1 INCORPORATION OF COMPANIES

3 S14-18 CA 1965: prescribed the legal and general procedural requirements for incorporation of companies. Name of Company Name by which the company is proposed to be incorporated must be chosen and the approval of the CCM for the use of the name be obtained. Introduction

4 Cont…. Name of Company The CCM has the discretion to reject the proposed name which according to Section 22(1) is: a) undesirable b) similar to the name of another existing company or a name which has been reserved or c) Name that MDTCA has directed the CCM not to accept for incorporation (Gazette No. 716,30 Jan 1997 and Gazette (Amended), 11 Oct 2001), unless obtained consent from the Minister

5 Cont.. Steps to incorporate company 1) Name search and reservation (S 22) - The proposed name then will be submitted to the CCM by way of filing Form 13A of Company Regulations, 1966 for approval and reservation of the name. Fee is RM30 for each name proposed. - Application will only be bona fide if the CCM is satisfied and name will be registered without contravention of S22(1). -CCM will issue the name approval letter with and the name will be reserved for three months.

6 Cont… 2) Incorporation document (S 16) Documents to be lodged with CCM to effect the incorporation of the company: Memorandum and Articles of Association Form 6 -Declaration of Compliance (Form 46- undertaking by Director to take and pay for qualification shares -for public company ) Form 48A - Statutory Declaration by a person before appointing as director or promoter before incorporation Form 48F - A declaration by the named secretary (need not be lodged to ROC)

7 Stamp duties and fees payable for the incorporation documents No filing fees Stamp duties for M&A Fees payable for registration of a co having a share capital (see 2 nd Schedule of CA 1965) Charged by Commissioner for Oaths

8 Fees to be paid for registration of co whose nominal share capital not exceed RM100,000 RM100, ,000 RM500,001-1 million RM1,000,001-5 million RM5,000, million RM10,000, million RM25,000, million RM50,000, million Exceed RM100 million - RM1,000 - RM3,000 - RM5,000 - RM8,000 - RM10,000 - RM20,000 - RM40,000 - RM50,000 - RM70,000

9 3) Certificate of Incorporation CCM will review the incorporation documents lodged If he is satisfied, certificate of incorporation will be issued - Form 8: for public co - Form 9: for private co It is a co birth certificate It signifies that the co become a corporate body and having an independent legal entity It provides information such as co number, name of co, date of incorp, type of co. Private co may commence business upon receipt of Form 9 but public co are not entitled to commence business until CCM has issued Form 23 Certificate of commencement.

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11 FORM 9 Certificate of Incorporation

Certificate of Incorporation A certificate under the hand and seal of the Registrar shall be conclusive evidence that all the requirements of Acts in respect of registration have been complied and Company referred is incorporated under the Act. (sec 361)

13 Cont… 5) Returns to be made immediately after incorporation - The co is required to lodged 3 documents to the CCM within a month from the date of issuance of certificate of incorp. a) Form 49 – return giving particular in Register of Director, Manager and Secretaries b) Form 44 – Notice of Situation of Registered Office c) Form 24 – Return of Allotment of Shares

Form 49 Particular of Director, Manager and Secretaries (sec 141(6)) The company shall lodge with the Registrar- (a) within one month after incorporation, a return in the prescribed form containing the particulars required to be specified in the register; (b) within one month after a person ceases to be, or becomes, a director of the company, a return in the prescribed form notifying the Registrar of the change and containing, with respect to each then director of the company, the particulars required to be specified in the register; (c) within one month after a person becomes a manager or secretary of the company, a return in the prescribed form notifying the Registrar of that fact and specifying the full name, address and other occupation, if any, of that person; (d) within one month after a person ceases to be a manager or secretary of the company, a return in the prescribed form notifying the Registrar of that fact; and (e) within one month of any change in the name, residential address and other prescribed particulars of any director manager or secretary a notice in the prescribed form notifying the Registrar of the new name, residential address and other prescribed particulars of that person. Sec 141(6)

