ca 1965 l2 shares, maintenance of capital, accounts

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COMPANIES ACT 1965LEVEL 2

KNOWLEDGE ENHANCEMENT FOR EMPLOYEE PROGRAMME ”KEEP”

LAI KOR FOONG

26 APRIL 2011

CORPORATE ROOM,

LEVEL 13,

MENARA SSM@SENTRAL

1SSM Copyrights Reserved 2011

Course Content Introduction to Company Law Classification of Companies Incorporations and Its Effects Constitution and Articles of Companies Membership Share Capital Maintenance of Capital Accounts and Audit Charges The Law of Meetings Directors, Auditors and Company Secretaries Corporate Governance Corporate Insolvency

SSM Copyrights Reserved 2011 2


SHARE CAPITAL

SHARES AND STOCK


SHARE CAPITAL

SHARES AND STOCK (CONT…)


CLASSES OF SHARES

1) DEFINITION:i) Equity share - Any share which is not a preference

shareii) Preference share - No voting right at GM, no right to

receive more than a specified amount of

dividend or capital repayment on redemption or in a winding up.

2) CLASSES OF SHARES: a) Ordinary shares

● often referred as equity shares● carry voting rights at general meeting ● have no fixed rate of dividend● entitled to residue of profit and surplus

assets in a winding-up

SHARE CAPITAL


CLASSES OF SHARES

b) Preference shares ●rights to be set out in M&A (S66)● no voting rights at general meeting ● carry fixed rate of dividends ● Cumulative/ Non cumulative● Redeemable / Irredeemable(S61)

c) Deferred or Founders’ shares.●held by promoters of the company●usually rank behind ordinary shares in

payment of dividends and return of capital in a winding up.

SHARE CAPITAL


ISSUE AND ALLOTMENT OF SHARES ● Allotment of shares● Issue of shares and share certificates S107)● Issue of shares at a discount (S59)● Issue of shares at a premium (S60)

SHARE CAPITAL


AUTHORIZED AND ISSUED CAPITAL

● Authorized capital● Issued capital: i) Called-up capital ii) Paid-up capital iii) Calls in arrears● Unissued capital

SHARE CAPITAL


SHARES ISSUED AT A DISCOUNT/ PREMIUM

● Shares issued at a discount (S59)● Shares issued at a premium (S60) - A share premium account - Application of the share premium account: i) issue bonus shares ii) write off preliminary expenses iii) write off expenses, commission paid,

discount on issue of shares.

SHARE CAPITAL


ALTERATION OF CAPITAL ● If authorized by Articles and approved by GM● (S 62), a company may:

i) increase its share capital ( lodgment of form 28 and 11 within 14 days of GM)

ii) consolidate and divide its shares into larger amount.

iii) convert paid up shares into stock or vice versa

iv) Subdivide its shares into smaller amount( share split)

v) Cancel any shares that have not been taken by any person.

SHARE CAPITAL


VALIDATION OF SHARESIMPROPERLY ISSUED

● Validation requires a Court Order (S63) which may be made if the Court is satisfied that it is just and equitable to do so.

● Shares deemed to have been validly issued or allotted upon a copy of the Court Order being lodged with the Registrar.

SHARE CAPITAL


REDUCTION OF SHARE CAPITAL

1) Conditions to be satisfied(S64): i) Authorized by Articles ii) Court order iii) Special Resolution2) Purposes of the capital reduction: i) extinguish or reduce liabilities on any shares

not paid up. ii) cancel paid up capital lost or unrepresented

by assets. iii) pay off any paid up share capital in excess of

needs

SHARE CAPITAL


VARIATION OF RIGHTS ATTACHED TO THE SHARES

● A co. may have different classes of shares with different rights, benefits or obligations.

● Variation of class rights may be carried out if authorized by memorandum or articles.

● Protection for minority shareholders:● If variation of class rights is made in accordance

with provisions of M&A, holders with 10% of the issued shares of that class may apply to Court to cancel resolution passed for the variation or abrogation(S65)

SHARE CAPITAL


PROHIBITION ON DEALING BY A COMPANY IN ITS OWN SHARES

● A company cannot give , whether directly or indirectly:

i) loan, ii) guarantee iii) provide security or iv) any financial assistancefor the purchase, subscription or lend money on itsown shares( S67)

SHARE CAPITAL


• Exceptions:i) a company whose business is the lending of money

ii) the fund provided to trustees to purchase shares in the co or holding co in accordance with scheme for the benefits of employees( including any salaried director)

iii) financial assistance given to persons( other than directors) employed by the co. to

purchase full paid shares in the co or its holding co.


