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Companies Act 1965 (Revised 1973) (part 1)

Companies 1

LAWS OF MALAYSIA

REPRINT

Act 125

COMPANIES ACT 1965

Incorporating all amendments up to 1 January 2006 PUBLISHED BY

THE COMMISSIONER OF LAW REVISION, MALAYSIA

UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH

PERCETAKAN NASIONAL MALAYSIA BHD

2006

COMPANIES ACT 1965

First enacted ... ... ... ... ... ... ... 1965 (Act No. 79 of 1965)

Revised ... ... ... ... ... ... ... ... 1973 (Act 125 w.e.f. 14 December 1973)

PREVIOUS REPRINTS

First Reprint ... ... ... ... ... 1988

Second Reprint ... ... ... ... ... 1995

Third Reprint ... ... ... ... ... 2000

2

3

LAWS OF MALAYSIA

Act 125

COMPANIES ACT 1965

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY

Section

1. Short title

2. (Omitted)

3. Repeals

4. Interpretation

5. Definition of subsidiary and holding company 5A. Definition of ultimate holding company

5B. Definition of wholly-owned subsidiary

6. When corporations deemed to be related to each other 6A. Interests in shares

PART II

ADMINISTRATION OF ACT

7. Registrar of Companies, etc. 7A. Power of Minister to exempt from payment of fees 7B. Power to conduct inspection

7C. Power to conduct investigation

7D. Power to call for examination

8. Company auditors and liquidators to be approved by Minister charged with responsibility for finance

9. Company auditors

10. Disqualification of liquidators 4 Laws of Malaysia ACT 125

11. Registers 11A. Electronic filing of documents

12. Enforcement of duty to make returns

13. Relodging of lost registered documents PART III

CONSTITUTION OF COMPANIES

DIVISION 1

INCORPORATION

14. Formation of companies 14A Prohibition of registration of company limited by guarantee with a share capital

15. Private company

16. Registration and incorporation

17. Membership of holding company

18. Requirements as to memorandum DIVISION 2

POWERS

19. Powers of a company

20. Ultra vires transactions

21. General provisions as to alteration of memorandum

22. Names of companies

23. Change of name

24. Omission of "Berhad" in name of charitable and other companies

25. Registration of unlimated company as limited, etc.

26. Charge from public to private and from private to public company

27. Default in complying with requirements as to private companies

28. Alterations of objects in memorandum

29. Articles of association

30. Adoption of Table A of Fourth Schedule

31. Alteration of articles Section

Companies 5

Section

32. As to memorandum and articles of companies limited by guarantee

33. Effect of memorandum and articles

34. Copies of memorandum and articles

35. Form of contracts

36. Prohibition of carrying on business with fewer than statutory minimum of members

PART IV

SHARES, DEBENTURES AND CHARGES

DIVISION 1

PROSPECTUSES

36A. Non-application of Divisions 1 and 4 to offers under the Securities Commission Act 1993

37. Requirement to issue form of application for shares or debentures with a prospectus

38. As to inivitations to the public to lend money to or deposit money with a corporation

39. Contents of prospectuses 39A. (Deleted)

39B. Relief from requirements as to from and content of a prospectus

40. Certain advertisements deemed to be prospectuses

41. As to retention of over-subscriptions in debenture issues

42. Registration of prospectus 42A. Supplemental prospectus

43. Document containing offer of shares for sale to be deemed prospectus

44. (Deleted)

45. Expert's consent to issue of prospectus containing statement by him

46. Civil liability for misstatements in prospectus

47. Criminal liability for statement in prospectus 47A. Power of Minister to exempt

47B. Exempted offers

6 Laws of Malaysia ACT 125

DIVISION 2

RESTRICTIONS ON ALLOTMENT AND

COMMENCEMENT OF BUSINESS

Section

48. Prohibition of allotment unless minimum subscription received

49. Application moneys to be held in trust until allotment

50. Restriction on allotment in certain cases

51. Requirements as to statements in lieu of prospectus

52. Restrictions on commencement of business in certain circumstances

53. Restriction on varying contracts referred to in prospectus, etc. DIVISION 3

SHARES

54. Return as to allotments

55. As to voting rights of equity shares in certain companies

56. Differences in calls and payments, etc.

57. Share warrants

58. Power to pay certain commissions, and prohibition of payment of all other commissions, discounts, etc.

59. Power to issue shares at a discount

60. Issue of shares at a premium

61. Redeemable preference shares

62. Power of company to alter its share capital

63. Validation of shares improperly issued

64. Special resolution for reduction of share capital

65. Rights of holders of classes of shares

66. Rights of holders of preference shares to be set out in memorandum or articles

67. Dealing by a company in its own shares, etc. 67A. Purchase by a company of its own shares, etc.

68. Options over unissued shares 68A. Registrar of options to take up unissued shares

69. Power of company to pay interest out of capital in certain cases 69A. Furnishing of information and particulars of shareholding Companies 7

DIVISION 3A

SUBSTANTIAL SHAREHOLDINGS

Section

69B. Application and interpretation of Division

69C. Persons obliged to comply with Division

69D. Substantial shareholdings and substantial shareholders 69E. Substantial shareholder to notify company of his interests 69F. Substantial shareholder to notify company of change in his interest 69G. Person who ceases to be substantial shareholder to notify company 69H. References to operation of section 6A

69I. Copy of notice to be served on Stock Exchange 69J. Notice to non-residents

69K. Registrar may extend time for giving notice under this Division 69L Company to keep register of substantial shareholders 69M. Offences against certain sections

69N. Powers of Court with respect to defaulting substantial shareholders 69O. Power of company to require disclosure of beneficial interest in its voting shares

69P. (Deleted)

DIVISION 4

DEBENTURES

70. Register of debenture holders and copies and trust deed

71. Specified performances of contracts

72. Perpetual debentures

73. Reissue of redeemed debentures

74. Qualifications of trustee for debenture holders

75. Retirement of trustees

76. Contents of trust deed

77. Power of court in relation of certain irredeemable debentures

78. Duties of trustees

79. Powers of trustee to apply to the Court for directions, etc.

80. Obligations of borrowing corporation 8 Laws of Malaysia ACT 125

Section

81. Obligation of guarantor corporation to furnish information

82. Loans and deposits to be immediately repayable on certain events

83. Liability of trustees for debenture holders DIVISION 5

INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.