15 Form 49 Particular of Director, Manager and Secretaries (sec 141(6)) Lodged within a month after incorporation after a person cease to be or become director, secretary or manager of any changes in the name, residential address and other prescribed particular of director, secretary or manager Related to register of directors, managers and secretaries

16 Form 44 Notice of Situation of Registered Office (sec 120) Particular about situation of registered office, the days and hours during which it is open and accessible to the public

Form 44 shall be lodged with the Registrar within one month after the date of incorporation or of any such change. as the case may be, but no notice of the days and hours during which the office is open and accessible to the public shall be required if the office is open for at least five hours during ordinary business hours on each day, Saturdays, weekly and public holidays excepted. Signature of…….. (sect 120)

Registered office of company. A company shall as from the day on which: it begin to carry on business or whichever is the earlier as from the fourteenth day after the date of its incorporation, have a registered office within Malaysia to which all communications and notices may be addressed which shall be open and accessible to the public the company and every officer of the company who is in default shall be guilty of an offence against this Act (Sect 119)

Registered office of company At least one of the secretaries appointed shall be present at the registered office of the company by himself or his agent or clerk on the days and the hours during which the registered office is to be accessible to the public (sec 139(3)) 19

Form 24(Return-Allotment of Shares The company shall within one month lodge with the Registrar a return of the allotments, after it makes any allotment of its shares or any of its shares without formal allotment to subscribers to the memorandum shall be deemed to have been allotted to the subscribers on the date of the incorporation of the company. In the Form 24 use term subscribers’ shares only or including subscribers’ shares

The return shall states (a) the number and nominal amounts of the shares comprised in the allotment; (b) the amount, if any, paid, deemed to be paid, or due and payable on the allotment of each share., (c) where the capital of the company is divided into shares of different classes the class of shares to which each share comprised in the allotment belongs; and

(d) the full name and the address of each of the allottees and the number and class of shares allotted to him This particulars need not be included in the return where a company to which section 166 (1) applies (sec 54) A public company which- a) has more than five hundred members; and (b) provides reasonable accommodation and facilities for persons to inspect and take copies of its list of members and its particulars of shares transferred, (sec 166(1))

Signature??? Procedure for allotment Authorised vs Issued Shares

24 Commencement of business of public co (S52) Private co may commence business upon issuance of the certificate of incorp. Thus can exercise its borrowing power immediately. However, public co with share capital cannot commence business until it receive Form 23 (second certificate certifying that the co can commence business)  a public co is required to lodge with ROC the following documents and fee of RM350 for the approval of this second certificate. - co with prospectus.  A Statutory Declaration by the secretary or one of its Directors on Form 22

25 Cont… - co has not issued prospectus  A statement in lieu of prospectus (sixth schedule of the CA 1965) and  A Statutory Declaration by the secretary or one of its Directors on Form 18.

26 A public limited co with a share capital is required to hold a SM within a period of not less than a month and not more than 3 months after the date at which it is entitled to commence business SM - members General Meeting held once in the entire life of a co to provide members with info –co formation, promotion, flotation, development and prospect Statutory Meeting (SM) (S142)

27 Statutory Report (Form 52) S142(2): Must be prepared and circulated to all members at least 7 days before the date of SM to be held Purposes: to acquaint various facts and info which should be known to them.

