company/corporate secretarial practice

fairy_hobbit

ni tajuk general la.. korang nak tanya apa2 pun ok..


actually aku yg nak tanya ni... sapa2 yg terer kat sini.. kalau nak buat EGM + special resolutions tapi tak cukup notice period of 21 days..  shareholders can sign consent to short notice kan... bole ker bagi notice sehari jer? for example, issue consent to short notice dan noticenya sebelah pagi... pastu petang tu kita meeting. can this be done?

owencute

Fairy,the answer is Yes.. Aku dah confirmkan dengan sorang lagi kawan aku yg jugak Company Secretary. Reason.. agreement to shorter notice tak specified any time frame..so provided that all shareholders signed the agreement to shorter notice, egm tu boleh dilangsungkan walaupun dalam masa beberapa jam

fairy_hobbit

thanks!! senang sikit.. aku nak buat shareholders meeting on the same day after board.. tak payah ler shareholder yg jd director overnight kat kl..

iman

soklan aku berkaitan dgn Form 32A (Transfer of shares).

utk corp shareholder, kena affix common seal. n normally for affixation of common seal, it has to be signed/witnessed by 2 directors or 1 director and 1 sec according to Articles. normal practice for the signatures is on the same area as the common seal.

my question is, is it wrong for the witness/signatories to the common seal to sign on the witness column on the left hand side tu?

fairy_hobbit

chop.. jauh sgt ker beza signature tu dgn common seal?  ok, yg biasa aku tgk ialah kat belah kanan sebelah common seal...  2 signatures sebagai witness kpd affixation of the common seal.. pada pendapat aku.. janji bersign and tulis capacity of the witnesses tak jd hal kanan or kiri.. tp kalau signature tercampak ke atas bahagian cert tu.. nampaknya dah bukan mewitnesskan affixation of the seal la... :hmm:


anyway ni pendapat org yg takder lesen co sec.. :jeling: better tanya kat org berlesen. huhuhu....

iman

signatures tu tak jauh but its not on appropriate column ie the signature column...aku dah dpt jwpannya, from MAICSA and few experienced friends... the signatures shd be on the signature column, just next to the common seal,  not on the witness column...yg witness column on the left handside tu specific utk witness to signatures bkn utk witness to common seal... it doesnt render the form invalid pon kalo dir and sec tu sign kat witness column cuma tak proper lah...rsnya kalo argue kat court pun, court will look at the capacity of the signatories not really at where they sign sbb in this case, sebelah2 jek...:hmm:

iman

co A is a holding company for company XYZ. XYZ has 2 other shareholders, co B and co C. co A has entered into Share Sale Agreement with co D in relation to all their shares in XYZ. the details of shares to be transferred are as follows:

ord shares - 10 million
ICPS - 160 million

due to high stamping duty payable, ie almost half a million, co D only proceeds with the stamping of the form32A for the ord shares only.

my question is, wats the implication on non-stamping of the Form 32A for the ICPS? in particular in regard to register of members and members' resolution passed?

in addition, the new shareholder is trying to explore ways to avoid paying the stamp duty for the ICPS. one of them being cancelling the ICPS via capital reduction exercise. can this exercise be done? whos gonna sign the members resolution to approve of the capital reduction exercise? A, B, C & D ke B, C & D je?

fairy_hobbit

dah submit untuk adjudication ke belum at all?  aku tak biasa buat kat mesia, aku reti singapore punya which i think lebih kurang je la.....  but IMO, the share transfer instrument  mcmana nak valid kalau belum stamp.. pasal ni ad valorem duty...  share transfer instrument tak valid (tidak sempurna) then tak boleh to make this change reflected in the register of members... by virtue of imperfection of the form 32A, the legal right to the shares is still with shareholder lama, not with shareholder baru altho the equitable right dah ada with the new shareholder (coz im sure u've had share transfer agreement executed, consideration paid, etc).

im not sure abt the cptl reduction exercise whether that might help to reduce the stamp duty tho..... capital reduction needs court order kan...  leceh.. in any event, the capital reduction by the current shareholder would mean shares tu dah already dlm tgn the current shareholder, which relates back to the form 32A... which needs a beforehand adjudication? :hmm:

perkara yg susah.. nak escape stamp duty.. :geram:  unless kalau masuk dlm category section 15 or 15A of our stamp act (sori if im quoting the wrong section.. off hand tgh takder statutes).. itupun can take masa jugak...

pls share with us  if u've got the answers.. this is interesting :ting:

[ Last edited by  fairy_hobbit at 10-12-2006 03:23 PM ]

iman

dats wat i think too... only upon stamping of the form 32A that the transferee becomes a shareholder of the company and name could be entered into register of members... and yes, in this case, S& was all done and stamped and consideration was also paid... the only thing pending is the stamping of the transfer form... tak hantar for adjudication pun cos my boss takut, kalo dah adjudicate, tak leh lari, kena byr gak stamp duty...

due to non stamping of the form 32A, i believe if they were to proceed with the cap reduction exercise, they will have to go back to the old shareholder as they are still shareholder of the company, the ICPS holder to be specific...btw, capital reduction is a straight forward exercise, ive done it twice... as long as members and directors approve via passing of resos, ok, no problemo... cuma take some time cos kena tunggu hearing date dr court... and after court approval, kena tunggu issuance of court order dr court lak...

for relief from stamp duty, u r citing correct sections of our stamp act, sec 15 and s 15A... unfortunately, the co is not qualified under both sections..... s 15 for cos going for mergers, amalgamations... s 15A utk transfer of shares bet associated companies....if all documents are in order, the process will take around 1 to 2 weeks... application is via statutory declaration.... under s 15, SD is to be made by a lawyer and under s15A, by co sec/principal officer...

i am currently waiting for a lawyer to come back to us on this matter but i doubt that they could run away from the stamp duty.... no matter wat method they choose, either cap reduction or change rights of the ICPS (to change it to become redeemable),they would have to get the approval of all shareholders which includes the approval of the ICPS holder whom transfer form is yet to be stamped...:jeling:

iman

bosses met with the lawyer whom is a partner of one famous legal firm... there's only one way to avoid paying the stamp duty for the ICPS and that is by having a supplementary agreement to the S&P  to cancel the ICPS portion from the "Sale Shares'... which means the co has no choice but to go back to the old shareholders for the variation... the ICPS will then be cancelled by way of capital reduction... pandai2 le depa nk explain kat old shareholders tu nnt..

[ Last edited by  iman at 22-12-2006 09:45 AM ]