84. Interpretation

85. Approved deeds

86. Approval of deeds

87. Approval of trustees

88. Covenants to be included in deeds

89. Interests to be issued by companies only

90. Statements to be issued

91. No issue without approved deed

92. Register of interest holders

93. Returns, information, etc., relating to interests

94. Penalty for contravention of Division, etc.

95. Winding up of schemes, etc.

96. Power to exempt from compliance with Division and non-application of Division in certain circumstances

97. Liability of trustees DIVISION 6

TITLE AND TRANSFEERS

98. Nature of shares

99. Numbering of shares

100. Certificate to be evidence of title

101. Company may have duplicate common seal

102. Loss or destruction of certificates

103. Instrument of transfer

104. Registration of transfer at request of transferor

105. Notice of refusal to register transfer

106. Certification of transfer

107. Duties of company with respect to issue of certificates Companies 9

DIVISION 6A

PROVISIONS APPLICABLE TO COMPANIES WHOSE

SECURITIES ARE DEPOSITED WITH THE

CENTRAL DEPOSITORY

Section

107A. Interpretation

107B. Depositor deemed to be member

107C. Transfer of securities is by way of book entry 107D. Rectification of record of depositors

107E. Non-application of section 223 to disposition made by way of book entry

107F. Exemption from Division 6A

DIVISION 7

REGISTRATION OF CHANGES

108. Registration of charges

109. Duty to register charges

110. Duty of company to register charges existing on property acquired

111. Register of Charges to be kept by Registrar

112. Endorsement of certificate of registration on debentures 112A. Assignment and variation of charges

113. Entries of satisfacation and release of property from charge

114. Extension of time and rectification of register of charges

115. Company to keep copies of charging instruments and register of changes

116. Documents made out of Malaysia

117. Charges, etc., created before commencement of Act

118. Application of Division PART V

MANAGEMENT AND ADMINISTRATION

DIVISION 1

OFFICE AND NAME

119. Registered office of company

120. Office hours

121. Publication of name 10 Laws of Malaysia ACT 125

DIVISION 2

DIRECTORS AND OFFICERS

Section

122. Directors 122A. Persons connected with a director

123. Restrictions on appointment or advertisement of director

124. Qualification of directors

125. Undischarged bankrupts acting as directors

126. Appointment of directors to be voted on individually

127. Validity of acts of directors and officers

128. Removal of directors

129. Age limit for directors

130. Power to restrain certain persons from managing companies 130A. Disqualification of directors of insolvent companies

131. Disclosure of interest in contracts, property, offices, etc.

132. As to the duty and liability of officers 132A. Dealings by officers in securities

132B. Prohibition on abuse information obtained in official capacity 132C. Approval of company required for disposal by directors of company's undertaking or property

132D. Approval of company required for issue of shares by directors 132E. Substantial property transactions involving directors 132F. Exception and definition

132G. Prohibited transactions involving shareholders and directors

133. Loans to directors 133A. Prohibition of loans to persons connected with directors

134. Register of directors' shareholdings, etc.

135. General duty to make disclosure

136. Prohibition of tax-free payments to directors

137. Payments to director for loss of office, etc.

138. Provisions as to assignment of office

139. Secretary 139A. Qualification for company secretary

139B. Licence to act as company secretary

139C. Disqualification

139D. Appeal

140. Provisions indemnifying directors or officers

141. Register of directors, managers and secretaries Companies 11

DIVISION 3

MEETINGS AND PROCEEDINGS

Section

142. Statutory meeting and statutory report

143. Annual general meeting

144. Convening of extraordinary general meeting on requisition

145. Calling of meetings 145A. Place of meeting

146. Articles as to right to demand a poll

147. Quorum, chairman, voting, etc., at meetings

148. As to members' rights at meetings

149. Proxies

150. Power of Court to order meeting

151. Circulation of members' resolutions, etc.

152. Special resolutions 152A. Resolution signed by all members deemed to be duly passed at meeting

153. Resolution requiring special notice

154. Registration and copies of certain resolutions and agreements

155. Resolutions at adjourned meetings

156. Minutes of proceedings

157. Inspection of minute books DIVISION 4

REGISTER OF MEMBERS

158. Register and index of members

159. Where register to be kept

160. Inspection and closing of register

161. Consequences of default by agent

162. Power of Court to rectify register

163. Limitation of liability of trustee, etc., registered as owner of shares

164. Branch registers DIVISION 5

ANNUAL RETURN

165. Annual return by company having a share capital 165A. Auditor's statements

166. Exemption from filing list of members with annual return for certain public companies

12 Laws of Malaysia ACT 125

PART VI

ACCOUNT AND AUDIT

DIVISION 1

ACCOUNTS

Section

166A. Compliance with approved accounting standards

167. Accounts to be kept

168. As to accounting periods of companies within the same group

169. Profit and loss account, balance-sheet and directors' report 169A. Relief from requirements as to form and content of accounts and reports

169B. Power of Registrar to require a statement of valuation of assets

170. Members of company entitled to balance sheet, etc.

171. Penalty DIVISION 2

AUDIT

172. Appointment and remuneration of auditors

173. Auditors' remuneration

174. Powers and duties of auditors as to reports on accounts 174A. Auditors and other persons to enjoy qualified privilege in certain circumstances

175. Duties of auditors to trustee for debenture holders PART VII

ARRANGEMENTS AND RECONSTRUCTIONS

176. Power to compromise with creditors and members

177. Information as to compromise with creditors and members

178. Provisions for facilitating reconstruction and amalgamation of companies

179. (Deleted)

180. Power to acquire shares of shareholders dissenting from scheme or contract approved by majority

181. Remedy in cases of an oppression Companies 13

PART VIII

RECEIVERS AND MANAGERS

Section

182. Disqualification for appointment as receiver

183. Liability of receiver

184. Power of Court to fix remuneration of receivers or managers

185. Appointment of liquidator as receiver

186. Notification of appointment of receiver

187. Statement that receiver appointed

188. Provisions as to information where receiver or manager appointed

189. Special provisions as to statement submitted to receiver

190. Lodging of accounts of receivers and managers

191. Payments of certain debts out of assets subject to floating charge in priority to claims under charge

192. Enforcement of duty of receiver, etc., to make returns PART IX

INVESTIGATIONS

193. Application of Part

194. Interpretation

195. Power to declare company or foreign company

196. Appointment of inspectors for declared companies

197. Investigation of affairs of company by inspectors at direction of Minister

198. As to reports of inspectors

199. Investigation by resolution of company 199A. Investigation of affairs of related corporation

200. Procedure and costs of inquiry

201. As to costs of investigation under section 197

202. Report of inspector to be admissible in evidence

203. Powers of inspector in relation to a declared company

204. Suspension of actions and proceedings by declared company

205. Winding up of company

206. Penalties 14 Laws of Malaysia ACT 125

Section

207. Appointment and powers of inspectors to investigate ownership of company

208. Power to require information as to persons interested in shares or debentures

208A. Power to require information as to persons interested in shares or debentures

