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powers of attorney may contain such provisions for the protection and convenience
of persons dealing with any such attorney as the directors may think fit and may
also authorize any such attorney to delegate all or any of the powers, authorities,
and discretions vested in him.
77. All cheques, promissory notes, drafts, bills of exchange, and other negotiable
instruments, and all receipts for money paid to the company, shall be signed,
drawn, accepted, endorsed, or otherwise executed, as the case may be, by any
two directors or in such other manner as the directors from time to time
determine.
The directors shall cause minutes to be made--
78.
(a) of all appointments of officers to be engaged in the management of
the company's affairs;
(b) of names of directors present at all meetings of the company and of
the directors; and
(c) of all proceedings at all meetings of the company and of the directors.
The minutes shall be signed by the chairman of the meeting at which the
proceedings were held or by the chairman of the next succeeding meeting.
Proceedings of Directors
79. The directors may meet together for the despatch of business, adjourn and
otherwise regulate their meetings as they think fit. A director may at any time
and the secretary shall on the requisition of a director summon a meeting of
the directors.
80. Subject to these regulations questions arising at any meeting of directors
shall be decided by a majority of votes and a determination by a majority of
directors shall for all purposes be deemed a determination of the directors. In
case of an equality of votes the chairman of the meeting shall have a second
or casting vote.
81. A director shall not vote in respect of any contract or proposed contract
with the company in which he is interested, or any matter arising thereout, and
if he does so vote his vote shall not be counted.
82. Any director with the approval of the directors may appoint any person
(whether a member of the company or not) to be an alternate or substitute
director in his place during such period as he thinks fit. Any person while he
so holds office as an alternate or substitute director shall be entitled to notice
of meetings of the directors and to attend and vote thereat, accordingly, and
to exercise all the powers of the appointor in his place. An alternate or substitute
director shall not require any share qualification, and shall ipso facto vacate
office if the appointor vacates office as a director or removes the appointee from
office. Any appointment or removal under this regulation shall be effected by
notice in writing under the hand of the director making the same.
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83. The quorum necessary for the transaction of the business of the directors
may be fixed by the directors, and unless so fixed shall be two.
84. The continuing directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number fixed
by or pursuant to the regulations of the company as the necessary quorum of
directors, the continuing director may act for the purpose of increasing the
number of directors to that number or of summoning a general meeting of the
company, but for no other purpose.
85. The directors may elect a chairman of their meetings and determine the
period for which he is to hold office; but if no such chairman is elected, or if
at any meeting the chairman is not present within ten minutes after the time
appointed for holding the meeting, the directors present may choose one of their
number to be chairman of the meeting.
86. The directors may delegate any of their powers to committees consisting
of such member of their body as they think fit; any committee so formed shall
in the exercise of the powers so delegated conform to any regulations that may
be imposed on it by the directors.
87. A committee may elect a chairman of its meetings; if no such chairman
is elected, or if at any meeting the chairman is not present within ten minutes
after the time appointed for holding the meeting, the members present may
choose one of their number to be chairman of the meeting.
88. A committee may meet and adjourn as it thinks proper. Questions arising
at any meeting shall be determined by a majority of votes of the members
present, and in the case of an equality of votes the chairman shall have a second
or casting vote.
89. All acts done by any meeting of the directors or of a committee of
directors or by any person acting as a director shall, notwithstanding that it is
afterwards discovered that there was some defect in the appointment of any
such director or person acting as aforesaid, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed and
was qualified to be a director.
90. A resolution in writing, signed by all the directors for the time being
entitled to receive notice of a meeting of the directors, shall be as valid and
effectual as if it had been passed at a meeting of the directors duly convened
and held. Any such resolution may consist of several documents in like form,
each signed by one or more directors.
Managing Directors
91. The directors may from time to time appoint one or more of their body
to the office of managing director for such period and on such terms as they
think fit and, subject to the terms of any agreement entered into in any particular
case, may revoke any such appointment. A director so appointed shall not, while
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holding that office, be subject to retirement by rotation or be taken into account
in determining the rotation of retirement of directors, but his appointment shall
be automatically determined if he ceases from any cause to be a director.
92. A managing director shall, subject to the terms of any agreement entered
into in any particular case, receive such remuneration (whether by way of
salary, commission, or participation in profits, or partly in one way and partly
in another) as the directors may determine.
93. The directors may entrust to and confer upon a managing director any of
the powers exercisable by them upon such terms and conditions and with such
restrictions as they may think fit, and either collaterally with or to the exclusion
of their own powers, and may from time to time revoke, withdraw, alter, or vary
all or any of those powers.
Associate Directors
94. The directors may from time to time appoint any person to be an associate
director and may from time to time cancel any such appointment. The directors
may fix, determine and vary the powers, duties and remuneration of any person
so appointed, but a person so appointed shall not be required to hold any shares
to qualify him for appointment nor have any right to attend or vote at any
meeting of directors except by the invitation and with the consent of the directors.
