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where such a reproduction or transparency has been so incorporated,
a person is not entitled pursuant to that paragraph to a copy of or
extract from the original of that document or certificate.
Evidentiary value of copies certified by Registrar
(5) A copy of or extract from any document filed or lodged at
the office of the Registrar certified to be a true copy or extract
under the hand and seal of the Registrar shall in any proceedings
be admissible in evidence as of equal validity with the original
document.
(6) The reference in subsection (5) to a document includes,
where a reproduction or transparency of that document has been
incorporated with a register kept by the Registrar, a reference to
that reproduction or transparency.
Evidence of statutory requirements
(7) In any legal proceedings--
(a) a cerficate under the hand and seal of the Registrar that,
at a date or during a period specified in the certificate,
n o company was registered under this Act or a
corresponding previous law by a name specified in the
certificate shall be received as prima facie evidence that
at the date or during that period, as the case may be, no
company was registered by that name under this Act or
any corresponding previous law; and
(b) a certificate under the hand and seal of the Registrar that
a requirement of this Act specified in the certificate--
(i) had or had not been complied with at a date or
within a period specified in the certificate; or
(ii) had been complied with at a date specified in the
certificate but not before that date,
shall be received as prima facie evidence of matters
specified in the certificate.
(8) If the Registrar is of the opinion that a document lodged or
registered with him--
(a) contains matter contrary to law;
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(b) contains matter that, in a material particular, is false or
misleading in the form or context in which it is included;
(c) by reason of an omission or misdescription has not been
duly completed;
(d) does not comply with the requirements of this Act; or
(e) contains an error, alteration or erasure,
the Registrar may request--
(f) that the document be appropriately amended or completed
and resubmitted;
(g) that a fresh document be submitted in its place; or
(h) where the document has not been duly completed, that
a supplementary document in the prescribed form be
lodged.
(9) The Registrar may require a person who submits a document
for lodgment with the Registrar to produce to the Registrar such
other document, or to furnish to the Registrar such information,
as the Registrar thinks necessary in order to form an opinion
whether he may refuse to receive or register the document.
Appeal
(10) Any person aggrieved by the refusal of the Registrar to
register any corporation or to register or receive any document or
by any act or decision of the Registrar may appeal within thirty
days of the decision of the Registrar to the Court which may
confirm the refusal, act or decision or give such directions in the
matter as seem proper or otherwise determine the matter but this
subsection shall not apply to any act decision of the Registrar--
(a) in respect of which any provision in the nature of the
appeal or review is expressly provided in this Act; or
(b) which is declared by this Act to be conclusive or final
or is embodied in any document declared by this Act to
be conclusive evidence of any act, matter or thing.
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Destruction, etc., of old records
(11) The Registrar may, if in his opinion it is no longer necessary
or desirable to retain them, destroy or give to the National Archives--
(a) in the case of a corporation--
(i) any return of allotment of shares for cash which
has been lodged or filed for not less than six
years;
(ii) any annual return or balance-sheet that has been
lodged or filed for not less than seven years or any
document creating or evidencing a charge or the
complete or partial satisfaction of a charge where
a memorandum of satisfaction of a charge has
been registered for not less than seven years; or
(iii) any other document (other than the memorandum
and articles or any other document affecting them)
which has been lodged, filed or registered for not
less than fifteen years;
(b) in the case of a corporation that has been dissolved or
has ceased to be registered for not less than fifteen years,
any document lodged, filed or registered; or
(c) any document a transparency of which has been
incorporated with a register kept by the Registrar.
Electronic filing of documents
11A. (1) The Registrar may provide a service for the electronic
filing or lodging of documents required by this Act to be filed or
lodged with the Registrar.
(2) A person who intends to use the service provided under
subsection (1) shall become a subscriber to the service by paying
the prescribed fee and by complying with such terms and conditions
as may be determined by the Registrar.
(3) Only a subscriber to the service provided under subsection
(1) may electronically file or lodge documents with the Registrar.
(4) A document electronically filed or lodged under this section
shall be deemed to have satisfied the requirement for filing or
lodgment if the document is communicated or transmitted to the
Registrar in such manner as may be prescribed by regulations or
approved by the Registrar.
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(5) The Registrar may, by order published in the Gazette, prescribe
the documents that may be electronically filed or lodged.
(6) A document that is required to be stamped, signed or sealed
shall, if it is to be electronically filed or lodged be certified or
authenticated in such manner as may be prescribed by regulations
or approved by the Registrar.
Evidentiary value of copies of electronically filed documents
certified by Registrar
(7) A copy of or an extract from any document electronically
filed or lodged with the Registrar under subsection (1) supplied
or issued by the Registrar and certified to be a true copy thereof
or extract therefrom under the hand and seal of the Registrar shall
be admissible in evidence in any proceedings as of equal validity
as the original document.