SHARE CAPITAL


● A public company may purchase its ownshares(S67A) on condition that: i) authorized by its articles ii) solvent at date of purchase & will not be

insolvent by having to pay for the shares iii) purchase the Stock Exchange on which the

shares are listed and complied with its rules.

iv) purchase made in good faith and in the best interest of the company

SHARE CAPITAL



a) For the shares so purchased, the directors mayresolve to:i) cancel the sharesii) retain the shares as treasury stockiii) retain part and cancel the remainder

b) The treasury shares may be distributed as share dividend or resold on the market.

c) The amount of shares cancelled shall be transferred to capital redemption reserve

SHARE CAPITAL



INTEREST IN SHARES

1. Section 6A- Applicable to : i) Division 3A of Part IV-substantial

shareholdings ii) Section 134 and 135

2. A person (A) is deemed to have an interest in a share where the a body corporate (B.C) has an interest and :

i) the B.C or its director are accustomed / under obligation, to act in accordance with the instructions /directions /wishes of A.

SHARE CAPITAL


ii) A has a controlling interest in the B.Ciii) A or A’s associate (B) or A and B have are

entitled to exercise or the control the exercise of > 15% of the votes in the B.C

B is an associate of A if B is : a) a related corporation of B b) A is accustomed/ under obligation to act

in accordance with B’s instruction / direction / wishes in relation to the shares.

SHARE CAPITAL

INTEREST IN SHARES


c) B is accustomed/ under obligation to act in accordance with A’s instruction/ direction/ wishes in relation to the shares

d) a B.C which is accustomed/ under obligation to act in accordance with A’s instruction

direction/ wishes in relation to the shares

- is a B.C and A is accustomed/ under obligation to act in accordance with the B.C ’s instruction direction/ wishes in relation to the shares

SHARE CAPITAL

INTEREST IN SHARES


3) A person shall be deemed to have an interest in a share under the following circumstances where he:a) has entered into a contract to

purchase a share; orb) has a right to a have a share

transferred to him now, in the future conditionally or not.

c) has the right under an optiond) is entitled to exercise a right

attached to a share although being a non-member.

e) if a share is jointly held with another person

SHARE CAPITAL

INTEREST IN SHARES


SUBSTANTIAL SHAREHOLDINGS & SHAREHOLDERS

1) Part IV Division 3A - applies to all public companies (whether listed or unlisted)

2) Definition of interest in shares (section 6A) is applicable

3) When does a person have a substantial shareholding (SSHG) in a company ?

A person has a SSHG in a company if he has an interest in the voting share(s) in a company and the total NV of the share(s) is > 5% of all the voting shares in the company (S69D(1))

SHARE CAPITAL


4) When does a person become a substantial shareholder (SSHD)in a company ?

A person is a SSHD in a company when has a SSHG in the company.

5) What must a SSHD do under the CA ? A SSHD must notify the company of his

interests in the share(s),and any change in his interests

SHARE CAPITAL



6) How and when shall a SSHD inform the company ?

The SSHD must give notice in writing to the company :

i) Within 7 days of becoming a SSHD(F29A)

ii) Within 7 days of any change in interests(F29B)

iii) within 7days of ceasing to be a SSHD(F29C).

SHARE CAPITAL



● What must a company do under the CA with regard to the notice received a SSHD ?

● The company shall keep a register of SSHD and shall immediately enter the information given in the notice.

● The register shall be kept at the registered office of the company.


SHARE CAPITAL


Course Content Introduction to Company Law Classification of Companies Incorporations and Its Effects Constitution and Articles of Companies Membership Share Capital Maintenance of Capital Charges Accounts and Audit The Law of Meetings Directors, Auditors and Company Secretaries Corporate Governance Corporate Insolvency



● It is originated from common law principle established in the English case of Trevor v. Whitworth.

● Lord Herschell held that:“what is the meaning of the distinction drawn between a company without limit on the liability of its members and a company where the liability is limited, but in the latter case, to assure to those dealing with the company that the whole of the subscribed capital, unless diminished by expenditure upon the objects defined by the memorandum, shall remain available for the discharge of its liability. The capital may no doubt be diminished by expenditure upon and reasonably incidental to all the objects specified. A part of it may be lost in carrying on the business operations authorized. Of this all persons trusting the company are aware and take the risk. But I think they have a right to rely and were intended by the legislature to have a right to rely on the capital remaining undiminished by any expenditure outside these limit or by the return of any part of it to the shareholders”


MAINTENANCE OF CAPITAL

● The common law principle that a company limited by shares must maintain its paid up share capital has be given statutory effect.

