Background

With the advancement of web-based facilities, the world is becoming technology driven to a very large extent. Connecting number of people virtually is not an unachievable or cumbersome task anymore.Although, in the past as well, MCA had come up its Circular on “Green initiatives in the Corporate Governance” in the year 2011[1] , providing the facility an audio-visual electronic communication facility to the members in case of general meetings. Presently, with the development of technology, reducing distances for connecting number of people virtually is not only a simpler but also a time savvy and cost-effective job.

The Ministry of Corporate Affairs (MCA) on 19th March, 2020[2] has vide an amendment in the Companies (Meeting of Board and its Powers) Rules, provided a relaxation for holding the meeting of the board of directors on the restricted matters through video-conferencing (VC) till the period ending on 30th June, 2020. Thereby stating that the same shall not mandatorily require the presence of directors physically.  In the current scenario where the country has gone into lockdown mode since 22nd March 2020, for about 3 weeks, it is very clear that the companies are not left with any option of holding physical meetings. In view of the same MCA has recently issued a Circular dated 8th April, 2020[3](‘Circular’) providing clarification on holding extraordinary general meetings (EGM) to be held upto 30th June, 2020 to be held through video conferencing or other audio-visual means (OAVM). Thereafter, in respect of the queries raised by various stakeholders, the MCA has further issued a Circular dated 13th April 2020[4](‘New Circular’/ Additional Circular’) for covering certain gaps in the Circular.

Applicable provisions

Unlike the provisions for holding board meetings through VC, no specific provision has been provided for a general meeting to be held electronically. Except for the postal ballot and e-voting, which have their own limitations. In case of e-voting, while the requirement is mandatorily to be complied by listed companies and other companies having 1000 shareholders or pursuant to rule 20 of the Companies (Management and Administration) Rules, 2014, the need of physical meeting is not shunned away. This is so because inspite of e-voting, a physical meeting has to happen. Therefore, the concept of complete electronic meeting does not get fulfilled with the provision of e-voting.

Now as far as postal ballot is concerned, the same is in lieu of general meeting, however, it continues to be a long-drawn process. While the same does not require a physical meeting, but it remains to be a more obsolete and primitive method of holding and conducting a meeting. Wherein it is almost like sending postal letters for communicating with distant friends and relatives in the bygone age. Thiswould be like sending a sealed letter in a nice envelope and then dropping it into a red box, and then wait. Then keep waiting for the response. However, if technology permits today to communicate instantly with many at a time, there may not be a need to resort to such primitive methods. Also, the downside of the postal ballot again remains the same that there is no interaction on the agenda items. Herein, the concept of holding general meetings through VC becomes all the more important currently, as the physical movement is completely restricted. Thus, postal ballot does not appear to be a practical solution even because that also requires physical movement on the part of the administration and the postal department. This concern has also been addressed by the MCA in its recent Circular dated 13th April, 2020, wherein the provisions of Rule 20 of Companies (Management and Administration) Rules, 2014 shall mutatis mutandis apply while complying with any transactions vide postal ballot. Thus, the assent or dissent shall only be communicated vide remote e-voting until the lockdown period.

Notably,this step of holding general meetings through VC hasalso taken a start globally, where the Johannesburg Stock Exchange (JSE Limited) has launched its first ever platform for catering virtual AGMs[5]. They intend to offer this service even after the Covid-19 crisis, as it is a great platform for engaging with stakeholders. In New York, Colgate- Palmolive[6] also intends to conduct its virtual AGM in FY 2020-2021.

Need of the hour

Considerably, in the given circumstances of complete shutdown, one will also have to ensure that maintaining such standards and norms so as to ensure productivity and participation is not prejudiced. More so, because the provisions of law w.r.t practical aspects of the meetings such as the requirement of quorum, proxy, minutes, attendance sheet etc., currently are prepared in view of a physical meeting and not a meeting by VC. Therefore, in order to avoid the debates which might stir for holding the general meetings of companies with large number of shareholders, the MCA has come up with its Circular(s) clarifying the operational measures to be taken for conducting the EGM for the companies which are/ are not required to opt for the facility of e-voting, to serve the need of the hour .

In view of the same we have tried to envisage and compile such practical scenarios which needs to be addressed while conducting a meeting by VC.

General Queries

1. Can a general meeting be held by VC?

As discussed above, while the provisions of the Companies Act, 2013 are silent w.r.t. holding general meetings through VC, however, based on the above-mentioned MCA Circular, we can safely state that the EGMs can be conducted by VC or OAVM.

