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Back To Frequently Asked Questions
Other Worthy Notes in Malaysia Companies Act 1965
- Since 16th April,2002 Registrar Of Companies (R.O.C) has changed to Suruhanjaya Syarikat Malaysia (S.S.M)
- Section 16 (2)
- Statutory Declarations
- Section 139 (1C)(1D)(1E)
- Secretary
- Section 430
- Undischarged bankrupts acting as directors.
- DIVISION 2 Section 122
- Director And Officers
- Section 122A
- "Persons connected with a director"
- Section 132
- As to duty and liability of officers
- Section 139
- Secretary
- Section 139A
- Qualification for company secretary
- Section 430
- FOURTH SCHEDULE
Statutory Declarations [Section 16 (2)]
The person named in the articles as the first secretary of the company shall lodge with the the Registrar a declaration in the prescribed form stating that all or any of the requirement 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 of compliance.
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Secretary [Section 139 (1C) (1D) (1E)]
(1C) Notwithstanding subsection (1B) where none of the directors of the company can be communicated with at the last-known residential address, the secretary may, notwithstanding section 141 (6), lodge with the Registrar a notice in the prescribed form notifying the Registrar of that fact of his intention to vacate the office of secretary.
(D) Where the secretary has lodged a notice in accordance with subsection (1C), the secretary shall cease to be the secretary of the company on the expiry of one month from the date of the notice.
(E) Nothing in subsections (1C) and (1D) shall relieve the secretary from liability for any act or omission done before the secretary vacated that office
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Undischarged bankrupts acting as directors. [Section 125 (1)]
125. (1) Every person who being an undischarged bankrupt acts as director of, or, directly or indirectly takes part in or is concerned in the management of, any corporation except with the leave of the Court shall be guilty of an offence against this Act.
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DIVISION 2
Director And Officers [Section 122]
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122.
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(1)
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Every company shall have at least two directors who each has his principal or only place of residence within Malaysia.
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(1A)
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In subsection (1), “director” shall not include an alternate or substitute director.
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(2)
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No person other than natural person of full age shall be a director of a company.
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(3)
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The first directors of a company shall be named in the memorandum or articles of the company.
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"Persons connected with a director"
[Section 122A]
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(1)
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For the purposes of this Division a person shall be deemed to be connected with a director if he is:-
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(a)
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a member of that director’s family: or
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(b)
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a body corporate which is associated with that that director: or
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(c)
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a trustee of trust (other than trustee for an employee share scheme or pension scheme) under
which that director or a member of his family is a beneficiary; or
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(d)
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a person of that director or a partner of a person connected with that director.
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(2)
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In subsection (1) (a), "member of that director's family" shall include his spouse, parent,
child (including adopted child and step-child), brother, sister and the spouse of his child,
brother or sister.
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(3)
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For the purposes of subsection (1) (b), a body corporate is associated with a director if:-
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(a)
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the body corporate is accustomed or is under an obligation, whether formal or in formal, or
its directors are accustomed, to act in accordance with the directions, instructions or wishes
of that director; or
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(b)
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that director has a controlling interest in the body corporate; or
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(b)
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that director or persons connected with him, or that director and persons connected with him, are entitled to exercise, or control the exercise of, not less than fifteen per centum of the votes attached to voting shares in the body corporate.
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As to duty and liability of officers [Section 132]
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(1)
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A director shall at all times acts honestly and use reasonable diligence in the discharge of
the duties of his office
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(2)
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An officer or agent of a company or officer of the Stock Exchange shall not make improper
use of any information acquired by virtue of his position as an officer or agent of the
company or officer of the Stock Exchange to gain directly or indirectly an advantage for
himself or for any other person or to cause detriment to the company.
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(3)
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An officer or agent or officer of Stock Exchange who commits a breach of this section shall be:-
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(a)
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liable to the company for any profit made by him or for any damage suffered by the company as a
result of the breach; and
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(b)
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guilty of an offence against this Act.
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Penalty: Imprisonment for five years or thirty thousand ringgit.
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(4)
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(Repealed by Act A616)
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(5)
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This section is in addition to and not in derogation of any other written law or
rule of law relating to the duty or liability of directors or officers of a company.
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(6)
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In this section :-
"Officer" includes a person who at any time has been an officer of the company; and
"Agent" includes a banker, advocate and solicitor, auditor, accountant or a stockbroker of the
corporation and any person who is or at any time in the preceding six months has been knowingly connected with the corporation and has information which:-
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(a)
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he holds by virtue of being connected with the corporation;
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(b)
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it would be reasonable to expect a person so connected and in the position by virtue he is so connected not to disclose except for the proper performance of the functions attaching to that position: and
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(c)
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he knows is unpublished price sensitive information in relation to securities of the corporation.
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Secretary [Section 139]
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(1)
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Every company shall have on or more secretaries each of whom shall be natural person of full age who has his principal or only place of residence in Malaysia.
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(1A)
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The first secretary of a company shall be named in memorandum or articles of the company.
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(1B)
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The office of secretary of a company shall not left vacant for more than one month at any one time.
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(1C)
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Notwithstanding subsection (1B), where none of the directors of the company can be communicated with at the last-known residential address, the secretary may, notwithstanding section 141 (6), lodge with the Registrar a notice in prescribed form notifying the Registrar of that fact
and of his attention to vacate the office of secretary.
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(1D)
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Where the secretary has lodged a notice in accordance with subsection (1C), the secretary shall cease to be the secretary of the company on the expiry of one month from the date of the notice.
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(1E)
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Nothing in subsection (1C) and (1D) shall relieve the secretary from liability for any act or omission done before the secretary vacated that office.
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(2)
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Subsection (1) shall not operate to prevent a corporation which acting as the secretary of a company immediately before the commencement of this Act from continuing to act as secretary of that company for a period of twelve months after the commencement of this act.
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(3)
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The secretary or secretaries shall be appointed by the directors and at least one of those secretaries shall be present at the registered office of the company by himself or his agent or clerk on that days and at the hours during which the registered office is to accessible to the public.
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(4)
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Subject to subsection (1B), anything required or authorized to be done by or in relation to the secretary may, if the office is vacant or for any other reason the secretary is not capable of acting, be done by or in relation to any assistant or deputy secretary or, if there is no assistant or deputy secretary capable to acting, by or in relation to any officer of the company authorized generally or specially in that behalf by the directors.
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(5)
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A provision requiring or authorizing a thing to be done by or in relation to a director and the secretary shall not satisfied by its being done by or in relation to the same person acting both as directors and as, or in place of the secretary.
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(6)
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Every person shall, before he is appointed a secretary of a company, make a declaration in the prescribed form that he is not contravention of sections 139A and 139C and that he consents to act as a secretary of the company.
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Qualification for company secretary
[Section 139A]
No person shall act as a secretary of a company unless:-
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(a)
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he is a member of a professional body, or any other body, which has for the time being been
prescribed by the Minister by notification published in the Gazette; or
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(b)
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he is licensed by the Registrar for that purpose:
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Provided that a person who is a secretary of the company before the coming into operation of this section and who is not a member of a professional or other body as prescribed by the Minister may continue to act as the secretary for that company for a period of not more than twelve months
after the coming into operation of this section unless he has obtained a license pursuant to paragraph (b)
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FOURTH SCHEDULE [Section 430]
TABLE A
REGULATIONS FOR MANAGEMENT OF COMPANY LIMITED BY SHARES
Interpretation
Articles 95.The secretary shall in accordance with the act be appointed by such term, at such remuneration, and upon such conditions as they may think fit, and any secretary so appointed may be removed by them.
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