● The Companies Act embody the principle of capital maintenance in the following sections : Section 64; Section 67; and Section 365



AUTHORISED REDUCTION OF PAID UP CAPITAL : S.64

Section 64 provides that before a company limited by shares can reduce its paid up share capital the company must ensure that the following conditions are satisfied :

the company’s constitution includes a provision that allows the company to reduce its issued capital;

its proposed exercise to reduce capital must have received the prior approval of the general meeting by way of special resolution ; and

before the company implements its proposed capital reduction exercise the company has obtained the court’s approval to that exercise. The Companies (Reduction of Capital) Rules 1972 sets out the procedures and the necessary forms that must be lodged with the court to obtain the court’s approval



MANNER IN WHICH THE COMPANY CAN REDUCE ITS PAID UP SHARE CAPITAL

a company can reduce its issued capital by :-●S.64(1)(a) - extinguishing or reducing the

liability on any of its shares in respect of share capital not paid up;

●S. 64(1(b) – cancelling any paid up share capital that is lost or is no longer represented by available asserts; and

●S. 64(1)(c) – paying off any paid up share capital that in excess of the company needs



FINANCIAL ASSISTANCE PROHIBITION – S.67

S.67(1) impose 5 distinct prohibitions upon a company limited by shares. A company limited by shares cannot:●provide direct or indirect financial assistance to anyone

who purchases or subscribes to the company’s shares;●if it is a holding company, give direct or indirect

financial assistance to its subsidiary in order to enable the subsidiary to purchase or subscribe to its shares;

●deal with its own shares;●purchase its own shares (‘self-purchase’); or●Lend money on the security of its own shares



EXCEPTIONS TO THE FINANCIAL ASSISTANCE PROHIBITION

S. 67(2) provides 3 exceptions to the financial assistance prohibition. They include:● the lending of money by a company whose ordinary business

is to lend money and the lending is in the ordinary course of its business;

● the company making a provision of money for the purchase of or subscription for fully paid shares in the company or holding company in accordance with a share employee purchase scheme, by trustee of that scheme for shares to be held by or for the employee’s benefit; and

● The giving of financial assistance by a company to its employees, other than company directors , to enable them to purchase fully paid shares in the company or holding company to be held by themselves by way of beneficial ownership



EFFECT CONTRAVENING S. 67(1)

● a company that contravenes S. 67 (1) is not guilty of an offence.

● however, each company officer in default is guilty of an offence punishable with imprisonment of up to 5 years or a fine of up to RM100,000.

● the court can order the convicted officer to pay compensation to the company or any other person who has suffered loss as a result of the officer having committed an offence

● refer S.67(3) and S.67(4)



EXCEPTION TO THE SELF PURCHASE PROHIBITION

The Companies Act provides four exceptions to self-purchase prohibition. These are:●redeeming redeemable preference shares in

accordance to S.61;●shares purchase in accordance with S.67A –

share buy-back by listed companies;●Redeeming shares for purpose of cancellation

under S.64 (1)(b); and●Shares purchased in accordance with S181(2)

(c)



REDEEMABLE PREFERENCE SHARES

● S.61 provides that a company having a share capital, if authorized by its articles can issue redeemable preference shares which the company may later redeem in the manner set out by articles

● A company can only redeem its redeemable preference shares if the shares are fully paid up

● the funds for its redemption must be derived must be derived from; Profit available for dividends; or The proceed of a fresh issues of shares made for

the purpose of the redemption



SHARE BUY-BACK BY LISTED COMPANIES● S.67A allows the public companies with share capital to

purchase their own shares● S.67A(2) imposes certain conditions when effecting share

buy-back; The public company must be solvent at the date of the

purchase and will not become insolvent by incurring the debts involved in the obligation to pay for the shares so purchased;

The purchase is made through the stock exchange on which the shares of the public company are quoted and in accordance with the relevant rules of the stock exchange; and

the purchase is made in good faith and in the interest of the public company



DIVIDENDS S.365

● Paid out of profits or pursuant to S.60● Dividend must be paid out of profits of the

company not group level● Dividend cannot be paid if it results in the

company’s assets being insufficient to pay it debts.