(8) Where a document is electronically filed or lodged with the
Registrar, the Registrar or his authorized agents shall not be liable
for any loss or damage suffered by any person by reason of any
error or omission of whatever nature or however arising appearing
in any document obtained by any person under the service referred
to in subsection (1) if such error or omission was made in good
faith and in the ordinary course of the discharge of the duties of
the Registrar or of his authorized agents or occurred or arose as
a result of any defect or breakdown in the service or in the equipment
used for the provision of the service.
Enforcement of duty to make returns
12. (1) If a corporation or person, having made default in complying
with--
(a) any provision of this Act or of any other law which
requires the lodging or filing in any manner with the
Registrar or the Official Receiver of any return, account
or other document or the giving of notice to him of any
matter; or
(b) any request of the Registrar or the Official Receiver to
amend or complete and resubmit any document or to
submit a fresh document,
fails to make good the default within fourteen days after the service
on the corporations or person of a notice requiring it to be done,
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the Court or any Sessions Court may, on an application by any
member or creditor of the corporation or by the Registrar or the
Official Receiver, make an order directing the corporation and any
officer thereof or that person to make good the default within such
time as is specified in the order.
(2) Any such order may provide that all costs of and incidental
to the application shall be borne by the corporation or by any
officers of the corporation responsible for the default or by that
person.
(3) Nothing in this section shall limit the operation of any
written law shall imposing penalties on a corporation or its officers
or that person in respect of any such default as aforesaid.
Relodging of lost registered documents
13. (1) If in the case of any corporation incorporated or registered
under this or any corresponding previous written law the memorandum
or articles or any other document relating to the corporation filed
or lodged with the Registrar has been lost or destroyed, the corporation
may apply to the Registrar for leave to lodge a copy of the document
as originally filed or lodged.
(2) On such application being made the Registrar may direct
notice thereof to be given to such persons and in such manner as
he thinks fit.
(2A) Where the Registrar has reasonable cause to believe that
a document in relation to a corporation filed or lodged with him
has been lost or destroyed, he may by notice in writing direct the
corporation to lodge a copy of the document and the corporation
or any officer of the corporation shall, within fourteen days after
the service of the notice or such longer period as the Registrar may
allow, comply with the direction of the Registrar.
(3) Where the Registrar is satisfied of or has reasonable cause
to believe--
(a) the loss or destruction of the original document;
(b) the correctness of the date of filing or lodgment thereof
with him; and
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(c) the correctness of the copy of the document produced to
him,
the Registrar may certify the same upon the copy and direct that
the copy be lodged in the manner required by law in respect of
the original.
(4) Upon the lodgment the copy for all purposes shall, from
such date as is mentioned in the certificate as the date of the filing
or lodging of the original with the Registrar, have the same force
and effect as the original.
(5) The Court may, by order upon application by any person
aggrieved and after notice to any other person whom the Court
directs, confirm, vary or rescind the certificate and the order may
be lodged with the Registrar and shall be registered by him, but
no payments, contracts, dealings, acts and things made, had or
done in good faith before the registration of the order and upon
the faith of and in reliance upon the certificate shall be invalidated
or affected by the variation or rescission.
(6) No fee shall be payable upon the lodging of a document
under this section.
(7) If default is made in complying with the direction of the
Registrar under subsection (2A), the corporation and any officer
of the corporation who is in default shall be guilty of an offence
against this Act.
Penalty: Five thousand ringgit. Default penalty.
PART III
CONSTITUTION OF COMPANIES
DIVISION 1
INCORPORATION
Formation of companies
14. (1) Subject to this Act any two or more persons associated
for any lawful purpose may by subscribing their names to a
memorandum and complying with the requirements as to registration
form an incorporated company.
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(2) A company may be--
(a) a company limited by shares;
(b) a company limited by guarantee;
(c) a company limited both by shares and guarantee; or
(d) an unlimited company.
Prohibition of unincorporated associations of more than twenty
members for gain
(3) An association or partnership shall not be formed for the
purpose of carrying on any business which has for its object the
acquisition of gain by the association or partnership or the individual
members thereof unless--
(a) it is an association or partnership formed for the purpose
of carrying on any profession or calling which is declared
by the Minister to be a profession or calling which is not
customarily carried on by an association or partnership
incorporated under this Act;
(b) in the case of any other association or partnership, it
consists of not more than twenty members;
(c) it is incorporated under this Act; or
(d) it is formed in pursuance of some other written law or
letters patent.
Prohibition of registration of company limited by guarantee
with a share capital
14A. On or after the coming into operation of this Act, no company
may be formed as, or become, a company limited by guarantee
with a share capital.
Private company
15. (1) A company having a share capital may be incorporated as
a private company if its memorandum or articles--
(a) restricts the right to transfer its shares;
(b) limits to not more than fifty the number of its members
(counting joint holders of shares as one person and not
counting any person in the employment of the company
or of its subsidiary or any person who while previously
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in the employment of the company or of its subsidiary
was and thereafter has continued to be a member of the
company);
(c) prohibits any invitation to the public to subscribe for any
shares in or debentures of the company; and
(d) prohibits any invitation to the public to deposit money
with the company for fixed periods or payable at call,
whether bearing or not bearing interest.
