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(English) Companies Act 2016 & Its Implications for Directors by Mah Li Chen (MAICSA Chartered Secretary)
Overview and Key Changes of CA2016
Overview and Latest Updates (11:28)
Key Changes : Types of Companies (10:24)
Qualification (7:48)
Disqualification (2:56)
Resignation and Vacancy (2:46)
Publication of Name of Company (2:21)
Key Changes - Simplification of Incorporation Process (14:15)
Key Changes - No Par Value Regime (6:40)
Documents to be kept at RO (2:15)
Further Key Changes (10:06)
Key Changes : Electronic Incorporation / E-Filing / Lodgement of Documents (16:55)
Audited Financial Statements for Private Limited Company (4:14)
Key Changes - Audit and Variations found in CA2016 (10:37)
Key Changes - Appointment of Auditors of a Private Company (4:50)
Member's Rights (5:57)
Judicial Management Scheme (3:27)
Corporate Voluntary Arrangement (3:15)
Provisions in the Companies Act 2016 (2:21)
(Part 1) CA2016 & Its Implications for Directors
Introduction
Training Content
Introduction to Directors and Minimum Number of Directors (3:34)
One Man Company (7:36)
Qualification (14:06)
Resignation and Vacancy (2:13)
Removal of a Director and Disqualification of a Director (4:15)
Duties and Responsibilities (6:07)
Provisions of the New Companies Act 2016 (11:53)
s223 vs s228 CA 2016 (3:08)
s223 in detail (14:19)
Loans to directors s224 (8:10)
Persons connected with Director (1:51)
Prohibition of Loans to Persons Connected with Directors s225 (4:01)
Related Party Transactions (6:00)
Threshold under s228 (2:48)
Elimination of the s228 (3:32)
Related Party Transactions for Listed Company (9:07)
Ratios (6:38)
Aggregation Rule (9:21)
Exempted RPTS (10:59)
Disclosure Requirements (6:18)
Fee, Benefits and Compensation (2:29)
Service Contract (3:30)
Execution of Documents (4:10)
Fines and Penalties (3:49)
(Part 2) CA2016 & Its Implications for Directors: Ask Until Pengsan Q&A Session
Preview & Introduction (1:42)
Training Content
Q1. May I ask if he/she is only Director and also become a Board Member. Can he appoint others to become Members but not the Director? (2:18)
Q2. Can a sole director (who is also a sole member) can also be the co.sec if he/she is a licenced secretary? (1:15)
Q3. If a company still has 2 directors, is it better to abolish M&A and Articles of Association or do nothing and still follow the old M&A and Articles. What are the advantages of abolishing the old M&A and Articles? (1:15)
Q3. If a company still has 2 directors, is it better to abolish M&A and Articles of Association or do nothing and still follow the old M&A and Articles. What are the advantages of abolishing the old M&A and Articles? (2:18)
Q4. If in a 2 director company and 1 director wish to resign but the other director refuse to proceed. What is the avenue open to me since to avoid? (2:27)
Q5. The example 2 million is not triggered. How about for s223. Still not clear about s223 (1:46)
Q6. To clarify the dual capacity of a Secretary and Director of a company. In other words, I can be one of the director of the company and at the same time acting as Company Secretary. Can I certify the resolution as secretary capacity at the same time I sign as a capacity of director to approve the resolution. Do I resign and be secretary only? (0:54)
Q7. May I ask if a person is the sole director and company secretary. As you describe is allowable except signing of documents and can't be both capacity. Can the document be signed as a director and witness by another person who can also be the witness to replace company secretary? (1:10)
Q8. Under s224, if a company is a subsidiary and its balance sheet has a loan to director which had been carried forward many years ago. In this case, did they violate this section? A subsidiary is automatically not an exempt company. What should the Director do to avoid this issue? Can the director go back to get approved resolution from the shareholder (which is the holding company, 100% owned) Can the resolution be back dated? So far have you seen any auditors report qualify this issue? (3:08)
Q9. May I ask if it is a must to change interest on amount loan? (2:20)
Q10. What is the difference between Section s225 CA2016 and s133 CA 1965? (1:18)
