Short answer. A private company can pass members’ resolutions without a meeting by circulating a written resolution under sections 297 to 308 of the Companies Act 2016. It is passed when the required majority of eligible members have signified agreement in an authenticated document. Removing a director under section 206 or an auditor under section 276 cannot be done this way.
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In this article
- What a written resolution is
- What the Act requires, section by section
- Which decisions suit a written resolution
- Step-by-step: how to pass a written resolution
- Voting: who counts and how
- Written resolution vs a meeting
- Records and evidence
- What this means for different companies
- Common mistakes
- How Axecta helps
- Next steps
- Frequently asked questions
What a written resolution is
A written resolution lets the members of a private company decide a matter on paper, or electronically, instead of calling a meeting. The Companies Act 2016.pdf) sets the procedure in sections 297 to 308. The same Act defines how many members must agree: an ordinary resolution is a simple majority of more than half of the members entitled to vote on the written resolution (section 291), and a special resolution needs not less than 75% (section 292).
Written resolutions avoid notice periods, venues and quorum rules, and can be signed by shareholders in different countries. They are only for private companies: section 297(1) allows the Board or any member of a private company to propose one.
This article is about members’ written resolutions. Directors can also pass written resolutions, under a separate mechanism in the Third Schedule: see directors’ resolution vs shareholders’ resolution.
What the Act requires, section by section
| Section | What it provides |
|---|---|
| 297 | A resolution is proposed by the Board or any member of a private company. Removal of a director under section 206 and removal of an auditor under section 276 cannot be passed as a written resolution. |
| 298 | Eligible members are those who would have been entitled to vote on the circulation date. |
| 299 | The circulation date is the date copies are circulated, or the first day if circulated on different days. |
| 300 | Circulate in hard copy or electronic form. Hard copy goes personally or by post to the address the member gave; electronic form goes to the electronic address the member gave. The constitution may provide otherwise. |
| 301 | Where the Board proposes the resolution, send it to every eligible member at the same time, with a statement of how to signify agreement and the date by which it lapses. Failure is an offence with a fine up to RM10,000, but does not affect the validity of a resolution that is passed. |
| 302 to 305 | Members holding at least 5% of the total voting rights (or a lower percentage in the constitution) can require the company to circulate a resolution, with a statement of up to 1,000 words. The directors must circulate it. Expenses fall on the requesting members unless the company resolves otherwise, and the court can relieve the company if the right is being abused. |
| 306 | A member agrees by sending an authenticated document identifying the resolution and indicating agreement. Agreement cannot be revoked. |
| 307 | Unless the constitution says otherwise, a member-requested resolution lapses if not passed within 28 days of the circulation date. |
| 308 | If the document gives an electronic address, the company is deemed to agree that related documents can be sent there. |
A few details deserve attention. The directors must circulate a member-requested resolution not more than 21 days after the company becomes subject to the circulation requirement (section 303(3)). Under section 304, the company need not comply unless a sum reasonably sufficient to meet its expenses is deposited or tendered no later than one week before it becomes subject to the requirement. A member’s agreement signified after the period has expired is not effective (section 307(2)).
Which decisions suit a written resolution
Need this done for you? Axecta’s company secretarial service team can handle this for your company. See the company secretarial service service.
Good uses for a Sdn Bhd:
- Approving the appointment or reappointment of an auditor in the ordinary course
- Authorising the directors to allot shares (section 75), see increasing paid-up capital
- Adopting or amending the constitution by special written resolution (section 32)
- Approving a change of company name (special resolution; notify SSM within 30 days under section 28)
- Appointing a director, where the constitution allows appointment by ordinary resolution
- Determining retirement of directors; SSM’s Company Directors’ Responsibilities booklet.pdf) notes that a private company may pass a written resolution on this under section 205(2), subject to the constitution
- Approving a substantial acquisition or disposal where the Act requires the company’s resolution (section 223)
Not suitable:
- Removing a director before the end of the term (section 206)
- Removing an auditor before the end of the term (section 276)
- Anything the constitution says must be decided at a meeting
Step-by-step: how to pass a written resolution
- Check authority. Confirm the matter is one the members decide, that the constitution permits written resolutions, and that it is not one of the two excluded in section 297(2).