2. Which companies can conducttheir meetings through VC?

As such there is no restriction on any company to hold general meetings through VC. Based on the MCA circular, all private, public and listed companies can hold their EGMs through VC.

3. Is it feasible for a listed entity to hold itsmeeting through VC?

Yes. As per the need of the hour, conducting meetings electronically is not an option but a necessity. The Companies (M&A Rules, 2014), list out the mandatory requirement ofremote e-voting for listed companies or companies having more than 1000 shareholders.

However, with respect to the question of how feasible it could be for a listed or a company with large shareholder base to convene the general meetings through VC, the same will be possible with the assistance and co-ordination of RTAs, NSDL/CDSLas well as the audio- visual platform concerned.

4. Are there any precedents of such meetings?

Internationally, the Johannesburg Stock Exchange (JSE Limited) has launched its first ever platform for catering virtual AGMs[7]. They intend to offer this service even after the Covid-19 crisis, as it is a great platform for engaging with stakeholders. In New York, Colgate- Palmolive[8] also intends to conduct its virtual AGM in FY 2020-2021.

5. Whether the EGM through VC can only be conducted upto 30th June?

Ideally, the idea is to have the meeting conducted before 30th June, 2020. However, we would be inclined to say that even if the proceedings for conducting the meeting are held before 30th June, 2020, this would not make the companies doing a practice against the law.

Although, it is unfortunate that the crises situation enabled us to resort to the technology, however, one should ofcourse encourage the technology to come into effect even after the crises situation ends. This would in any case be an opportunity to the shareholders to participate rather than their rights being prejudiced.

6. Is this circular an enabling circular or a prescriptive circular?

While the circular has been brought with the intent to enable participation through VC or Other Audio Video Means (OAVM), however, the language seems to be prescriptive only, in the sense that it requires the companies calling EGM that too within a time frame of 2-3 months from the issuance of this circular, to allow and arrange for VC conducted meetings. Note that the circular is clearly saying – only where the EGM is indispensable etc.

“However, in case holding of extra-ordinary general meeting (EGM) by any company is considered unavoidable, the following procedure needs to be adopted for conducting such a meeting on or before 30.06.2020, in addition to any other requirement provided in the Act or the rules made thereunder.

7. Can this be extended to AGM as well?

As on date the intentbehind conducting AGM is that the directors being the managers of thecompany and the shareholders being the owners, the directors shall at least once in a yearbe made answerable to the shareholders. The same may not be possible through VC. So, asfar as AGM is concerned, unless the law explicitly relaxes the need for physical AGMs, the companies will have to resort to the same at least for quite some time.

8. Whether court convened meetings can be conducted through VC?

The Circular does not pose any restriction in this regard. This being the only way during the crisis. Even after the crises people would not intent to travel for quite some time, therefore, this will be the only way for conducting the meetings.

9. Can the principles of this Circular be used for class meetings as well?

There is no hard and fast rule for conducting the meetings of different classes of security holders as for the equity shareholders. Accordingly, companies may choose any virtual or other means (vote by email, etc.) through which the votes of the classes as may be required, for example – class of debenture holders, preference shareholders, etc.

10. During COVID- 19, can a force majeureclause with respect to conducting of meetings in the Articles of the Company

There is no doubt that the current COVID-19 situation is a force majeure, however, there is no need to go the extent of enforcing such a clause in the Articles of a company. It is quite obvious that no one can make someone do an act of  impossibility.

Pre-requisites of the meeting

Notice

11. What are the pre-conditions for sending the notice?

a) If the company already has the e-mail ids of all the shareholders- there shall be no requirement of any other compliances as per the Additional Circular. The company can easily call a meeting by short notice; in other cases

b) Telephonic communication/ communication through any other mode to be made to the shareholders whose e-mails are not registered for getting the same done

c) If the telephonic communication could not be made-

    • Public notice to be made by way of advertisement to be made immediately
    • Members to get their e-mail ids registered within 3 days of the date of public notice by writing to the e-mail id provided by the company

d) Point to be noted here is that, if such communication is not made then it may not be considered as an accidental omission but a systematic one.

12. How shall the notice be dispatched?

Only through e-mails registered with the company or with the depository participant/ depository.

13. What if an e-mail address is not registered with the company?

As per the Additional Circular, the public notice made to the shareholders shall contain the manner in which the members whose e-mail is not registered with the company can get the same registered. In case of unlisted and/ private companies, these shall contact such members over telephone or any other mode of communication to register their e-mail ids, before circulating the notice.

