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CSP CHAP 7: MEETINGS, NOTICE, MINUTES AND RESOLUTIONS - Coggle Diagram
CSP CHAP 7: MEETINGS, NOTICE, MINUTES AND RESOLUTIONS
Type of Meeting
- Board Meeting
- Members / General Meeting
Board Meeting
- The directors are responsible for the management of the company’s business
- Third Schedule
- S.212 Proceeding of Board
Members / General Meeting
- CA2016 empower members to decide on certain matters
- Sec 290-344
- AGM is optional for private companies
- AGM mandatory for public companies
Major Changes on GM in CA2016
- Removing AGM requirement for private co
- Shifting toward written resolution regime
- Introduction of members’ right for management review
- Other changes that facilitate the process:
- Allow electronic communication
- Multiple Venue
- Reducing the required threshold for the purpose of convening/requisitioning of general meetings
- Proxies: lifting the prohibition on person(s) who can be appointed as proxies. A proxy may be appointed as chairman (unless prohibited by a company's constitution)
Requirement of AGM in Public Company
For the purpose of:
- Laying audited financial statements (F/S), reports of the directors and auditors
- Re-election of directors
- Appointment and the fixing of the fee of director; and
- Any resolution or other business of which notice is given in accordance with this act or the constitution
Requirement to circulate F/S
To:
a. Every member of the company
b. Every person who entitled to receive the notice of GM
c. Every director
d. Every debenture holder upon their request
Time allowed to circulate copies of financial statements and reports
- Public Company
- At least 21 days before the date of AGM
- Private Company
- Within six months of its financial year end (must be approved by board)
Lodging Audited F/S to SSM
- Public Company
-within a month after F/S been tabled at AGM
- Private Company
-within a month after F/S circulated to members
Resolution of Member
- Public Company
-shall be passed at the GM
- Private Company
-shall be passed either by a written resolution or at a GM
- However, the following resolutions shall not be passed as a written resolution:
(a resolution to remove a director before expiration of the term or a resolution to remove an auditor before expiration of the term)
Type of resolutions
- Ordinary resolution
- Special resolution
Ordinary Resolution
- a resolution passed by a simple majority of more than half of members
- If the CA does not specify the type of resolution the resolution shall be ordinary resolution. Unless otherwise provided by constitution
Special Resolution
- a resolution of which a notice of not less than 21 days has been given and passed by a majority of not less than 75% of such members
- Notice of meeting must
(include text of resolution)
(state "Special resolution"
Shareholders' Written Resolution
- Can only be used by Private Company
- Written resolution may be proposed by
(Directors or)
(Member (holding >5% or lower % as in constitution))
- Every member is to have one vote for every share held by him
- The required percentage to pass a resolution will be similar as though the resolution would be passed at a meeting of members
- The WR will be passed once the required majority of eligible members have signified their agreement to it
Shareholders' WR proposed by board
- Resolution proposed by board shall be circulated as far as practicable
- Shall include accompanying statement guiding the shareholders as to:
(how to signify agreement to the resolution)
(the date by which the resolution must lapse if it is not to passed)
Shareholders' WR proposed by member
- Once WR is proposed, the company must circulate the resolution to every eligible member within 21 days
- The member may also provide a statement (not more than 1000 words)
- A proposed WR lapses if it is not passed before the end of the period of 28 days beginning with the circulation date
- A written resolution (and accompanying document, if any) and a statement that guide members on how to signify agreement to the resolution and the date by which the resolution must lapse if it is not to passed, shall be circulated in hard copy or electronic form
- The expenses of the company to circulate WR proposed by members shall be paid by the members who requested the circulation of the statement. The company is not obliged to circulate the resolution until a sufficient sum has been deposited with the company to meet such expenses, not later than 1 week before the meeting
Abolishment of Unanimity Rule
- The CA2016 abolishes the requirement for unanimity for private companies and allows for the passing of a written resolution by the same majority as required at a general meeting
Resolutions at Meetings of Member
- A resolution shall be validly passed at a meeting of members if:
(notice and resolution are given)
(the meeting is held and conducted)
The Conveying Authority
- The BOD
- Members
- Court
1. The BOD
- The power to convene a meeting of a company
- Normally exercised through the medium of the secretary
2. Members
- any member holding at 10% of the issued share capital or a lower % as specified in the constitution
- or if the company has no share capital, by at least 5% in the number of the members
3. Court
- the court may order a meeting to be called, held and conducted in any manner the Court thinks fit.
Requisition by member - Eligible member
- Reducing the required threshold for the purpose of convening/requisitioning of general meetings
- Any member holding at 10% of the issued share capital or a lower % as specified in the constitution
- Or if the company has no share capital, by at least 5% in the number of the members
- For Private co, members holding at least 5% of paid up capital shall request the directors to hold a physical meeting where:
- It has been more than 12 months since the holding of a meeting which is requisitioned by members, and
- The proposed resolution is not defamatory, frivolous or vexatious, or would not be in the company’s best interests
Requisition by Member
- Director should convene an meeting as soon as possible once the company has received requisition
- The notice of meeting shall be issued within 14 days from the date of the requisition; and hold the meeting on a date not more than 28 days after the date of the notice to convene the meeting
- However, the directors has the option not to call for meeting if a resolution would be ineffective whether by reason of inconsistency with any written law or the constitution; is defamatory of any person; is frivolous or vexatious; or would not be in the best interest of the company
- if the directors do not convene the meeting as requisitioned, requisitionists representing more than one-half of the total voting rights of all the requisitionists may proceed to convene the meeting
- The meeting shall be convened on a date not more than 3 months after the date on which the directors received a requisition
- Any reasonable expenses incurred by the members requisitioning the meeting by reason of the failure of the directors to call a meeting shall be reimbursed by the company.