209. Power to impose restrictions on shares or debentures

210. Inspectors appointed in other countries PART X

WINDING UP

DIVISION 1

PRELIMINARY

211. Modes of winding up

212. Application of winding up provisions

213. Government bound by certain provisions

214. Liability as contributories of present and past members

215. Nature of liability of contributory

216. Contributories in the case of death of member DIVISION 2

WINDING UP BY THE COURT

Subdivision (1)--General

217. Application of winding up

218. Circumstances in which company may be wound up by Court

219. Commencement of winding up by the Court

220. As to payment of preliminary costs, etc., by petitioner (other than company or liquidator)

221. Powers of Court on hearing petition

222. Power to stay or restrain proceedings against company

223. Avoidance of dispositions of property, etc.

224. Avoidance of certain attachments, etc.

225. Petition to be lis pendens

226. Copy of order to be lodged, etc. Companies 15

Subdivision (2)-Liquidators

Section

227. Appointment, style, etc., of liquidators

228. Provisions where person other than Official Receiver is appointed liquidator

229. Control of unofficial liquidators by Official Receiver

230. Control of Official Receivers by Minister

231. Provisional liquidator

232. General provisions as to liquidators

233. Custody and vesting of company's property

234. Statement of company's affairs to be submitted to Official Receiver

235. Report by liquidator

236. Powers of liquidator

237. Exercise and control of liquidator's powers

238. Payment by liquidator into bank

239. Release of liquidators and dissolution of company

240. As to orders for release or dissolution Subdivision (3)--Committees of Inspection

241. Meetings to determine whether committee of inspection to be appointed

242. Constitution and proceedings of committee of inspection

243. Power to stay winding up

244. Settlement of list of contributories and application of assets

245. Payment of debts due by contributory to company and extent to which set-off allowed

246. Appointment of special manager

247. Claims of creditors and distribution of assets

248. Inspection of books by creditors and contributories

249. Power to summon persons connected with company

250. Power to order public examination of promoters, directors, etc.

251. Power to arrest absconding contributory

252. Delegation to liquidator of certain powers of Court

253. Powers of Court cumulative 16 Laws of Malaysia ACT 125

DIVISION 3

VOLUNTARY WINDING UP

Subdivision (1)--Introductory

Section

254. Circumstances in which company may be wound up voluntarily

255. Provisional liquidators

256. Effect of voluntary winding up

257. Declaration of solvency Subdivision (2)--Provisions applicable only Members' Voluntary Winding Up

258. Liquidators

259. Duty of liquidator to call creditors' meeting in case of insolvency Subdivision (3)--Provisions applicable only to Creditors' Voluntary Winding Up

260. Meeting of creditors

261. Liquidators

262. Committee of inspection

263. Property and proceedings Subdivision (4)--Provisions applicable to every

Voluntary Winding Up

264. Distribution of property of company

265. Appointment of liquidator

266. Removal of liquidator

267. Review of liquidator's remuneration

268. Act to liquidator valid, etc.

269. Powers and duties of liquidator

270. Power of liquidator to accept shares, etc., as consideration for sale of property of company

271. Annual meeting of members and creditors

272. Final meeting and dissolution

273. Arrangement when binding on creditors Companies 17

Section

274. Application to Court to have questions determined or powers exercised

275. Costs

276. Limitation on right to wind up voluntarily DIVISION 4

PROVISIONS APPLICABLE TO EVERY MODE OF WINDING UP Subdivision (1)--General

277. Books to be kept by liquidator

278. Powers of Official Receiver where no committee of inspection

279. Appeal against decision of liquidator

280. Notice of appointment and address of liquidator or provisional liquidator

281. Liquidator's accounts

282. Liquidator to make good defaults

283. Notification that a company is in liquidation

284. Books of company

285. Investment of surplus funds on general account

286. Unclaimed assets to be paid to receiver of revenue

287. Expenses of winding up where assets insufficient

288. Resolutions passed at adjourned meetings of creditors and contributories

289. Meetings to ascertain wishes of creditors or contributories

290. Special commission for receiving evidence Subdivision (2)--Proof and Ranking of Claims

291. Proof of debts

292. Priorities Subdivision (3)--Effect on other Transactions

293. Undue preference

294. Effect of floating charge 18 Laws of Malaysia ACT 125

Section

295. Liquidator's right to recover in respect of certain sales to or by company

296. Disclaimer of onerous property

297. Interpretation

298. Restriction of rights of creditor as to execution or attachment

299. Duties of bailiff as to goods taken in execution Subdivision (4)--Offences

300. Offences by officers of companies in liquidation

301. Inducement to be appointed liquidator

302. Penalty for falsification of books

303. Liability where proper accounts not kept

304. Responsibility for fraudulent trading

305. Power of Court to assess damages against delinquent officers, etc.

306. Prosecution of delinquent officers and members of company Subdivision (5)--Dissolution

307. Power of Court to declare dissolution of company void

308. Power of Registrar to strike defunct company off register

309. Registrar to act as representative of defunct company in certain events

310. Outstanding assets of defunct company to vest in Registrar

311. Outstanding interests in property how disposed of

312. Liability of Registrar and Government as to property vested in Registrar

313. Accounts and audit DIVISION 5

WINDING UP OF UNREGISTERED COMPANIES

314. "Unregistered company"

315. Winding up of unregistered companies

316. Contributories in winding up of unregistered company

317. Power of Court to stay or restrain proceedings

318. Outstanding assets of defunct unregistered company Companies 19

PART XI

VARIOUS TYPES OF COMPANIES, ETC.

DIVISION 1

INVESTMENT COMPANIES

Section

319. Interpretation

320. Restriction on borrowing by investment companies

321. Restriction on investments of investment companies

322. Restriction on underwriting by investment companies

323. Special requirements as to articles and prospectus

324. Not to hold shares in other investment companies

325. Not to speculate in commodities

326. Balance sheets and accounts

327. Investment fluctuation reserve

328. Penalties DIVISION 2

FOREIGN COMPANIES

329. Foreign companies to which this Division applies

330. Interpretation

331. Power of foreign companies to hold immovable property

332. Documents, etc., to be lodged by foreign companies having place of business in Malaysia

332A. Annual return

333. As to registered office and agents of foreign companies

334. Transitory provision

335. Return to be filed where documents, etc., altered

336. Balance sheets 336A. Accounts to be kept by foreign companies

337. As to fee payable on registration of foreign company because of establishment of a share register in Malaysia

338. Obligation to state name of foreign company, whether limited, and place where incorporated

339. Service of notice 20 Laws of Malaysia ACT 125

Section

340. Cesser of business in Malaysia

341. Restriction on use of certain names

342. The branch register

343. Registration of shares in branch register

344. Removal of shares from branch register

345. Index of members, inspection and closing of branch registers

346. Application of provisions of Act relating to transfer

347. Branch register to be prima facie evidence

348. Certificate, re share holding

349. Penalties PART XII

GENERAL

DIVISION 1

ENFORCEMENT OF ACT

350. Service of documents on company

351. Security for costs

352. As to rights of witnesses to legal representation

353. Disposal of shares of shareholder whose whereabouts unknown

354. Power to grant relief

355. Irregularities in proceedings

356. Privileged communications

357. (Deleted)

358. Form of registers, etc. 358A. Use of computers and other means for company records

359. Inspection of registers

360. Translations of instruments

361. Certificate of incorporation conclusive evidence

362. Court may compel compliance DIVISION 2

OFFENCES

363. Restriction on offering shares, debentures, etc., for subscription or purchase

Companies 21

Section

364. False and misleading statements 364A. False reports

365. Dividends payable from profits only

366. Fraudulently inducing persons to invest money

367. Penalty for improper use of words "Limited" and "Berhad"

368. Frauds by officers

369. General penalty provisions

370. Default penalties

371. Proceedings how and when taken 371A. Compounding of offences

DIVISION 3

MISCELLANEOUS

372. Rules

373. Regulations

374. Power to amend Schedules FIRST SCHEDULE

SECOND SCHEDULE

THIRD SCHEDULE

FOURTH SCHEDULE

FIFTH SCHEDULE

FIFTH SCHEDULE--A

SIXTH SCHEDULE

SEVENTH SCHEDULE

EIGHTH SCHEDULE

NINTH SCHEDULE

TENTH SCHEDULE

22 Laws of Malaysia ACT 125

Companies 23

LAWS OF MALAYSIA

Act 125

COMPANIES ACT 1965

An Act relating to companies.

[Throughout Malaysia--

15 April 1966, P.U. 168/1966]

PART I

PRELIMINARY

Short title

1. (1) This Act may be cited as the Companies Act 1965. (2) (Omitted).

