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Liquidation, EDC Ques:, Reconstruction - A SOA which involves the transfer…

- - - - Proposal needs to be approved by
        
        Majority of 75% of total value of creditors
        
        Simple majority of members
      - (2) Statement declaring that co's info has been updated & co is not under any striking off process
  - - - Nominee must within 7 days
        
        Notify ROC of commencement of moratorium
        
        Notify co & petitioning creditor of commencement of moratorium
        
        Advertise the fact on website of ROC, in national language & English
- - - - Declaration of solvency is a written statement that the co is able to pay its debt within 12 months of winding up of co
      - Requirement of the declaration:
        
        Made within 5 weeks & lodged with ROC before notice of members' meeting
        
        Made by sole director/ majority directors
        
        Directors shall have enquired into the affairs of the co
        
        During directors' meeting, opinion has been formed that the co will be able to pay its debt within 12 months after winding up
        
        Statement on the assets, liabilities & estimated expenses of winding up
        
        If the declaration are deemed to be made without reasonable grounds (where co couldn't pay its debt within 12 months after winding up):
        
        Fine of Rm 3 million, or imprisonment of 5 years, or both
        
        Continuing offence: RM500/day
    - - Copy of resolution must be lodged with ROC within 7 days
        
        NOTICE OF RESOLUTION must be given within 10 days in national language & English's newspaper
        
        Voluntary winding up commences when resolution is passed
    - - Liquidators will dispose co's asset and use the proceeds to settle co's liability, if there's excess only distribute to members
    - - Liquidator shall prepare an account
        
        To show how winding-up was conducted
        
        Show how property of company has been disposed of
      - Call for members meeting
        to present account & provide explanation
        
        Meetings should be advertised in a widely circulated newspaper in Malaysia, in national language & English, at least 30 days before the meeting
        
        Stating time, date, place, and object of meeting
      - Lodges "RETURN BY LIQUIDATOR RELATING TO FINAL MEETING" with ROC & Official Receiver, together with (1) Copy of account, within 7 days
  - - - Declaration is called" Statutory Declaration of Inability of Company to Continue its Business and that Meeting of Company and its Creditors have been Summoned"
        
        Company cannot by reason of its liability to continue its business
    - - Appointment of interim liquidator shall continue for 30 days (or longer if the Official Receiver permits), or until a permanent liquidator is approved
      - Notice of appointment of liquidator
        
        Copy of declaration
        Both document shall be advertised in 2 widely circulated newspaper (National & English Language)
    - - Statement of affairs:
        
        Detailing financial situation
        
        Valuation of assets
        
        List of creditors with estimated claim
        
        Directors & COSEC must attend the meeting to disclose co's affairs & reason of prpoosed winding up
      - Committee of inspection (max 5 ppl) comprise representative of members & creditors
        
        Assist/ supervise liquidator
        
        Authorise powers of liquidator
        
        Authorise continuance of director's powers
        
        Fix liquidator's remuneration
        
        Members & creditors may nominate a liquidator, if nominated different person, person nominated by creditors shall be the liquidator
    - - Prepare account
        
        Call members & creditors meeting (Advertise meeting within 30 days before meeting)
        
        Lodge "Return by liquidator relating to final meeting" to ROC and Official Receiver, with copy of account within 7 days from meeting
- - - - 2) Court gives winding up order, petitioner lodge "Notice of winding up order" & "Particular of liquidator" with ROC, Official Receiver, COSEC, liquidator & other person which the court directs
        
        3) If no liquidator is appointed, Official Receiver shall summon SEPARATE meeting of creditors & members of the co
        
        4) Anyone liquidator asked for shall submit "Statement of affairs" within 14 days of winding up order
        4.1) Liquidator/ Official receiver lodge a copy of the statement to ROC within 7 days from receipt of statement
        
        5) Liquidator submit report to court
        
        6) Liquidator dispose co's asset & use it to pay off co's debt
        7) Liquidator can ask court to release them & dissolve the co if all debts are paid
        
        Copy of "Orders of release/ dissolution" shall be lodged with ROC & Official receiver by liquidator, within 14 days from date of order
        
        1 more item...
        
        On matters:
        
        Amount of capital issued/ subscribed/ paid up
        
        Estimated assets & liabilities
        
        Whether it's necessary to investigate more about the co's promotion/ formation/ issues in operation
        
        How co was formed
        
        Whether is there fraud/ material fact hidden
        
        Any officer contravened with Act
        
        Any other matter that the liquidator think should be brough to the notice of court
        
        Particulars assets/ debts/ liabilities
        
        Names/ address of its creditors
        
        Securities held by creditors
        
        Date when securities are given
        
        Any other info liquidator requires
        
        To determine if an application shld be made to court for appointing liquidator in the place of the Official Receiver
        
        The commencement of winding up is the date of winding up order
        
        After the WU order, no legal action can be taken against the co
        
        Any changes of co's property made ater WU petition are void
      - Court appoints Official Receiver/ approved liquidator as interim liquidator after petition (but before winding up order)
  - - - 3) If co doesn't commence biz within 1 year of its incorporation, or
        Co ceases its biz for one whole year
        
        4) Co with no member
        
        5) Co unable to pay debt, when
        
        Creditor owed sum > RM10,000, provided creditors has served "Notice of Demand" requiring co to pay within 21 days (and co failed to do so)
        
        Creditor had obtained judgement against co, but money collected wasn't sufficient to cover full amount owed
        
        Co's liability more than asset
        
        Petitioner is creditor
        
        6) Court may WU the co if it's just & equitable to do so;
        
        Member is treated unfairly
        
        Co couldn't achieve what it was incorporated for
        [ Re German Date Coffee Co ]
        
        Co couldn't function bcos shareholder are deadlocked
        
        Petitioner may be Minister
        
        Court may not grant the order if the WU is against by majority of members & inactivity is explained