(2) Where, upon the commencement of this Act, neither the
memorandum nor articles of a company that is a private company
by virtue of paragraph (a) of the definition of "private company"
in subsection 4(1) contain the restrictions, limitations and prohibitions
required by subsection (1) to be included in the memorandum or
articles of a company that may be incorporated as a private company,
the articles of the company shall be deemed to include each such
restriction, limitation or prohibition that is not so included and a
restriction on the right to transfer its shares that is so deemed to
be included in its articles shall be deemed to be a restriction that
prohibits the transfer of shares except to a person approved by the
directors of the company.
(3) Where a restriction, limitation or prohibition deemed to be
included in the articles of a company under subsection (2) is
inconsistent with any provision already included in the memorandum
or articles of the company, that restriction, limitation or prohibition
shall, to the extent of the inconsistency, prevail.
(4) A private company may, by special resolution, alter any
restriction on the right to transfer its shares included, or deemed
to be included, in its memorandum or articles or any limitation on
the number of its members included, or deemed to be included,
in its memorandum or articles, but not so that the memorandum
and articles of the company cease to include the limitation required
by paragraph (1)(b) to be included in the memorandum or articles
of a company that may be incorporated as a private company.
Registration and incorporation
16. (1) Persons desiring the incorporation of a company shall
lodge the memorandum and the articles, if any, of the proposed
company with the Registrar together with the other documents
required to be lodged by or under this Act, and the Registrar on
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payment of the appropriate fees shall subject to this Act register
the company by registering the memorandum and articles, if any.
Statutory declarations
(2) The person named in the articles as the first secretary of the
company shall lodge with the Registrar a declaration in the prescribed
form stating that all or any of the requirements of this Act have
been complied with and containing such information as may be
prescribed, and the Registrar may accept such a declaration as
sufficient evidence of compliance.
(3) (Deleted by Act A836).
Subscriber to lodge statutory declaration
(3A) Every promoter of a proposed company who is a natural
person shall before the incorporation of the company make and
lodge with the Registrar and the Official Receiver a statutory
declaration in the form prescribed by regulations that he will not
be acting in contravention of sections 125 and 130.
Certificate of incorporation
(4) On the registration of the memorandum the Registrar shall
certify under his hand and seal that the company is on and from
the date specified in the certificate incorporated, and that the
company is--
(a) a company limited by shares;
(b) a company limited by guarantee;
(c) a company limited both by shares and guarantee; or
(d) an unlimited company.
as the case may be, and where applicable, that it is a private
company.
Effect of incorporation
(5) On and from the date of incorporation specified in the certificate
of incorporation but subject to this Act the subscribers to the
memorandum together with such other persons as may from time
to time become members of the company shall be a body corporate
by the name contained in the memorandum capable forthwith of
exercising all the functions of an incorporated company and of
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suing and being sued and having perpetual succession and a common
seal with power to hold land but with such liability on the part of
the members to contribute to the assets of the company in the event
of its being wound up as is provided by this Act.
Members of company
(6) The subscribers to the memorandum shall be deemed to
have agreed to become members of the company and on the
incorporation of the company shall be entered as members in its
register of members, and every other person who agrees to become
a member of a company and whose name is entered in its register
of members shall be a member of the company.
(7) The Registrar shall not register a memorandum and articles,
if any, of a proposed company unless the memorandum or articles
contain the names of at least two persons who are to be the first
directors of the proposed company.
(8) Notwithstanding anything to the contrary in this Act or any
rule of law, the Registrar shall refuse to register the memorandum
of a proposed company if he is satisfied that--
(a) the proposed company is likely to be used for unlawful
purposes or any purpose prejudicial to or incompatible
with peace, welfare, security, public order, good order or
morality in Malaysia; or
(b) it would be prejudicial to national security or public
interest for the proposed company to be registered.
Membership of holding company
17. (1) A corporation cannot be a member of a company which
is its holding company, and any allotment or transfer of shares in
a company to its subsidiary shall be void.
(2) Subsection (1) shall not apply where the subsidiary is concerned
as personal representative, or where it is concerned as trustee,
unless the holding company or a subsidiary thereof is beneficially
interested under the trust and is not so interested only by way of
security for the purposes of a transaction entered into by it in the
ordinary course of a business which includes the lending of money.
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(3) This section shall not prevent a subsidiary which is, at the
commencement of this Act, a member of its holding company,
from continuing to be a member but, subject to subsection (2), the
subsidiary shall have no right to vote at meetings of the holding
company or any class of members thereof.
(4) This section shall not prevent a subsidiary from continuing
to be a member of its holding company if, at the time when it
becomes a subsidiary thereof, it already holds shares in that holding
company, but--
(a) subject to subsection (2), the subsidiary shall have no
right to vote at meetings of the holding company or any
class of members thereof; and
(b) the subsidiary shall, within the period of twelve months
or such longer period as the Court may allow after becoming
the subsidiary of its holding company, dispose of all of
its shares in the holding company.
