Board resolution for adoption of POSH Policy

 

“RESOLVED THAT pursuant to the provisions of the act and rules thereunder, subject to any modification(s), consent of the board be and is hereby accorded to adopt the ___________________ Private Limited Anti-Harassment Policy

RESOLVED FURTHER THAT pursuant to section 4 of the Sexual Harassment of the Women at the workplace (Prevention, Prohibition and Redressal), Act 2013 and all other applicable, if any, provisions for the time being in force read with Rules & regulations framed under the Act and subject to such guidelines issued from time to time for the protection of the Women against the sexual harassment at the workplace, the Board has constituted an Internal  Committee (hereinafter called “IC”);

RESOLVED FURTHER THAT Mr._______________________ (Designation of the employee) shall be the Presiding Officer of the Committee.

RESOLVED FURTHER THAT Mr.________________________ (Designation of the employee) and Mr. ___________________ (Designation of the employee) shall be the Internal Members.

RESOLVED FURTHER THAT Mr.____________ (Occupation) shall be the External Member

RESOLVED FURTHER THAT the members of the Committee do hereby authorized to do the following things to provide the safety to the person at workplace:

1.       To receive and dispose of the complaint received from the aggrieved person

2.    To ensure the complaint to be received in writing.

3.   To ensure to provide all reasonable assistance to the aggrieved person to make the complaint in writing. 

4.   To conduct the inquiry.

5.       To take every such step at the request of the aggrieved person for the amicable settlement of the matter.

6.       To ensure that monetary settlement is not through conciliation

7.       To keep the record of every complaint and settlement and to report it to the employer.

8.       To provide the requisite copy of the settlement to the parties to the complaint. 

9.       To ensure not to conduct an inquiry into the matter settled earlier.  

10.   To submit an annual report to the employer and District Officer”

RESOLVED FURTHER THAT a copy of resolution certified to be true by any of the Director of the company, be issued to the department to act thereupon”.

Notice of EGM for removal of Director

 

NOTICE IS HEREBY GIVEN THAT THE EXTRAORDINARY GENERAL MEETING(EGM) OF _________________________________ PRIVATE LIMITED, ON THE REQUISITION OF __________NAME OF COMPANY___  shareholder of the company who holds ______% of the voting capital of the company WILL BE HELD ON  ______DAY ____________________, 2021 AT 12.00 NOON AT______DELHI ADDRESS______THROUGH VIDEO CONFERENCE FACILITY

                   

SPECIAL BUSINESS

                                                                                                                           

1.        REMOVAL OF ___________________ AS DIRECTOR of the company

 

To consider and, if thought fit, to pass with or without modification(s), the following resolution as an Ordinary Resolution:

 

“RESOLVED THAT pursuant to the provisions of Sections 169 of the Companies Act,2013 and any other applicable provisions if any  (including any statutory modification(s) or re-enactment thereof for the time being in force), _________________ (DIN: ____________), be and is hereby removed from the office of Director of the Company with effect from the date of this meeting."

“RESOLVED FURTHER THAT for the purpose of giving effect to this resolution, _____________________________, Director of the company is and hereby authorized to do all the acts, deeds, matters, and things as may be deemed necessary, proper or desirable and to sign, and execute all necessary documents, applications, and returns for the purpose of giving effect to the aforesaid resolution along with filing of necessary e-forms with ROC.”

 

“RESOLVED FURTHER THAT the above referred resolution has been passed in accordance with the mechanism prescribed by the Ministry of Corporate Affairs vide General Circular No. 14/2020 dated 8^th April 2020 and General Circular No. 17/2020 dated 13^th April 2020 and in compliance with the applicable provisions of the Companies Act 2013 and rules thereof.”

 

2.        APPOINTMENT OF MR. _____________________ (DIN: _____________________)AS A DIRECTOR OF THE COMPANY

 

To consider and, if thought fit, to pass with or without modification(s), the following resolution as Ordinary Resolution:

“RESOLVED THAT pursuant to the provisions of Section 152,169 and other applicable    provisions of the Companies Act, 2013 and the Rules framed thereunder, Mr. _______________________ (Director Identification Number ____________________) be and is hereby appointed as Director of the Company with immediate effect.

