ARTICLES OF
ASSOCIATION
OF
XYZ PRIVATE LIMITED
(COMPANY LIMITED BY SHARES)
Interpretation
I. (1) In these regulations—
(a)
“the Act” means the Companies Act, 2013,
(b)
“the seal” means the common seal of the company.
(2)
Unless the context otherwise requires, words or expressions contained in these regulations
shall bear the same meaning as in the Act or any statutory modification thereof
in
force at the date at which these regulations become binding on the company.
Share capital and variation of rights
II. 1. Subject to the provisions
of the Act and these Articles, the shares in the capital of the company shall
be under the control of the Directors who may issue, allot or otherwise dispose
of the same or any of them to such persons, in such proportion and on such
terms and conditions and either at a premium or at par and at such time as they
may from time to time think fit.
2. (i) Every person whose name
is entered as a member in the register of members shall be entitled to receive
within two months after incorporation, in case of subscribers to the memorandum
or after allotment or within one month after the application for the
registration of transfer or transmission or within such other period as the
conditions of issue shall be provided,—
(a)
one certificate for all his shares without payment of any charges; or
(b)
several certificates, each for one or more of his shares, upon payment of
twenty rupees for each certificate after the first.
(ii) Every certificate shall
be under the seal and shall specify the shares to which it relates and the
amount paid-up thereon.
(iii) In respect of any share
or shares held jointly by several persons, the company shall not be bound to
issue more than one certificate, and delivery of a certificate for a share to
one of several joint holders shall be sufficient delivery to all such holders.
3. (i) If any share
certificate be worn out, defaced, mutilated or torn or if there be no further
space on the back for endorsement of transfer, then upon production and
surrender thereof to the company, a new certificate may be issued in lieu
thereof, and if any certificate is lost or destroyed then upon proof thereof to
the satisfaction of the company and on execution of such indemnity as the
company deem adequate, a new certificate in lieu thereof shall be given. Every
certificate under this Article shall be issued on payment of twenty rupees for
each certificate.
(ii) The provisions of
Articles (2) and (3) shall mutatis
mutandis apply to debentures of the company.
4. Except as required by law,
no person shall be recognized by the company as holding any share upon any
trust, and the company shall not be bound by, or be compelled in any way to recognize
(even when having notice thereof) any equitable, contingent, future or partial
interest in any share, or any interest in any fractional part of a share, or
(except only as by these regulations or by law otherwise provided) any other
rights in respect of any share except an absolute right to the entirety thereof
in the registered holder.
5. (i) The company may
exercise the powers of paying commissions conferred by sub-section (6) of
section 40, provided that the rate per cent or the amount of the commission
paid or agreed to be paid shall be disclosed in the manner required by that
section and rules made there under.
(ii) The rate or amount of the
commission shall not exceed the rate or amount prescribed in rules made under
sub-section (6) of section 40.
(iii) The commission may be
satisfied by the payment of cash or the allotment of fully or partly paid
shares or partly in the one way and partly in the other.
6. (i) If at any time the
share capital is divided into different classes of shares, the rights attached
to any class (unless otherwise provided by the terms of issue of the shares of that
class) may, subject to the provisions of section 48, and whether or not the
company is being wound up, be varied with the consent in writing of the holders
of three-fourths of the issued shares of that class, or with the sanction of a
special resolution passed at a separate meeting of the holders of the shares of
that class.
(ii) To every such separate
meeting, the provisions of these regulations relating to general meetings shall
mutatis mutandis apply, but so that
the necessary quorum shall be at least two persons holding at least one-third
of the issued shares of the class in question.
7. The rights conferred upon
the holders of the shares of any class issued with preferred or other rights
shall not, unless otherwise expressly provided by the terms of issue of the
shares of that class, be deemed to be varied by the creation or issue of
further shares ranking pari passu therewith.
8. Subject to the provisions
of section 55, any preference shares may, with the sanction of an ordinary
resolution, be issued on the terms that they are to be redeemed on such terms
and in such manner as the company before the issue of the shares may, by
special resolution, determine.
Lien
9. (i) The company shall have
a first and paramount lien—
(a) on
every share (not being a fully paid share), for all monies (whether presently
payable or not) called, or payable at a fixed time, in respect of that share;
and
(b) on
all shares (not being fully paid shares) standing registered in the name of a
single person, for all monies presently payable by him or his estate to the
company:
Provided that the Board of
directors may at any time declare any share to be wholly or in part exempt from
the provisions of this clause.
(ii) The company’s lien, if
any, on a share shall extend to all dividends payable and bonuses declared from
time to time in respect of such shares.
10. The company may sell, in
such manner as the Board thinks fit, any shares on which the company has a
lien:
Provided that no sale shall be
made—
(a)
unless a sum in respect of which the lien exists is presently payable; or
(b)
until the expiration of fourteen days after a notice in writing stating and
demanding payment of such part of the amount in respect of which the lien
exists as is presently payable, has been given to the registered holder for the
time being of the share or the person entitled thereto by reason of his death
or insolvency.
11. (i) To give effect to any
such sale, the Board may authorize some person to transfer the shares sold to
the purchaser thereof.
(ii) The purchaser shall be
registered as the holder of the shares comprised in any such transfer.
(iii) The purchaser shall not
be bound to see to the application of the purchase money, nor shall his title
to the shares be affected by any irregularity or invalidity in the proceedings
in reference to the sale.
12. (i) The proceeds of the
sale shall be received by the company and applied in payment of such part of
the amount in respect of which the lien exists as is presently payable.
(ii) The residue, if any,
shall, subject to a like lien for sums not presently payable as existed upon
the shares before the sale, be paid to the person entitled to the shares at the
date of the sale.