14. What if the contact details are not available as above?

The unlisted/ private companies referred above, shall cause a public note by an advertisement in vernacular language of the place where the registered office is situated and in one English newspaper. Preferably, both the newspapers should have electronic editions. The notice of the meeting will be sent to the members after 3 days of this advertisement.

Basically, the following procedure may be followed for obtaining the e-mail address and sending of the log in credentials to the respective shareholders:

The flow of events can be as follows:-

flow of event

15. What is the primary information required to be mentioned in the notice?

The notice of a meeting shall primarily specify the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.  Other specific requirements as mentioned in clause 8.5.1. of SS-2 include the time and manner of voting before and during the meeting. Also, the MCA Circular clarifies that the Notice shall specify clear instructions for accessing and participating in the meeting and shall also provide the helpline number through the RTA or other technology providers. Further, the Login -IDs for participation and the timeline for sending the votes through e-mail should also be a part of the notice.

16. Whether the concept of considering the venue will be applicable?

Practically, there is no question of a “venue” of a meeting in case of a meeting by VC. No one is meeting physically at any place. The cloud is the place.

However, if the meeting has to have a place, it is chairperson who is the anchor for the meeting – hence, the chairperson’s place will be the place. Provided one shall keep in mind the provisions of Section 96 (2) of Act, that the AGM shall be held either at the registered office of the company or at some other place within the city, town or village in which the registered office of the company is situated. The AGM of an unlisted company may be held at any place in India if consent is given in writing or by electronic mode by all the members in advance. Further, the EGM of a company, other than of the wholly owned subsidiary of a company incorporated outside India, shall be held at a place within India as per Section 100(1) of the CA, 2013.

17. What is the venue of the meeting to be specified in the notice?

The notice for such a meeting will not say – meeting shall be held at XYZ place. It will say, meeting will take place through [name of the VC platform]Video Conferencing Platform, and share log-in or call-ins, as it is commonly done in case of meetings on Webex, Zoom or other VC platforms. However, the voting credentials being unique to each shareholder, the same shall be shared on their respective e-mail ids which which again should be coupled with certain security features (like affixing share certificate, attaching signatures, etc).

18. How is the information to be disseminated?

As required under Reg, 34 read with Reg, 46 of SEBI (LODR), 2015, Section 101 of the Companies Act, 2013 read with Rule 18 of the Companies (M&A), Rules, 2014 and Clause 8.5 of SS-2, a notice may be sent through e-mail as a text or as an attachment to e-mail or as a notification providing electronic link or Uniform Resource Locator for accessing such notice. It shall also be placed on the website of the company and published in the newspapers to ensure proper dissemination. Further, the Circular also clarifies the requirement of placing the notice on the website and intimation to be made to the stock exchange by a listed entity.

19. Are there any addition items to be mentioned while publishing a public notice?

As per the Additional Circular,

i. the public notice as required under rule 20(iv) shall contain all the particulars which provide the ease of voting and participation in the meeting. These include the statement wrt the following:-

a. The EGM has been convened by VC / OAVM in compliance with the provisions of the Act and the Circular;

b. Date and time of the EGM- as is commonly required

c. Availability of the notice on the stock exchange and website

d. Manner in which physical shareholders can cast their votes

e. Manner in which members can get their e-mails registered with the company

ii. In case of companies not required to provide e-voting facility:-

a. The EGM has been convened by VC / OAVM in compliance with the provisions of the Act and the Circular (s);

b. The notices to be sent to the members by e-mail within 3 days of the public notice

c. Details of e-mail & telephone no. where shareholders may contact for getting their e-mails registered

20. What is the time of sending the notice?

As per the Companies Act, 2013, the timeline for sending the notice is 21 clear days. However, in case the company intends conducting the meeting on shorter notice, the same may also be done on receiving the requisite consent of the members.

21. Can the company hold the meeting through VC if the notice was served prior to the issue of the MCA Circular?

In this case, the meeting may be conducted through VC if:

a. The consent of members received as per 101(1);  and

b. a fresh notice for shorter duration is issued with disclosures required.

Proxy

22. Does the concept of proxy exist for e-voting?

Since in VC meetings, physical attendance is no longer needed, thus, there shall be no requirement of proxies to be appointed.

Participation

23. What is meant by two-way teleconferencing?

Mostly, all audio-visual platforms provide this facility. Mainly the requirement should be, any platform that provides:

a. Audio-visual;

b. Two- way conferencing;

c. Recording facility.

should suffice. Further, other features like voting on platform and sharing of documents on the platform should also be allowed.