(5) Subject to subsection (2), subsections (1), (3) and (4) thereof
shall apply in relation to a nominee for a corporation which is a
subsidiary as if references in those subsections to such a corporation
included references to a nominee for it.
(6) This section shall not operate to prevent the allotment of
shares in a holding company to a subsidiary which already lawfully
holds shares in the holding company if the allotment is made by
way of capitalization of reserves of the holding company and is
made to all members of the holding company on a basis which is
in direct proportion to the number of shares held by each member
in the holding company.
(7) Where but for this section a subsidiary would have been
entitled to subscribe for shares in the holding company, the holding
company may, on behalf of the subsidiary, sell the shares for
which the subsidiary would otherwise have been entitled to subscribe.
(8) In relation to a holding company that is either a company
limited by guarantee or an unlimited company, the reference in
this section to shares, whether or not it has a share capital, shall
be construed as including a reference to the interest of its members
as such, whatever the form of that interest.
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Requirements as to memorandum
18. (1) The memorandum of every company shall be printed and
divided into numbered paragraphs and dated and shall state, in
addition to other requirements--
(a) the name of the company;
(b) the objects of the company;
(c) unless the company is an unlimited company, the amount
of share capital, if any, with which the company proposes
to be registered and the division thereof into shares of
a fixed amount;
(d) if the company is a company limited by shares, that the
liability of the members is limited;
(e) if the company is a company limited by guarantee, that
the liability of the members is limited and that each
member undertakes to contribute to the assets of the
company, in the event of its being wound up while he is
a member or within one year after he ceases to be a
member, for payment of the debts and liabilities of the
company contracted before he ceases to be a member and
of the costs, charges and expenses of winding up and for
adjustment of the rights of the contributories among
themselves, such amount as may be required not exceeding
a specified amount in addition to the amount, if any,
unpaid on any shares held by him;
(f) if the company is an unlimited company, that the liability
of the members is unlimited;
(g) the full names, addresses and occupations of the subscribers
thereto; and
(h) that the subscribers are desirous of being formed into a
company in pursuance of the memorandum and (where
the company is to have a share capital) respectively agree
to take the number of shares in the capital of the company
set out opposite their respective names.
(2) Each subscriber to the memorandum shall, if the company
is to have a share capital, in his own handwriting state the number
of shares (not less that one) that he agrees to take and, whether
or not the company is to have a share capital, shall sign the
memorandum in the presence of at least one witness (not being
another subscriber) who shall attest the signature and add his
address.
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(3) A statement in the memorandum of a company limited by
shares that the liability of members is limited shall mean that the
liability of the members is limited to the amount, if any, unpaid
on the shares respectively held by them.
DIVISION 2
POWERS
Powers of a company
19. (1) Subject to subsection (2) the powers of a company, whether
incorporated before or after the commencement of this Act, shall
include--
(a) power to make donations for patriotic or for charitable
purposes;
(b) power to transact any lawful business in aid of Malaysia
in the prosecution of any war or hostilities in which
Malaysia is engaged; and
(c) unless expressly excluded or modified by the memorandum
or articles, the powers set forth in the Third Schedule but
the powers of a company which has by the licence of the
Minister pursuant to section 24 been registered without
the word "Berhad" or pursuant to any corresponding
previous written law been registered without the addition
of the word "Limited" to its name shall not include any
of the powers set forth in the Third Schedule unless
expressly included in the memorandum or articles with
the approval in writing of the Minister.
Restriction as to power of certain companies to hold lands
(2) A company formed for the purpose of providing recreation
or amusement or promoting commerce, industry, art, science, religion,
or any other like object not involving the acquisition of gain by
the company or by its individual members shall not acquire any
land without the licence of the Minister but the Minister may by
licence empower any such company to hold lands in such quantity
and subject to such conditions as he thinks fit.
(3) A licence given by the Minister under subsection (2) shall
be in the prescribed form or as near thereto as circumstances
admit.
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(4) Any company which is dissatisfied with any decision of the
Minister under subsection (2) may within one month of such decision
appeal to the Yang di-Pertuan Agong who shall have power to
confirm, reverse or vary the decision.
(5) Every decision by the Yang di-Pertuan Agong and every
decision by the Minister under this section, unless such decision
is reversed or varied by the Yang di-Pertuan Agong under this
section, shall be final and shall not be called into question by any
court.
Ultra vires transactions
20. (1) No act or purported act of a company (including the entering
into of an agreement by the company and including any act done
on behalf of a company by an officer or agent of the company
under any purported authority, whether express or implied, of the
company) and no conveyance or transfer of property, whether real
or personal, to or by a company shall be invalid by reason only
of the fact that the company was without capacity or power to do
the act or to execute or take the conveyance or transfer.
(2) Any such lack of capacity or power may be asserted or
relied upon only in--
(a) proceedings against the company by any member of the
company or, where the company has issued debentures
secured by a floating charge over all or any of the company's
property, by the holder of any of those debentures or the
trustee for the holders of those debentures to restrain the
doing of any act or acts or the conveyance or transfer of
any property to or by the company;
(b) any proceedings by the company or by any member of
the company against the present or former officers of the
company; or
(c) any petition by the Minister to wind up the company.