2. (Omitted). Repeals

3. (1) The written laws mentioned in the First Schedule to the extent to which they are therein expressed to be repealed or amended are hereby repealed or amended accordingly.

Transitory provisions

(2) Unless the contrary intention appears in this Act-- (a) all persons, things and circumstances appointed or created by or under any of the repealed or amended written laws or existing or continuing under any of such written laws immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if those written laws had not been so repealed or amended; and

24 Laws of Malaysia ACT 125

(b) in particular and without affecting the generality of the foregoing paragraph, such repeal shall not disturb the continuity of status, operation or effect of any Order in Council, order, rule, regulation, scale of fees, appointment, conveyance, mortgage, deed, agreement, resolution, direction, instrument, document, memorandum, articles, incorporation, nomination, affidavit, call, forfeiture, minute, assignment, register, registration, transfer, list, licence, certificate, security, notice, compromise, arrangement, right, priority, liability, duty, obligation, proceeding, matter or thing made, done, effected, given, issued, passed, taken, validated, entered into, executed, lodged, accrued, incurred, existing, pending or acquired by or under any of such written laws before the commencement of this Act. (3) Nothing in this Act shall affect the Table in any repealed written law corresponding to Table A of the Fourth Schedule or any part thereof (either as originally enacted or as altered in pursuance of any statutory power) or the corresponding Table in any former written law relating to companies (either as originally enacted or as so altered) so far as the same applies to any company existing at the commencement of this Act.

(4) The provisions of this Act with respect to winding up other than Subdivision (5) of Division 4 of Part X shall not apply to any company or society of which the winding up has commenced before the commencement of this Act, but every such company or society shall be wound up in the same manner and with the same incidents as if this Act had not been passed and for the purposes of the winding up the written laws under which the winding up commenced shall be deemed to remain in full force. (5) Paragraphs 9(1)(c) and (d) shall not apply to any person in relation to a private company until the conclusion of the next annual general meeting held after the commencement of this Act if he was appointed as auditor of that company before the commencement of this Act.

Interpretation

4. (1) In this Act, unless the contrary intention appears-- "accounting records", in relation to a corporation, includes invoices, receipts, orders for payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry Companies 25

and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;

"accounts" means profit and loss accounts and balance sheets and includes notes or statements required by this Act (other than auditors' reports or directors' reports) and attached or intended to be read with profit and loss accounts or balance sheets; "annual general meeting" in relation to a company means a meeting of the company required to be held by section 143; "annual return" means--

(a) in relation to a company having a share capital, the return required to be made by subsection 165(1); and

(b) in relation to a company not having a share capital, the return required to be made by subsection 165(5),

and includes any document accompanying the return; "appointed date" has the same meaning as is assigned to that expression in the Companies Commission of Malaysia Act 2001 [Act 614];

"approved company auditor" means a person approved as such by the Minister under section 8 whose approval has not been revoked;

"approved liquidator" means an approved company auditor who has been approved by the Minister under section 8 as a liquidator and whose approval has not been revoked;

"articles" means articles of association;

"banking corporation" means a licensed bank, a licensed merchant bank and an Islamic bank;

"books" includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document;

"borrowing corporation" means a corporation that is or will be under a liability (whether or not such liability is present or future) 26 Laws of Malaysia ACT 125

to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures of the corporation in accordance with Division 4 of Part IV; "branch register" means--

(a) in relation to a company--

(i) a branch register of members of the company kept in pursuance of section 164; or

(ii) a branch register of holders of debentures kept in pursuance of section 70,

as the case may require; and

(b) in relation to a foreign company, a branch register of members of the company kept in pursuance of section 342;

"certified", in relation to a copy of a document, means certified in the prescribed manner to be a true copy of the document and, in relation to a translation of a document, means certified in the prescribed manner to be a correct translation of the document into the national language or into the English language, as the case requires;

"charge" includes a mortgage and any agreement to give or execute a charge or mortgage whether upon demand or otherwise; "Commission" means the Companies Commission of Malaysia established under the Companies Commission of Malaysia Act 2001;

"company" means a company incorporated pursuant to this Act or pursuant to any corresponding previous enactment; "company having a share capital" includes an unlimited company with a share capital;

"company limited by guarantee" means a company formed on the principle of having the liability of its members limited by the memorandum to such amount as the members may respectively undertake to contribute to the assets of the company in the event of its being wound up;

Companies 27

"company limited by shares" means a company formed on the principle of having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them;

"contributory", in relation to a company, means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory; "corporation" means any body corporate formed or incorporated or existing within Malaysia or outside Malaysia and includes any foreign company but does not include--

(a) any body corporate that is incorporated within Malaysia and is by notice of the Minister published in the Gazette declared to be a public authority or an instrumentality or agency of the Government of Malaysia or of any State or to be a body corporate which is not incorporated for commercial purposes;

(b) any corporation sole;

(c) any society registered under any written law relating to co-operative societies; or

(d) any trade union registered under any written law as a trade union;

"corresponding previous written law" means any written law relating to companies which has been at any time in force in any part of Malaysia and which corresponds with any provision of this Act;

"Court" means the High Court or a judge thereof;

"creditors' voluntary winding up" means a winding up under Division 3 of Part X, other than a members' voluntary winding up; "debenture" includes debenture stock, bonds, notes and any other securities of a corporation whether constituting a charge on the assets of the corporation or not;

"default penalty" means a default penalty within the meaning of section 370;

28 Laws of Malaysia ACT 125

"director" includes any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act and an alternate or substitute director;

"Division" means a Division of this Act and a reference to a specified Division is a reference to that Division of the Part in which the reference occurs;

"document" includes summons, order and other legal process, and notice and register;

"emoluments", in relation to a director or auditor of a company, includes any fees, percentages and other payments made (including the money value of any allowances or perquisites) or consideration given, directly or indirectly, to the director or auditor by that company or by a holding company or a subsidiary of that company, whether made or given to him in his capacity as a director or auditor or otherwise in connection with the affairs of that company or of the holding company or the subsidiary;

"equity share" means any share which is not a preference share; "exempt private company" means a private company in the shares of which no beneficial interest is held directly or indirectly by any corporation and which has not more than twenty members none of whom is a corporation;

"expert" includes engineer, valuer, accountant and any other person whose profession or reputation gives authority to a statement made by him;

"filed" means filed under this Act or any corresponding previous written law;

"financial year", in relation to any corporation, means the period in respect of which any profit and loss account of the corporation laid before it in general meeting is made up, whether that period is a year or not;

"foreign company" means--

(a) a company, corporation, society, association or other body incorporated outside Malaysia; or

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(b) an unincorporated society, association or other body which under the law of its place of origin may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in Malaysia;

"guarantor corporation", in relation to a borrowing corporation, means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing corporation in response to an invitation to the public to subscribe for or purchase debentures of the borrowing corporation; "limited company" means a company limited by shares or by guarantee or both by shares and guarantee;

"liquidator" includes the Official Receiver when acting as the liquidator of a corporation;

"lodged" means lodged under this Act or any corresponding previous written law;

"manager", in relation to a company, means the principal executive officer of the company for the time being by whatever name called and whether or not he is a director;

"marketable securities" means debentures, funds, stocks, shares or bonds of any Government or of any local authority or of any corporation or society and includes any right or option in respect of shares in any corporation and any interest as defined in section 84;

