such meeting through VC or OAVM
12. Institutional investors as Member Where institutional investors are members of a company. they must be encouraged to attend and vote in the said meeting through VC or OAVM Where institutional investors are members of a company, they must be encouraged to attend and vole in the said meeting through VC or OAVM
13. Designated Email address —- The company shall provide a designated email address to all members at the time of sending the notice of meeting so that the members can convey their vote, when a poll is required to be taken during the meeting on any resolution, at such designated email address.
14. Confidentiality & Privacy The confidentiality of the password and other privacy issues associated with the designated email address shall be strictly maintained by the company at all times. Due safeguards with regard    to    authenticity    of    email address(es)  and other  details  of  the members shall also be taken by the company
15. During the meeting held through VC or OAVM facility, where a poll on any item is required, the members shall cast their vote on the resolutions only by sending emails through their email addresses which are registered with the company. The said emails shall only be sent to the designated email address circulated by the company in advance.
16. In case the counting of votes requires lime, the said meeting may be adjourned and called later to declare the result.
17. Notice    of     the Meeting a. The notice for the general meeting shall make disclosures with regard to the manner in which framework provided in this Circular shall be available for use by the members and also contain clear instructions on how to access and participate in the meeting.

b.   The company shall also provide a helpline number through the registrar & transfer agent, technology provider, or otherwise, for those shareholders who need assistance with using the technology before or during the meeting. A copy of the meeting notice shall also be prominently displayed on the website of the company and due intimation may be made to the exchanges in case of a listed company

a.  The notice for the general meeting shalt make disclosures with regard to the manner in which framework provided in this Circular shall be available for use by the members and also contain clear instructions on how to access and participate in the meeting.

b.  The company should also provide a helpline number through the registrar & transfer agent, technology provider, or otherwise, for those shareholders who need assistance with using the technology before or during the meeting. A copy of the notice shall also be prominently displayed on the website of the company.

18. Service of notice prior to this Circular In case a notice for meeting has been served prior to the date of this Circular, the framework proposed in this Circular may be  adopted  for  the meeting, in case the consent from members has been obtained in accordance with section 101(1) of the Act,   and a fresh notice of shorter duration with due disclosures in consonance with this Circular is issued consequently. In case a notice for meeting has been served prior to the date of this Circular, the framework proposed in this Circular may be adopted for the meeting in case the consent from members has been obtained in accordance with section 101(1) of the Act,  and a  fresh notice of shorter duration with due disclosures in consonance with this Circular is issued consequently.
19. Timelines for Filing of Resolution with ROC All resolutions passed in accordance with this mechanism shall be Ned with the Registrar of Companies within 60 days of the meeting, clearly indicating therein that the mechanism provided herein alongwith other provisions of the Act and rules were duly complied with during such meeting. All resolutions passed in accordance with this mechanism shall be filed with the Registrar of Companies within 60 days of the meeting clearly indicating therein that the mechanism provided herein alongwith other provisions of the Act and rules were duly complied with.
20. Other              relevant compliances relating to General Meetings The companies shall ensure that all other compliances associated with the provisions relating to general meetings viz making of disclosures, inspection of related documents by members, or authorizations for voting by bodies corporate etc as provided in the Act and the articles of association of the company are made through electronic mode. The companies shall ensure that all other compliances associated with the provisions relating to general meetings viz making of disclosures, inspection of related documents by members, or authorizations for voting by bodies corporate etc as provided in the Act and the articles of association of the company are made through electronic mode.

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Qualification: CS
Company: N/A
Location: Mumbai, Maharashtra, IN
Member Since: 11 Apr 2020 | Total Posts: 1

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