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 2 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 3 LAWS OF MALAYSIA Act 125 COMPANIES ACT 1965 ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title (Omitted) 2. 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 Registrar of Companies, etc. 7. 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 Laws of Malaysia 4 ACT 125 Section 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 Ultra vires transactions 20. 21. General provisions as to alteration of memorandum 22. Names of companies 23. Change of name Omission of "Berhad" in name of charitable and other companies 24. Registration of unlimated company as limited, etc. 25. 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 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 (Deleted) 44. 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 Laws of Malaysia 6 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 Restriction on varying contracts referred to in prospectus, etc. 53. DIVISION 3 SHARES 54. Return as to allotments 55. As to voting rights of equity shares in certain companies Differences in calls and payments, etc. 56. 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 Dealing by a company in its own shares, etc. 67. 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 Powers of trustee to apply to the Court for directions, etc. 79. 80. Obligations of borrowing corporation Laws of Malaysia 8 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 Returns, information, etc., relating to interests 93. Penalty for contravention of Division, etc. 94. Winding up of schemes, etc. 95. 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 Charges, etc., created before commencement of Act 117. 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 Laws of Malaysia 10 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 Disclosure of interest in contracts, property, offices, etc. 131. 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 Register of directors' shareholdings, etc. 134. 135. General duty to make disclosure 136. Prohibition of tax-free payments to directors Payments to director for loss of office, etc. 137. 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 Quorum, chairman, voting, etc., at meetings 147. 148. As to members' rights at meetings 149. Proxies 150. Power of Court to order meeting Circulation of members' resolutions, etc. 151. 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 Limitation of liability of trustee, etc., registered as owner of shares 163. 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 Laws of Malaysia 12 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 Members of company entitled to balance sheet, etc. 170. 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 (Deleted) 179. 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 Enforcement of duty of receiver, etc., to make returns 192. 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 Laws of Malaysia 14 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 As to payment of preliminary costs, etc., by petitioner (other than 220. company or liquidator) 221. Powers of Court on hearing petition 222. Power to stay or restrain proceedings against company Avoidance of dispositions of property, etc. 223. Avoidance of certain attachments, etc. 224. Petition to be lis pendens 225. Copy of order to be lodged, etc. 226. Companies 15 Subdivision (2)-Liquidators Section Appointment, style, etc., of liquidators 227. 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 Power to order public examination of promoters, directors, etc. 250. 251. Power to arrest absconding contributory 252. Delegation to liquidator of certain powers of Court 253. Powers of Court cumulative Laws of Malaysia 16 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 Act to liquidator valid, etc. 268. 269. Powers and duties of liquidator Power of liquidator to accept shares, etc., as consideration for 270. 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 Laws of Malaysia 18 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 Power of Court to assess damages against delinquent officers, etc. 305. 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 Documents, etc., to be lodged by foreign companies having place 332. of business in Malaysia 332A. Annual return 333. As to registered office and agents of foreign companies 334. Transitory provision Return to be filed where documents, etc., altered 335. 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 Laws of Malaysia 20 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 Branch register to be prima facie evidence 347. Certificate, re share holding 348. 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 (Deleted) 357. Form of registers, etc. 358. 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 Restriction on offering shares, debentures, etc., for subscription or 363. 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 Penalty for improper use of words "Limited" and "Berhad" 367. 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 Laws of Malaysia 22 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). (Omitted). 2. 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 Laws of Malaysia 24 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, c o n v e y a n c e , 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 i f 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) Laws of Malaysia 26 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; Laws of Malaysia 28 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 Companies 29 (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; Laws of Malaysia 30 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; Companies 31 "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