Q11. I would like to know that if there is a prior approval from shareholders to pprove the loan to director, is it compulsory to change interest even if the resolution passed is loan without internet? (0:33)
Q12. Related party transactions. Require shareholders approval. This applied to listed company only. Does the normal buying and selling of stock (trading companies scenario) to related companies comes under this (i.e require shareholders approval-in sdn bhd) (2:16)
Q13. The Directors should prepare the AFS within 6 months from the financial year end and the year end can be set at on the last of month (18 mnths) from the date incorporation under CA2016. This means that it can drag the accounts to be filed aft 24 months to SSM. What if the company is incorporated under CA 1965. Does this rule still apply or the company has to file the AFS within 18 months from the date of incorporation (if the company didn't adopt the constitution and still using the old M&A). (2:43)
Q14. What does it means by acquire 'shares' in 228. Example : Is it the shares of Co AEC or shares held by Co AEC in another company? (0:44)
Q15. CA1965, substantial shareholder need to lodge to Bursa. CA2016 can't find. Have you mentioned anywhere? (0:46)
Q16. If on section 67 said can prepare a Deed to ask others to sign on behalf of Company or Director. Can be used for MOT or other s&P transaction? (1:13)
Q17. Who can be the chairman of a company? Must he/she at least a Director of the company? Can also a representative from the corporate shareholder be the chairman of the company? (1:25)
Q18. Reference to section 66 where 2 authorised officers is required. Would it be contrary to section 66 if the company has a resolution authorising only one officer to sign? (1:09)
Q19. Section 141 stipulates that a person who gives a notice under S137,S138 and S139 to a company referred to in paea 134(2)(a) shall serve a copy of the notice to the Registrar on the day on which such person gives that notice. This para 134(2)(a) is referring to a company whose shares or any of the shares are quoted on a stock exchange. So, for a non-listed public company the notices under S137,S138 and S139 are not required to be filed to SSM . Is my understanding correct? (0:59)
Q20. Do we need to submit a copy of the DECLARATION BY A PERSON BEFORE APPOINTMENT AS DIRECTOR, OR BY A PROMOTER BEFORE INCORPORATION OF CORPORATION to the Official Receiver? (1:40)
Q21. CA2016 did not define both an " Alternate" nor "Substitute" Director position a. May I know how do we differentiate between the teo? b. Are there any major differences between the form, that we require to state either it is an "Alternate or Substitute" prior to the appointment of such directors? c. In practice, may I know how we proceed with it & do we still need to lodge in the Form 58 with SSM on such appointments? (2:44)
Q22. CA2016 did not define an 'Associate Director' as well (except mentioned in 3rd Schedule...Proceeding on Board). In practices, may I know how we proceed with it &do we still need to lodge in the Form 58 with SSM on such appointments? (1:28)
Q23. Refer Sec 216-Responsibility for Actions of Delegatee. Does all the 3-Alternate, Substitue & Associate Director-Qualify as a 'Delegatee' position as per Sec 216? (2:51)
Q24. With the requirement for submission of annual return, what happens when it is known that the service address that 1 of the director submitted is not where he is residing or contactable. Will the private company or other directors be liable? (0:56)
Q25. Refer to Sec 289-Indemnity and Insurance for Officers and Auditors a. For insurance effected for Directors & Auditors. If the insurance premium paid did cover for both the illegal cost or compensation in defending the directors or auditors. b. Does it still deem valid within the meaning of Sec 289, if it relates to criminal cases & not civil cases? (1:36)
Q26. Refer to Sec 224 & 225 - Loan to Director & Person deemed connected to the Director a. Under Sec 224 - does it effectively mean that as long as the Member approved a resolution to provide loan to a working director (i.e. not related to discharging of his duties as director, not related to an employee loan scheme as exception provided under the Act) - this is now deemed valid under the definition of Sec 224? (8:45)