(3) If the unauthorized act, conveyance or transfer sought to be
restrained in any proceedings under paragraph (2)(a) is being or
is to be performed or made pursuant to any contract to which the
company is a party, the Court may, if all the parties to the contract
are parties to the proceedings and if the Court deems it to be just
and equitable, set aside and restrain the performance of the contract
and may allow to the company or to the other parties to the
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contract (as the case requires) compensation for the loss or damage
sustained by either of them which may result from the action of
the Court in setting aside and restraining the performance of the
contract but anticipated profits to be derived from the performance
of the contract shall not be awarded by the Court as a loss or
damage sustained.
General provisions as to alteration of memorandum
21. (1) The memorandum of a company may be altered to the
extent and in the manner provided by this Act but not otherwise.
(1A) Notwithstanding subsection (1) and subject to section 33
and section 181, if a provision of the memorandum of a company
could lawfully have been contained in the articles of the company,
the company may, by special resolution, alter the memorandum--
(a) by altering; or
(b) by deleting,
the provision, unless the memorandum itself prohibits the alteration
or deletion of that provision.
(1B) Nothing in subsection (1A) permits the alteration or deletion
of a provision of the memorandum that relates to rights to which
only members included in a particular class of members are entitled.
(2) In addition to observing and subject to any other provision
of this Act requiring the lodging with the Registrar of any resolution
of a company or order of the Court or other document affecting
the memorandum of a company, the company shall within fourteen
days after the passing of any such resolution or the making of any
such order lodge with the Registrar a copy of the resolution or
other document or an office copy of the order together with (unless
the Registrar dispenses therewith) a printed copy of the memorandum
as altered, and if default is made in complying with this subsection
the company and every officer of the company who is in default
shall be guilty of an offence against this Act.
Penalty: *One thousand ringgit. Default penalty.
(3) The Registrar shall register every resolution, order or other
d o c u m e n t lodged with him under this Act that affects the
memorandum of a company and, where an order is so registered
shall certify the registration of that order.
*NOTE--Previously "two hundred and fifty ringgit"see Companies (Amendment) Act 1986
[Act A657].
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(4) The certificate of the Registrar shall be conclusive evidence
that all the requirements of this Act with respect to the alteration
and any confirmation thereof have been complied with.
(5) Notice of the registration shall be published in such manner,
if any, as the Court or the Registrar directs.
(6) The Registrar shall, where appropriate, issue a certificate of
incorporation in accordance with the alteration made to the
memorandum.
Names of companies
22. (1) Except with the consent of the Minister, a company shall
not be registered by a name that, in the opinion of the Registrar,
is undesirable or is a name, or a name of a kind, that the Minister
has directed the Registrar not to accept for registration.
(2) The Minister shall cause a direction given by him under
subsection (1) to be published in the Gazette.
(3) A limited company shall have "Berhad" or the abbreviation
"Bhd." as part of and at the end of its name.
(4) A private company shall have the word "Sendirian" or the
abbreviation "Sdn." as part of its name, inserted immediately before
the word "Berhad" or before the abbreviation "Bhd." or in the case
of an unlimited company, at the end of its name.
(5) It shall be lawful to use and no description of a company
shall be deemed inadequate or incorrect by reason of the use of--
(a) the abbreviation "Sdn." in lieu of the word "Sendirian"
contained in the name of a company;
(b) the abbreviation "Bhd." in lieu of the word "Berhad"
contained in the name of a company; or
(c) any of such words in lieu of the corresponding abbreviation
contained in the name of a company.
(6) Prior to the registration of--
(a) an intended company or foreign company; or
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(b) the change of name of a company or foreign company,
the applicant for registration shall apply in the prescribed form to
the Registrar for a search as to the availability of the proposed
name of the intended company, company or foreign company and
for reservation of that name, if available.
(7) If the Registrar is satisfied as to the bona fides of the application
and that the proposed name is a name by which the intended
company, company or foreign company could be registered without
contravention of subsection (1), he shall reserve the proposed
name for a period of three months from the date of the lodging
of the application.
(8) (Deleted by Act A836).
(9) During a period for which a name is reserved, no company
or foreign company (other than the intended company, company
or foreign company in respect of which the name is reserved) shall
be registered under this Act, whether originally or on change of
name, under the reserved name or under any other name that, in
the opinion of the Registrar, so closely resembles the reserved
name as to be likely to be mistaken for that name.
(10) The reservation of a name under this section in respect of
an intended company, company or foreign company does not in
itself entitle the intended company, company or foreign company
to be registered by that name, either originally or on change of
name.
Change of name
23. (1) A company may by special resolution resolve that its
name should be changed to a name by which the company could
have been registered without contravention of subsection 22(1).
