A look at how COVID-19 measures impact private company general meetings in Singapore and related matters

This article is produced by CMS Holborn Asia, a Formal Law Alliance between CMS Singapore and Holborn Law LLC.

The COVID-19 (Temporary Measures) (Alternative Arrangements for Meetings for Companies, Variable Capital Companies, Business Trusts, Unit Trusts and Debenture Holders) Order 2020 (the “AAM Order”) was published in the Government Gazette on 13 April 2020 pursuant to Section 27 (Alternative arrangements for meetings) of the COVID-19 (Temporary Measures) Act 2020 (the “CTMA”).

The CTMA was enacted on 7 April 2020 to provide temporary measures, and deal with other matters, relating to the Coronavirus Disease 2019 (“COVID‑19”) pandemic. Section 27 of the CTMA, which is deemed to have come into operation on 27 March 2020, empowers the Minister for Law to prescribe alternative arrangements for meetings where personal attendance at any meeting or class of meetings is provided for in any written law or legal instrument such as the company constitution for a company incorporated under the Companies Act (“CA”) if it would be inexpedient or impracticable for such meeting or class of meetings to be convened, held or conducted in such manner in view of any measures made under the CTMA or the Infectious Diseases Act that is related to COVID-19.

Separately, the Accounting and Corporate Regulatory Authority (“ACRA”) has announced on 7 April 2020 the automatic extension of deadlines for companies to hold their Annual General Meetings (“AGMs”) and file their Annual Returns (“ARs”).

Alternative arrangements for private company general meetings

The AAM Order sets out the following alternative arrangements in relation to general meetings of private companies (i.e. annual general meetings and extraordinary general meetings) (excluding any meeting of a company held pursuant to an order of the High Court under section 210(1) of the CA where a compromise or an arrangement is proposed) (collectively, the “alternative arrangements”):

1. Convening, holding or conducting of a general meeting – general meetings may be convened, held or conducted, whether wholly or partly, by electronic communication, video conferencing, tele-conferencing or other electronic means (“electronic means”).
2. Attendance at a general meeting – a company may provide that a member or person may only attend a meeting by observing and listening to the proceedings of the meeting by electronic means, if access to both an audio broadcast and audio-visual broadcast is provided to the member or person.
3. Right or entitlement to be heard or representations to be read out at a general meeting – a company may provide that a member or person may only be heard by electronic means in the manner provided in paragraph 4 below. A representation may be read out at a meeting by electronic means.
4. Right or entitlement to speak on a resolution at a general meeting – a company may require a member or person, before the meeting, to send to the chairman of the meeting, by post or electronic mail, the matters which the member or person wishes to raise at the meeting, and each such matter, if substantial and relevant and sent within a reasonable time before the meeting, is to be responded to at or before the meeting by electronic means.
5. Quorum at a general meeting – A quorum may be formed by two members of the company (or one member if permitted by the constitution of the company) personally or electronically present. A member is electronically present at a meeting if the member:
   1. attends the meeting in the manner provided in paragraph 2 above;
   2. is verified by the share registrar of the company as attending the meeting in the manner provided in paragraph 2 above; and
   3. is acknowledged by electronic means by the chairman of the meeting as present at the meeting.
6. Voting at a general meeting – A company may require a member to appoint the chairman of the meeting as the member’s proxy to vote at the meeting by depositing with the company an instrument of appointment by post, or by electronic mail to an electronic mail address stated in the notice of the meeting. A member may not vote at the meeting otherwise than by way of appointing the chairman of the meeting as the member’s proxy. Where a proxy is delivered by a member to the company before 13 April 2020:
   1. the company may treat the instrument of appointment appointing a person other than the chairman of the meeting as the member’s proxy to vote at the meeting as an instrument of appointment appointing the chairman as the member’s proxy to vote at the meeting, if:
      1. the member indicated how the member wished to vote on each such resolution; and
      2. the member has been given an opportunity to withdraw the appointment and has not withdrawn the appointment; and
   2. the company may treat the instrument of appointment appointing a person other than the chairman of the meeting as the member’s proxy to vote at an adjourned or postponed meeting as an instrument of appointment appointing the chairman as the member’s proxy to vote at the meeting, if:
      1. the resolutions proposed at the adjourned or postponed meeting are the same as the resolutions to be proposed at the meeting;
      2. the member indicated how the member wished to vote on each such resolution; and
      3. the member has been given an opportunity to withdraw the appointment and has not withdrawn the appointment.
7. Laying and production of documents at a general meeting – A document required to be laid or produced before a general meeting of a company that is not listed may be so laid or produced by being sent with the notice of the meeting.
8. Giving of notice of a general meeting – A notice of a meeting may be sent by electronic means and:
   1. must describe the means by which the meeting can be electronically accessed (including the online location, if the meeting is held at an online location);
   2. must set out how the chairman of the meeting may be appointed by a member entitled to vote at the meeting as the member’s proxy to vote at the meeting;
   3. must state how a member may send to the chairman of the meeting the substantial and relevant matters which the member wishes to raise; and
   4. may be accompanied by any other documents relevant to the meeting.

Duration of alternative arrangements

The alternative arrangements shall apply to any general meetings which are:

1. convened, held, conducted or deferred during the “control period”; or
2. convened, held, conducted or deferred during a period of 30 days after the end of the “control period”, where notice of the meeting was given during the “control period”.

The “control period” refers to the period that either or both of the following control measures are in force:

1. the COVID-19 (Temporary Measures) (Control Order) Regulations 2020 (in force for the period between 7 April 2020 and 4 May 2020 (both dates inclusive)); and
2. the Infectious Diseases (Measures to Prevent Spread of COVID-19) Regulations 2020 (in force for the period between 27 March 2020 and 30 April 2020 (both dates inclusive)).

Extension of time for holding of annual general meetings and filing of annual returns

All companies whose AGMs are due between 16 April 2020 and 31 July 2020 (the “period”) will automatically be given a 60-day extension of time. Companies that had previously obtained an extension of time to hold their AGMs within the period will also be granted a further 60 days of extension from the last date of extension. ARs which are due between 1 May 2020 and 31 August 2020 will also be automatically extended by 60 days.

For companies whose AGMs are due between 1 April 2020 and 15 April 2020, ACRA will not impose penalties if their AGMs are held within 60 days of their due date. Their AR filing due dates will also be extended for 60 days. These extensions are granted automatically.

For companies whose AGMs are due after July 2020, ACRA has indicated that further extension may be granted depending on the circumstances and companies are advised to monitor any further announcements.

The above is intended as a general guide only and is not to be taken as legal advice or an exhaustive statement of the applicable laws. We hereby disclaim any and all liability for any reliance or use of the above information. If you require specific legal advice, please contact us directly.