"members' voluntary winding up" means a winding up under Division 3 of Part X, where a declaration has been made and lodged in pursuance of section 257;

"memorandum" means memorandum of association;

"minimum subscription"--

(a) in relation to any shares of an unlisted recreational club which are offered to the public for subscription, means the amount stated in the prospectus relating to the offer in pursuance of paragraph 4(a) of the Fifth Schedule; 30 Laws of Malaysia ACT 125

(b) in relation to any issue of, offer for subscription or purchase of, or invitation to subscribe for or purchase, shares made pursuant to the Securities Commission Act 1993 [Act 498], means the amount stated in the prospectus relating to the issue, offer or invitation in pursuance of the requirements of the Securities Commission relating to contents of prospectuses,

as the minimum amount which in the opinion of the directors must be raised by the issue of the shares so offered;

"Minister" means the Minister charged with the responsibility for companies;

"office copy", in relation to any Court order or other Court document, means a copy authenticated under the hand or seal of the Registrar or other proper officer of the Court; "officer" in relation to a corporation includes-- (a) any director, secretary or employee of the corporation; (b) a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; and

(c) any liquidator of a company appointed in a voluntary winding up,

but does not include--

(d) any receiver who is not also a manager;

(e) any receiver and manager appointed by the Court; or (f) any liquidator appointed by the Court or by the creditors; "Official Receiver" means the Director General of Insolvency, Deputy Director General of Insolvency, Senior Assistant Directors of Insolvency, Assistant Directors of Insolvency, Insolvency officers and any other officer appointed under the Bankruptcy Act 1967 [Act 360];

"preference share" means a share by whatever name called, which does not entitle the holder thereof to the right to vote at a general meeting or to any right to participate beyond a specified amount in any distribution whether by way of dividend, or on redemption, in a winding up, or otherwise;

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"prescribed" means prescribed by or under this Act; "principal register", in relation to a company, means the register of members of the company kept in pursuance of section 158; "printed" includes typewritten or lithographed or reproduced by any mechanical means;

"private company" means--

(a) any company which immediately prior to the

commencement of this Act was a private company under the repealed written laws;

(b) any company incorporated as a private company by virtue of section 15; or

(c) any company converted into a private company pursuant to section 26(1),

being a company which has not ceased to be a private company under section 26 or 27;

"profit and loss account" includes income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period;

"promoter", in relation to a prospectus issued by or in connection with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of any relevant portion thereof; but does not include any person by reason only of his acting in a professional capacity;

"prospectus" means any prospectus, notice, circular, advertisement or invitation inviting applications or offers from the public to subscribe for or purchase or offering to the public for subscription or purchase any shares in or debentures of or any units of shares in or units of debentures of a corporation or proposed corporation and, in relation to any prospectus registered under the Securities Commission Act 1993, means a prospectus as defined under that Act;

"public company" means a company other than a private company; "registered" means registered under this Act or any corresponding previous written law;

32 Laws of Malaysia ACT 125

"Registrar" means the Registrar of Companies as designated under subsection 7(1);

"regulations" means regulations under this Act;

"related corporation", in relation to a corporation, means a corporation which is deemed to be related to the first-mentioned corporation by virtue of section 6;

"repealed written laws" means the written laws repealed by this Act;

"resolution for voluntary winding up" means the resolution referred to in section 254;

"rules" means rules of court;

"securities" has the same meaning as is assigned to that word in the Securities Commission Act 1993;

"share" means share in the share capital of a corporation and includes stock except where a distinction between stock and shares is expressed or implied;

"statutory meeting" means the meeting referred to in section 142;

"statutory report" means the report referred to in section 142; "Subdivision" means a Subdivision of this Act and a reference to a specified subdivision is a reference to that Subdivision of the Division in which the reference occurs;

"Table A" means Table A in the Fourth Schedule;

"this Act" includes any regulations;

"transparency", in relation to a document, means-- (a) a developed negative or positive photograph of that document (in this definition referred to as an "original photograph") made on a transparent base, by means of light reflected from or transmitted through the document; Companies 33

(b) a copy of an original photograph made by the use of photo-sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with the original photograph; or

(c) any one of a series of copies of an original photograph, the first of the series being made by the use of photo- sensitive material (being photo-sensitive material on a transparent base) placed in surface contact with a copy referred to in paragraph (b), and each succeeding copy in the series being made, in the same manner from any preceding copy in the series;

"trustee corporation" means--

(a) a company registered as a trust company under the Trust Companies Act 1949 [Act 100]; or

(b) a corporation that is a public company under this Act or under the laws of any other country, which has been declared by the Minister to be a trustee corporation for the purposes of this Act;

"unit", in relation to a share, debenture or other interest, means any right or interest therein, by whatever term called; "unlimited company" means a company formed on the principle of having no limit placed on the liability of its members; "unlisted recreational club" has the same meaning as is assigned to that expression in the Securities Commission Act 1993; "voting share", in relation to a body corporate, means an issued share of the body corporate, not being--

(a) a share to which, under no circumstances, there is attached a right to vote; or

(b) a share to which there is attached a right to vote only in one or more of the following circumstances:

(i) during a period in which a dividend (or part of a dividend) in respect of the share is in arrears;

(ii) upon a proposal to reduce the share capital of the body corporate;

(iii) upon a proposal affecting the rights attached to the share;

34 Laws of Malaysia ACT 125

(iv) upon a proposal to wind up the body corporate; (v) upon a proposal for the disposal of the whole of the property, business and undertakings of the body

corporate;

(vi) during the winding up of the body corporate. (1A) In this Act--

(a) "licensed bank", "licensed business", "licensed discount house", "licensed finance company", "licensed institution", "licensed merchant bank", "licensed money broker", "non- scheduled institution", "scheduled business" and "scheduled institution" shall have the meanings assigned thereto in subsection 2(1) of the Banking and Financial Institutions Act 1989 [Act 372]; and

(b) "Islamic bank" or "Islamic banking business" shall have the meaning assigned thereto in the Islamic Banking Act 1983 [Act 276].

(2) For the purposes of this Act a person shall not be regarded as a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors act on advice given by him in a professional capacity. (3) For the purposes of this Act a statement included in a prospectus or statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included. (4) For the purposes of this Act a statement shall be deemed to be included in a prospectus or statement in lieu of prospectus if it is contained in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith. (5) For the purposes of this Act any invitation to the public to deposit money with or to lend money to a corporation shall be deemed to be an invitation to subscribe for or purchase debentures of the corporation and any document that is issued or intended or required to be issued by a corporation acknowledging or evidencing or constituting an acknowledgement of the indebtedness of the corporation in respect of any money that is or may be deposited with or lent to the corporation in response to such an invitation shall be deemed to be a debenture, but an invitation to the public Companies 35

by a prescribed corporation as defined in subsection 38(7) shall not be deemed to be an invitation to the public to deposit money with or to lend money to the corporation for the purpose of Division 4 of Part IV.