Q27. For the purpose of amending the M&A of a private company. The resolutions are worded as such "approval be and is hereby given to the Company to alter the whole of its Memorandum and Articles of Association by replacing with a new Constitution as set out in Appendix "I" attached hereto and the new Constitution thereof be and is hereby adopted as the Constitutiopn of the Company with immediate effect". The company should file form under S36 right? (1:12)
Q28. If allotment exceeded authorised capital. The CO STILL REMAIN M&A. Any requirement to amend authorised capital in M&A? (1:14)
Q29. Sec 137 only refer to shareholdings in overseas company too? (0:56)
Q30. A company has 3 same directors and shareholders (say A holds 40%, B holds 30% and C holds 30%). a. If the company wants to increase share capital but shareholders C refuse for the increased, can the company still proceed? b. If shareholder B would like to sell his shares to shareholder A. Can shareholder C refuse for this transactions? (2:22)
Q31. Amount due to directors cannot charge interest as we do not have landing money license? (0:23)
Q32. Isn't against MPERS standard? which need charged interest for amount due to directors? (1:00)
Q33. If a person act as a nominee director for a Sdn Bhd. Is there any way to discharge his liability from SSM/ Law. If anything happened to the Company. The nominee director only appear in the SSM records but will not act as bank signatories and not involve in any operations. (0:39)
Q34. If a Company wants to buy Company, do we only need to request Superform only or need also the Constitution (the one replacing M&A), let say the company only have M&A. Is it okay to state it is adequate as the Company details or need them to have Constitution (CA2016). (1:21)
Q35. May I know when is the last day to file the audited account of my company to SSM that are incorporated on 12.04.2016 with financial year and fixed on 30.06.2017. Is it within 6 months with after the year with after the year end or 19th month from incorporation? (1:10)
Q36. Refer to Sec 230- Directors' Fees & Other Payable The section mentioned- Other Benefits Payable' payable to Director deemed needs Members approval is noted. Does it include the following-i.e a working Director & included inside the employment contract? - i.e require both Disclosure &approval? - How about a non-working director? 1. Staff Meal Allowances 2. Fixed Transport Allowancies 3. Hospitalisation & Medical Insurance Coverages (director + family) 4. Annual Dental & optometrist care 5. Annual Free Passage for him & family 6. Mobilr & Broadband Subscriptions rembursement 7. New Mobile Phone, Tablet & laptop 8. Club Membership (Golf + Gym + Resort) enjoyment 9. Star Staff Performer awards 10. Company Car & Motorcycle 11. Profit Sharing (beside Bonuses) 12. Retirement Gratuity (1:21)
Q37. Refer to Sec 222- Interested Director not to participate or vote a. Same Scenario as before, an existing individual Shareholder & Director having 10% Voting shares in the company A & planned to acquire another 6% voting shares from another "Public" Company shareholder (which is the Holding Company of the Subsidiary company concern) b. Does Sec 222 - prevent that Director (i.e. "Transferee" - acquiring transfer of shares) & Directors (i.e. "Transferor - Disposing via transfer of shares) - as both side of the Directors may have "deemed" interest in the transactions? (1:06)
Q38. Refer to Sec 196 - the minimum number of directors rule - what ordinarily reside in Malaysia by having a principal of residence in Malaysia & Reference to the latest case as mentioned in your earlier webinar . The "Ordinary Reside" term used now require minimum > half of year time period domicile in Malaysia? (2:11)
Q39. Question on insurance effected for Directors- Can the company purchase such insurance in the first place without contracting the new Act? (1:51)
Q40. If a Company have preference shares holder. Passing Members' Written Resolution, they are not eligible to sign and approve the resolution because they do not carry voting rights except for certain matters, am I right? (0:27)