(2) If the Registrar approves the name which the company has
resolved should be its new name he shall on payment of the
prescribed fee issue a certificate of incorporation of the company
under the new name and upon the issue of such certificate of
incorporation the change of name shall become effective.
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(3) If the name of a company is (whether through inadvertence
or otherwise and whether originally or by change of name) a name
by which the company could not be registered without contravention
of subsection 22(1) the company may by special resolution change
its name to a name by which the company could be registered
without contravention of that subsection and, if the Registrar so
directs, shall so change it within six weeks after the date of the
direction or such longer period as the Registrar allows unless the
Minister by written notice annuls the direction, and if the company
fails to comply with the direction it shall be guilty of an offence
against this Act.
Penalty: *One thousand ringgit. Default penalty.
(4) Where the name of a company incorporated pursuant to any
corresponding previous written law has not been changed since the
commencement of this Act, the Registrar shall not, except with the
approval of the Minister, exercise his power under subsection (3)
to direct the company to change its name.
(5) Upon the commencement of this Act a company which has
the word "Limited" as the last word of its name shall be deemed
to have changed its name by substituting for the word "Limited"
the word "Berhad" and a company which has the abbreviation
"Ltd." at the end of its name shall be deemed to have altered its
name by substituting for the abbreviation "Ltd." the abbreviation
"Bhd." and where upon the date after the commencement of this
Act a company which is a private company does not have the word
"Sendirian" or the abbreviation "Sdn." as part of its name immediately
before the word "Berhad" or before the abbreviation "Bhd." or in
the case of an unlimited company at the end of its name, the
company shall be deemed to have altered its name to include the
abbreviation "Sdn." immediately before the word "Berhad" or
before the abbreviation "Bhd." or in the case of an unlimited
company at the end of its name and the Registrar shall as soon as
practicable after the commencement of this Act alter the name of
the company set forth in the memorandum accordingly and issue
a new certificate of incorporation in the name of the company as
so altered:
Provided that this section shall not operate to prevent a company
which immediately before the commencement of this Act and
which had the word "Limited" or the abbreviation "Ltd." as part
of its name or which was a private company and which did not
*NOTE--Previously "two hundred and fifty ringgit"see Companies (Amendment) Act 1986
[Act A657].
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have the word "Sendirian" or the abbreviation "Sdn." as part of
its name from continuing to use the name set forth in its memorandum
immediately before the commencement of this Act until the expiration
of two years after the commencement of this Act.
(6) A change of name pursuant to this Act shall not affect the
identity of the company or any rights or obligations of the company
or render defective any legal proceedings by or against the company,
and any legal proceedings that might have been continued or
commenced by or against it by its former name may be continued
or commenced by or against it by its new name.
(7) Where the winding up of a company commences within one
year after the company has changed its name, the former name as
well as the existing name of the company shall appear on all
notices and advertisements in relation to the winding up.
Omission of "Berhad" in name of charitable and other companies
24. (1) Where it is proved to the satisfaction of the Minister that
a proposed limited company is being formed for the purpose of
providing recreation or amusement or promoting commerce, industry,
art, science, religion, charity, pension or superannuation schemes
or any other object useful to the community, and will apply its
profits, if any, or other income in promoting its objects and will
prohibit the payment of any dividend to its members, the Minister
may (after requiring, if he thinks fit, the proposal to be advertised
in such manner as he directs either generally or in a particular
case) by licence direct that it be registered as a company with
limited liability without the addition of the word "Berhad" to its
name, and the company may be registered accordingly.
(2) Where it is proved to the satisfaction of the Minister--
(a) that the objects of a limited company are restricted to
those specified in subsection (1) and to objects incidental
or conducive thereto; and
(b) that by its constitution the company is required to apply
its profits, if any, or other income in promoting its objects
and is prohibited from paying any dividend to its members,
the Minister may by licence authorize the company to change its
name to a name which does not contain the word "Berhad", being
a name approved by the Registrar.
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(3) A licence under this section may be issued on such conditions
as the Minister thinks fit, and those conditions shall be binding on
the company and shall if the Minister so directs be inserted in the
memorandum or articles of the company and the memorandum or
articles may by special resolution be altered to give effect to any
such direction.
(4) Where the memorandum or articles of a company include
as a result of a direction of the Minister given pursuant to subsection
(3) or pursuant to any corresponding previous written law a provision
that the memorandum or articles shall not be altered except with
the consent of the Minister the company may with the consent of
the Minister by special resolution alter any provision of the
memorandum or articles.
(5) A company shall, while a licence granted by the Minister
under this or under any corresponding previous written law is in
force, be exempted from complying with this Act relating to the
use of the word "Berhad" as any part of its name.
(6) A licence under this section or under any corresponding
previous written law may at any time be revoked by the Minister
and upon revocation the Registrar shall enter the word "Berhad"
at the end of the name of the company upon the register, and the
company shall thereupon cease to enjoy the exemption granted by
reason of the licence under this section but before a licence is so
revoked the Minister shall give to the company notice in writing
of his intention and shall afford it an opportunity to be heard.