 

“RESOLVED FURTHER THAT the Directors of the Company be and are hereby severally authorized to file the necessary forms with the Registrar of Companies, NCT of Delhi and Haryana, update the Register of Directors and to do all other necessary acts, things and deeds to give effect to the above mentioned resolution.”

 

“RESOLVED FURTHER THAT the above referred resolution has been passed in accordance with the mechanism prescribed by the Ministry of Corporate Affairs vide General Circular No. 14/2020 dated 8^th April 2020 and General Circular No. 17/2020 dated 13^th April 2020 and in compliance with the applicable provisions of the Companies Act 2013 and rules thereof.”

 

 

On Behalf of ___________________Private Limited

 

 

______________________________

Requisionist

 

Place: 

Date: _______________, 2021     

                                               

 

Notes:

1.       Amid the Covid 19 Pandemic, Extra Ordinary General Meeting of the members of the company will be held via video conferencing subject to the guidelines prescribed under Ministry of Corporate Affairs, Government of India, General Circular No 02/2021 dated 13^th January,2021,General Circular no 20/2020 dated 5^th May,2020 read with General Circular No(s) 14/2020 and 17/2020 dated 8^th April,2020 and dated 13^th April,2020 respectively, the companies have been allowed to conduct their Extra Ordinary General Meeting through the Video Conferencing (VC)/Other Audio Visual Means(OAVM) facility during the calendar year 2020 and 2021.

 

2.       The explanatory statement pursuant to Section 102 of the Companies Act, 2013 with regard to the special business mentioned above is enclosed.

 

3.       Members holding shares are requested to kindly notify the Company of any change in their addresses so as to enable the Company to address future communication to their correct addresses via email or through any other electronic mode.

 

4.       All the documents referred to in this Notice shall be made available as Annexure I in the link available shared by email for inspection by the Members along with this Notice.

 

5.       A Corporate Member intending to send its authorized representatives to attend the Meeting in terms of Section 113 of the Companies Act, 2013 is requested to send to the Company a certified copy of the Board Resolution authorizing such representative to attend and vote on its behalf at the Meeting via email.

 

6.       Members are allowed to pose questions before Meeting or during the meeting by sending email through their email addresses which are registered with the Company. The said emails shall only be sent to the Company’s designated email address as mentioned below:

               Designated email address: ______________________________________________

 

7.       Members shall cast their vote to convey their assent or dissent w.r.t to any particular item(s) by show of hands unless demand of poll is made during the meeting. Show of hands shall only me made at such stage when any particular item(s) is/are considered.

 

8.       In case of demand of Poll during the meeting, Members shall cast their vote to convey their assent or dissent by sending email through their email addresses which are registered with the Company. The said emails shall only be sent to the Company’s designated email address as mentioned below and only at such stage when any particular item(s) is/are considered.

               Designated email address: _________________________________________________

 

9.       Members are requested to join the meeting within the scheduled time. As the schedule to join the Meeting shall be as follows :

OPEN – 15 minutes before the scheduled time to start the meeting

CLOSE – After expiry of 15 minutes after the start of the meeting

 

10.   Members are requested to contact following mentioned helpline number/Contact number in case, if any assistance is required regarding the use of the technology before or during the meeting.

Name of Contact Person: Mr. _________________

Designation: Director

Contact No:+91 _________________________

 

11. The link of the meeting is as below;

___________________________________________________________________________________________

 

 

EXPLANATORY STATEMENT PURSUANT TO SECTION 102 OF COMPANIES ACT, 2013

 

The following Statement sets out all material facts in relation to the Special Business mentioned in the accompanying notice:

 

ITEM NO.1

 

REMOVAL OF ______________________ AS A DIRECTOR OF THE COMPANY

 

As per Sec 100 of the Companies Act, 2013 read with relevant rules made thereunder, such number of members who hold, on the date of receipt of the requisition, not less than one-tenth of such of the paid up share capital of the company as on that date carries the right of voting, can call an extra ordinary general meeting of the company

