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Meetings, Clear days excludes Date of notice, and Date of meeting -…
Meetings
AGM
First AGM
- within 18 months of incorporation
Subsequent AGM
must be held every calendar year, but:
Not later than 6 months after y/e, or
Not later than 15 months after last AGM (whichever earlier)
Extension of time
If co not able to hold AGM within prescribed time
Apply to ROC for it
Application supported by documentary evidence of material circumstances that made it impossible for co to hold AGM
Co should not hold AGM later than the extended date, unless another extension is granted
Both co & responsible officer liable to fine of RM20,000
Required for Public Co only
If co wants to allow directors to delay AGM, constitution must provide
Court can order co to hold AGM, if any members apply to court, which co cannot postpone
Matters discussed
Ordinary business:
Audited financial statement
Reports of directors & auditors
Re-election/ Re-appointment of directors
Appointment of auditors & their remuneration
Special business: Appointment of external auditors, amendments of constitution, Approval of dividends, Alteration of constitution
Need another heading with details
Give notice
21 days' notice must be given to member, but constitution may prescribe a longer period
Who can convene EGM?
Director
Members
(Rare)
Members convene
Co with share capital: 10% of issued share capital (constitution may provide a lower %)
Co w/o share capital: 5%
of its members
Members
require
directors
to convene
Member holding at least 10% of paid capital
5%
of paid capital
if priv co haven't had a meeting within 12 months since the last meeting
Requisitioning member has to state the purpose of proposing the meeitng in their notice to director
If directors fails to convene a meeting, requisitioning member may call for EGM themselves
EGM must be held within 3 months from requisition date
If requisitioning member convene meeting before directors' default, the meeting will not be valid
Order of court
Application can be made by any directors/ members (or their personal representative) to HIGH COURT
Applicant must prove that the meeting is unable to be held due to frustrated non-quorum, which resulted in co being forced into state of helplessness
Auditor
To inform shareholders of circumstances leading to his resignation
(3) Conducted
Voting
Show of hands
Any resolution put to vote shall be decided by show of hands in the first instance, unless poll is demanded
Fast, easy, simple
No documentary evidence
Members can't exercise full rights
No secrecy
members may be influenced by others
Only members who has fully paid the amount owed for their shares to company is entitled to vote
Poll
Must be carried out if demanded by:
At least 3 members, or
10% of total voting rights, or
10% of paid up capital
If demand for poll is properly made, but chairman denies it, any decisions made by "show of hand" is invalid, poll will replace the earlier vote
Appointment of chairman
Resolutions
Directors' resolution
Simple majority
Chairman have second vote, or casting vote to resolve cases of equality of votes
Members' resolution
Ordinary resolution
Simple majority
14 days' notice
For routine business
No need file general copies with ROC
Special resolution
Passed by 75% of members
21 days' notice
Copy of resolution need to send to ROC
Alter object clause
Change co's name
Reduce share capital
Voluntary winding up
Alter constitution
Change status of company
Give financial assistance by company to acquire shares
Written resolution
(Priv co only)
Resolution without meeting
Proposed by directors, or members (5% of voting rights)
Adjournment
Proceedings of meeting is "broken-off" for time being
Only unfinished business can be discussed, no new business can be discussed
Accounts aren't ready for submission
Impossible to maintain order
For purpose of poll
Quorum not presented
(1) Convened
Only person who has convening authority can call for a meeting
Notice of meeting
Person who must
receive notice
Members appears in register of members
People who inherit/ given shares (member passed away)
Auditor (to answer question regarding co financial statement)
Directors for the time being
Accidental omission (eg. administrative error) shall not invalidate proceedings at a meeting
Defective notice
Proceedings in a meeting will be void,
unless ALL members agree to overlook the mistake
Court can fix mistakes in proceedings caused by notice/ time issues, unless it would cause significant unfairness
May cause substantial injustice to member that cannot be remedied by any order of court
Methods of giving notice
Writing
Given in hardcopy/ electronic/ hybrid form
Hardcopy should be set to members either :
Personally, or
By post to address supplied by member
Electronic notice shall be given either by :
Send to electronic address supplied by member, or
Publish on website
May be prescribed in constitution,
if not, follow S319(2) and S320
Place of meeting
Within Malaysia
May hold meeting at more than one venue using technology
Chairperson shall be present at the main venue
Length of notice
[ Constitution may provide a longer period ]
AGM
21 days' notice
Fails to give required notice, all members agreed to the short notice
EGM
14 days' notice
If co fails to give required notice, members with may waive the short notice:
priv co - at least 90% of voting shares
public co - at least 95% of voting shares
Contents
Normal content: Name of co, type of meeting, date, time, place, agenda, date of notice, sign/ name, notes to appointment of proxy
Ordinary business - skeleton form
Special business - Full text of resolution
Special Notice
28 days' notice
Removal of directors
Removal of auditor
Appointment of director removed in 1.