28 Conversion of co Conversion of public co to private co (S 26(1)) Conversion of private co to public co (S26(2)) Conversion of Unlimited to limited co (S25) Default in complying sect 15 (S27)

29 The necessary steps involved are: i) Board of Directors convene an EGM to pass special resolutions to convert the co from public co to private co and specifying an appropriate alteration to its name to alter M & A of Assoc. – impose necessary restriction, limitation, and prohibitions pertaining to private co per S 15(1) CA Conversion of public co to private co (S 26(1))

30 ii) Lodge with CCM within 14 days of the passing of the resolutions the followings: - Form 11 (notice of resolution) - Printed copy of M & A as been altered - Fee (RM 50) for approval of the CCM to the change of status iii) Arrange for changing the common seal, share certificate, rubber stamp and the necessary iv) Inform those who have dealings with the co CCM will issue the cert. of incorp on the conversion to a private co (Form 19)

31 Conversion of private co to public co (S26(2)) The necessary steps are as follows: i) Board of Directors shall convene and EGM to pass special resolutions to convert the status of the co and to alter the name to alter the M & A to remove the restrictions pertaining to a private co.

32 iii) for co which change status less than a year of incorp, S 123(1) (b) & (c) shall be complied -directors qualification shares iv) lodge with CCM within 14 days of the passing of the resolutions the following: Form 11 (Notice of Resolution) Statement in lieu of prospectus Form 18- Statutory Declaration of compliance by co that has not issued prospectus Form 46 or Form 47 as may be required Printed copy of M & A as altered Fee (RM300) for approval of the ROC to the changing of status CCM will issue a cert of incorp on conversion (Form 20)

33 Conversion of Unlimited to limited co (S 25 ) The necessary steps are: i) BOD shall convene an EGM to pass special resolutions to convert the co from unlimited to a limited co (public/private), state the liability of the members to be limited, determine the share capital, make alteration to its name to alter the M & A

34 Cont… ii) lodge with CCM within 14 days of the resolutions Form 11 ( Notice of Resolution) Printed copy of M & A (altered) Fee for authorized share capital (if it has no share capital before conversion) Fee RM50 for the approval to the changing of status CCM will issue the cert. of incorp. (Form 16) and cancel the previous cert.

35 Default in complying with sect 15 (s27) Court may by order specifies that the co ceased to be a private co. where, default made in relation to limiting number of members to 50 memorandum or articles have been altered with omission of S15 (1) company has been convicted of an offence for allowing an arrangement to invite public to subscribe securities the company has ceased to have a share capital

36 on and from the date as specified in the court order or notice of the CCM, be a public company on and from the date so specified, be deemed to have changed its name by omission from the name of word “sendirian”. within a period of 14 days after the date so specified in the order or notice, lodge with CCM the statement in lieu of prospectus Form 18 statutory declaration of compliance Office copy of court order plus RM50.00

37 The co shall not convert to private co without the leave of the court Penalty…..

38 Registration of Business Firm Sole proprietor and partnership Governed by the Registration of Business Act 1956 and under the Regulation of Registry of Business And is administered by the Registrar of Business SEDUR%20PENDAFTARAN.pdf SEDUR%20PENDAFTARAN.pdf

39  Incorporation Documents  Forms: A) Registration of Business B) Alteration C) Termination D) Certificate of business registration E) Renewal of business registration

40 Steps of incorporation  Name search - Filing up of search form ( Free) -Reservation of 3 names -Failure to use the reserved name within the time frame would cause the business to repeat the procedure above.  Registration and Fees - within 7 days from date of commencement of business - submission of Form A and fees to ROB

41  Form A: ( e.g business details, owner, nature of business )  Fees: Sole proprietor - use of own name (RM30) - use of other name (RM60) : Partnership (RM60 ) - additional fee for each branch (RM5)  Certificate of Registration/Renewal ( Form D/E ) - to publicized certificate

42 Cont… - Publicized registration of business serial number on the letterhead, invoice, bill and other related documents

43  Registration for alteration - to inform ROB within 7 days of the changes taken place - Forms: B1( business main address) B2 ( nature of business) B3 ( branch details) B4 (ownership details )

44 Cont..  Termination of business - Submission of Form C (Termination of Business) with the attachment of Form D within 14 days - in case of termination due to deceased then 30 days period given - reason for changes or termination of business  Alteration/transfer of ownership  Deceased  Bankruptcy  Court order