 

The company, on _______________ 2021 received requisition and special notice as per Sec 115 of Companies Act, 2013 for convening an EGM to pass Ordinary resolution for removal of _______________________ (DIN: _______________________) attached as Annexure A (“the Requisition’) under the applicable provisions of Companies Act 2013 and the rules framed thereunder for convening an EGM from M/s ___________________________ (“The Requisitionist”), and the promoter of ________________________ Private Limited (“the Company”).  M/s ____________________________ (“The Requisitionist”) holds _________________________ Ordinary Equity Shares aggregating to __________% of the Company’s Voting Capital.

 

The requisitionist has provided the grounds for removal of _______________________ (DIN: _______________________) as Director of the company in their special notice as per Section 115 of Companies Act, 2013. A copy of Special notice submitted by the Requisitionist is attached with this notice with a view to provide relevant background concerning Item no. 1 of Special business to be transacted at EGM.

 

_______________________ (DIN: _____________________) was appointed as Director on the Board of directors on ______________________________.

Pursuant to Section 169(4) of the Act, the Director being sought to be removed has a right to make representation to the shareholders in the manner stated therein.  After the special notice under Sec 115 of the Companies Act, 2013, has already been given to ____________________________ (DIN: _____________________) and has been informed that if she intends to make a representation to the shareholders in respect of her removal, She may send the representation which can be circulated to the members of the company. If the time permits it to do so, requisitionist will circulate the written representation to the shareholders under Sec 169(4) of the Companies Act, 2013

It is to be noted that the management have lost their trust and faith from ________________________. Therefore, in collective wisdom, it has been decided to remove _____________________ as Director of the company. The management has felt that the removal of ____________________ was absolutely necessary for future well-being of the company. __________________’s conduct has caused enormous harm to the company and its stakeholders, including employees and shareholders.

 

__________________________, the existing Director of the company are in agreement with the requisitionist regarding the removal of _______________ as Director of the company as the same would be in best interests of the company.

 

Other than _________________________ (a Director of the Company), none of the other Directors or Key Managerial Personnel of the Company or their respective relatives is concerned or interested in the resolution as set out at Item No. 1 of the Notice

 

The matter is proposed to be passed by passing the ordinary resolution.

 

ITEM NO.2

 

APPOINTMENT OF _________________________ (DIN: ___________________) AS DIRECTOR OF THE COMPANY

 

 

The shareholders of the Company has proposed to appoint Mr. ______________ in place of _________________________________ being removed as Director under section 169(5) of the _________________ 2013 proposed by the Requisitionist in their special notice. A special notice in this regard has already been given to concerned person.

 

_____________________________ (DIN: ___________________) has given his consent to act as Director in Form DIR-2 and intimation Form DIR-8 pursuant to Rule 8 of the Companies (Appointment and Qualifications of Directors) Rules, 2014, to the effect that he is not disqualified to be appointed as director under sub- section (2) of section 164 of the Companies Act, 2013.

 

None of the Directors and Key Managerial Personnel of the Company and their relatives is concerned or interested, financial or otherwise, in the resolution.

 

The matter is proposed to be passed by passing the ordinary resolution.

 

On Behalf of _____________________________ Private Limited

 

 

_____________________________

_____________________________

 

 Place: 

 Date: ___________________, 2021            

                                               

               

 

Resolution in respect of Sec 186 of Companies Act, 2013

 

TO MAKE INVESTMENTS, GIVE LOANS, GUARANTEES AND PROVIDE SECURITIES UNDER SECTION 186 OF THE COMPANIES ACT, 2013

“RESOLVED THAT pursuant to the provisions of Section 186 of the Companies Act, 2013, as amended by the Companies (Amendment) Act, 2017, read with the Companies (Meetings of Board and its Powers) Rules, 2014 (including any statutory modification(s) or re-enactment thereof for the time being in force), and the relevant provisions of the Articles of Association of the Company, the consent of the members of the Company be and is hereby accorded to the Board of Directors to grant loan(s) including loans represented by way of book debts (the “Loan”), make investments, in one or more trenches by subscription, purchase or otherwise in subsidiary(ies)/any Body Corporate in India or abroad (existing or which may be promoted/incorporated), in any kind of securities, or by providing of guarantee or security in connection with a loan made subsidiary(ies)/any Body Corporate in India or abroad (existing or which may be promoted/incorporated),  in excess of limits prescribed in section 186 of Companies Act, 2013, up to an aggregate amount of Rs. ___________________________________________/- (Rupees ______________ Crores only).