- Choose the type. Ordinary (more than half) or special (not less than 75%). If special, the document must state that it is a special resolution and is to be passed as one (section 292(2)).
- Draft clearly. Identify the resolution by number or title, set out the operative wording, and add the circulation date and lapse date.
- Fix the eligible members. They are the members entitled to vote on the circulation date (section 298). Check the register of members the same day.
- Circulate. Send to all eligible members at the same time, as nearly as practicable, in hard copy or electronic form, with the signing instructions and the lapse date (section 301).
- Collect agreements. Each member returns an authenticated document identifying the resolution and indicating agreement (section 306).
- Count and conclude. The resolution is passed when the required majority of eligible members have agreed (section 306(4)). Record the date the threshold was reached.
- File and keep. Place the signed resolution and evidence of circulation in the minute book. Section 341 requires resolutions of members passed otherwise than at a meeting to be kept for at least seven years.
- Lodge with SSM where required. Some resolutions trigger a filing, such as the allotment approval (14 days under section 76(2)) or a name change (30 days under section 28). Ask your secretary for a post-resolution checklist.
Voting: who counts and how
Unless the constitution provides otherwise, every member has one vote for each share held on a vote on a written resolution (section 293(1)(a)(i)). That is different from a show of hands at a meeting, where each member has one vote. The threshold applies to the members entitled to vote on the written resolution, so a unanimous signing is not necessary for an ordinary resolution: more than half is enough.
Example: counting a special resolution (illustrative)
Assume a Sdn Bhd has 100 shares in issue, held 60, 25 and 15 by three members, and the constitution is silent on voting. A special written resolution is circulated.
| Member | Shares | Agreed? |
|---|---|---|
| Member A | 60 | Yes |
| Member B | 25 | Yes |
| Member C | 15 | No response |
Agreeing shares are 85 out of 100, or 85%, which is at least 75%, so the special resolution is passed once B’s agreement is received. For an ordinary resolution, A alone (60%) would suffice. The thresholds come from sections 291 and 292.
Written resolution vs a meeting
| Point | Written resolution | Meeting of members |
|---|---|---|
| Available to | Private companies only | All companies |
| Notice period | None as such; a lapse date is stated | At least 14 days for a private company; 21 days where a special resolution is to be passed |
| Quorum | Not applicable | Two members, present or by proxy, unless the constitution says more (single-member company: one) |
| Discussion | Limited to what is written | Members can question and debate |
| Cannot be used for | Section 206 director removal; section 276 auditor removal | Can be used |
| Evidence | Signed or authenticated agreements, plus record | Minutes signed by the chairperson |
| Best for | Routine and agreed matters | Contested or complex decisions |
Meeting notice rules are in section 316, quorum in section 328. See AGM vs EGM in Malaysia for when a meeting is the better choice.
Records and evidence
Section 343(2) provides that if there is a record of a written resolution of a private company, the Act’s requirements for passing it are deemed complied with unless the contrary is proved. A record purporting to be signed by a director or the secretary is sufficient evidence the resolution passed (section 343(1)). That is why the record matters: keep the circulated version, the signed agreements and the date the threshold was met.
Keep the register of members current so the eligible-member list is correct. If a voter changes during the circulation day, section 298(2) fixes eligibility at the time the first copy was circulated.
What this means for different companies
- Sdn Bhd with one shareholder. Section 344 requires the sole member to give the company details of a decision that could be taken at a members’ meeting, except where it is taken by written resolution. A written resolution is therefore the cleaner route.
- Foreign-owned or multi-country shareholders. Electronic circulation to the address each member provided suits overseas holders. Check whether the constitution restricts electronic methods.
- Companies with a shareholders’ agreement. The agreement may require investor consent on top of the statutory threshold.
Common mistakes
- Using it for a director’s removal. Excluded by section 297(2).
- Forgetting to say “special”. A written resolution is not a special resolution unless it states so (section 292(2)).
- Counting the wrong people. Eligible members are fixed on the circulation date.
- Missing the lapse date. Where section 307 applies, agreements after the period are ineffective.
- No follow-up filing. Share allotment approvals and name changes carry SSM deadlines, and annual filings go through MBRS by a lodger with an active section 241 practising certificate.