24. What should be the capacity for participation?

The capacity should be atleast 1000 for companies covered under Para 3A of the Circular. Further, for companies covered under Para 3B, the requirement is either 500 or the total number of members in the company, whichever is lower. So there is no question of going for a platform which should have the facility of 500/1000, even if the number of members are lower.

25. What if large shareholders do not get to participate on first come basis?

Although the capacity is restricted as per first come first serve basis, large shareholders shall still be allowed. The idea is to get the larger shareholders to participate in the meeting.

26. Whether the members will be required to be given their login-ids?

Since the attendance will be calculated on the basis of the participation, the members will ofcourse be required to have their respective Login IDs. These IDs should be sent to their respective emails.

27. Are the independent directors mandatorily required to attend?

It cannot be said that the meeting cannot be held due the absence of independent directors. While the company shall endeavour to ensure their presence, however, this cannot be held as a mandatory requirement.

28. Are the auditors or their representatives mandatorily required to be required participate?

The participation of auditors in EGM is a strange opinion as the auditor may not be required unless the matter requires the concern of the auditor.

29. Whether authorised representatives of companiesshall be permitted to participate?

The MCA Circular permits the authorised representatives appointed ion pursuance of Section 112 and 113 to participate and vote in the meeting.

30. Whether non- resident shareholders will be able to participate?

Most of the VC meeting platforms permit the participants at distant locations to connect on one platform. The MCA Circular also states that the convenience of the persons participating from different time zones is also required to be ensured.

31. What is the time zone to be considered?

In India there is only one time zone. However, if the members are extended across the globe, then there will be no common time zone so the time zone where the majority of the members are present should be considered.

32. How will the discussions take place?

The meeting shall allow a two-way conferencing/webex for the ease of participation. The members can pose questions during or prior to the meeting through e-mail to the company.

33. What is the time limit for participation?

The Circular allows the time limit for participation to be 15 minutes before the meeting until 15 minutes of the start of the meeting.

Registrar and Share Transfer Agent

34. What will be the role of the RTA?

The fact that meeting is being conducted through VC means shall not affect the role of the RTA. As such, the RTA is required for maintain the register of members and recording the numbers of members as on the cut- off date, which remains the same. Moreover, the RTAs will now have to look into the technicalities of the meetings through VC/OAVM.

Scrutinizer

35. What will be the role of the scrutinizer?

The votes in case of physical voting go directly to the scrutinizer, similarly, the e-mails etc should go to the scrutinizer only. In case of e-voting at the meeting, the service providers (NSDL/ CDSl) shall provide a window for voting at the meetingagain. The scrutinizer shall review the remote e-voting and the poll at the meeting as well to aggregate the votes.

In fact the e-mail id of the scrutinizer should be given as the recipient e-mail id for receiving the votes. This reduces the chance of tampering of votes since a third / external agency is involved.

36. What should the format of a scrutinizer’s report for meetings held through VC?

The format has to be in line, mutatis mutandis, with the format for polling given under section 109 of the Companies Act, 2013 and rule 21(2) of the Companies (Management and Administration) Rules, 2014

However, the draft format is annexed as Annexure A to this write-up for reference purpose only.

Modus Operandi

Chairman

37. How will the chairman be elected for such meetings?

Unless the Articles of the company state the requirement wrt the appointment of chairman. The same is to be appointed as follows during the meeting:-

a. If members are less than 50- by voting by poll as per Section 104 of the Companies Act, 2013

b. For members more than 50- by poll conducted in the manner applicable to companies

Quorum

38. Is the concept of physical presence be applicable. If yes, in what sense?

The thought of a “personal presence” does not seem to be logical in case of a meeting by VC. Of course, every person who is participating in the meeting from remote locations are all “personally” there. Every person hooked on to the VC participates in the collective decision-making, with their full sensibility. Accordingly, the participation, is no way any less in a VC meeting than in a physical meeting.

39. What shall be the quorum of the meeting?

Quorum shall still remain the number as specified in Section 103 of the Act, 2013 read with SS-2. The MCA Circular clearly specifies that the attendance of the members through VC/OVAM shall be counted for reckoning the quorum under the above provisions.

Voting process

40. What are the alternative modes of meeting?

Mode of meeting

41. Will every shareholders resolution require the process mentioned in the circular?

No. The circular is prescriptive in nature and has to be resorted to only in case of unavoidable situations.