● Dividend cannot be paid out of borrowings unless the company has divisible profits available



● Ben Chan Chong Choon, Philip Koh Tong Ngee, Peter SW Ling, “Chan & Koh on Malaysian Company Law, Principles & Practice, 2nd Edition, 2006, Sweet & Maxwell Asia, Chapter 11, page 413 – 430;

● Shanty Rachagan, Janin Pascoe and Anil Joshi, “Concise Principles of Company Law in Malaysia”,2005, Malayan Law Journal, Chapter 4, page 60- 79;

● Aiman Nariman Mohd Sulaiman, Aishah Bidin, “Commercial Applications of Company Law in Malaysia”, 2002, CCH, Chapter 9, page 156-171;



READING MATERIALS

Course Content Introduction to Company Law Classification of Companies Incorporations and Its Effects Constitution and Articles of Companies Membership Share Capital Maintenance of Capital Accounts and Audit Charges The Law of Meetings Directors, Auditors and Company Secretaries Corporate Governance Corporate Insolvency



DEFINITION

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ACCOUNTS & AUDIT


Malaysian Accounting Standard Board was established under the Financial Reporting Act 1997

Function of the Board is to issue the accounting standard as approved accounting standards

S.166A (1) & (2) states that the approved accounting standards apply to the accounts of a company or the consolidated accounts of a holding company if, at the time when the accounts or consolidated accounts are made out, the approved accounting standards:

apply in relation to the financial year of the company or the holding company to which the accounts or consolidated accounts relate; and

are relevant to those accounts or consolidated accounts

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ACCOUNTS & AUDIT

APPROVED ACCOUNTING STANDARDS


APPROVED ACCOUNTING STANDARDS (CONT…) Directors are required to ensure that accounts are made

out according to approved accounting standards– S.166A(3)

Directors are not required to ensure that the accounts are made out in accordance with the accounting standards if they are of the opinion that it would not give a true and fair view – S.166A(4)

Directors are required to disclose by of a note on the accounts their reasons for and financial effect of the departure from the approved accounting standards–S.166A(5)

If the appropriate accounting standards and provisions in the Ninth Schedule were to conflict, the approved accounting standards would prevail –S.166A(6)

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ACCOUNTS & AUDIT


DUTY TO KEEP ACCOUNTING RECORDS

Every company, its directors and managers must keep accounting and other records which will sufficiently explain the transactions and financial position of the company – S.167(1)

Every company, it directors and managers shall cause appropriate to be made in the accounting and other records within sixty days of the completion of the transactions to which they relates –S.167(1A)

Any book of account may be kept either by making entries in a bound book or by recording the matters in question in any other permanent manner –S.358(1)

It is possible to record the accounting and records on computer as long as the recording is capable of being reproduced in a legible form

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ACCOUNTS & AUDIT


LOCATION OF ACCOUNTING RECORDS

● The accounting and other records must be kept at the registered office of the company or at such other place as directors think fit –S.167(3)

● The accounting and records of operation outside Malaysia may be kept by company at a place outside Malaysia.

● However statements and records must be sent to and kept at a place in Malaysia.

● Such statements and records be at all times open for inspection by directors and must be sufficient to enable the preparation of true and fair profit and loss accounts and balance sheets –S.167(3) & (4)

● Non compliance with S.167- the company and every officer in default shall be guilty of an offence –S167(7)

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ACCOUNTS & AUDIT


ANNUAL ACCOUNTS

S.169(1) & (3) impose on the directors of every company a duty to lay before the company’s Annual General Meeting (AGM):

profit & loss account for the period since the preceding accounts made up to a date not more

than six month before the date of the AGM a balance sheet as at the date to which the profit

& loss account is made up S.169(4) requires every profit & loss account and

balance sheet must be duly audited by the company’s auditor before being laid at the AGM

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ACCOUNTS & AUDIT


The 1st profit & loss account and balance sheet are to be laid within 18 month of the incorporation.

Subsequently the profit & loss and balance sheet must be laid in every calendar year at intervals of not more than 15 months since the last AGM - S.169(1)

I f the company cannot meet the deadline, it may apply to the Registrar to extend the period of 18 months or 15 months for any ‘special reasons he thinks fit to do so’ –S.169(2)

An application for extension made pursuant to a director’s resolution and in accordance with form 51A.