Secretary
95. The secretary shall in accordance with the Act be appointed by the directors
for such term, at such remuneration, and upon such conditions as they may think
fit; and any secretary so appointed may be removed by them.
Seal
96. The directors shall provide for the safe custody of the seal, which shall
only be used by the authority of the directors or of a committee of the directors
authorized by the directors in that behalf, and every instrument to which the
seal is affixed shall be signed by a director and shall be countersigned by the
secretary or by a second director or by some other person appointed by the
directors for the purpose.
Accounts
97. The directors shall cause proper accounting and other records to be kept
and shall distribute copies of the balance sheets and other documents as required
by the Act and shall from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the
accounting and other records of the company or any of them shall be open to
the inspection of members not being directors, and no member (not being a
director) shall have any right of inspecting any account or book or paper of the
company except as conferred by statute or authorized by the directors or by the
company in general meeting.
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Dividends and Reserves
98. The company in general meeting may declare dividends, but no dividend
shall exceed the amount recommended by the directors.
99. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the company.
100. No dividend shall be paid otherwise than out of profits or shall bear
interest against the company.
101. The directors may, before recommending any dividend, set aside out of
the profits of the company such sums as they think proper as reserves which
shall, at the discretion of the directors, be applicable for any purpose to which
the profits of the company may be properly applied, and pending any such
application may, at the like discretion, either be employed in the business of
the company or be invested in such investments (other than shares in the
company) as the directors may from time to time think fit. The directors may
also without placing the same to reserve carry forward any profits which they
may think prudent not to divide.
102. Subject to the rights of persons, if any, entitled to shares with special
rights as to dividend, all dividends shall be declared and paid according to the
amounts paid or credited as paid on the shares in respect whereof the dividend
is paid, but no amount paid or credited as paid on a share in advance of calls
shall be treated for the purposes of this regulation as paid on the share. All
dividends shall be apportioned and paid proportionately to the amounts paid or
credited as paid on the shares during any portion of the period in respect of
which the dividend is paid; but if any share is issued on terms providing that
it shall rank for dividend as from a particular date that share shall rank for
dividend accordingly.
103. The directors may deduct from any dividend payable to any member all
sums of money, if any, presently payable by him to the company on account
of calls or otherwise in relation to the shares of the company.
104. Any general meeting declaring a dividend or bonus may direct payment
of the dividend or bonus wholly or partly by the distribution of specific assets
and in particular of paid-up shares, debenture stock of any other company or
in any one or more of those ways and the directors shall give effect to the
resolution, and where any difficulty arises in regard to the distribution, the
directors may settle the same as they think expedient, and fix the value for
distribution of the specific assets or any part thereof and may determine that
cash payments shall be made to any members upon the footing of the value so
fixed in order to adjust the right of all parties, and may vest any such specific
assets in trustees as may seem expedient to the directors.
105. Any dividend, interest, or other money payable in cash in respect of
shares may be paid by cheque or warrant sent through the post directed to the
registered address of the holder or, in the case of joint holders, to the registered
address of that one of the joint holders who is first named on the register of
members or to such person and to such address as the holder or joint holders
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may in writing direct. Every such cheque or warrant shall be made payable to
the order of the person to whom it is sent. Any one of two or more joint holders
may give effectual receipts for any dividends, bonuses, or other money payable
in respect of the shares held by them as joint holders.
Capitalization of Profits
106. The company in general meeting may, upon the recommendation of the
directors, resolve that it is desirable to capitalize any part of the amount for
the time being standing to the credit of any of the company's reserve accounts
or to the credit of the profit and loss account or otherwise available for distribution,
and accordingly that the sum be set free for distribution amongst the members
who would have been entitled thereto if distributed by way of dividend and in
the same proportions on condition that the same be not paid in cash but be
applied either in or towards paying up any amounts for the time being unpaid
on any shares held by those members respectively or paying up in full unissued
shares or debentures of the company to be allotted and distributed, credited as
fully paid up to and amongst the members in the proportion aforesaid, or partly
in the one way and partly in the other, and the directors shall give effect to such
resolution. A share premium account and a capital redemption reserve may, for
the purposes of this regulation, be applied only in the paying up of unissued
shares to be issued to members of the company as fully paid bonus shares.
107. Whenever such a resolution as aforesaid shall have been passed the
directors shall make all appropriations and applications of the undivided profits
resolved to be capitalized thereby, and all allotments and issues of fully paid
shares or debentures, if any, and generally shall do all acts and things required
to give effect thereto, with full power to the directors to make such provision
by the issue of fractional certificates or by payment in cash or otherwise as they
think fit for the case of shares or debentures becoming distributable in fractions,
and also to authorize any person to enter on behalf of all the members entitled
thereto into an agreement with the company providing for the allotment to them
respectively, credited as fully paid up, of any further shares or debentures to
which they may be entitled upon the capitalization, or (as the case may require)
for the payment up by the company on their behalf, by the application thereto
of their respective proportions of the profits resolved to be capitalized, of the
amounts or any part of the amounts remaining unpaid on their existing shares,
and any agreement made under such authority shall be effective and binding
on all such members.