42. What are the ways through which consensus can be achieved?

If there are any of the informal ways of receiving consensus, it will still be valid as shareholders resolution. The idea is to get unanimous consent and not through the meeting only. As long as all members agree to approve the resolutions without the meeting, the same should be held valid.

43. What is effectively the difference between a poll in a VC meeting and e-voting at the meeting?

As per the MCA Circular:-

a. In case of poll – members need to send emails to the company

b. In case of e-voting – it casts votes on the portal of the service provider.

44. What the purposes for which an e-mail should be required?

Considering the Circular, the e-mails shall be required for three purposes:-

a. For sending the notices;

b. For sending the Login credentials;

c. For casting the vote through poll

45. What is the authenticity of the e-mails received by the company for registration?

The shareholders may attach the scan of the share certificate with the e-mail to authenticate their e-mail ids.

46. What are the action points for enabling votes?

Three action points from the company as well as the member’s side

a. Sending an invite with the log in credentials by the company (informing the e-mail id for receiving the votes/ questions, etc.)

b. Members logging in to participate in the meeting

c. Voting during the meeting either through poll (which mostly seems to be conducted like a remote e-voting or by sending votes through e-mail, as the case may be)

47. Is there any possibility of voting for members not having e-mail id?

An e-mail id will be required in the first place to get the login -id and password for participation and voting. This cannot be received through any public notice. People not having an e-mail id will not be able to vote.

48. Can postal ballot be considered as an option?

Postal ballot can be used in lieu of meeting. However, it is a more impractical and time-consuming process as compared to the informal mode of meeting.Also, as per the proviso inserted to Section 110 (1) of the Companies Act, 2013 vide the Companies (Amendment) Act, 2017, the law has already provided that for the items of business mandatorily required to be transacted by means of postal ballot, may be transacted at a general meeting by a company which is required to provide the facility of e-voting under section 108. Therefore, the use of postal ballot may be done away with in the current scenario.

Show of hands

49. Will it be practical to count votes through show of hands?

Practically, the use of show hands for voting may not be a good idea. The show of hands is generally used for asking questions.This sort of voting is always based on a subjective assessment of the Chairman. It may not be practical to actually count the number of hands going up at any large meeting. Hence, the MCA Circular provides for the use of voting through e-mails for the conduct of poll.

50. When can show of hands be used for voting?

Not all resolutions can be passed through show of hands. Itis a short-cut method of voting in cases where shareholder might not have an issue and in case of lesser number of shareholders.

51. What is the alternative to show of hands?

The New Circular provides that voting through e-mails should be done during the meeting held through VC / OAVM.

Poll

52. What happens in case of demand for poll?

The process of e-voting during the meeting is to be used in lieu of poll in VC meetings for listed companies. For unlisted and private companies not having the option of remote e – voting, the members need to convey their votes through their registered e-mail address.

53. How will the voting be cast through e-mail?

The e-mail should ideally be a yes/no form of non-confusing mail sent to the shareholders for giving their assent / dissent. In that case, the polling papers can also be attached in the e-mail itself.

54. When shall the voting through e-mails be done?

The New Circular clarifies that the poll has to be taken during the meeting by way of sending assentor dissent of the shareholders to designated email address of the company.

E-voting

55. Will a person be required to vote in the VC meeting also if he has voted in the remote e-voting process?

No. Only those members who have not cast their votes in the remote e-voting shall vote while the meeting is conducted through VC, provided they are not restricted from voting in some particular resolution.

56. In case of conducting a meeting through e-voting, do we still need to have a voting process in the physical meeting?

No. This question does not arise. The whole intent of having virtual meetings at this point of time is to get the participants to connect from any location in the world using smart devices,through virtual means.

Transcripts of the Meeting

57. What are the ‘recorded transcripts’ of the meeting?

Transcripts are probably textured transcripts. So if the companies are maintaining the records, the requirement shall suffice. There shall be no requirement of transcripting the entire proceedings into a text form.

58. Until when are the transcripts to be kept in safe custody?

Since there is no timeline of keeping the transcripts, they shall be kept in the similar manner as the proceedings of the board meeting. However, the circular requires them to be uploaded on the website as well.

59. Do the companies having only a commercial website need to upload the transcripts on the website. For how long?

No. In case company only has a commercial website for displaying its business and products, the same will not be accessible to the shareholders for meeting related purposes. Thus, the question of uploading the transcripts would be applicable only if they have a website for investor communication.

As far as the time is concerned, there is no prescribed timeline.  The same has to be kept for reasonable time. However, once the minutes are prepared, the right course for the shareholders is to resort to the minutes.