 

RESOLVED FURTHER THAT for the purpose of giving effect to the above resolution, the Directors of the Company be and are hereby severally authorized to negotiate, finalize and agree to the terms and conditions of investments, loans, guarantees and provision of security on behalf of the Company as it may deem fit in the interest of the Company, to take all such actions and to settle all matters arising out of and incidental thereto and to sign and execute all deeds, applications, documents and such investments, loans, guarantees and provisions of security and generally to do all such deeds and things that may be necessary, proper, expedient or incidental for the purpose of giving effect to this resolution.” 

EXPLANATORY STATEMENT AS PER THE PROVISIONS OF SECTION 102 OF THE COMPANIES ACT, 2013

TO MAKE INVESTMENTS, GIVE LOANS, GUARANTEES AND PROVIDE SECURITIES UNDER SECTION 186 OF THE COMPANIES ACT, 2013

In order to make optimum use of funds available with the Company and also to achieve long term strategic and business objectives, the Board of Directors of the Company proposes to make use of the same by making investment in other bodies corporate or granting loans, giving guarantee or providing security to other persons or other body corporate as and when required.

In terms of Section 186 of Companies Act, 2013, the Board of Directors of a company could give a loan, guarantee or provide security in connection with a loan to any other body corporate or person and acquire securities by way of subscription, purchase or otherwise to any person or body corporate to the extent of 60% sixty percent of paid up share capital, free reserves and securities premium account, or 100% of its free reserves and securities premium account whichever is more and for giving any loan or providing guarantee and security in excess limit specified above, the approval of the members is required in General Meeting by way of special resolution has to be obtained.

And as you know that for business and investment purpose of company, Company may give loan and guarantee to any person and make investments by acquiring securities by way of purchase or subscription or otherwise from time to time. So, it is proposed to increase the limit of giving any loan or guarantee or providing security to body corporate or any other person and invest funds up to Rs. _________crores and recommend passing of this resolution by way of special resolution.  

 Board of Directors recommend passing of this resolution by way of a special resolution.

None of the Directors, Key Managerial personnel and relatives of directors and/or key managerial personnel are concerned or interested in the proposed resolution.

FEMA perspective on loan given by NRI director in Indian company

 A Private limited company is engaged in the business of rendering Management Consultancy Services. The residential status of one of the directors on the board of the Company is non-resident in accordance with the provisions of FEMA Act, 1999 (Hereinafter referred to as the “Act”). The NRI director is also a shareholder equity Share Capital in the Company. The NRI Director wishes to introduce some amount as a loan. 

1) One way to take loan is ECB i.e. External Commercial Borrowings. That means the borrowings can be made by an Indian Company from its NRI Directors or any person resident outside India by way of External Commercial Borrowings in the following way;

1) Currency of borrowing

a) ECB can be raised in any freely convertible foreign currency as well as in Indian Rupees from the lender who is a person resident outside India.

2) Form of Borrowing:

a) The borrowing can be made in the form of Loans, floating/ fixed rate notes/ bonds/ debentures (other than fully and compulsorily convertible instruments);

3) Eligibility of borrowers

a) All entities eligible to receive foreign direct investment, in terms of Foreign Exchange Management (Non-debt Instruments Rules 2019, notified w.e.f. 17th October, 2019, as amended from time to time, including Start-ups.

In the present case since the company is engaged in rendering Consultancy services, FDI and in turn ECB is permissible under automatic route.