Notices
108. A notice may be given by the company to any member either personally
or by sending it by post to him at his registered address, or (if he has no
registered address within Malaysia) to the address, if any, within Malaysia
supplied by him to the company for the giving of notices to him. Where a notice
is sent by post, service of the notice shall be deemed to be effected by properly
addressing, prepaying, and posting a letter containing the notice, and to have
been effected in the case of a notice of a meeting on the day after the date of
its posting, and in any other case at the time at which the letter would be
delivered in the ordinary course of post.
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109. A notice may be given by the company to the joint holders of a share
by giving the notice to the joint holder first named in the register of members
in respect of the share.
110. A notice may be given by the company to the persons entitled to a share
in consequence of the death or bankruptcy of a member by sending it through
the post in a prepaid letter addressed to them by name, or by the title of
representatives of the deceased, or assignee of the bankrupt, or by any like
description, at the address, if any, within Malaysia supplied for the purpose by
the persons claiming to be so entitled, or (until such an address has been so
supplied) by giving the notice in any manner in which the same might have been
given if the death or bankruptcy had not occurred.
111. (1) Notice of every general meeting shall be given in any manner hereinbefore
authorized to--
(a) every member;
(b) every person entitled to a share in consequence of the death or bankruptcy
of a member who, but for his death or bankruptcy, would be entitled
to receive notice of the meeting; and
(c) the auditor for the time being of the company.
(2)
No other person shall be entitled to receive notices of general meetings.
Winding Up
112. If the company is wound up the liquidator may, with the sanction of a
special resolution of the company, divide amongst the members in kind the
whole or any part of the assets of the company (whether they consist of property
of the same kind or not) and may for that purpose set such value as he deems
fair upon any property to be divided as aforesaid and may determine how the
division shall be carried out as between the members or different classes of
members. The liquidator may, with the like sanction, vest the whole or any part
of any such assets in trustees upon such trusts for the benefit of the contributories
as the liquidator, with the like sanction, thinks fit, but so that no member shall
be compelled to accept any shares or other securities whereon there is any
liability.
Indemnity
113. Every director, managing director, agent, auditor, secretary, and other
officer for the time being of the company shall be indemnified out of the assets
of the company against any liability incurred by him in defending any proceedings,
whether civil or criminal, in which judgment is given in his favour or in which
he is acquitted or in connection with any application under the Act in which
relief is granted to him by the Court in respect of any negligence, default,
breach of duty or breach of trust.
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FIFTH SCHEDULE
[Section 39]
PROSPECTUS
PART I
Matters to be Stated
1. The number of founders or management or deferred shares, if any, and the
nature and extent of the interest of the holders of those shares in the property
and profits of the company.
2. The number of shares, if any, fixed by the articles as the qualification of
a director, and any provision in the articles as to the remuneration of the
directors.
3. The names, descriptions, and addresses of all the directors or proposed
directors.
Where the prospectus relates to shares, particulars as to--
4.
(a) the minimum amount which, in the opinion of the directors, must be
raised by the issue of those shares in order to provide the sums, or,
if any part thereof is to be defrayed in any other manner, the balance
of the sums, required to be provided in respect of each of--
(i) the purchase price of any property purchased or to be purchased
which is to be defrayed in whole or in part out of the proceeds
of the issue;
(ii) any preliminary expenses
payable by the company, and any
commission so payable to
any person in consideration of his
agreeing to subscribe for,
or of his procuring or agreeing to
procure subscriptions for,
any shares in the company;
(iii) the repayment of any money borrowed by the company in
respect of any of the foregoing matters; and
(b) the amounts to be provided in respect of the matters aforesaid otherwise
than out of the proceeds of the issue and the sources out of which
those amounts are to be provided.
5. The nature of the company's business and the names of all corporations
which are by virtue of section 6 deemed to be related to the company.
The time of the opening of the subscription lists.
6.
7. The amount payable on application and allotment on each share or where
that amount may vary during the currency of the offer, the basis of calculation
of the amount so payable and, in the case of a second or subsequent offer of
shares, the number, description and amount offered for subscription on each
previous allotment made within the two preceding years, the number actually
allotted, and the amount, if any, paid on the shares so allotted.
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8. The number, description, and amount of any shares in or debentures of the
company which any person has, or is entitled to be given, an option to subscribe
for, together with the following particulars of the option:
(a) the period during which it is exercisable;
(b) the price to be paid for shares or debentures subscribed for under it;
(c) the consideration, if any, given or to be given for it or for the right
to it; and
(d) the names and addresses of the persons to whom it or the right to it
was given or, if given to existing shareholders or debenture holders
as such, the relevant shares or debentures.