Other compliances

60. How to check the cases where any shareholder abstains from voting?

Likewise as in case of board meetings. After obtaining the list of related parties, one will have to discard votes if any cast by any interested shareholder.

61. How can companies keep a check on voting by related parties?

In case a member who is a related party and is not entitled to vote on a particular resolution in which such member is a related party, the same can be carried out by excluding the interested member. Every VC facility includes an option to disconnect a particular member. Therefore, the so-called interested member may be disconnected while discussing the impugned item.

62. How will the documents be placed for inspection?

The electronic mode for making the documents visible can be a feature added in the electronic platform by the service provider.

63. Are the registers required to be kept open for inspection?

The requirement of keeping the registers for inspection might currently not occur for the EGMs to be held electronically. Considering, the requirement of maintaining the register of proxies is provided in clause 6.9 of SS-2. Since, there are no proxies to be appointed, this register will not be required. A statement in this regard may also be recorded.

Further, the register of contracts is only required to be produced at thecommencement of every AGM [S. 189(4)] and the register of directors and KMPs shall be kept open for inspection at every annual general meeting of the company [S. 171(1)(b)]. Accordingly, companies will not be mandatorily required to place any register before the members during the EGM. In other cases, the electronic versions are to be resorted to in case of demand.

64. Whether the provision of live webcast under SEBI (LODR), 2015 applicable?

The provisions wrt one-way live webcast of the proceedings of the AGM is applicable on top 100 listed entities only [Section 44(6) of LODR, 2015]. The rationale behind the same as recommended in the UK Committee report dated October 5, 2017[9] stated that the same is required for the investors to take into account the discussions during the general meeting and hence, vote with complete information. It was also suggested to extended the same to other listed entities on the basis of the feedback of top 100 entities. Since the general meetings through VC will provide the audio-visual/screen sharing facility, it will suffice the intent and need of the live webcast as well. In any case, the said provision is applicable only for the AGM of top 100 listed entities.

Post meeting compliances

65. Do we need to call a meeting again for declaring the result?

The declaration of result is simply a chairman’s declaration. There is no need to call the meeting again. The result can simply be posted on the website of the company or communicated to the members or stock exchanges. The question of calling a meeting again does not arise.

Resolutions

66. Which resolutions are to be filed?

Not all the resolutions require filing. Also, section 117 is not limited to special resolutions only, therefore, only those resolutions which are required to be filed as per law shall be filed.

67. Can the company file the resolutions passed in the meeting?

Yes. The ordinary or special resolutions passed in the meeting are permitted to be filed within 60 days of the meeting as per the MCA Circular. It should clearly indicate the mechanism of the meeting alongwith the fact that other provisions of the Act and the rules were duly complied.

68. As regards filing of the resolutions, will the company attach the true copy of the extract of the minutes?

Yes. The requirement of filing all resolutions with Registrar and indicating the mechanism of following the circular can only be done if the true copy of the resolutions is attached with the respective e-Form.

69. How will the resolution clearly indicate the instructions of the meeting?

The extract of the resolution shall state “The resolution passed at the extra-ordinary general meeting held by vedio- conferencing facility in accordance with the instructions given in the MCA Circular dated April 8, 2020.”

70. Can the resolutions passed in the EGM be signed by the chairman with DSC and filed with MCA?

Yes. Certifying the copy of the resolution with the digital signatures of the authorised person shall suffice.

Maintenance of Records

71. Whether the attendance sheets will be required to be maintained?

The attendance at the meeting will anyway get recorded at the portal on which the meeting is conducted.

72. Will the meeting be recorded?

The recording of the meeting will obviously be required for various purposes like minutes, filing of resolutions etc. The MCA Circular clearly states that the record transcript should be maintained in safe custody and for a public company, the same shall be made available on the website.

73. How will the maintenance and signing of minutes be ensured?

Clause 17.1.3. of SS-2 permits the maintenance of minutes in electronic form as well with a proper time stamp.  However, in case of the present exigency, the proceedings will in any case get recorded while the conduct of VC meetings. Assuming that it is not possible to get the physical signatures of the chairperson within 30 days as required, the minutes will be entered in the minute book and signed as and when possible. The present situation being a force majeure, there cannot be any breach of law for what is anyways an impossibility.

