CS Snehal (Compliance Manager) (346 Points)
09 March 2010
Dear All,
The MD will be serving his tenure till 31.3.2010. He has to be reappointed.
Can we take his appointment in the ensuing BM which happens in the 3rd week of April or is it compulsory to get his appointment done in the March before his term expires.
Please clarify the issue and provide the supporting documents / circulars in this regards.
The co is public and listed.
Early response will be appreciated.
Jagruti (CS)
(Service)
(1953 Points)
Replied 09 March 2010
As per Section 371(2), MD needs to vacate his office immediately on expiry of his term as in this case on 31.03.10. If you appoint him in April than for 3 days he will not be MD as his term has already expired.
Hence it is advisable to hold BM in March and appoint him before expiry of his term.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 09 March 2010
Agree with the learned member.
Under section 269 appointment includes re-appointment hence all the provisions applicable on appointment are applicable in your case.
For re-appointment pass a board resolution before the expiry of term subject to the approval of shareholders. As per DCA circular the appointment becomes effective from the date of BM resolution.
Also file form 23 u/s 192(4)(c) within 30 days of BM. Further if the appointment is as per sch XIII than file form 25C within 90 days from the date of BM.
Find below the details for DCA Circular mentioned above
Circular No. 2/94 dated 10th February 1994.
As per this circular he may be re appointed initially by a BM resolution subject to GM resolution and such shareholder approval may be obtained in the first GM of the company held immediately after his appointment in the BM.
Regards
CS Snehal
(Compliance Manager)
(346 Points)
Replied 11 March 2010
Thanks for your replies.
Also let me know, if the MD can be reappointed by circular resolution.
I think it is yes.
Kindly confirm with some supporting documents.
Ankur Garg
(Company Secretary and Compliance Officer)
(114773 Points)
Replied 11 March 2010
With reference to the table below yes you may go ahead with the circular resolution in your case.
Matters which require sanction at Board Meetings, and not by circulation
There are certain matters in reference to which the provisions of the act would require a resolution at an actual Board Meeting and not one by circulation. They are as follows:
|
S. No. |
Provision/Section |
Matter |
|
1. |
Section-262 |
Filling a casual vacancy in the Board
|
|
2. |
Section-292 |
The power to:
(i) make calls on shareholders;
(ii) issue debentures;
(iii) borrow moneys otherwise than on debentures;
(iv) invest the company’s funds;
(v) make loans;
|
|
3. |
Section-297 |
Board’s sanction for certain contracts in which particular directors are interested;
|
|
4. |
Section-299 |
Disclosure to the Board of a director’s interest in a transaction of the company;
|
|
5. |
Section-308 |
Disclosure to the Board of a director’s shareholding
|
|
6. |
Section-316 & 386 |
Approval to the appointment of a person as Managing Director or manager in more than one company;
|
|
7. |
Section-372A |
Sanction for inter-corporate loan, investment or giving of guarantees or providing security.
|
palak
(cs)
(385 Points)
Replied 11 March 2010
Neha Jain
(Company Secretary)
(25 Points)
Replied 29 March 2010
Dear All,
Mine is the same case as above but difference is the MD is also the MD of a subsidiary company, so do i need to comply with section 316 also. wat is the format of specific notice in that case......AND whether provision of Section 302 will also be aplicable in case of reappointment if we do not vary any terms of re appointment or we can mention this in the explanatory statement to the resolution of appointment of MD in the notice convening the forthcoming AGM in September..
Thanks in advance..
CAclubindia