9. The number and amount of shares and debentures which within the two
preceding years have been issued, or agreed to be issued, as fully or partly paid
up otherwise than in cash, and in the latter case the extent to which they are
so paid up, and in either case the consideration for which those shares or
debentures have been issued or are proposed or intended to be issued.
(1) With respect to any property to which this paragraph applies--
10.
(a) the names and addresses of the vendors;
(b) the amount payable in cash, shares, or debentures to the vendor and,
where there is more than one separate vendor, or the corporation is
a sub-purchaser, the amount so payable to each vendor; and
(c) short particulars of any transaction relating to the property completed
within the two preceding years in which any vendor of the property
to the corporation or any person who is, or was at the time of the
transaction, a promoter or a director or proposed director of the
corporation had any interest, direct or indirect.
(2) The property to which this paragraph applies is property purchased or
acquired by the corporation or by any subsidiary of the corporation or proposed
so to be purchased or acquired, which is to be paid for wholly or partly out
of the proceeds of the issue offered for subscription by the prospectus or the
purchase or acquisition of which has not been completed at the date of the issue
of the prospectus, other than property the contract for the purchase or acquisition
whereof was entered into in the ordinary course of the corporation's or the
subsidiary's business, the contract not being made in contemplation of the issue
nor the issue in consequence of the contract.
11. The amount, if any, paid or payable as purchase money in cash, shares,
or debentures for any property to which the last preceding paragraph applies,
specifying the amount, if any, payable for goodwill.
12. The amount, if any, paid within the two preceding years, or payable, as
commission (but not including commission to sub-underwriters) for subscribing
or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for
any shares in or debentures of the corporation, or the rate of any such commission,
and the names of any directors or promoters or experts or proposed directors
who are entitled to receive any such commission and the amount or rate thereof.
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13. The amount or estimated amount of preliminary expenses and the persons
by whom any of these expenses have been paid or are payable, and the amount
or estimated amount of the expenses of the issue and the persons by whom any
of those expenses have been paid or are payable.
14. Any amount or benefit paid or given within the two preceding years or
intended to be paid or given to any promoter, and the consideration for the
payment or the giving of the benefit.
15. The dates of, parties to, and general nature of every material contract, not
being a contract entered into in the ordinary course of the business carried on
or intended to be carried on by the corporation or a contract entered into more
than two years before the date of issue of the prospectus.
The names and addresses of the auditors of the corporation.
16.
17. Full particulars of the nature and extent of the interest, direct or indirect,
if any, of every director and of every expert in the promotion of, or in the
property proposed to be acquired by, the corporation, or, where the interest of
such a director or such an expert consists in being a partner in a firm or a holder
of shares or debentures in a corporation the nature and extent of the interest
of the firm, or corporation, and where the interest of such a director or such
an expert consists in a holding of shares or debentures in a corporation a
statement of the nature and extent of the interest of the director or expert in
the corporation, with a statement of all sums paid or agreed to be paid to him
or to the firm in cash or shares or otherwise by any person in the case of a
director either to induce him to become, or to qualify him as, a director, or
otherwise for services rendered by him or by the firm or corporation in connection
with the promotion or formation of the corporation or (in the case of an expert)
for services rendered by him or the firm or corporation in connection with the
promotion or formation of the corporation. For the purposes of this paragraph
a director or expert shall be deemed to have an indirect interest in a corporation
if he has any beneficial interest in shares or debentures of a corporation which
has an interest in the promotion of, or in the property proposed to be acquired
by the corporation or if he has any beneficial interest in shares or debentures
in a corporation which is by virture of section 6 deemed to be related to that
first mentioned corporation.
18. Where the prospectus relates to shares, if the share capital of the corporation
is divided into different classes of shares, the right of voting at meetings of the
corporation conferred by, and the rights in respect of capital and dividends
attached to, the several classes of shares respectively.
19. In the case of a corporation which has been carrying on business, or of
a business which has been carried on, for less than three years, the length of
time during which the business of the corporation or the business to be acquired,
as the case may be, has been carried on.
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PART II
Reports to be Set Out
20. (1) A report by an approved company auditor, who shall be named in the
prospectus with respect to--
(a) profits and losses and assets and liabilities of the corporation and of
any guarantor corporation referred to in the prospectus, in accordance
with subparagraph (2) or (3), as the case requires; and
(b) the rates of the dividends, if any, paid by the corporation in respect
of each class of shares in respect of each of the five financial years
immediately preceding the issue of the prospectus, giving particulars
of each such class of shares on which those dividends have been paid
and particulars of the cases in which no dividends have been paid in
respect of any class of shares in respect of any of those years,
and, if no accounts have been made up in respect of any part of the period of
five years ending on a date three months before the issue of the prospectus,
containing a statement of that fact.