Conclusion

Thus, it is to be noted that though the recent clarification provided by MCA is a welcome step for the stakeholders during the global pandemic, the benefit of the same is not far-sighted. Unlike few companies considering the step globally, in India, as of now, the same only benefits the EGMs to be held until 30th June, 2020 for urgent matters and does not extend to the AGMs to be held lateron. Practically, the companies face various issues of getting the quorum etc for the meeting, which leads to adjournment and bearing similar costs later for the logistics of the meeting. Thus, in our view, in this era of technology, it would be a much better move by the authorities if the same could be extended to all the general meetings to be conducted by the companies even after the lockdown situations.

Annexure A

Draft Format
Report of Scrutinizer
[Pursuant to section 108 of the Companies Act, 2013, Rule 20 of the Companies (Management and Administration) Rules, 2014 and General Circular No. 14/2020 dated 8th April, 2020]

To,
The Chairman,
Name of the Company
Address

Re: Report of Scrutinizer for the [*] Extra-Ordinary General Meeting (‘EGM’) of the Members of [Name of the Company] held through video conferencing on [Date of Meeting] from [start time of the meeting] to [end time of the meeting]

Dear Sir,

In terms of authority of the Board Resolution dated [*], the Company has appointed [Name of the Scrutinizer, as the Scrutinizer for the purpose of scrutinizing the voting process conducted through poll as well e-voting on the below mentioned Resolutions passed at the Extra-Ordinary General Meeting (‘Meeting’) of the shareholders of the Company conducted through video conferencing on [Date of Meeting] in pursuance of the provisions of section 108/110 of Companies Act, 2013 (“the Act”) read with Rule 20 of Companies (Management and Administration) Rules, 2014 (“Rules, 2014) and General Circular No. 14/2020 dated 8th April, 2020.

We hereby submit our Report as under:

1. The Company had appointed NSDL/CDSL for the purpose of extending the facility of e-voting to the Members of the Company;

2. The Company has used [name of the VC / OAVM platform] for conducting Meeting through video conferencing in accordance with the General Circular No. 14/2020 dated 8th April, 2020;

3. The Company has circulated the notice containing the details of manner of voting either through poll or by e-voting (including the log in credentials) to all the Members of Company by way of e-mail and publication of the same on its website;

4. Out of the total number of shareholders, the e-mail addresses of [•] shareholders are registered with the Company. However, [•] shareholders registered their e-mail addresses after the Company published the newspaper advertisement in [•] and [•] in accordance with the General Circular No. 17/2020 dated 13th April, 2020. Further, , the e-mail addresses of [•] shareholders could not be registered with the Company even after the best of the efforts taken.

5. The cut-off date for the purpose of identifying the Members who were entitled to vote on the Resolutions placed for approval was [Date];

6. As prescribed in Rule 20 of the Companies (Management and Administration) Rules, 2014 the remote e-voting facility was kept open for three days i.e. from [*] to [*];

7. During the conduct of Meeting, the Chairperson allowed time from [*] to [*] to all the Members of the Company attending meeting through video conferencing to vote by way of e-voting or electronic poll voting.

8. During the conduct of meeting through video conferencing, all votes with respect to the assent and dissent casted either by way of e-voting or electronic poll voting was accessible only by us;

9. The electronic votes were unblocked from CDSL’s/NSDL’s site at around [*] on [*]in the presence of 2 (two) witnesses, neither of whom are in the employment of the Company, and e-voting summary statement was downloaded from the e-voting website;

10. The votes were also scrutinized for the purpose of eliminating duplicate voting and the votes, if any;

11. Our report on the results of the e-voting is based on the data downloaded from CDSL/NSDL;

12. The data relating to e-voting process were reconciled with the records maintained by the Company / Registrar and Transfer Agents of the Company.

We hereby submit our Consolidated Report. In this regard, we have separately, given our report for the results of e-voting.

Reso-lution No. Votes in favour Votes against
  No. of members who voted No. of votes cast % of total no. of votes cast No. of members who voted % of total no. of valid votes cast % of total no. of valid votes cast

2) The details of votes received through e-voting and email voting by the Members are as follows:

Resolution required:  
Whether promoter/ promoter group are interested in the agenda/resolution?
Cate-gory Mode of Voting No. of shares held No. of votes polled % of Votes Polled on outst-anding shares No. of Votes – in favour No. of Votes –Against % of Votes in favour on votes polled % of Votes against on votes polled
[1] [2] [3]={[2]/ [1]}* 100 [4] [5] [6]={[4]/,[2]}* 100 [7]={[5]/ [2]}* 100
Promoter and Promoter Group E-Voting
Poll on VC plat-form
Postal Ballot
Total
Public Instit-utions E-Voting
Poll on VC plat-form
Postal Ballot
Total
Public Non Instit-utions E-Voting
Poll on VC plat-form
Postal Ballot
Total
Total  

A Compact Disc (CD) containing a list of equity shareholders who voted “FOR” and “AGAINST” for each resolution and all other relevant records will be sealed and handed over to the Company Secretary authorized by the Board for safe keeping.