Calls on shares
13. (i) The Board may, from
time to time, make calls upon the members in respect of any monies unpaid on
their shares (whether on account of the nominal value of the shares or by way
of premium) and not by the conditions of allotment thereof made payable at
fixed times:
Provided that no call shall
exceed one-fourth of the nominal value of the share or be payable at less than
one month from the date fixed for the payment of the last preceding call.
(ii) Each member shall,
subject to receiving at least fourteen days’ notice specifying the time or
times and place of payment, pay to the company, at the time or times and place
so specified, the amount called on his shares.
(iii) A call may be revoked or
postponed at the discretion of the Board.
14. A call shall be deemed to
have been made at the time when the resolution of the Board authorizing the
call was passed and may be required to be paid by installments.
15. The joint holders of a
share shall be jointly and severally liable to pay all calls in respect
thereof.
16. (i) If a sum called in
respect of a share is not paid before or on the day appointed for payment
thereof, the person from whom the sum is due shall pay interest thereon from
the day appointed for payment thereof to the time of actual payment at ten per
cent. per annum or at such lower rate, if any, as the Board may determine.
(ii) The Board shall be at
liberty to waive payment of any such interest wholly or in part.
17. (i) Any sum which by the
terms of issue of a share becomes payable on allotment
or at any fixed date, whether
on account of the nominal value of the share or by way of premium, shall, for
the purposes of these regulations, be deemed to be a call duly made and payable
on the date on which by the terms of issue such sum becomes payable.
(ii) In case of non-payment of
such sum, all the relevant provisions of these regulations as to payment of
interest and expenses, forfeiture or otherwise shall apply as if such sum had become
payable by virtue of a call duly made and notified.
18. The Board—
(a)
may, if it thinks fit, receive from any member willing to advance the same, all
or any part of the monies uncalled and unpaid upon any shares held by him; and
(b)
upon all or any of the monies so advanced, may (until the same would, but for such
advance, become presently payable) pay interest at such rate not exceeding, unless
the company in general meeting shall otherwise direct, twelve per cent. per
annum, as may be agreed upon between the Board and the member paying the sum in
advance.
Transfer
of shares
19. (i) The instrument of
transfer of any share in the company shall be executed by or on behalf of both
the transferor and transferee.
(ii) The transferor shall be
deemed to remain a holder of the share until the name of the transferee is
entered in the register of members in respect thereof.
20. The Board may, subject to
the right of appeal conferred by section 58 declines to register—
(a) the
transfer of a share, not being a fully paid share, to a person of whom they do
not approve; or
(b)
any transfer of shares on which the company has a lien.
21. The Board may decline to recognize
any instrument of transfer unless—
(a)
the instrument of transfer is in the form as prescribed in rules made under sub-section
(1) of section 56;
(b)
the instrument of transfer is accompanied by the certificate of the shares to which
it relates, and such other evidence as the Board may reasonably require to show
the right of the transferor to make the transfer; and
(c) the instrument of transfer is in respect
of only one class of shares.
22. On giving not less than
seven days’ previous notice in accordance with section 91 and rules made there
under, the registration of transfers may be suspended at such times and for
such periods as the Board may from time to time determine: Provided that such
registration shall not be suspended for more than thirty days at any one time
or for more than forty-five days in the aggregate in any year.
Transmission of shares
23. (i) On the death of a
member, the survivor or survivors where the member was a joint holder, and his
nominee or nominees or legal representatives where he was a sole holder, shall
be the only persons recognized by the company as having any title to his
interest in the shares.
(ii) Nothing in clause (i)
shall release the estate of a deceased joint holder from any liability in
respect of any share which had been jointly held by him with other persons.
24. (i) Any person becoming
entitled to a share in consequence of the death or insolvency of a member may,
upon such evidence being produced as may from time to time properly be required
by the Board and subject as hereinafter provided, elect, either—
(a)
to be registered himself as holder of the share; or
(b) to
make such transfer of the share as the deceased or insolvent member could have
made.
(ii) The Board shall, in
either case, have the same right to decline or suspend registration as it would
have had, if the deceased or insolvent member had transferred the share before
his death or insolvency.
25. (i) If the person so
becoming entitled shall elect to be registered as holder of the share himself,
he shall deliver or send to the company a notice in writing signed by him
stating that he so elects.
(ii) If the person aforesaid
shall elect to transfer the share, he shall testify his election by executing a
transfer of the share.
(iii) All the limitations,
restrictions and provisions of these regulations relating to the right to
transfer and the registration of transfers of shares shall be applicable to any
such notice or transfer as aforesaid as if the death or insolvency of the
member had not occurred and the notice or transfer were a transfer signed by
that member.
26. A person becoming entitled
to a share by reason of the death or insolvency of the holder shall be entitled
to the same dividends and other advantages to which he would be entitled if he
were the registered holder of the share, except that he shall not, before being
registered as a member in respect of the share, be entitled in respect of it to
exercise any right conferred by membership in relation to meetings of the
company: Provided that the Board may, at any time, give notice requiring any
such person to elect either to be registered himself or to transfer the share,
and if the notice is not complied with within ninety days, the Board may
thereafter withhold payment of all dividends, bonuses or other monies payable
in respect of the share, until the requirements of the notice have been
complied with.
27. In case of a One Person
Company—
(i) on the death of the sole
member, the person nominated by such member shall be the person recognized by
the company as having title to all the shares of the member;
(ii) the nominee on becoming
entitled to such shares in case of the member’s death shall be informed of such
event by the Board of the company;
(iii) such nominee shall be
entitled to the same dividends and other rights and liabilities to which such
sole member of the company was entitled or liable;
(iv) on becoming member, such
nominee shall nominate any other person with the prior written consent of such
person who, shall in the event of the death of the member, become the member of
the company.