(2) If the corporation or the guarantor corporations have no subsidiaries, the
report shall--
(a) so far as regards profits and losses, deal with the profits or losses of
the corporation and of the guarantor corporations referred to in the
prospectus in respect of each of the five financial years immediately
preceding the last date to which the accounts of the corporation or
the guarantor corporations were made up; and
(b) so far as regards assets and liabilities, deal with the assets and liabilities
of the corporation and of the guarantor corporations referred to in the
prospectus at the last date to which the accounts of the corporation
and the guarantor corporations were made up,
which date shall in no case be more than six months before the issue of the
prospectus.
(3) If the corporation or the guarantor corporations have subsidiaries, the
report shall--
(a) so far as regards profits and losses--
(i) deal as aforesaid separately with the corporation's and the
guarantor corporations' (other than subsidiaries) profits or losses
as provided by subparagraph (2) and in addition deal as aforesaid
either--
(A) as a whole with the combined profits or losses of their
subsidiaries; or
(B) individually with the profits or losses of each subsidiary;
or
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(ii) deal as aforesaid as a whole with the profits or losses of the
corporation and of the guarantor corporations and with the
combined profits or losses of their subsidiaries;
(b) so far as regards assets and liabilities, deal as aforesaid separately
with the corporation's and the guarantor corporations' (other than
subsidiaries) assets and liabilities as provided by subparagraph (2),
and in addition deal as aforesaid either--
(i) as a whole with the combined assets and liabilities of its or
their subsidiaries, with or without the corporation's assets and
liabilities; or
(ii) individually with the assets and liabilities of each subsidiary,
and shall indicate as respects the profits or losses and assets and liabilities of
the subsidiaries the allowance to be made for persons other than members of
the corporation.
(4) If the prospectus relates to shares in or debentures of a borrowing corporation
the report shall state separately estimates of the amounts of moneys owing and
payable to the corporation and the amounts of all liabilities payable by the
borrowing corporation--
(a) not later than two years;
(b) later than two years but not later than five years; and
(c) later than five years,
calculated from the last date to which the accounts of the borrowing corporation
were made up.
21. If the proceeds, or any part of the proceeds, of the issue of the shares or
debentures are to be applied directly or indirectly in the purchase of any business,
a report by an approved company auditor (who shall be named in the prospectus)
with respect to--
(a) the profits or losses of the business in respect of each of the five
financial years immediately preceding the last date to which the accounts
of the business were made up; and
(b) the assets and liabilities of the business at the last date to which the
accounts of the business were made up,
which date shall in no case be more than six months before the issue of the
prospectus.
22. (1) If--
(a) the proceeds, or any part of the proceeds, of the issue of the shares
or debentures are to be applied directly or indirectly in any manner
resulting in the acquisition by the corporation of shares in any other
corporation; and
(b) by reason of that acquisition or anything to be done in consequence
thereof or in connection therewith that corporation will become a
subsidiary of the corporation,
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a report by an approved company auditor (who shall be named in the prospectus)
with respect to--
(c) the profits or losses of the other corporation in respect of each of the
five financial years immediately preceding the last date to which the
accounts of the corporation were made up; and
(d) the assets and liabilities of the other corporation at the last date to
which the accounts of the corporation were made up,
which date shall in no case be more than six months before the issue of the
prospectus.
(2) The report shall--
(a) indicate how the profits or losses of the other corporation dealt with
by the report would, in respect of the shares to be acquired, have
concerned members of the corporation and what allowance would
have fallen to be made, in relation to assets and liabilities so dealt
with, for holders of other shares, if the corporation had at all material
times held the shares to be acquired; and
(b) where the other corporation has subsidiaries, deal with the profits or
losses and the assets and liabilities of the corporation and its subsidiaries
in the manner provided by paragraph 20 (3) in relation to the corporation
and its subsidiaries.
23. A report by the directors as to whether after due inquiry by them in relation
to the interval between the date to which the last accounts have been made up
and a date not earlier than fourteen days before the issue of the prospectus--
(a) the business of the corporation and its subsidiaries has in their opinion
been satisfactorily maintained;
(b) there have in their opinion arisen since the last annual general meeting
of the corporation any circumstances adversely affecting the trading
or the value of the assets of the corporation or any of its subsidiaries;
(c) the current assets of the corporation and of its subsidiaries appear in
the books at values which are believed to be realizable in the ordinary
course of business;
(d) there are any contingent liabilities by reason of any guarantees given
by the corporation or any of its subsidiaries; or
(e) there are, since the last annual report, any changes in published reserves
or any unusual factors affecting the profit of the corporation and its
subsidiaries,
and where any report is required pursuant to this paragraph it shall contain full
details of all matters required to be dealt with in the report.
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PART III
Provisions Applying to Parts I and II of this Schedule
24. Paragraphs 2, 13 (so far as it relates to preliminary expenses) and 17 shall
not apply in the case of a prospectus issued more than two years after the date
at which the company is entitled to commence business.