(7) Where a licence under this section or under any corresponding
previous written law is revoked the memorandum or articles of the
Company may be altered by special resolution so as to remove any
provision in or to the effect that the memorandum or articles may
be altered only with the consent of the Minister and paragraph
19(1)(c) shall apply to the company as if it had never had a licence
under this section.
Registration of unlimited company as limited, etc.
25. (1) Subject to this section, an unlimited company may convert
to a limited company by passing a special resolution determining
so to convert and lodging with the Registrar for registration a copy
of the resolution.
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(2) On the lodging of the copy of the resolution the Registrar
shall, subject to this Act--
(a) register the copy;
(b) make such endorsements in or alterations to his registers
as are necessary to record the effect of the resolution
with respect to the conversion; and
(c) issue to the company a certificate of incorporation of the
company altered to meet the circumstances of the case
and cancel the previous certificate of incorporation of the
company.
(3) On issuing the certificate of incorporation the Registrar
may, by notice in writing served on the company, dispense with
the lodging by the company of any document which had been
lodged with him on the occasion of or subsequent to the incorporation
of the company.
(4) The conversion shall take effect on the issue of the certificate
of incorporation under subsection (2) and the memorandum shall
thereupon be altered in accordance with the terms of the resolution.
(5) A conversion of a company pursuant to this section shall not
affect the identity of the company or any rights or obligations of
the company or render defective any legal proceedings by or against
the company and any legal proceedings that could have been continued
or commenced by or against it prior to the conversion may,
notwithstanding the conversion, be continued or commenced by or
against it after the conversion.
Change from public to private and from private to public
company
26. (1) A public company having a share capital may convert to
a private company by lodging with the Registrar a copy of a
special resolution--
(a) determining to convert to a private company and specifying
an appropriate alteration to its name; and
(b) altering the provisions or its memorandum or articles so
far as is necessary to impose the restrictions, limitations
and prohibitions referred to in subsection 15(1).
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(2) A private company may, subject to anything contained in its
memorandum or articles, convert to a public company by lodging
with the Registrar--
(a) a copy of a special resolution determining to convert to
a public company and specifying an appropriate alteration
to its name;
(b) a statement in lieu of prospectus; and
(c) a statutory declaration in the prescribed form verifying
that paragraph 52(2)(b) has been complied with,
and thereupon the restrictions, limitations and prohibitions referred
to in subsection 15(1) as included in or deemed to be included in
the memorandum or articles of the company shall cease to form
part of the memorandum or articles.
(3) On compliance by a company with subsection (1) or (2) and
on the issue of a certificate of incorporation of the company altered
accordingly the company shall be a private company or a public
company (as the case requires).
(4) A conversion of a company pursuant to subsection (1) or (2)
shall not affect the identity of the company or any rights or obligations
of the company or render defective any legal proceedings by or
against the company, and any legal proceedings that could have
been continued or commenced by or against it prior to the conversion
may, notwithstanding any change in the company's name or capacity
in consequent of the conversion, be continued or commenced by
or against it after the conversion.
Default in complying with requirements as to private companies
27. (1) Where, on the application of the Minister with respect to
a private company or of any member or creditor of a private
company, the Court is satisfied that default has been made in
relation to the company in complying with a prohibition of a kind
specified in paragraph 15(1)(c) or (d) that is included, or is deemed
to be included, in the memorandum or articles of the company the
Court may by order determine that, on such date as the Court
specifies in its order, the company ceased to be a private company.
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(2) Where--
(a) default has been made in relation to a private company
in complying with a limitation of a kind specified in
paragraph 15(1)(b) that is included, or is deemed to be
included in the memorandum or articles of the company,
(b) a private company has been convicted of an offence under
subsection (7);
(c) the memorandum or articles of a private company have
been so altered that they no longer include restrictions,
limitations or prohibitions of the kinds specified in
subsection 15(1); or
(d) a private company has ceased to have a share capital,
the Registrar may by notice served on the company determine that,
on such date as is specified in the notice, the company ceased to
be a private company.
(3) Where, under this section, the Court or the Registrar determines
that a company has ceased to be a private company--
(a) the company shall be a public company and shall be
deemed to have been a public company on and from the
date specified in the order or notice;
(b) the company shall, on the date so specified be deemed
to have changed its name by the omission from the name
of the word "Sendirian" or the abbreviation "Sdn.", as
the case requires; and
(c) the company shall, within a period of fourteen days after
the date of the order or the notice, lodge with the Registrar--
(i) a statement in lieu of prospectus;
(ii) a statutory declaration in the prescribed form
verifying that paragraph 52(2)(b) has been complied
with; and
(iii) where an order has been made under subsection (1)
an office copy of the order.
(4) Where the Court is satisfied that a default or alteration
referred to in subsection (1) or (2) has occurred but that it was
accidental or due to inadvertence or to some other sufficient cause
or that on other grounds it is just and equitable to grant relief, the
Court may, on such terms and conditions as to the Court seem just
and expedient, determine that the company has not ceased to be
a private company.