Forfeiture of shares
28. If a member fails to pay
any call, or installment of a call, on the day appointed for payment thereof,
the Board may, at any time thereafter during such time as any part of the call
or installment remains unpaid, serve a notice on him requiring payment of so
much of the call or installment as is unpaid, together with any interest which
may have accrued.
29. The notice aforesaid
shall—
(a) name a further day (not
being earlier than the expiry of fourteen days from the date of service of the
notice) on or before which the payment required by the notice is to be made;
and
(b)
state that, in the event of non-payment on or before the day so named, the
shares in respect of which the call was made shall be liable to be forfeited.
30. If the requirements of any
such notice as aforesaid are not complied with, any share in respect of which
the notice has been given may, at any time thereafter, before the payment
required by the notice has been made, be forfeited by a resolution of the Board
to that effect.
31. (i) A forfeited share may
be sold or otherwise disposed of on such terms and in such manner as the Board
thinks fit.
(ii) At any time before a sale
or disposal as aforesaid, the Board may cancel the forfeiture on such terms as
it thinks fit.
32. (i) A person whose shares
have been forfeited shall cease to be a member in respect of the forfeited
shares, but shall, notwithstanding the forfeiture, remain liable to pay to the
company all monies which, at the date of forfeiture, were presently payable by
him to the company in respect of the shares.
(ii) The liability of such
person shall cease if and when the company shall have received payment in full
of all such monies in respect of the shares.
33. (i) A duly
verified declaration in writing that the declarant is a director, the manager or
the secretary, of the company, and that a share in the company has been duly
forfeited on a date stated in the declaration, shall be conclusive evidence of
the facts therein stated as against all persons claiming to be entitled to the
share;
(ii)
The company may receive the consideration, if any, given for the share on any
sale or disposal thereof and may execute a transfer of the share in favour of
the person to whom the share is sold or disposed of;
(iii)
The transferee shall thereupon be registered as the holder of the share; and
(iv)
The transferee shall not be bound to see to the application of the purchase
money, if any, nor shall his title to the share be affected by any irregularity
or invalidity in the proceedings in reference to the forfeiture, sale or
disposal of the share.
34.
The provisions of these regulations as to forfeiture shall apply in the case of
nonpayment of any sum which, by the terms of issue of a share, becomes payable
at a fixed time, whether on account of the nominal value of the share or by way
of premium, as if the same had been payable by virtue of a call duly made and
notified.
Alteration
of capital
35.
The company may, from time to time, by ordinary resolution increase the share capital
by such sum, to be divided into shares of such amount, as may be specified in
the resolution.
36.
Subject to the provisions of section 61, the company may, by ordinary
resolution,—
a) consolidate and divide all
or any of its share capital into shares of larger amount than its existing
shares;
(b) convert all or any of its
fully paid-up shares into stock, and reconvert that stock into fully paid-up
shares of any denomination;
(c) sub-divide its existing
shares or any of them into shares of smaller amount than is fixed by the
memorandum;
(d) cancel any shares which,
at the date of the passing of the resolution, have not been taken or agreed to
be taken by any person.
37.
Where shares are converted into stock,—
(a) the holders of stock may
transfer the same or any part thereof in the same manner as, and subject to the
same regulations under which, the shares from which the stock arose might
before the conversion have been transferred, or as near thereto as circumstances
admit:
Provided
that the Board may, from time to time, fix the minimum amount of stock transferable,
so, however, that such minimum shall not exceed the nominal amount of the
shares from which the stock arose.
(b) the holders of stock
shall, according to the amount of stock held by them, have the same rights,
privileges and advantages as regards dividends, voting at meetings of the
company, and other matters, as if they held the shares from which the stock
arose; but no such privilege or advantage (except participation in the
dividends and profits of the company and in the assets on winding up) shall be
conferred by an amount of stock which would not, if existing in shares, have
conferred that privilege or advantage.
(c) such of the regulations of
the company as are applicable to paid-up shares shall apply to stock and the
words “share” and “shareholder” in those regulations shall include “stock” and
“stock-holder” respectively.
38.
The company may, by special resolution, reduce in any manner and with, and subject
to, any incident authorized and consent required by law,—
(a) its share capital;
(b) any capital redemption reserve
account; or
(c) any share premium account.
Capitalization
of profits
39.
(i) The company in general meeting may, upon the recommendation of the Board,
resolve—
(a) that it is desirable to capitalize
any part of the amount for the time being standing to the credit of any of the
company’s reserve accounts, or to the credit of the profit and loss account, or
otherwise available for distribution; and
(b) that such sum be
accordingly set free for distribution in the manner specified in clause (ii) amongst the members who
would have been entitled thereto, if distributed by way of dividend and in the
same proportions.
(ii)
The sum aforesaid shall not be paid in cash but shall be applied, subject to
the provision contained in clause (iii), either in or towards—
(A) paying up any amounts for
the time being unpaid on any shares held by such members respectively;
(B) paying up in full,
unissued shares of the company to be allotted and distributed, credited as
fully paid-up, to and amongst such members in the proportions aforesaid;
(C) partly in the way
specified in sub-clause (A) and partly in that specified in sub-clause (B);
(D) A securities premium
account and a capital redemption reserve account may, for the purposes of this
regulation, be applied in the paying up of unissued shares to be issued to
members of the company as fully paid bonus shares;
(E) The Board shall give
effect to the resolution passed by the company in pursuance of this regulation.