25. Every person shall for the purposes of this Schedule be deemed to be a
vendor who has entered into any contract, absolute or conditional, for the sale
or purchase, or for any option of purchase, of any property to be acquired by
the corporation in any case where--
(a) the purchase money is not fully paid at the date of the issue of the
prospectus;
(b) the purchase money is to be paid or satisfied wholly or in part out
of the proceeds of the issue offered for subscription by the prospectus;
or
(c) the contract depends for its validity or fulfilment on the result of that
issue.
26. Where any property to be acquired by the corporation is to be taken on
lease this Schedule shall have effect as if the expression "vendor" includes the
lessor, and the expression "purchase money" included the consideration for the
lease, and the expression "sub-purchaser" included a sub-lessee.
27. References in paragraph 8 to an option to subscribe for shares or debentures
shall include an option to acquire them from a person to whom they have been
allotted or agreed to be allotted with a view to his offering them for sale, but
shall not include an option to subscribe for or acquire shares pursuant to a bona
fide underwriting or sub-underwriting agreement.
28. For the purposes of paragraph 10 where the vendors or any of them are
a firm, the members of the firm shall not be treated as separate vendors.
29. If in the case of a corporation which has been carrying on business, or
of a business which has been carried on, for less than five years, the accounts
of the corporation or business have only been made up in respect of four years,
three years, two years, or one year, Part II of this Schedule shall have effect
as if references to four years, three years, two years, or one year, as the case
may be, were substituted for references to five years.
30. The expression "financial year" in Part II of this Schedule means the year
in respect of which the accounts of the corporation or of the business, as the
case may be, are made up, and where by reason of any alteration of the date
on which the financial year of the corporation or business terminates the accounts
of the corporation or business have been made up for a period greater or less
than a year, that greater or less period shall, for the purposes of that Part of
this Schedule, be deemed to be a financial year.
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31. Any report required by Part II of this Schedule shall either indicate by
way of note any adjustments as respects the figures of any profits or losses or
assets and liabilities dealt with by the report which appear to the persons making
the report necessary or shall make those adjustments and indicate that adjustments
have been made.
PART IV
Additional Matters to be Included in Prospectus Relating
to Invitation to the Public to Deposit Money with or
Lend Money to a Corporation
Where subsection 38(4) applies there shall be included--
32.
(a) a statement to the effect that the repayment of all moneys that have
been or may be deposited with or lent to the corporation in response
to the invitation is secured by a first charge given to the trustee for
the holders of the debentures to be issued in relation to the deposit
or loan over land vested in the corporation or in any of its guarantor
corporations and that the charge has been duly registered, or is a
registrable mortgage which has been lodged for registration, in accordance
with the law relating to the registration of land charges in the place
where the land is situated and that the aggregate amount of the moneys
and of all other liabilities, if any, secured by the charge over that land
ranking pari passu with the liability to repay those moneys does not
exceed sixty per centum of the value of the corporation's interest in
that land as shown in the valuation included in the prospectus; and
(b) a copy of a written valuation of the corporation's interest in the land
so mortgaged showing the nature and extent of the corporation's
interest made not more than six months before the date of the prospectus
by a person competent and qualified to make the valuation in the place
where the land is situated who is not an officer or employee of the
corporation or of any of its guarantor corporations or of any corporation
that by virtue of section 6 is deemed to be related to either the first-
mentioned corporation or any of its guarantor corporations.
33. (1) Where subsection 38(5) applies there shall be included--
(a) a statement to the effect--
(i) that the repayment of all moneys that have been or may be
deposited with or lent to the corporation in response to the
invitation has been secured by a charge in favour of the trustee
for the holders of the debentures over the whole or any part
of the tangible assets of the corporation and of its guarantor
corporations or of any of them; and
(ii) that having regard to the particulars in the summary made in
accordance with subparagraph (1) (b) the tangible assets secured
by the charge are sufficient and are reasonably likely to be
sufficient to meet the liability for the repayment of all such
moneys and all other liabilities ranking in priority thereto or
pari passu therewith that have been or may be incurred; and
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(b) a summary made by the approved company auditor who has made for
inclusion in the prospectus the report required by Part II of this Schedule
with respect to the assets and liabilities of the borrowing corporation
showing in tabular form the aggregate values (based upon the amounts
as disclosed in the statements of the assets and liabilities of the
borrowing corporation and its guarantor corporations which have been
prepared for the purposes of paragraphs 20 and 31) of the tangible
assets of the borrowing corporation and of its guarantor corporations
which have been charged to secure the repayment of all moneys referred
to in subparagraph (1)(a)(i), after making such adjustments as are proper
to give a true and fair view of the tangible assets, available as security
for the charge and, in particular, after making adjustments--
(i) to exclude from those aggregate values such part of the value
of any shares in or advances to a corporation as is reflected
in or depends upon the tangible assets of that corporation which
are otherwise included in the summary;
(ii) to exclude from those aggregate values such part of the value
of any shares in a corporation which is by virtue of section 6
deemed to be related to the borrowing corporation or the guarantor
corporation (as the case requires) as is properly attributable to
intangible assets of that first-mentioned corporation; and
(iii) to add to those aggregate values the amount to be raised under
the prospectus including the maximum amount of over-
subscriptions which the prospectus in accordance with section
41 specifies may be retained.