(6) Any reference in this Act to offering shares or debentures to the public shall, unless the contrary intention appears, be construed as including a reference to offering them to any section of the public, whether selected as clients of the person issuing the prospectus or in any other manner; but a bona fide offer or invitation with respect to shares or debentures shall not be deemed to be an offer to the public if it is--

(a) an offer or invitation to enter into an underwriting agreement;

(b) made to a person whose ordinary business it is to buy or sell shares or debentures whether as principal or agent; (c) made to existing members or debenture holders of a corporation and relates to shares in or debentures of that corporation and is not an offer to which section 46 of the Securities Commission Act 1993 applies; or

(d) made to existing members of a company within the meaning of section 270 and relates to shares in the corporation within the meaning of that section.

(7) Unless the contrary intention appears any reference in this Act to a person being or becoming bankrupt or to a person assigning his estate for the benefit of his creditors or making an arrangement with his creditors under any written law relating to bankruptcy or to a person being an undischarged bankrupt or to any status, condition, act, matter or thing under or in relation to the law of bankruptcy shall be construed as including a reference to a person being or becoming bankrupt or insolvent or to a person making any such assignment or arrangement or to a person being an undischarged bankrupt or insolvent or to the corresponding status, condition, act, matter or thing (as the case requires) under any written law relating to bankruptcy or insolvency.

(8) (Deleted by Act A21).

36 Laws of Malaysia ACT 125

Definition of subsidiary and holding company

5. (1) For the purposes of this Act, a corporation shall, subject to subsection (3), be deemed to be a subsidiary of another corporation, if--

(a) that other corporation--

(i) controls the composition of the board of directors of the first-mentioned corporation;

(ii) controls more than half of the voting power of the first-mentioned corporation; or

(iii) holds more than half of the issued share capital of the first-mentioned corporation (excluding any part thereof which consists of preference shares); or

(b) the first-mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary. (2) For the purposes of subsection (1), the composition of a corporation's board of directors shall be deemed to be controlled by another corporation if that other corporation by the exercise of some power exercisable by it without the consent or concurrence of any other person can appoint or remove all or a majority of the directors, and for the purposes of this provision that other corporation shall be deemed to have power to make such an appointment if-- (a) a person cannot be appointed as a director without the exercise in his favour by that other corporation of such a power; or

(b) a person's appointment as a director follows necessarily from his being a director or other officer of that other corporation.

(3) In determining whether one corporation is a subsidiary of another corporation--

(a) any shares held or power exercisable by that other corporation in a fiduciary capacity shall be treated as not held or exercisable by it;

(b) subject to paragraphs (c) and (d), any shares held or power exercisable--

(i) by any person as a nominee for that other corporation (except where that other corporation is concerned only in a fiduciary capacity); or

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(ii) by, or by a nominee for, a subsidiary of that other corporation, not being a subsidiary which is

concerned only in a fiduciary capacity, shall be

treated as held or exercisable by that other

corporation;

(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first- mentioned corporation or of a trust deed for securing any issue of such debentures shall be disregarded; and (d) any shares held or power exercisable by, or by a nominee for, that other corporation or its subsidiary (not being held or exercisable as mentioned in paragraph (c)) shall be treated as not held or exercisable by that other corporation if the ordinary business of that other corporation or its subsidiary, as the case may be, includes the lending of money and the shares are held or power is exercisable as aforesaid by way of security only for the purposes of a transaction entered into in the ordinary course of that business.

(4) A reference in this Act to the holding company of a company or other corporation shall be read as a reference to a corporation of which that last-mentioned company or corporation is a subsidiary. Definition of ultimate holding company

5A. For the purposes of this Act, a corporation shall be deemed to be the ultimate holding company of another corporation if-- (a) the other corporation is a subsidiary of the first-mentioned corporation; and

(b) the first-mentioned corporation is not itself a subsidiary of any corporation.

Definition of wholly-owned subsidiary

5B. For the purposes of this Act, a corporation shall be deemed to be a wholly-owned subsidiary of another corporation if none of the members of the first mentioned corporation is a person other than--

(a) the second-mentioned corporation;

(b) a nominee of the second-mentioned corporation; 38 Laws of Malaysia ACT 125

(c) a subsidiary of the second-mentioned corporation, being a subsidiary none of the members of which is a person other than the second-mentioned corporation or a nominee of the second-mentioned corporation; or

(d) a nominee of such a subsidiary.

When corporations deemed to be related to each other

6. Where a corporation-- (a) is the holding company of another corporation; (b) is a subsidiary of another corporation; or

(c) is a subsidiary of the holding company of another corporation,

that first-mentioned corporation and that other corporation shall for the purposes of this Act be deemed to be related to each other. Interests in shares

6A. (1) The following subsections have effect for the purposes of Division 3A of Part IV, sections 134 and 135.

(2) Where any property held in trust consists of or includes shares in which a person knows or has reasonable grounds for believing that he has an interest, he shall be deemed to have an interest in those shares.

(3) A right does not constitute an interest in a share where-- (a) a right (being a right or an interest described in the definition of "interest" in section 84) was issued or offered to the public for subscription or purchase;

(b) the public was invited to subscribe for or purchase such a right, and the right was so subscribed for or purchased; (c) such a right is held by the management company and was issued for the purpose of an offer to the public within the meaning of section 84; or

(d) such a right is a right which has been prescribed by the Minister, after consultation with the Minister of Finance, as not being an interest in a share.

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(4) A person shall be deemed to have an interest in a share where a body corporate has an interest in a share and-- (a) the body corporate is, or its directors are accustomed, or is under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that person in relation to that share;

(b) that person has a controlling interest in the body corporate; or

(c) that person, or the associates of that person or that person and his associates are entitled to exercise or control the exercise of not less than fifteen per centum of the votes attached to the voting shares in the body corporate. (5) For the purposes of paragraph (4)(c), a person is an associate of another person if the first-mentioned person is-- (a) a corporation which is a related corporation; (b) a person in accordance with whose directions, instructions or wishes that other person is accustomed or is under an obligation, whether formal or informal, to act in relation to the share referred to in subsection (4);

(c) a person who is accustomed or is under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of that other person in relation to that share;

(d) a body corporate which is, or the directors of which are, accustomed or under an obligation whether formal or informal, to act in accordance with the directions, instructions or wishes of that other person in relation to that share; or

(e) a body corporate in accordance with the directions, instructions or wishes of which, or of the directors of which, that other person is accustomed or under an obligation whether formal or informal, to act in relation to that share.

(6) A person shall be deemed to have an interest in a share in any one or more of the following circumstances where he-- (a) has entered into a contract to purchase a share; (b) has a right, otherwise than by reason of having an interest under a trust, to have a share transferred to himself or 40 Laws of Malaysia ACT 125

to his order, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not;

(c) has the right to acquire a share or an interest in a share, under an option, whether the right is exercisable presently or in the future and whether on the fulfilment of a condition or not; or

(d) is entitled (otherwise than by reason of his having been appointed a proxy or representative to vote at a meeting of members of a corporation or of a class of its members) to exercise or control the exercise of a right attached to a share, not being a share of which he is the registered holder.

(7) A person shall be deemed to have an interest in a share if that share is held jointly with another person.

(8) For the purpose of determining whether a person has an interest in a share it is immaterial that the interest cannot be related to a particular share.

(9) There shall be disregarded--

(a) an interest in a share if the interest is that of a person who holds the share as bare trustee;

(b) an interest in a share of a person whose ordinary business includes the lending of money if he holds the interest only by way of security for the purposes of a transaction entered into in the ordinary course of business in connection with the lending of money;

(c) an interest of a person in a share being an interest held by him by reason of his holding a prescribed office; and (d) a prescribed interest in a share being an interest of such person, or of the persons included in such class of persons, as is prescribed.