Notice of Meeting
- Private Company
- For all meetings without special resolution, notice should be sent at least 14 days or longer (may be shorter period if agreed by majority of members)
- Public Company
- For AGM, notice should be sent at least 21 days or longer period (may be shorter period if agreed by all members)
- For other meetings without special resolution, notice should be sent at least 14 days or longer (may be shorter period if agreed by majority of members)
Contents of notices of meetings
- the place, date and time of the meeting and
- the general nature of the business of the meeting
- for adjourned meetings, when a meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given in the same manner as in the case of the original meeting
Persons entitled to receive notice of meetings
- Every member
- Director, and
- Auditor of the company
Resolutions that require Special Notice
- to remove a director or to appoint another person instead of the director at the same meeting
- to remove auditor from office
- to appoint a person as an auditor in place of an outgoing auditor
- to remove of liquidator
General Meeting Venue
- A company may hold meeting at more than one venue using any technology that enables members of the company an opportunity to participate and exercise their right to speak and vote. Other venue can be outside Malaysia
- Main meeting venue shall be in Malaysia where the chairperson is present
Quorum
- For the purpose of constituting a quorum:
- one or more representatives appointed by a corporation shall be counted as one member; or
- one or more proxies appointed by a person shall be counted as one member
Absent of Quorum
- Without a quorum, a meeting is not properly constituted and no business shall be transacted at any meeting
- If within half an hour from the time appointed for the meeting, a quorum is not present, the meeting:
- if convened upon the requisition of members, shall be dissolved
- in any other case, shall stand adjourned to the same day in the next week at the same time and place, or to such other day and at such other time and place as the directors may determine
Chairperson
- The chairman of board of directors shall preside as chairperson at general meeting
- If no chairman or if he is not present within 15 minutes after the time appointed for the holding of the meeting or he is unwilling to act, the members present shall elect one of them
- a proxy may be elected to be the chairperson of a meeting
Duties of Chairperson
- Preservation of order
- Conduct of meeting
- Sense of meeting
Voting
- shall be decided on a show of hand unless a poll is demanded
General Rules on Voting
- In the case of a company having a share capital
- On a WR
(every member shall have one vote for each share or stock held by him)
- At a meeting
(show a hands -every member shall have one vote)
(poll voting - every member shall have one vote for each share or stock held by him)
- In the case of a company not having a share capital
- every member shall have one vote
Voting by Proxy
- If only one proxy is appointed by the member, the proxy shall be entitled to vote on a show of hands
- If more than one proxy are appointed by the member
- the proxies shall only be entitled to vote on poll
- the appointment shall not be valid unless he specifies the proportions of his holdings to be presented be each proxy
Qualification of Proxy Uplifted
- Proxy need not be solicitor, auditor or approved by CCM
- A proxy may be appointed as chairman (unless prohibited by a company's constitution)
Poll Voting
- A poll demanded on election of the chairmen or on a question of adjournment shall be taken immediately
- The result of the poll shall be the resolution of the meeting
- When a poll is demanded on several motions before the meeting, each of the motion must be voted separated
Proxy
- Proxy have same right as the member to attend, participate, speak and vote at the meeting
- the proxy form shall be deposited at registered office least 48 hours before the appointed time of meeting or adjourned meeting. In the case of a poll, not less than 24 hours before the time appointed for the taking of the poll
- In notice of meeting, there shall appear a statement informing the right of member to appoint proxy
Proxy - Termination
- Proxy will be terminated when the company receives a notice of termination before the commencement of a meeting of members or an adjourned meeting
Records of Resolutions and Meetings
- The records must be kept for at least seven years from the date of the resolution, meeting or decision
Adjournment & Postponement
- Postponement refers to the putting off the meeting to a later date before the meeting was held
- Adjournment refers to continuing or extending the meeting which has been actually held. The proceeding of the meeting is ‘broken-off’ for the time being and it is to be continued at the time as fixed by the motion adjourning the meeting
Adjournment
- Circumstances warrant for an adjournment:
(when the accounts are not ready for submission at AGM)
(when it is impossible to maintain order of the meeting)
(when necessary, adjourn the meeting for the purpose of taking a poll)
(when within half an hour from the time appointed for the meeting, a quorum is not present)
Notice of Adjourned Meetings of Members
- When a meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given in the same manner as in the case of the original meeting
Annual General Meeting (AGM)
- hold an AGM
-in each calendar year
-within six months of the company's financial year end, and
-not more than fifteen months after the last preceding AGM
- First AGM
-can be held within 18 months of its date of incorporation
- Company can apply to CCM for extension of time to convene AGM
- If the company fails to hold an AGM, the court on application of any member, may order AGM to be called
Annual Returns
- The Annual Returns are required to be lodged with SSM for each calendar year within 30 days of the anniversary of a company’s incorporation date
- The annual return shall be signed by a director or secretary
- The CCM may strike a company off the register, if the company fails to lodge an annual return for 3 or more consecutive years
Flow of Meeting
- Before the Meeting
- At the Meeting
- After the Meeting
Before the Meeting
- Notice of meeting
- Length of notice
- Venue and time of meeting
At the Meeting
- Attendance of members and proxy
- Seating arrangements
- Reading of notice of meeting
- Present of Quorum
- Proposing and seconding
- Shareholder communication (question from shareholders
- Putting a resolution to the vote
- Appointment of scrutineers for voting by poll
- Announcement of result of voting
After the Meeting
- Record resolutions and minutes