(2) In the summary the approved company auditor--
(a) shall show the amounts outstanding out of the aggregate amounts
borrowed respectively by the borrowing corporation and by its guarantor
corporations distinguishing between those which will rank for
repayment in priority to the proposed issue and those which will rank
pari passu with that proposed issue;
(b) shall state by way of note or otherwise the total amount of the values
of intangible assets excluded in making the adjustments required under
subparagraph (1)(b)(ii);
(c) may, where a corporation has given a charge over its assets to secure
a liability the amount of which may vary from time to time, take into
account the actual amount of the liability as at the date at which the
summary is made up but (in that event) shall show by way of note
the further amount which may be advanced under that charge;
(d) may explain or qualify by way of note or otherwise any of the matters
set out in the summary; and
(e) shall disclose by way of note or otherwise the amount of advances
by the borrowing corporation to any corporation which is by virtue
of section 6 deemed to be related to the borrowing corporation
distinguishing between advances which are secured and advances which
are unsecured.
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In every prospectus which relates to debentures there shall be included--
34.
(a) particulars of the limitations on the amount that the corporation may
borrow;
(b) a statement as to the amount of subscriptions that are being sought;
(c) a statement as to whether or not the corporation reserves the right to
accept or retain over-subscriptions and, if the corporation reserves such
a right, the limit on the right so reserved expressed as a sum of money;
and
(d) where applicable, a statement as to whether or not the corporation has
any right to create additional charges over any of the assets charged
to secure the repayment of the deposits or loans which will rank in
priority to or pari passu with that charge and if there is such a right
particulars of its nature and extent.
FIFTH SCHEDULE--A
[Section 39A]
(Deleted by Act A1081)
SIXTH SCHEDULE
[Section 51]
STATEMENT IN LIEU OF PROSPECTUS
PART I
Statement in Lieu of Prospectus lodged for Registration
by [insert name of the company]
The nominal share capital of the company
RM
Divided into
Shares of RM
each: RM
Shares of RM
each: RM
Shares of RM
each: RM
Amount, if any, of above capital which
Shares of RM
each: RM
consists of redeemable preference shares
The date on or before which these shares are,
or are liable, to be redeemed
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467
Names, descriptions, and addresses of
directors or proposed directors
If the share capital of the company is divided
into different classes of shares, the right of
v o t i n g at meetings of the company
conferred by, and the rights in respect of
capital and dividends attached to, the several
classes of shares respectively
Number and amount of shares and debentures 1.
shares of RM
fully paid
issued within the two years preceding
the date of this statement or proposed
2.
shares upon which RM per
or agreed to be issued as fully or partly
share credited as paid
paid up otherwise than in cash
3.
debentures RM
The consideration for the issue or intended
issue of those shares and debentures
4.
Consideration:
Number, description, and amount of any
1.
shares of RM and
shares or debentures which any person
debentures
of RM has or is entitled to be given an
option to subscribe for, or to acquire
from a person to whom they have been
allotted or agreed to be allotted with a
view to his offering them for sale
Period during which option is exercisable
2.
Until
Price to be paid for shares or debentures
3.
RM
subscribed for or acquired under option
Consideration for option or right to option
4.
Consideration:
Persons to whom option or right to option
5.
