The Companies Commission of Malaysia (‘CCM’) issued a set of Frequently Asked Questions
(‘CCM-FAQs’) in relation to Annual General Meetings (‘AGM’) and filing of documents at the CCM for the duration of the Movement Control Order (‘MCO’) from 18 to 31 March 2020 (‘Relevant Period’).
Before the MCO came into effect, the CCM had announced on 17 March 2020
that its offices throughout Malaysia would be closed during the Relevant Period and that all of CCM’s operations, including counter services and online services, would be unavailable during that period.
Filing of Documents
In view of the unavailability of the CCM’s services during the Relevant Period, the CCM stated in FAQ No. 5 that a company will be required to lodge all statutory filings or notifications when SSM’s offices re-open on 1 April 2020. FAQ No. 5 also states that a moratorium of two weeks will be given to take into consideration the period of the closure of the SSM offices.
In light of the moratorium, it would be assumed that the CCM will not impose any penalty for late filing of documents so long as the documents are filed within the requisite time frame, taking into account the moratorium period.
A crucial issue to be considered is the Statement of Particulars to be Lodged with Charge under section 352(1) (‘Section 352 Form’) of the Companies Act 2016 (‘CA2016’) which must be lodged with the Registrar within 30 days from the date of creation of a charge that requires registration under section 353 of CA2016 (‘registrable charge’).
If a Section 352 Form in respect of a registrable charge is not lodged with the Registrar within the 30-day period set out in section 352(1), the charge shall be void
against the liquidator and any creditor of the company (section 352(2), CA2016).
While it is clear that the Registrar has the power under section 609(2) of CA2016 to extend the time for lodgement of any document, it is doubtful that any extension granted (including the moratorium under the CCM FAQs) will negate the operation of section 352(2) of CA2016. Thus, it would be prudent that a secured creditor under a registrable charge which is lodged outside the 30-day period stipulated in section 352(1) by reason of the unavailability of the CCM’s services during the Relevant Period, applies, or cause the chargor to apply, to the High Court an extension of time under section 361 of CA2016 for the lodgement of the Section 352 Form (with an ancillary validation order).
Annual General Meetings
FAQ No. 1 requires all companies to comply with the MCO by cancelling the notices of AGMs or seeking to hold the AGM at a later date, where the AGM is convened on a date that falls within the Relevant Period.
Any application filed before 17 March 2020 by a company for an extension of time to hold its AGM will be processed when the CCM’s offices re-open after the Relevant Period (FAQ No. 2). During the Relevant Period, a company is not allowed to submit an application for an extension of time to hold its AGM (FAQ No. 3).
The CCM has confirmed in FAQ No. 4 that a company may apply for an extension of time even if it is unable to comply with the requirement under paragraph 21 of the CCM’s Practice Note No. 3/2018 which, inter alia
, requires a company to submit its application at least 30 days before the last day for holding its AGM under section 340(2) of CA2016 if the inability to comply with the same is due to the enforcement of the MCO.
Public companies which have convened their AGMs on a date falling within the Relevant Period or are unable to meet the deadline set out in section 340(2) of CA2016 for holding their AGMs by reason of the enforcement of the MCO should be guided by FAQs Nos 1 to 4 of the CCM’s FAQs.
Alternatively, public companies can consider holding their AGMs with the assistance of technology under section 327(1) of CA2016, if so provided under their respective constitutions.
As the CCM FAQs were issued before the Government’s announcement of the extension of the MCO until 14 April 2020, it is likely that consequential amendments will have to be made to the CCM FAQs if the CCM’s offices remain closed and their services remain unavailable during the extended period of the MCO.