Such application must be made before the expiration of the period in which the profit & loss account is required by S.169(1) to be laid at AGM

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ACCOUNTS & AUDITANNUAL ACCOUNTS


The annual accounts of a company consists of the following documents:

a profit & loss accounts made pursuant to section 169(1); a balance sheet made pursuant to section 169(3); a directors’ report made pursuant to section 169(5); a directors’ statement made pursuant to section

169(15); A statutory declaration by a director responsible for

the financial management of the company made pursuant to section 169(16); and

An auditor’s report made pursuant to section 174(1)

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ACCOUNTS & AUDIT

ANNUAL ACCOUNTS


PROFIT & LOSS ACCOUNT

• S.4(1) – “profit & loss account includes an income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period”

• Every profit & loss account must show a true and fair view of the profit or loss of the company for the period for which it relates – S.169(14)

• A profit & loss account must comply with the strict requirements of the Ninth Schedule of the Act

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ACCOUNTS & AUDIT


BALANCE SHEET A balance sheet of a company must give a true and fair

view of the state of affairs of the company as at the end of the period to which it relates - S.169(14)

A balance sheet must also comply with the strict requirements of the Ninth Schedule of the Act

A person may be guilty of an offence against the Act if any balance sheet;

He makes or authorizes the making of a statement false or misleading in any material particular knowing it to be false or misleading; or

he intentionally omits or authorizes the omission or accession of any matter or thing making the balance sheet misleading in a material respect

– S.364(2) 49

ACCOUNTS & AUDIT


DIRECTORS’ REPORT

● S.169(5) requires a copy of the directors’ report to be attached to every balance sheet of a company

● The directors’ report must be made in the following manner;

accordance with a resolution of the directors signed by not less than two of the directors State the company’s affairs as at the end of the

financial year● The contents of a directors’ report are provided by

section 169(6)

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ACCOUNTS & AUDIT


DIRECTORS’ STATEMENT

● S.169(15) requires every balance and profit & loss account must be accompanied by a directors’ statement

● The directors’ statement must be made in the following manner;

accordance with a resolution of the directors signed by not less than two of the directors state directors’ opinion as stated in section

169(15)(a) – (c)

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ACCOUNTS & AUDIT


AUDITOR’S REPORT

● S. 174 (6) requires the auditors report to be attached to or endorsed on the account or consolidated accounts and shall if member requires be read before the company AGM

● The auditors reports must state the auditors’ opinion as required by section 174(2) -174(3)

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ACCOUNTS & AUDIT


ANNUAL RETURN

● S. 4(1) annual return means in relation to a company having a share capital,

the return required to be made by section 165(1); and

In relation to a company not having a share capital, the return required to be made by section 165 (5)

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ACCOUNTS & AUDIT


ANNUAL RETURN OF COMPANY HAVING A SHARE CAPITAL

● Must make return containing the particulars referred to in Part1 of Eight Schedule.

● Must be accompanied by such copies as are required to be included in the return in accordance with Part 11 of the Eight Schedule

● Must be made up to the date of the AGM of the company in the year or a date not later than the 14 day after the date of the AGM

● The annual return signed by a director or manager or secretary of the company

● Must be lodged with the Registrar within 1 month after AGM● In the case of company keeping a branch register in any

place outside Malaysia , the annual return must be lodged within 2 months after AGM

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ACCOUNTS & AUDIT


ANNUAL RETURN OF COMPANY NOT HAVING A SHARE CAPITAL

● Must contain the following details: the address of the registered office of the company; where the register of members is not kept at the registered

office the address of the place where it is kept; particulars of the total amount of indebtedness of the

company in respect of all charges; Particulars of directors, managers and secretaries of the

company; The name and address of the auditors of the company;

and Such other matters relating to accounts of the company as

to the unclaimed money held by the company as are prescribed

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ACCOUNTS & AUDIT


ANNUAL RETURN OF EXEMPT PRIVATE COMPANY

● an exempt private company is not required to lodge accounts with the Registrar but only lodge the annual return

● the annual return lodge must contain a statement by the auditors of the company stating: whether the company has in his opinion kept proper

accounting records and other books during the period to which it relates;

whether the accounts have been audited in accordance with the Act;

whether the auditor’s report on the accounts was made subject to any qualification or comment, and, if so particulars of the qualification or comment; and

Whether as at date to which the profit & loss account has been made up, the company appeared to have been able to meet its liabilities as and when they fall due

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ACCOUNTS & AUDIT


READING MATERIALS

• Ben Chan Chong Choon, Philip Koh Tong Ngee, Peter SW Ling, “Chan & Koh on Malaysian Company Law, Principles & Practice, 2nd Edition, 2006, Sweet & Maxwell Asia, Chapter 20;

• Shanty Rachagan, Janin Pascoe and Anil Joshi, “Concise Principles of Company Law in Malaysia”,2005, Malayan Law Journal, Chapter 15;

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ACCOUNTS & AUDIT


THANK YOU!


ca 1965 l2 shares, maintenance of capital, accounts

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