Place:
Date:
Signature of Scrutinizer

Draft Format
Report of Scrutinizer
[Pursuant to General Circular No. 14/2020 dated 8th April, 2020]

To,
The Chairman,
Name of the Company
Address

Re: Report of Scrutinizer for the [*] Extra-Ordinary General Meeting (‘EGM’) of the Members of [Name of the Company] held through video conferencing on [Date of Meeting] from [start time of the meeting] to [end time of the meeting]

Dear Sir,

In terms of authority of the Board Resolution dated [*], the Company has appointed [Name of the Scrutinizer, as the Scrutinizer for the purpose of scrutinizing the electronic voting process conducted on the below mentioned Resolutions passed at the Extra-Ordinary General Meeting (‘Meeting’) of the shareholders of the Company conducted through video conferencing on [Date of Meeting] in pursuance of the provisions of General Circular No. 14/2020 dated 8th April, 2020 read with applicable provisions of the Companies Act, 2013 and allied rules.

We hereby submit our Report as under:

13. The Company has used [name of the VC / OAVM platform] for conducting Meeting through video conferencing in accordance with the General Circular No. 14/2020 dated 8th April, 2020;

14. The Company has circulated the designated email address for the purpose of receiving the votes, to all the Members of Company by way of notice and publication of the same on its website;

15. Out of the total number of shareholders, [•] shareholders registered their e-mail addresses after the Company published the newspaper advertisement in [•] and [•] in accordance with the General Circular No. 17/2020 dated 13th April, 2020. However, the e-mail addresses of [•] shareholders could not be registered with the Company.

16. The cut-off date for the purpose of identifying the Members who were entitled to vote on the Resolutions was [Date];

17. During the conduct of Meeting, the Chairperson allowed time from [*] to [*] to all the Members of the Company attending meeting through video conferencing to vote by providing their Assent/Dissent through email / VC platform;

18. During the conduct of meeting through video conferencing, all votes with respect to the assent and dissent were received by us at our designated email address duly circulated by the Company in the notice;

19. The access of designated email address was only provided to the Scrutinizer;

20. The Scrutinizer while counting the votes have assured authenticity of email address(es) and other details of Members;

21. [Applicable in case poll is not conducted] The voting by show of hands was conducted by the Chairperson during the Meeting and the assent and dissent of the Members were noted during the Meeting;

The details of votes received through email voting and/or voting by show of hands by the Members are as follows:

1. Resolution No.:

i) Voted in favour of the resolution

Number of Members present and voting Number of votes cast by them % of total number of valid votes cast

ii) Voted against the resolution

Number of Members present and voting Number of votes cast by them % of total number of valid votes cast

iii) Invalid votes

Total number of members whose votes declared invalid Total number of votes cast by them

A Compact Disc (CD) containing a list of equity shareholders who voted “FOR” and “AGAINST” for each resolution and all other relevant records will be sealed and handed over to the Company Secretary authorized by the Board for safe keeping.

Place:
Date:
Signature of Scrutinizer

[1] https://taxguru.in/company-law/participation-shareholders-general-meetings-companies-act-1956-electronic-mode-general-circular-272011.html

[2] https://taxguru.in/company-law/companies-meetings-board-powers-amendment-rules-2020.html

[3] https://taxguru.in/company-law/mca-allows-companies-hold-egms-through-vc-oavm.html

[4] https://taxguru.in/company-law/mca-further-clarifies-passing-ordinary-special-resolutions-covid-19.html

[5] https://www.iol.co.za/business-report/jse-launches-virtual-agms-historic-first-for-sa-45767901

[6] https://east.virtualshareholdermeeting.com/vsm/web?pvskey=CL2020

[7] https://www.iol.co.za/business-report/jse-launches-virtual-agms-historic-first-for-sa-45767901

[8] https://east.virtualshareholdermeeting.com/vsm/web?pvskey=CL2020

[9] https://www.sebi.gov.in/reports/reports/oct-2017/report-of-the-committee-on-corporate-governance_36177.html

(Author is associated with Vinod Kothari & Company and can be reached at ambika@vinodkothari.com)

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