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(5) A company that, by virtue of a determination made under
this section, has become a public company shall not convert to a
private company without the leave of the Court.
(6) If default is made in complying with paragraph (3)(c) the
company and every officer of the company who is in default shall
be guilty of an offence against this Act.
Penalty: *One thousand ringgit. Default penalty.
(7) Where any subscription for shares in or debentures of, or
any deposit of money with, a private company is arranged by or
through an advocate, broker, agent or any other person (whether
an officer of the company or not) who invites the public to make
use of his services in arranging investments or who holds himself
out to the public as being in a position to arrange investments, the
company and every person, including an officer of the company,
who is a party to the arrangement shall be guilty of an offence
against this Act.
Penalty: Imprisonment for †ten years or two hundred and fifty
thousand ringgit or both.
(8) Where default is made in relation to a private company in
complying with any restriction, limitation or prohibition of a kind
specified in subsection 15(1) that is included, or deemed to be
included, in the memorandum or articles of the company, the
company and every officer of the company who is in default shall
be guilty of an offence against this Act.
Penalty: Imprisonment for †ten years or two hundred and fifty
thousand ringgit or both.
Alterations of objects in memorandum
28. (1) Subject to this section a company may by special resolution
alter the provisions of its memorandum with respect to the objects
of the company.
(2) Where a company proposes to alter its memorandum, with
respect to the objects of the company it shall give by post twenty-
one days' written notice specifying the intention to propose the
resolution as a special resolution and to submit it for passing to
a meeting of the company to be held on a day specified in the
notice.
*NOTE--Previously "two hundred and fifty ringgit"see Companies (Amendment) Act 1986
[Act A657]
†NOTE--Previously "five years or thirty thousand ringgit"see Companies (Amendment)
(No. 2) Act 1992 [Act A836].
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(3) The notice shall be given to all members, and to all trustees
for debenture holders and if there are no trustees for any class of
debenture holders to all debenture holders of that class whose
names are, at the time of the posting of the notice, known to the
company.
(4) The Court may, in the case of any person or class of persons
for such reasons as to it seem sufficient, dispense with the notice
required by subsection (2).
(5) If an application for the cancellation of an alteration is made
to the Court in accordance with this section by--
(a) the holders of not less in the aggregate than ten per
centum in nominal value of the company's issued share
capital or any class of that capital or, if the company is
not limited by shares, not less than ten per centum of the
company's members; or
(b) the holders of not less than ten per centum in nominal
value of the company's debentures,
the alteration shall not have effect except so far as it is confirmed
by the Court.
(6) The application shall be made within twenty-one days after
the date on which the resolution altering the company's objects
was passed, and may be made on behalf of the persons entitled to
make the application by such one or more of their number as they
appoint in writing for the purpose.
(7) On the application the Court--
(a) shall have regard to the rights and interests of the members
of the company or of any class of them as well as to the
rights and interests of the creditors;
(b) may if it thinks fit adjourn the proceedings in order that
an arrangement may be made to the satisfaction of the
Court for the purchase (otherwise than by the company)
of the interests of dissentient members;
(c) may give such directions and make such orders as it
thinks expedient for facilitating or carrying into effect
any such arrangement; and
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(d) may make an order cancelling the alteration or confirming
the alteration either wholly or in part and on such terms
and conditions as it thinks fit.
(8) Notwithstanding any other provision of this Act a copy of
a resolution altering the objects of a company shall not be lodged
with the Registrar before the expiration of twenty-one days after
the passing of the resolution or if any application to the Court has
been made before the application has been determined by the
Court (whichever is the later).
(9) A copy of the resolution shall be lodged with the Registrar
by the company within fourteen days after the expiration of the
twenty-one days referred to in subsection (8), but if an application
has been made to the Court in accordance with this section the
copy shall be lodged with the Registrar together with an office
copy of the order of the Court within fourteen days after the
application has been determined by the Court.
(10) On compliance by a company with subsection (9) the
alteration, if any, of the objects shall take effect.
Articles of association
29. (1) There may in the case of a company limited by shares
and there shall in the case of a company limited by guarantee or
limited both by shares and guarantee or an unlimited company be
registered with the memorandum, articles signed by the subscribers
to the memorandum prescribing regulations for the company.
(2) Articles shall be--
(a) printed;
(b) divided into numbered paragraphs; and
(c) signed by each subscriber to the memorandum in the
presence of at least one witness (not being another
subscriber) who must attest the signature and add his
address.
(3) In the case of an unlimited company the articles, if the
company has a share capital, shall state the amount of share capital
with which the company proposes to be registered and the division
thereof into shares of a fixed amount.
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(4) In the case of an unlimited company or a company limited
by guarantee or a company limited both by shares and guarantee
the articles shall state the number of members with which the
company proposes to be registered.
(5) Where a company to which subsection (4) applies increases
the number of its members beyond the registered number it shall,
within one month after the increase was resolved on or took place,
lodge with the Registrar notice of the increase.
(6) Every company which makes default in complying with
subsection (5) and every officer of the company who