40.
(i) Whenever such a resolution as aforesaid shall have been passed, the Board
shall—
(a) make all appropriations
and applications of the undivided profits resolved to be capitalized thereby,
and all allotments and issues of fully paid shares if any; and
(b) generally do all acts and things
required to give effect thereto.
(ii)
The Board shall have power—
(a) to make such provisions,
by the issue of fractional certificates or by payment in cash or otherwise as
it thinks fit, for the case of shares becoming distributable infractions; and
(b) to authorize any person to
enter, on behalf of all the members entitled thereto, into an agreement with
the company providing for the allotment to them respectively, credited as fully
paid-up, of any further shares to which they may be entitled upon such capitalization,
or as the case may require, for the payment by the company on their behalf, by
the application thereto of their respective proportions of profits resolved to
be capitalized, of the amount or any part of the amounts remaining unpaid on
their existing shares;
(iii)
Any agreement made under such authority shall be effective and binding on such members.
Buy-back
of shares
41.
Notwithstanding anything contained in these articles but subject to the
provisions of sections 68 to 70 and any other applicable provision of the Act
or any other law for the time being in force, the company may purchase its own
shares or other specified securities.
General
meetings
42.
All general meetings other than annual general meeting shall be called
extraordinary general meeting.
43.
(i) The Board may, whenever it thinks fit, call an extraordinary general
meeting.
(ii)
If at any time directors capable of acting who are sufficient in number to form
a quorum are not within India, any director or any two members of the company
may call an extraordinary general meeting in the same manner, as nearly as
possible, as that in which such a meeting may be called by the Board.
Proceedings
at general meetings
44.
(i) No business shall be transacted at any general meeting unless a quorum of members
is present at the time when the meeting proceeds to business.
(ii)
Save as otherwise provided herein, the quorum for the general meetings shall be
as provided in section 103.
45.
The chairperson, if any, of the Board shall preside as Chairperson at every
general meeting of the company.
46.
If there is no such Chairperson, or if he is not present within fifteen minutes
after the time appointed for holding the meeting, or is unwilling to act as
chairperson of the meeting, the directors present shall elect one of their
members to be Chairperson of the meeting.
47.
If at any meeting no director is willing to act as Chairperson or if no
director is present within fifteen minutes after the time appointed for holding
the meeting, the members present shall choose one of their members to be
Chairperson of the meeting.
48.
In case of a One Person Company—
(i)
the resolution required to be passed at the general meetings of the company shall
be deemed to have been passed if the resolution is agreed upon by the sole member
and communicated to the company and entered in the minutes book maintained under
section 118;
(ii)
such minutes book shall be signed and dated by the member;
(iii)
the resolution shall become effective from the date of signing such minutes by
the sole member.
Adjournment
of meeting
49.
(i) The Chairperson may, with the consent of any meeting at which a quorum is present,
and shall, if so directed by the meeting, adjourn the meeting from time to time
and from place to place.
(ii)
No business shall be transacted at any adjourned meeting other than the
business left unfinished at the meeting from which the adjournment took place.
(iii)
When a meeting is adjourned for thirty days or more, notice of the adjourned meeting
shall be given as in the case of an original meeting.
(iv)
Save as aforesaid, and as provided in section 103 of the Act, it shall not be necessary
to give any notice of an adjournment or of the business to be transacted at an adjourned
meeting.
Voting
rights
50.
Subject to any rights or restrictions for the time being attached to any class
or classes of shares,—
(a) on a show of hands, every member
present in person shall have one vote; and
(b) on a poll, the voting
rights of members shall be in proportion to his share in the paid-up equity
share capital of the company.
51.
A member may exercise his vote at a meeting by electronic means in accordance with
section 108 and shall vote only once.
52.
(i) In the case of joint holders, the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the votes
of the other joint holders.
(ii)
For this purpose, seniority shall be determined by the order in which the names
stand in the register of members.
53.
A member of unsound mind, or in respect of whom an order has been made by any court
having jurisdiction in lunacy, may vote, whether on a show of hands or on a
poll, by his committee or other legal guardian, and any such committee or
guardian may, on a poll, vote by proxy.
54.
Any business other than that upon which a poll has been demanded may be preceded
with, pending the taking of the poll.
55.
No member shall be entitled to vote at any general meeting unless all calls or
other sums presently payable by him in respect of shares in the company have
been paid.
56.
(i) No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting at which the vote objected to is given or
tendered, and every vote not disallowed at such meeting shall be valid for all
purposes.
(ii)
Any such objection made in due time shall be referred to the Chairperson of the
meeting, whose decision shall be final and conclusive.
Proxy
57.
The instrument appointing a proxy and the power-of-attorney or other authority,
if any, under which it is signed or a notarized copy of that power or
authority, shall be deposited at the registered office of the company not less
than 48 hours before the time for holding the meeting or adjourned meeting at
which the person named in the instrument proposes to vote, or, in the case of a
poll, not less than 24 hours before the time appointed for the taking of the
poll; and in default the instrument of proxy shall not be treated as valid.
58.
An instrument appointing a proxy shall be in the form as prescribed in the
rules made under section 105.
59.
A vote given in accordance with the terms of an instrument of proxy shall be
valid, notwithstanding the previous death or insanity of the principal or the
revocation of the proxy or of the authority under which the proxy was executed,
or the transfer of the shares in respect of which the proxy is given:
Provided
that no intimation in writing of such death, insanity, revocation or transfer shall
have been received by the company at its office before the commencement of the meeting
or adjourned meeting at which the proxy is used.
Board
of Directors
60.