(10) An interest in a share shall not be disregarded by reason only of--

(a) its remoteness;

(b) the manner in which it arose;

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(c) the fact that the exercise of a right conferred by the interest is, or is capable of being made subject to restraint or restriction; or

(d) the fact that it is held by, or in the name of, a central depository or its nominee company pursuant to the Securities Industry (Central Depositories) Act 1991 [Act 453].

PART II

ADMINISTRATION OF ACT

Registrar of Companies, etc.

7. (1) The Chief Executive Officer of the Commission shall be the Registrar of Companies.

(1A) The Commission may appoint, on such terms and conditions as it may determine, from amongst persons in the employment of the Commission such number of Regional Registrars, Deputy Registrars, Assistant Registrars, clerks and servants for the proper administration of this Act, and may revoke the appointment of any person so appointed or deemed to have been so appointed under subsection (1B).

(1B) The persons holding office as Regional Registrars, Deputy Registrars, Assistant Registrars, clerks and servants under this Act before the appointed date who were given an option by the Government of Malaysia and have opted to serve as employees of the Commission shall, on the appointed date, be deemed to have been appointed Regional Registrars, Deputy Registrars, Assistant Registrars, clerks and servants by the Commission. (2) Subject to the general direction and control of the Registrar and to such restrictions and limitations as may be prescribed, anything by this Act appointed or authorized or required to be done or signed by the Registrar may be done or signed by any Regional, Deputy or Assistant Registrar and shall be as valid and effectual as if done or signed by the Registrar.

42 Laws of Malaysia ACT 125

(3) No person dealing with any Regional, Deputy or Assistant Registrar shall be concerned to see or inquire whether any restrictions or limitations have been prescribed, and every act or omission of a Regional Deputy or Assistant Registrar so far as it affects any such person shall be as valid and effectual as if done or omitted by the Registrar.

Certain signatures to be judicially noticed

(4) All courts, judges and persons acting judicially shall take judicial notice of the seal and signature of the Registrar and of any Regional, Deputy or Assistant Registrar.

(5)-(10) (Deleted by Act A836).

Power to call for information

(11) (a) The Registrar may require any corporation or person to give orally or may by notice under his hand require any corporation or person to give in writing within a time specified in the notice all such information in his possession or within his knowledge as may be required of it or him by the Registrar for the purposes of this Act.

(b) Any corporation or person who fails to supply any information, or who in supplying any information makes any statement which he knows to be false in material particular, or recklessly makes such statement, shall be guilty of an offence.

Penalty: Two thousand ringgit. Default penalty.

(12) For the purposes of this Act, any notice, letter or document sent by ordinary or registered post shall be deemed to have been served on the person, corporation or firm to whom it is addressed, on the day succeeding the day on which the notice, letter or document would have been received in the ordinary course of post if-- (a) in the case of a corporation or firm it is addressed to its last known registered office;

(b) in the case of a person, it is addressed to his last known address.

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(13) Neither the Registrar nor any person appointed by the Commission under subsection (1A) or deemed to have been appointed under subsection (1B) shall be liable to be sued in any court for any act or matter done or ordered to be done or omitted to be done, by him in good faith and in the intended exercise of any power or performance of any duty, conferred or imposed on him by or under this Act.

Fees

(14) Subject to section 7A, there shall be paid to the Registrar-- (a) the fees specified in the Second Schedule; and (b) such other fees as are prescribed,

and such fees shall be collected by the Registrar in such manner as the Minister may, from time to time, direct.

Power of Minister to exempt from payment of fees

7A. The Minister may, by order published in the Gazette, exempt any statutory body or government agency from paying any or all of the fees specified in the Second Schedule or prescribed under this Act.

Power to conduct inspection

7B. (1) For the purpose of ascertaining whether a corporation or any officer of a corporation is complying with this Act, the Registrar may have access to any place or building and may inspect and make copies of or take extracts from any book, minute book, register or document required by or under this Act to be kept by the corporation.

(2) For the purposes of this section, the Registrar may by notice in writing require any officer of a corporation or any person to produce to him such books, registers or documents as are in the custody or under the control of that officer or person. (3) A corporation which, any officer of the corporation or any person who--

(a) fails to produce any such books, registers or documents as required by the Registrar under this section; or 44 Laws of Malaysia ACT 125

(b) obstructs or hinders the Registrar while exercising any of the powers under this section,

shall be guilty of an offence against this Act.

Penalty: Imprisonment for three years or ten thousand ringgit or both.

(4) The Registrar, except for the purposes of this Act, or in the course of any criminal proceedings, shall not make a record of, or divulge or communicate to any other person, any information which he has acquired by reason of such inspection. (5) Subsection (1) shall not be construed as limiting or affecting any power to make any such inspection conferred on any person by any other law.

Power to conduct investigation

7C. (1) Where the Registrar has reason to suspect that a person has committed an offence against this Act, he may make such investigation as he thinks expedient for the due administration of this Act.

(2) Whenever it appears to any Magistrate upon written information and after such enquiry as he thinks necessary, that there is reasonable cause to believe that in any place or building there is any object, article, material, thing, accounts, book or other document including any travel or other personal document, which may be used as evidence of the commission of an offence against this Act, he may by warrant empower the Registrar to enter the place or building, by force if necessary, and there to search for, seize, take possession of and detain any such object, article, material, thing, accounts, book or other document.

(3) Whenever it appears to the Registrar that there is reasonable cause to believe that in any place or building there is concealed or deposited any object, article, material, thing, accounts, book or other document including any travel or other personal document which may be used as evidence of the commission of an offence against this Act, and the Registrar has reasonable grounds for believing that by reason of the delay in obtaining a search warrant, such object, article, material, thing, accounts, book or other document may be interfered with or destroyed or the object of the search is Companies 45

likely to be frustrated, he may in respect of the place or building exercise all the powers mentioned in subsection (2) in as full and ample measure as if he were empowered to do so by warrant issued under that subsection.

(4) The Registrar may grant permission to any person to inspect any accounts, book or other document seized and taken possession of by the Registrar during the course of an investigation under this Act if such person is entitled to inspect such accounts, book or document under this Act.

Power to call for examination

7D. (1) For the purpose of any investigation under section 7C, the Registrar may by notice in writing require any person supposed to be acquainted with the facts and circumstances of the case to appear before him and to be examined orally and shall reduce into writing any statement made by the person so examined. (2) Such person shall be legally bound to answer all questions relating to such case put to him by the Registrar and to state the truth, whether or not the statement is made wholly or partly in answer to questions, and shall not refuse to answer any question on the ground that it tends to incriminate him.

(3) A statement made by any person under this section shall be taken down in writing and signed by the person making it or affixed with his thumb print, as the case may be, after it has been read to him and after he had been given an opportunity to make any correction he may wish:

Provided that where the person examined refuses to sign or affix his thumb print on the statement, the Registrar shall endorse thereon under his hand the fact of such refusal and the reason therefor, if any, stated by the person examined.