Names and addresses
was given or, if given to existing
shareholders or debenture holders as
such, the relevant shares or debentures
Names and addresses of vendors of property
purchased or acquired, or proposed to be
purchased or acquired by the company
except where the contract for its purchase
or acquisition was entered into in the
ordinary course of the business intended to
be carried on by the company or the amount
of the purchase money is not material
Amount (in cash, shares, or debentures)
payable to each separate vendor
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Amount, if any, paid or payable (in cash or
Total purchase price RM
shares or debentures) for any such
property, specifying amount, if any, paid
or payable for goodwill
Cash
RM
Shares
RM
Debentures
RM
Goodwill
RM
Short particulars of any transaction relating to
any such property which was completed
within the two preceding years and in which
any vendor to the company or any person
who is, or was at the time thereof, a
promoter, director, or proposed director of
the company had any interest direct or
indirect
Amount, if any, paid or payable as
Amount paid: RM
commission for subscribing or agreeing
Amount payable: RM
to subscribe or procuring or agreeing
to procure subscriptions for any shares
or debentures in the company; or
Rate of the commission
per cent
Amount or rate of brokerage
The number of shares, if any, which persons
have agreed for a commission to subscribe
absolutely
Amount or estimated amount of preliminary
RM
expenses
By whom those expenses have been paid or
are payable
Amount paid or intended to be paid to any
Name of promoter:
promoter
Amount: RM
Consideration for the payment
Consideration:
Any other benefit given or intended to be
Name of promoter:
given to any promoter
Nature and value of benefit:
Consideration for giving of benefit
Consideration:
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Dates of, parties to, and general nature of every
material contract (other than contracts
entered into in the ordinary course of the
business intended to be carried on by the
company or entered into more than two years
before the delivery of this statement)
Time and place at which the contracts or copies
thereof or (1) in the case of a contract not
reduced into writing, a memorandum giving
full particulars thereof, and (2) in the case
of a contract wholly or partly in a language
other than the national language or English
a copy of a certified translation thereof in
t h e national language or English or
embodying a translation in the national
language or English of the parts in a language
other than the national language or English,
as the case may be, may be inspected
Names and addresses of the auditors of the
company
Full particulars of the nature and extent of the
interest, direct or indirect, of every director
and of every expert, in the promotion of or
in the property proposed to be acquired by
the company, or, where the interest of such
a director or expert consists in being a
partner in a firm or a holder of shares or
debentures in a corporation, the nature and
e x t e n t of the interest of the firm or
corporation and where the interest of such
a director or such an expert consists in a
h o l d i n g of shares or debentures in a
corporation, a statement of the nature and
extent of the interest of the director or expert
in the corporation, with a statement of all
sums paid or agreed to be paid to him or
to the firm or corporation in cash or shares,
or otherwise, by any person (in the case of
a director) either to induce him to become,
or to qualify him as, a director, or otherwise
for service rendered by him or by the firm
o r corporation in connection with the
promotion or formation of the company
(in the case of an expert) for services
rendered by him or the firm or corporation
i n connection with the promotion or
formation of the company. For the purposes
of this paragraph a director or expert
s h a l l be deemed to have an indirect
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interest in a corporation if he has any
beneficial interest in shares or debentures
of a corporation which has an interest in
the promotion of, or in the property proposed
to be acquired by the company or if he has
a beneficial interest in shares or debentures
in a corporation which is by virtue of section
6 deemed to be related to that first mentioned
corporation
And also, in the case of a statement to be lodged
by a private company on becoming a public
company, the following items--
Rates of the dividends, if any, paid by the
company in respect of each class of shares
in the company in each of the five financial
years immediately preceding the date of this
statement or since the incorporation of the
company, whichever period is the shorter
Particulars of the cases in which no dividends
have been paid in respect of any class of
shares in any of these years
PART II
Reports to be Set Out
1. Where it is proposed to acquire a business, a report by an approved company
auditor (who shall be named in the statement) with respect to--
(a) the profits or losses of the business in respect of each of the five financial
years immediately preceding the lodging of the statement with the
Registrar; and
(b) the assets and liabilities of the business at the last date to which the
accounts of the business were made up.
2. (1) Where it is proposed to acquire shares in a corporation which by reason
of the acquisition or anything to be done in consequence thereof or in connection
therewith will become a subsidiary of the company, a report by an approved
company auditor (who shall be named in the statement) with respect to the profits
and losses and assets and liabilities of the other corporation in accordance with
subparagraph (2) or (3), as the case requires, indicating how the profits or losses
of the other corporation dealt with by the report would, in respect of the shares
to be acquired, have concerned members of the company, and what allowance
would have fallen to be made, in relation to assets and liabilities so dealt with,
for holders of other shares, if the company had at all material times held the
shares to be acquired.
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(2) If the other corporation has no subsidiaries, the report referred to in
subparagraph (1) shall--
(a) so far as regards profits and losses, deal with the profits or losses of
the other corporation in respect of each of the five financial years
immediately preceding the delivery of the statement to the Registrar;
and
(b) so far as regards assets and liabilities, deal with the assets and liabilities
of the other corporation at the last date to which the accounts of the
corporation were made up.
(3) If the other corporation has subsidiaries, the report referred to in
subparagraph (1) shall--
(a) so far as regards profits and losses, deal separately with the other
corporation's profits or losses as provided by subparagraph (2), and
in addition deal as aforesaid either--
(i) as a whole with the combined profits or losses of its subsidiaries;
or
(ii) individually with the profits or losses of each subsidiary, or,
instead of dealing separately with the other corporation's profits
or losses, deal as aforesaid as a whole with the profits or losses
of the other corporation and with the combined profits or losses
of its subsidiaries; and
(b) so far as regards assets and liabilities, deal separately with the other
corporation's assets and liabilities as provided by subparagraph (2),
and, in addition, deal as aforesaid either--
(i) as a whole with the combined assets and liabilities of its
subsidiaries, with or without the other corporation's assets and
liabilities; or
(ii) individually with the assets and liabilities of each subsidiary,
and shall indicate as respects the profits or losses and the assets and liabilities
of the subsidiaries the allowance to be