The number of the directors and the names of the first directors shall be
determined in writing by the subscribers of the memorandum or a majority of
them.
61.
(i) The remuneration of the directors shall, in so far as it consists of a
monthly payment, be deemed to accrue from day-to-day.
(ii)
In addition to the remuneration payable to them in pursuance of the Act, the directors
may be paid all travelling, hotel and other exp expenses properly incurred by
them—
(a) in attending and returning
from meetings of the Board of Directors or any committee thereof or general
meetings of the company; or
(b) in connection with the business of
the company.
62.
The Board may pay all expenses incurred in getting up and registering the
company.
63. The company may exercise the powers
conferred on it by section 88 with regard to the keeping of a foreign register;
and the Board may (subject to the provisions of that section) make and vary
such regulations as it may thinks fit respecting the keeping of any such
register.
64.
All cheques, promissory notes, drafts, hundis, bills of exchange and other
negotiable instruments, and all receipts for monies paid to the company, shall
be signed, drawn, accepted, endorsed, or otherwise executed, as the case may
be, by such person and in such manner as the Board shall from time to time by
resolution determine.
65.
Every director present at any meeting of the Board or of a committee thereof
shall sign his name in a book to be kept for that purpose.
66.
(i) Subject to the provisions of section 149, the Board shall have power at any
time, and from time to time, to appoint a person as an additional director,
provided the number of the directors and additional directors together shall
not at any time exceed the maximum strength fixed for the Board by the
articles.
(ii)
Such person shall hold office only up to the date of the next annual general
meeting of the company but shall be eligible for appointment by the company as
a director at that meeting subject to the provisions of the Act.
Proceedings
of the Board
67.
(i) The Board of Directors may meet for the conduct of business, adjourn and otherwise
regulate its meetings, as it thinks fit.
(ii)
A director may, and the manager or secretary on the requisition of a director
shall, at any time, summon a meeting of the Board.
68.
(i) Save as otherwise expressly provided in the Act, questions arising at any meeting
of the Board shall be decided by a majority of votes.
(ii)
In case of an equality of votes, the Chairperson of the Board, if any, shall
have a second or casting vote.
69.
The continuing directors may act notwithstanding any vacancy in the Board; but,
if and so long as their number is reduced below the quorum fixed by the Act for
a meeting of the Board, the continuing directors or director may act for the
purpose of increasing the number of directors to that fixed for the quorum, or
of summoning a general meeting of the company, but for no other purpose.
70.
(i) The Board may elect a Chairperson of its meetings and determine the period
for which he is to hold office.
(ii)
If no such Chairperson is elected, or if at any meeting the Chairperson is not present
within five minutes after the time appointed for holding the meeting, the
directors present may choose one of their number to be Chairperson of the
meeting.
71.
(i) The Board may, subject to the provisions of the Act, delegate any of its
powers to committees consisting of such member or members of its body as it
thinks fit.
(ii)
Any committee so formed shall, in the exercise of the powers so delegated,
conform to any regulations that may be imposed on it by the Board.
72.
(i) A committee may elect a Chairperson of its meetings.
(ii)
If no such Chairperson is elected, or if at any meeting the Chairperson is not present
within five minutes after the time appointed for holding the meeting, the
members present may choose one of their members to be Chairperson of the
meeting.
73.
(i) A committee may meet and adjourn as it thinks fit.
(ii) Questions arising at any meeting of a
committee shall be determined by a majority of votes of the members present,
and in case of an equality of votes, the Chairperson shall have a second or
casting vote.
74.
All acts done in any meeting of the Board or of a committee thereof or by any person
acting as a director, shall, notwithstanding that it may be afterwards
discovered that there was some defect in the appointment of any one or more of
such directors or of any person acting as aforesaid, or that they or any of
them were disqualified, be as valid as if every such director or such person
had been duly pointed and was qualified
to be a director.
75.
Save as otherwise expressly provided in the Act, a resolution in writing,
signed by all the members of the Board or of a committee thereof, for the time
being entitled to receive notice of a meeting of the Board or committee, shall
be valid and effective as if it had been passed at a meeting of the Board or
committee, duly convened and held.
76.
In case of a One Person Company—
(i)
where the company is having only one director, all the businesses to be transacted
at the meeting of the Board shall be entered into minutes book maintained under
section 118;
(ii)
such minutes book shall be signed and dated by the director;
(iii)
the resolution shall become effective from the date of signing such minutes by
the director.
Chief
Executive Officer, Manager, Company Secretary or Chief Financial Officer
77.
Subject to the provisions of the Act,—
(i)
A chief executive officer, manager, company secretary or chief financial
officer may be appointed by the Board for such term, at such remuneration and
upon such conditions as it may thinks fit; and any chief executive officer,
manager, company secretary or chief financial officer so appointed may be
removed by means of a resolution of the Board;
(ii)
A director may be appointed as chief executive officer, manager, company secretary
or chief financial officer.
78.
A provision of the Act or these regulations requiring or authorizing a thing to
be done by or to a director and chief executive officer, manager, company
secretary or chief financial officer shall not be satisfied by its being done
by or to the same person acting both as director and as, or in place of, chief
executive officer, manager, company secretary or chief financial officer.
The
Seal
79.
(i) The Board shall provide for the safe custody of the seal.
(ii)
The seal of the company shall not be affixed to any instrument except by the authority
of a resolution of the Board or of a committee of the Board authorized by it in
that behalf, and except in the presence of at least two directors and of the
secretary or such other person as the Board may appoint for the purpose; and
those two directors and the secretary or other person aforesaid shall sign
every instrument to which the seal of the company is so affixed in their
presence.