4) Eligibility of Lender

a) As per A.P. (DIR Series) Circular No. 17 dated 16th January 2019, The lender should be resident of FATF or IOSCO compliant country, including on transfer of ECB, however Individuals as lenders can only be permitted if they are foreign equity holders.

Definition of Foreign Equity Holder as per the regulation is as under :

Foreign Equity Holder means :

(a) direct foreign equity holder with minimum 25% direct equity holding by the lender in the borrowing entity,

(b) indirect equity holder with minimum indirect equity holding of 51%, or

(c) group company with common overseas parent.

If the NRI director qualifies the definition of Foreign equity holder then he will be considered as Eligible lender.

Draw-downs of borrowing under this shall be made only after obtaining the loan registration number from the Reserve Bank or from the ADs, as per the system put in place by the Reserve Bank. For non-adherence, the borrower may be required to pay penalty as specified by the Reserve Bank from time to time.

To obtain the LRN, borrowers are required to submit duly certified Form ECB, which also contains terms and conditions of the ECB, in duplicate to the designated AD Category I bank.

The borrowers are required to report actual ECB transactions through Form ECB 2 through AD Bank

Another way for accepting loan from NRI Director can be acceptance of deposits as per Foreign Exchange Management (Deposit) Regulations, 2016 on non repatriation basis subject to some conditions

Board resolution for authorisation for entering into restated Shareholders agreement

 

“RESOLVED THAT the consent of the Board of directors be and is hereby accorded to enter into a Amended and Restated shareholders’ agreement to be executed between the Company, its holding Company, __________________________ and their respective shareholders.

RESOLVED FURTHER THAT any of the Directors be and are hereby severally authorized to negotiate and finalise the terms of agreement and to do such acts, deeds and things as the Board in its absolute discretion deems necessary or desirable in connection with the issue, including, but not limiting to, the following:

a)      Execute the shareholders’ agreement and such other deeds, documents, letters and writings as may be required in connection with the shareholders’ agreement (collectively referred to as the “Transaction Documents”); and

b)     do all other acts, deeds and things as may be deemed necessary to give effect to the foregoing and the other terms of this resolution.

RESOLVED FURTHER THAT any of the Directors be and are hereby severally authorized to take all necessary and appropriate steps relating to the Transaction Documents and such other documents including signing and submitting the necessary forms with the Registrar of Companies and other relevant governmental authorities.

RESOLVED FURTHER THAT a certified true copy of this resolution be furnished, as may be required, under the signatures of any of the Directors of the Company.”

What are the analysis of data in collection of notice and agenda of AGM?

Calling and holding of AGM in an unlisted company in India is step by step process and it has to be followed keeping in mind the data and deep analysis keeping in mind the items for approval by the members of the company.

Due date of AGM should be kept in mind. Like, first AGM should be conducted within a period of 9 months from the date of closing of the first financial year e.g. by 31st December. 

In cases where it is other than first AGM, AGM should be held within a period of 6 months from the date of closing of the financial year i.e. 30th September. Interesting thing to note that as per Sebi LODR regulations, top 100 listed entities must hold their AGM within a period of 5 months from the date of closing of financial year. 

Gap between two successive AGMs should be not more than 15 months.

Extension of AGM is possible with prior approval of ROC.

Notice of AGM along with annexures should be sent to the members of the company atleast 21 clear days in advance of meeting. Make sure while calculating the 21 clear days do not include day of sending the notice and day of meeting. 

In case the company wants to hold AGM at shorter notice, then, that is also possible if consent in writing is given by not less than 95% of the members entitled to vote at such meeting.

In short, the process of convening AGM is as below;

1) Appointment of Scrutinizer if required

2) Holding of Board meeting

3) Notice of the AGM

4) Website disclosure

5) Advertisement in newspaper, applicable only in case where resolutions to be passed through e-voting is to be done

6) Remote e-voting

7) Register of Proxy

8) Documents available at the venue

9) Make sure registers of inspection are there at venue

10) Holding of AGM

11) Make sure to read observations in Auditor's report

12) Voting at AGM

13) Announcement of result

14) Minutes of AGM. This to be circulated within 30 days from the date of conclusion of AGM along with the date of entry.