How Axecta helps
Axecta’s company secretarial team drafts the resolution, checks it against the constitution and the register of members, circulates it for signature (including to overseas shareholders), tracks the lapse date, and files the follow-up. See our company secretarial service and the guide to what a company secretary does.
Next steps
- Confirm in your constitution that written resolutions are allowed and whether any variations apply (lower request threshold, longer lapse period).
- Update your register of members.
- Prepare ordinary and special templates.
- Agree an electronic signing method that gives you an authenticated document.
- Add resolution deadlines to your compliance calendar.
Frequently asked questions
Can a public company use a written resolution?
No. Section 297(1) provides that a resolution may be proposed as a written resolution by the Board or any member of a private company. Public companies must pass members’ resolutions at a meeting of members. Directors of any company can still pass a Board written resolution under the Third Schedule.
Do all shareholders have to sign a written resolution?
Not necessarily. The resolution is passed when the required majority of eligible members have signified agreement (section 306(4)): more than half for an ordinary resolution and at least 75% for a special resolution. The constitution or a shareholders’ agreement may demand more.
Which resolutions cannot be passed in writing?
Section 297(2) excludes a resolution under section 206 to remove a director before the end of the term and one under section 276 to remove an auditor before the end of the term. Those need a meeting of members. Your constitution may exclude more.
How long do members have to sign?
For a resolution requested by members under section 302, it lapses if not passed within 28 days beginning with the circulation date, unless the constitution provides otherwise (section 307). For Board-proposed resolutions, the circulated statement must state the lapse date.
Can a member change their mind after signing?
No. Section 306(3) states that a member’s agreement to a written resolution, once signified, shall not be revoked. Members should read the wording carefully before returning it, and the company should not treat a conditional or amended signature as agreement. Ask for a clean signature instead.
Can written resolutions be signed electronically?
The Act allows circulation and agreement in hard copy or electronic form (sections 300 and 306), provided the document is authenticated and identifies the resolution. Electronic circulation goes to the electronic address the member provided. Confirm your constitution does not restrict electronic methods.
Can a minority shareholder force a written resolution?
A member or members holding at least 5% of the total voting rights of eligible members (or a lower percentage set in the constitution) can require the company to circulate a resolution that may properly be moved as a written resolution (section 302). They may attach a statement of up to 1,000 words.
How long must written resolutions be kept?
At least seven years from the date of the resolution (section 341(2)), and members can inspect the records at the registered office or notified place without charge (section 342). Officers who contravene section 341 face a fine up to RM10,000.
Is a written resolution as valid as a resolution at a meeting?
Yes, if the Act’s procedure is followed. Section 343(2) deems the requirements for passing it complied with where a record of the written resolution exists, unless the contrary is proved. Section 301(4) also preserves the validity of a passed Board-proposed resolution despite a failure to comply with the circulation rules.
Who prepares the written resolution?
Normally the company secretary, who drafts it, checks the register of members and the constitution, circulates it, collects the signatures, tracks any lapse date and files the follow-up. Axecta provides this through its company secretarial service, including for overseas shareholders and members who sign electronically.
Want written resolutions drafted, circulated and filed?
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Keep reading
- Does a Sdn Bhd Need to Hold an AGM? What the Companies Act 2016 Says
- Directors’ Resolution vs Shareholders’ Resolution in Malaysia
- How to Hold a Board Meeting for a Sdn Bhd in Malaysia
- Board Resolution for Opening a Bank Account
- How to Increase Paid-Up Capital of a Sdn Bhd: Steps, Approvals and SSM Filing
- How to Appoint and Remove a Director of a Sdn Bhd in Malaysia
- Directors’ Conflict of Interest and Disclosure in Malaysia: Sections 221 to 230 Explained
- AGM vs EGM in Malaysia: Differences, Notice and Who Can Call Them
- Shareholder Meetings: the full guide
Official sources to check
- Companies Act 2016 (sections 291, 292, 297 to 308, 341, 343, 344)
- SSM Company Directors’ Responsibilities booklet
- SSM MBRS page
This article is general information and not legal, tax or accounting advice for your company. Rates, thresholds, deadlines and procedures change, so confirm current requirements with the sources above or with Axecta.