Dividends
and Reserve
80.
The company in general meeting may declare dividends, but no dividend shall exceed
the amount recommended by the Board.
81.
Subject to the provisions of section 123, the Board may from time to time pay
to the members such interim dividends as appear to it to be justified by the
profits of the company.
82.
(i) The Board may, before recommending any dividend, set aside out of the
profits of the company such sums as it thinks fit as a reserve or reserves
which shall, at the discretion of the Board, be applicable for any purpose to
which the profits of the company may be properly applied, including provision
for meeting contingencies or for equalizing dividends; and pending such
application, may, at the like discretion, either be employed in the business of
the company or be invested in such investments (other than shares of the company)
as the Board may, from time to time, thinks fit.
(ii)
The Board may also carry forward any profits which it may consider necessary
not to divide, without setting them aside as a reserve.
83.
(i) Subject to the rights of persons, if any, entitled to shares with special
rights as to dividends, all dividends shall be declared and paid according to
the amounts paid or credited as paid on the shares in respect whereof the
dividend is paid, but if and so long as nothing is paid upon any of the shares
in the company, dividends may be declared and paid according to the amounts of
the shares.
(ii)
No amount paid or credited as paid on a share in advance of calls shall be
treated for the purposes of this regulation as paid on the share.
(iii)
All dividends shall be apportioned and paid proportionately to the amounts paid
or credited as paid on the shares during any portion or portions of the period
in respect of which the dividend is paid; but if any share is issued on terms
providing that it shall rank for dividend as from a particular date such share
shall rank for dividend accordingly.
84.
The Board may deduct from any dividend payable to any member all sums of money,
if any, presently payable by him to the company on account of calls or
otherwise in relation to the shares of the company.
85.
(i) Any dividend, interest or other monies payable in cash in respect of shares
may be paid by cheque or warrant sent through the post directed to the
registered address of the holder or, in the case of joint holders, to the
registered address of that one of the joint holders who is first named on the
register of members, or to such person and to such address as the holder or
joint holders may in writing direct.
(ii)
Every such cheque or warrant shall be made payable to the order of the person
to whom it is sent.
86.
Any one of two or more joint holders of a share may give effective receipts for
any
dividends,
bonuses or other monies payable in respect of such share.
87.
Notice of any dividend that may have been declared shall be given to the
persons entitled to share therein in the manner mentioned in the Act.
88.
No dividend shall bear interest against the company.
Accounts
89.
(i) The Board shall from time to time determine whether and to what extent and
at what times and places and under what conditions or regulations, the accounts
and books of the company, or any of them, shall be open to the inspection of
members not being directors.
(ii)
No member (not being a director) shall have any right of inspecting any account
or book or document of the company except as conferred by law or authorized by
the Board or by the company in general meeting.
Winding
up
90.
Subject to the provisions of Chapter XX of the Act and rules made there under—
(i)
If the company shall be wound up, the liquidator may, with the sanction of a special
resolution of the company and any other sanction required by the Act, divide amongst
the members, in specie or kind, the whole or any part of the assets of the company,
whether they shall consist of property of the same kind or not.
(ii)
For the purpose aforesaid, the liquidator may set such value as he deems fair upon
any property to be divided as aforesaid and may determine how such division shall
be carried out as between the members or different classes of members.
(iii)
The liquidator may, with the like sanction, vest the whole or any part of such assets
in trustees upon such trusts for the benefit of the contributories if he
considers necessary, but so that no member shall be compelled to accept any
shares or other securities whereon there is any liability.
Indemnity
91.
Every officer of the company shall be indemnified out of the assets of the
company against any liability incurred by him in defending any proceedings,
whether civil or criminal, in which judgment is given in his favour or in which
he is acquitted or in which relief is granted to him by the court or the
Tribunal.
Note:
The Articles shall be signed by each subscriber of the memorandum of
association who shall add his address, description and occupation, if any, in
the presence of at least one witness who shall attest the signature and shall
likewise add his address, description and occupation, if any, and such
signatures shall be in form specified below:
|
Names,
addresses, descriptions and occupations of subscribers
|
|
Witnesses
(along with names, addresses,
descriptions
and occupations)
|
|
1. A.B. of………….Merchant
|
|
Signed
before me
|
Dated
the……..day of ………20……
Place:
................................
MEMORANDUM OF ASSOCIATION
OF
XYZ PRIVATE LIMITED
(COMPANY
LIMITED BY SHARES)
I.
The
Name of the Company is XYZ PRIVATE
LIMITED
II.
The Registered Office of the Company will be
situated in the National Capital Territory of Delhi.
III. The objects for which the Company is
established are:-
(a)
THE OBJECTS TO BE PURSUED BY THE COMPANY ON ITS
INCORPORATION ARE :-
1.
To carry on the business as
developers, designers, assemblers, repairers, researchers, maintenance
engineers, buyers, sellers, publishers, importers, exporters, agent, licensors,
hirers, consultants, advisors and dealers in all types of direct and related,
technologies, equipment, accessories, consumables, spare parts, electronic and
mechanical devices, products, research and development, activities and services
in the field of information technology, telecommunications and communication,
aeronautics and aerospace, marine and land, safety and security, optical and
optics, nuclear and nanotechnology, gas and power, media and publication, multimedia
and graphics, software and computer hardware, network and networking, internet
and world wide web, both in India and overseas.
2.
To
undertake, initiate, carry on, engage, promote, assist, encourage and conduct
research, experiments, studies, projects, analysis, examination, programmes,
surveys and tests of all kinds related to computers, electronic data processing
equipments, software programmes, hardware and information technology and all or
any kinds of equipments, parts, components, assemblies, discs, tapes, paper and
assemblies thereof
3.