(4) Any statement made and recorded under this section shall be admissible as evidence in any proceedings under this Act in any court, either against the person who made it or any other person. (5) Any person who--

(a) without reasonable excuse fails to appear before the Registrar as required under subsection (1);

46 Laws of Malaysia ACT 125

(b) without reasonable excuse refuses to answer all questions put to him by the Registrar as required by subsection (2); or

(c) knowingly furnishes to the Registrar information or statement that is false or misleading in a material particular, shall be guilty of an offence against this Act.

Penalty: Imprisonment for five years or thirty thousand ringgit or both.

Company auditors and liquidators to be approved by Minister charged with responsibility for finance

8. (1) Any person may apply to the Minister charged with responsibility for finance to be approved as a company auditor for the purposes of this Act.

(2) The Minister charged with responsibility for finance may, if he is satisfied that the applicant is of good character and competent to perform the duties of an auditor under this Act, upon payment of the prescribed fee, approve the applicant as a company auditor. (3) Any approved company auditor may apply to the Minister charged with responsibility for finance to be approved as a liquidator for the purposes of this Act, and the Minister, if satisfied as to the experience and capacity of the applicant, may on payment of the prescribed fee approve such person as a liquidator for the purposes of this Act.

(4) Any approval granted by the Minister charged with responsibility for finance pursuant to this section may be made subject to such limitations or conditions as he thinks fit and may be revoked at any time by him by the service of a notice of revocation on the approved person.

(5) Every approval under this section including a renewal of approval of a company auditor or liquidator shall be in force for a period of two years* after the date of issue thereof unless sooner revoked by the Minister charged with responsibility for finance. (6) A person who immediately before the commencement of this Act was authorized pursuant to any corresponding previous written law to be an auditor of companies shall be deemed to have *NOTE--Provided that any approval or renewal of approval in force immediately before the coming into operation of Act A616 shall continue in force until it expires or is sooner revoked by the Minister.

Companies 47

been approved as a company auditor under this section on the date of the commencement of this Act but if such person's approval was limited or conditional those limitations and conditions shall continue to apply.

(7) The Minister charged with responsibility for finance may delegate all or any of his powers under this section to any person or body of persons charged with the responsibility for the registration or control of accountants in Malaysia.

(8) Any person who is dissatisfied with any decision of the Minister charged with responsibility for finance under this section or with the decision of any person or body of persons to whom such Minister has delegated all or any of his powers under this section may appeal to the Yang di-Pertuan Agong who may in his discretion confirm, reverse or vary the decision. Company auditors

9. (1) A person shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any company and shall not prepare, for or on behalf of a company, any report required by this Act to be prepared by an approved company auditor-- (a) if he is not an approved company auditor;

(b) if he is indebted to the company or to a corporation that is deemed to be related to that company by virtue of section 6 in an amount exceeding two thousand five hundred ringgit;

(c) if he is--

(i) an officer of the company;

(ii) a partner, employer or employee of an officer of the company;

(iii) a partner or employee of an employee of an officer of the company; or

(iv) a shareholder or his spouse is a shareholder of a corporation whose employee is an officer of the

company; or

(d) if he is responsible for or if he is the partner, employer or employee of a person responsible for the keeping of the register of members or the register of holders of debentures of the company.

48 Laws of Malaysia ACT 125

Penalty: *Thirty thousand ringgit.

(2) For the purposes of subsection (1), a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of section 6 or except where the Minister if he thinks fit in the circumstances of the case directs otherwise, if he has, at any time within the preceding period of twelve months, been an officer or promoter of the company or of such a corporation.

(3) For the purposes of this section, a person shall not be deemed to be an officer by reason only of his having been appointed as auditor of a corporation.

(4) A firm shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any company and shall not prepare, for or on behalf of a company, any report required by this Act to be prepared by an approved company auditor unless-- (a) all the partners of the firm resident in Malaysia are approved company auditors and, where the firm is not registered as a firm under any law for the time being in force, a return showing the full names and addresses of all the partners of the firm has been lodged with the Registrar; and

(b) no partner is disqualified under paragraph (1)(b), (c) or (d) from acting as the auditor of the company.

(5) If a firm contravenes subsection (4) each partner of the firm shall be guilty of an offence.

Penalty: *Thirty thousand ringgit.

(6) No company or person shall appoint a person as auditor of a company unless that last-mentioned person has prior to the appointment consented in writing to act as such auditor, and no company or person shall appoint a firm as auditor of a company unless the firm has prior to the appointment consented, in writing under the hand of at least one partner of the firm, to act as such auditor.

(7) The appointment of a firm in the name of the firm as auditors of a company shall take effect and operate as an appointment as auditors of the company of the persons who are members of that firm at the time of the appointment.

*NOTE--Previously "two thousand ringgit"­see Companies (Amendment) (No. 2) Act 1992 [Act A836].

Companies 49

Disqualification of liquidators

10. (1) Subject to this section a person shall not, except with the leave of the Court, consent to be appointed, and shall not act, as liquidator of a company--

(a) if he is not an approved liquidator;

(b) if he is indebted to the company or to a corporation that is deemed to be related to the company by virtue of section 6 in an amount exceeding two thousand five hundred ringgit;

(c) if he is--

(i) an officer of the company;

(ii) a partner, employer or employee of an officer of the company; or

(iii) a partner or employee of an employee of an officer of the company;

(d) if he becomes bankrupt;

(e) if he assigns his estate for the benefit of his creditors or makes an arrangement with his creditors pursuant to any law relating to bankruptcy; or

(f) if he is convicted of an offence involving fraud or dishonesty punishable on conviction by imprisonment for three months or more.

Penalty: *Thirty thousand ringgit.

(2) Paragraphs (1)(a) and (c) shall not apply--

(a) to a members' voluntary winding up; or

(b) to a creditors' voluntary winding up if, by a resolution carried by a majority of the creditors in number and value present in person or by proxy and voting at a meeting of which seven days' notice has been given to every creditor stating the object of the meeting, it is determined those paragraphs or either of them shall not apply.

*NOTE--Previously "two thousand ringgit"­see Companies (Amendment) (No. 2) Act 1992 [Act A836].

50 Laws of Malaysia ACT 125

(3) For the purposes of subsection (1), a person shall be deemed to be an officer of a company if he is an officer of a corporation that is deemed to be related to the company by virtue of section 6 or has, at any time within the preceding period of twenty-four months, been an officer or promoter of the company or of such a corporation.

(4) A person shall not be appointed as liquidator of a company unless he has prior to the appointment consented in writing to act as such liquidator.

(5) Nothing in this section shall affect any appointment of a liquidator made before the commencement of this Act. Registers

11. (1) The Registrar shall, subject to this Act, keep such registers as he considers necessary in such forms as he thinks fit. Inspection of register

(2) Any person may, on payment of the prescribed fee-- (a) inspect any document filed or lodged with the Registrar not being a document that has been destroyed or otherwise disposed of under subsection (11);

(b) require a certificate of the incorporation of any company or any other certificate issued under this Act; or (c) require a copy or extract from any document that he is entitled to inspect pursuant to paragraph (a) or any certificate referred to in paragraph (b) to be given or given and certified by the Registrar.

(3) If a reproduction or transparency of a document or certificate is produced for inspection, a person is not entitled pursuant to paragraph 2(a) to require the production of the original of that document or certificate.

(4) The reference in paragraph 2(c) to a document or certificate includes, where a reproduction or transparency of that document or certificate has been incorporated with a register kept by the Registrar, a reference to that reproduction or transparency and


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