Q41. a. New common seal for share certificate, can a rubber stamp with the word "Securities be used on the Share Certificate? b. Company with Constitution and regulate Share Certificate to be issued. Must the Seal to be affixed on Share Certificate have the word "Securities"? (3:21)
Q42. Section 196 - Director shall reside in Malaysia by having principal place of residence in Malaysia? Can elaborate more? How to determine the director is Malaysian? (1:29)
Q43. Relate to Sec 224 - meaning it still can loan to director (non-exempt company), as long as approved by members (eg. for personal usage), am I right? Furthermore, you mentioned that no need approved as long as the purpose fall under the 3 categories (eg. buying home & etc.) (0:48)
Q44. For Section 76 hereby gives notice that on day of .2017, an allotment of shares grant of rights has been approved. The PProval is 'not subject to any conditions/ subject to the following conditions. Kindly explain the meaning of 'subject to the following condition' (1:11)
Q45. What is meant by "casual vacancy" i.e director? (0:46)
Q46. CA2017, RC & NC mainly non executive director. It seems silent in LR/ not cross referencing to CG in LR. amend TOR but CG silent on timeframe (1:48)
Q47. Refer to Sec 250 - Retirement of Directors of Company - if a company still retain the old M&A and Retirement of Director rule stil state via AGM - If a company decided not to conduct AGM and do not retire the director, will the company run risk of fine by SSM beside subject to potential dispute raise by any disgruntled members? (1:36)
Q48. What is Hoh Kiang Ngan's case about? (2:04)
Heightened Expectations of Company Directors under CA2016 (What to Look Out for in Year 2018)
Introduction
Training Content
Introduction on Directors (1:18)
Minimum Numbers (1:08)
One Man Company (19:53)
Qualifications (2:48)
Hoh Kiang Ngan & Ors vs Hoh Han Keyet case law (4:17)
Decision on Residency of Directors case law (0:54)
Other Qualifications (8:13)
Resignation and Vacancy (2:48)
Vacates Office (5:06)
First and Subsequent Directors (3:47)
Removal (2:55)
Disqualification (1:40)
Retirement on CA 2016 (4:29)
Duties and Responsibilities (1:59)
Provisions (5:20)
Business Judgement (1:41)
Petra Perdana Case (3:26)
Reliance on Information provided by others - s215 (3:59)
Provisions (2:06)
Directors' powers to issue and allot shares (3:28)
Directors’ refusal or delay registration of transfer (2:01)
Rights of Shareholder - Power to require Directors to convene MoM (s311) (3:48)
Member's Rights - circulate statement (1:51)
Directors NEED NOT circulate statement if - (1:15)
Solvency Test (4:56)
Solvency Statement (3:27)
s223 vs s228 (2:24)
Members’ approval for disposal of company’s undertaking or property by directors - s223 (1:05)
Exception : UNLESS (0:33)
Section 223. Approval of company required for disposal by directors of company's undertaking or property (3:36)
Practice Note 8/2010 (2:20)
Loans to Directors s224 - and further info (5:14)
Persons connected with Director (2:31)
Prohibition of LOANS to Persons Connected with Directors (1:45)
Company Rights and Penalty (0:39)
Related Party Transactions (1:03)
Unlisted Subsidiary of PLC & Public Company/ Its Holding /Its Subsidiary (4:56)
Thresholds under s228 (1:57)
Elimination of s228 (2:31)
Disclosure Requirements (8:04)
Fee, Benefits and Compensation (3:44)
Service Contract (2:00)
Execution of Documents (4:34)
Fines and Penalties (2:37)
The Competent Company Secretary: Best Practices of Corporate Secretary under CA2016
Preview & Introduction
Training Content
What is the Make - Up of a Competent Company Secretary and Secretarial Practices under Companies Act 2016? (14:17)
Officer and Signatory of Company (3:50)
Duties and Responsibilities (13:17)
Vacation of Sole Director or Last Remaining Director (10:11)
Fines and Penalties (3:18)
Latest Practice Note on 4th July 2018 (10:12)
Questions and Answers (44:52)
BONUS Content
Questions & Answers Received from Part 1 (中文) 公司法令2016: 董事 Companies Act 2016 for Directors (Mandarin Version)
Q22. CA2016 did not define an 'Associate Director' as well (except mentioned in 3rd Schedule...Proceeding on Board). In practices, may I know how we proceed with it &do we still need to lodge in the Form 58 with SSM on such appointments?
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