To carry on the business as assemblers,
repairers, publishers, licensors, hirers in all types of integration software
services/products, information selling/providing, broking & advisory
services, research in such products/services and generally to carry on the
business related to computers, computing both in India and overseas.
4.
To act as consultants, developers, designers
of software, hardware and advisors improving information systems and
information technology solutions based on the use of computer, information and
word processing equipments and business machines of all kinds and multi
disciplinary consultancy and for that purpose furnish the users the systems,
know how, programs and other software relating to the use of such machines and
allied peripherals.
(a)
MATTERS WHICH ARE NECESSARY FOR FURTHERENCE
OF THE OBJECTS SPECIFIED IN CLAUSE III (a) ARE :-
1. To acquire by purchase, lease,
exchange or otherwise any movable or immovable property and any rights or
privileges which the Company may deem necessary or convenient for the purpose
of its main business.
2. To enter into partnership or
into any arrangement for sharing profits, union of interest, joint venture,
reciprocal concession or co-operation with persons or companies carrying on or
engaged in the main business or transaction of this Company.
3. To import, buy, exchange,
alter, improve and manipulate in all kinds of plants, machinery, apparatus,
tools and things necessary of convenient for carrying on the main business of
the Company.
4. To
vest any movable or immovable property, rights or interests required by or
received or belonging to the Company in any person or company on behalf of or
for the benefit of the Company and with or without any declared trust in favour
of the Company.
5. To purchase or otherwise
acquire, build, carry out, equip, maintain, alter, improve, develop, manage,
work, control and superintend any plants, warehouse, sheds, offices, shops,
stores, buildings, machinery, apparatus, labour lines, and houses, warehouses,
and such other works and conveniences necessary for carrying on the main
business of the Company.
6. To undertake or promote
scientific research relating to the main business or class of business of the
Company.
7. To acquire and takeover the
whole or any part of the business, goodwill, trade-marks properties and
liabilities of any person or persons, firm, companies or undertakings either
existing or new, engaged in or carrying on or proposing to carry on business
this Company is authorised to carry on, possession of any property or rights
suitable for the purpose of the Company and to pay for the same either in cash
or in shares or partly in cash and partly in shares or otherwise.
8. To negotiate and enter into
agreements and contracts with Indian and foreign individuals, companies,
corporations and such other organisations for technical, financial or any other
such assistance for carrying out all or any the main objects of the Company or
for the purpose of activity research and development of manufacturing projects
on the basis of know-how, financial participation or technical collaboration
and acquire necessary formulas and patent rights for furthering the main
objects of the Company.
9. Subject to Sections 391 to
394, 394A of the Act, to amalgamate with any other company of which all or any
of their objects companies having similar to the objects of the Company in any
manner whether with or without the liquidation.
10. Subject to any law for the time
being in force, to undertake or take part in the formation, supervision or
control of the business or operations of any person, firm, body corporate,
association undertaking carrying on the main business of the Company.
11. To apply for, obtain, purchase
or otherwise acquire and prolong and renew any patents, patent-rights, brevets,
inventions, processes, scientific technical or other assistance, manufacturing
processes know-how and other information, designs, patterns, copyrights,
trade-marks, licences concessions and the like rights or benefits, conferring
an exclusive or non-exclusive or limited or unlimited right of use thereof,
which may seem capable of being used for or inconnection with the main objects
of the Company or the acquisition or use of which may seem calculated directly
or indirectly to benefit the Company on payment of any fee royalty or other
consideration and to use, exercise or develop the same under or grant licences
in respect thereof or otherwise deal with same and to spend money in
experimenting upon testing or improving any such patents, inventions, right or
concessions.
12. To apply for and obtain any
order under any Act or Legislature, charter, privilege concession, licence or
authorisation of any Government, State or other Authority for enabling the
Company to carry on any of its main objects into effect or for extending any of
the powers of the Company or for effecting and modification of the constitution
of the Company or for any other such purpose which may seem expedient and to
oppose any proceedings or applications which may seem expedient or calculated
directly or indirectly to prejudice the interest of the Company.
13. To enter into any arrangements
with any Government or Authorities or any persons or companies that may seem
conducive to the main objects of the Company or any of them and to obtain from
any such Government, authority, person or company any rights, charters,
contracts, licences and concessions which the Company may think desirable to
obtain and to carry out, exercise and comply therewith.
14. To procure the Company to be
registered or recognised in or under the laws of any place outside India and to
do all act necessary for carrying on in any foreign country for the business or
profession of the Company.
15. To draw, make, accept, discount,
execute and issue bills of exchange, promissory notes bills of lading,
warrants, debentures and such other negotiable or transferable instruments, of
all types or securities and to open Bank Accounts of any type and to operate
the same in the ordinary course of the Company.
16. To advance money either with or
without security, and to such persons and upon such terms and conditions as the
Company may deem fit and also to invest and deal with the money of the Company
not immediately required, in or upon such investments and in such manner as,
from time to time, may be determined, provided that the Company shall not carry
on the business of banking as provided in the Banking Regulations Act, 1949.
17. Subject to section 58-A and 292,
293, 295 & 372A of the Act and the Regulations made thereunder and the
Directions issued by the Reserve Bank of India, to receive money on deposit or
loan and borrow or raise money in such manner and at such time or times as the
Company thinks fit and in particular by the issue of debentures,
debentures-stock, perpetual or otherwise and to secure the repayment of any
money borrowed, raised or owing by mortgage, charge or lien upon all or any of
the properties, or assets or revenues and profits of the Company both present
and future, including its uncalled capital and also by a similar mortgage,
charge or lien to secure and guarantee the performance by the Company or any
other person or Company of any obligation undertaken by the Company or such
other person or company to give the lenders the power to sale and such other
powers as may seem expedient and purchase redeem or pay off any such
securities.