Agenda
A list of business items
Purpose is to inform about proposals/ recommendations which needs confirmation/ approval
If members have no personal interest regarding the matters to be discussed in meeting, they can choose not to come (Their absence would imply his agreement)
If the member is not familiar with the matter to be discussed, they can consult with others prior to the meeting, in order to help him exercise his votes well in the meeting
Help chairman to preven off-topic discussions
Guide meetings, ensure focused discussions & meeting objectives
Items listed in the agenda should be discussed in the given order, if any changes is needed, should follow constitution, if not, majority members must agree to the change
Chairman
If chairman is not present within 15 mins, members may elect one of them to chair the meeting
Duties
Ensure meetings is properly convened & constituted
Ensure quorum is present & notice has been sent to all
Must be fully aware of the business to be transacted & objects of meeting
Regulate debate
Keep discussions within scope og agenda
Maintain order of meeting
Decide whether amendments to motions are allowable
End discussions & call for vote
Sign minutes of meeting
Power
Exercise casting vote
Adjourn meeting
Remove person who interrupt meeting
EGM
Any shareholder meeting other than AGM
Normally held to pass resolution which is urgent
Call for EGM within 14 days
21 days if EGM is convened to pass special resolution
Meeting should be held within 28 days from date of notice
Minutes
Chairman should make checks with the minutes which will be presented to him within 14 days of the meeting
Must be entered into books within 14 days from meeting date (Failure of it may make the resolutions passes invalid)
Must be signed by chairman of the meeting, or chairman of the next succeeding meeting
Documentary records of proceedings at a meeting
Copy of meeting minutes should be provided within 14 days if members asked for it, RM1/100 words
Meeting must be properly 1,2 & 3
for it to be a valid meeting
(2) Constituted
Quorum must
be present
Failure to MAKE a meeting
Until quorum is presented, there's legally no meeting
Half hour grace period given after the schedules time
If quorum is still not present, meeting shall be formally adjourned to the same time/place, next week
Failure to KEEP a meeting
Common Law: Quorum must be present for the whole meeting, any resolution passed after quorum ceases to exist will be invalid
Constitution may provide that quorum is needed only when the meeting STARTS, meeting remain valid even if some members leave during meeting
Incompetent quorum
Constitution may prohibits certain members of certain classes voting on particular matters, they are known as incompetent members, they will not be counted for quorum purposes
Nevertheless, some co includes a provisions to provide them to be counted as a quorum, but not to vote
Court has to power to validate the proceedings of the meeting despite the lack of quorum (provided that no injustice caused)
Proxies must be
appointed in order
A legally constituted agent
person authorised by proxy form to act for appointor & vote at meeting on appointor's behalf
Members who appoint 2 proxies, have to specify the proportions of his holdings to be represented by each proxy, for it to be a valid appointment
1 proxy: Both show of hands & poll
2 proxies are appointed: Poll only
2 proxies appointed (Public listed): Both show of hands & poll
Proxy form should be lodged not less than 48 hours before meeting/ adjourned meeting, in case of poll, not less than 24 hours before time appointed for the taking of poll
If constitution contravene with the rule, constitution will be void
Revocation of
proxy
Death/ insanity of member
Notice of revocation served within specified time limit
Depositing new proxy form within specified time limit
Transfer of shares
Verbal inform to chairman prior to the commencement of the meeting
2-way proxy: Enables appointor to vote "for" or "against" a motion through his proxy
Special proxy: One meeting proxy. Proxy appointed for the specific meeting only
General proxy: Proxy is valid for more than one meeting
Clear days excludes
Date of notice, and
Date of meeting