15) Maintenance of Scrutinizer register

16) Forms and documents filing at ROC

Board resolution for conversion of loan into equity as per Indian Companies Act

 

APPROVAL FOR CONVERSION OF LOAN INTO __________ EQUITY SHARES

“RESOLVED THAT pursuant to the provisions of section 42 and 62(1)(c) and other applicable provisions, if any, of the Companies Act, 2013 (including any statutory modifications or re-enactment thereof, for the time being in force), read with the applicable rules, regulations thereto, and provisions of the Articles of Association of the Company, and subject to the approval of members of the Company, the consent of the Board of directors be and is hereby accorded for the conversion of existing unsecured Loan of Rs. _________/- (Rupees _______________________________ only) of ____________ Private Limited into _________________ Equity Shares of the Company of face value of Rs. 10/- (Rupees Ten only) per share at par, for an aggregate amount not exceeding Rs. _________/- (Rupees ________________________________ only), on private placement basis, and on such terms and conditions as detailed in the Explanatory Statement.

RESOLVED FURTHER THAT the Board of Directors do and hereby take on record the Valuation Report issued by the said Registered Valuer.

RESOLVED FURTHER THAT the draft Private Placement Offer Letter contains therein detailed terms and conditions alongwith all other ancillary documents/papers be and is hereby approved and proposed to be  taken on record by the members.

RESOLVED FURTHER THAT the subscription money in respect of said Equity Shares to be offered to Investor has already been paid by the investor due to conversion of loan into Equity Shares.

RESOLVED FURTHER THAT Directors of the Company be and are hereby severally authorized to do all such acts, deeds and things and execute all such deeds, documents and writings, as it may in its absolute discretion deem necessary or incidental, including filling of forms and applications with various authorities as may be necessary for giving effect to the above resolution and the matters incidental and consequential thereto.”

Procedure for issue of Sweat equity shares

 

Section 54 of the Companies Act, 2013 govern the provision of the Sweat Equity Shares.

 

“Sweat equity shares” mean such equity shares as are issued by a company to its directors or employees at a discount or for consideration, other than cash, for providing  their know-how or making available rights in the nature of intellectual property rights or value additions, by whatever name called.

 

The detailed procedures for issuance of sweat equity shares are herein given below:

1.       Very first foremost step is to obtain a valuation report from the registered valuer who shall provide proper report addressed to the Board of Directors with justification for such a valuation;

2.       Hold a meeting of the Board:

a)      To approve issue of sweat equity shares to directors/employee subject to approval of members by special resolution;

b)      To fix the day, date, time and agenda for the general meeting for passing a special resolution to issue of sweat equity shares;

c)       To approve draft notice of the general meeting along with the explanatory statement for the purpose of passing the special resolution;

3.       Hold a general meeting to pass the special resolution for issue of sweat equity shares. Please note that the special resolution authorizing the issue of sweat equity shares shall be valid for making the allotment within a period of not more than 12 months from the date of passing of the special resolution.

4.       Hold a meeting of the Bard of pass Board resolution by circulation within a period of not more than 12 months from the date of passing of the special resolution:

a)      To consider the allotment of sweat equity shares;

b)      To authorise CS or CFO or any director of the company to file a return of allotment with ROC.

5.       The company shall maintain the register of sweat equity shares in Form SH-3 and shall forthwith enter therein the particulars of sweat equity shares by CS or any other person authorised by the Board for the purpose.

6.       Make necessary entries in the register of members in Form MGT-1 within 7 days of the Board meeting in which allotment of sweat equity shares was approved;

7.       File a return of allotment with ROC within 30 days from the date of allotment in PAS-3 along with the requisite documents and fees;

8.       Where allotment of sweat equity shares is made to any non-resident, then file form FC GPR to RBI portal within 30 days of allotment;

9.       Where issue of sweat equity shares to person resident outside India, then file a return in Form ESOP within 30 days from the date of issue of sweat equity shares;

10.   Issue the certificates of shares within a period of 2 months in Form SH-1 from the date of allotment to the respective shareholders after payment of stamp duty.