18. To undertake and execute any
trusts, the undertaking of which may seem to the Company desirable, either
gratuitously or otherwise.
19. To establish, or promote or
concur in establishing or promote any company for the purpose of acquiring all
or any of the properties, rights and liabilities of the Company.
20. To sell, lease, mortgage,
exchange, grant licences and other rights improve, manage, develop and dispose
of undertakings, investments, properties, assets and effects of the company or
any part thereof for such consideration as may be expedient and in particular
for any shares, stocks, debentures or other securities of any other such company
having main objects altogether or in part similar to those of the Company.
21. Subject to the Provisions of
Section 100 to 105 of the Act, to distribute among the members in specie or
otherwise any property of the Company or any proceeds of sale or disposal of
any property of the Company in the event of winding up.
22. To distribute as dividend or
bonus among the member or to place to reserve or otherwise to apply, as the
Company may, from time to time, determine any money received by way of premium on
debentures issued at a premium by the Company and any money received in respect
of forefeited shares, money arising from the sale by the Company of forefeited
shares subject to the provisions of Sec. 78 of the Companies Act, 1956.
23. To employ agents or experts to
investigate and examine into the conditions, prospects value, character and
circumstances of any business concerns and undertakings and generally of any
assets properties or rights which the Company purpose to acquire.
24. To accept gifts, bequests,
devisers or donations of any movable or immovable property or any right or
interests therein from members or others.
25. To create any reserve fund,
sinking fund, insurance fund or any other such special funds whether for
depreciation, repairing, improving, research, extending or maintaining any of
the properties of the Company or for any other such purpose conducive to the
interest of the Company.
26. Subject to the provisions of
Section 292, 293, 293-A & 293-B of the Companies Act, 1956 to subscribe
contribute, gift or donate any money, rights or assets for any national
educational, religious, charitable, scientific, public, general or usual
objects or to make gifts or donations of money or such other assets to any
institutions, clubs, societies, associations, trusts, scientific research
associations, funds, universities, college or any individual, body of
individuals or bodies corporate.
27. To establish and maintain or
procure the establishment and maintenance of any contributory or
non-contributory pension or superannuation, provident or gratuity funds for the
benefit of and give of procure the giving of the donations, gratuities
pensions, allowances, bonuses or emoluments of any persons who are or were at
any time in the employment or service of the company or any company which is a
subsidiary of the Company or is allied to or associated with the Company or
with any such subsidiary company or who are or were at any time Directors or
officers of the Company or any other company as aforesaid and the wives,
widows, families and dependents of any such persons and also to establish and
subsidise and subscribe to any institutions, associations, club or funds
calculated to be for the benefit of or advance aforesaid and make payments to
or towards the insurance of any such persons as aforesaid and to do any of the
matters aforesaid, either alone or in conjunction with any such other company
as aforesaid.
28. To establish, for any of the
main objects of the Company, branches or to establish any firm or firms at
places in or outside India as the Company may deem expedient.
29. To pay for any property or
rights acquired by or for any services rendered to the Company and in
particular to remunerate any person, firm or company introducing business to
the company either in cash or fully or
partly-paid up shares with or without preferred or deferred rights in respect
of dividend or repayment of capital or otherwise or by any securities which the
company has power to issue or by the grant of any rights or options or partly
in one mode and partly in another and generally on such terms as the company
may determine, subject to the provision of section 314 of the act.
30. To pay out of the funds of the
company all costs, charges and expenses of and incidental to the formation and
registration of the company and any company promoted by the company and also
all costs, charges, duties, impositions and expanses of and incidental to the
acquisition by the company of any property or assets.
31. To send out to foreign
countries, its director, employees or any other person or persons for
investgation possibilities of main business or trade procuring and buying any
machinery or establishing trade and business connections or for promoting the
interests of the company and to pay all expenses incurred in the connection.
32. To compensate for loss of office
of any Managing Director or Directors or other officers of the Company within
the limitations prescribed under the Companies Act, 1956 or such other statute
or rule having the force of law and to make payments to any person whose office
of employment or duties may be determined by virtue of any transaction in which
the Company is engaged.
33. To agree to refer to arbitration
any dispute, present or future between the Company and any other company, firm,
individual or any other body and to submit the same to arbitration in India or
abroad either in accordance with Indian or any foreign system of law.
34. To appoint agents, sub-agents,
dealers, managers canvassers, sales, representatives or salesmen for
transacting all or any kind of the main business of which this Company is
authorised to carry on and to constitute agencies of the Company in India or in
any other country and establish depots and agencies in different parts of the
world.
IV. The Liability of the Members is
limited and the liability is limited to the amount unpaid, if any, on the
shares held by them.
V. The Authorised Share Capital of the
Company is Rs. 1,00,000/- (One Lac) divided into 10,000( Ten Thousand) Equity
Shares of Rs. 10/- (Rupees Ten) each.
We the several person whose name and address are
subscribed, are desirous of being formed into a company in pursuance of this
memorandum of association and we respectively agree to take the numbers of
shares in the capital of the company set opposite to our respective names
|
S. No.
|
Names, addresses,
descriptions and occupations of subscribers
|
No. of shares taken by
each subscriber
|
Signature of
subscriber
|
Signature, names,
addresses, descriptions and occupations of Witnesses
|
|
1.
|
A.B.
of………….Merchant
|
|
|
Signed before me
|
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