1.2 Incorporating a Company in Malaysia
1.2 a) The Industrial Co-ordination Act 1975
In Malaysia, a business may be conducted:
- By an individual operating as a sole proprietor, or
- By two or more (but not more than 20) persons in partnership, or
- By a locally incorporated company or by a foreign company registered under the provisions of the Companies Act 1965.
All sole proprietorships and partnerships must be registered with the Registrar of Business under the Registration of Businesses Ordinance 1956. In the case of partnerships, partners are both jointly and severally liable for the debts and obligations of the partnership should its assets be insufficient. Formal partnership deeds may be drawn up governing the rights and obligations of each partner but this is not obligatory.
1.2 b) Company Structure
The Companies Act 1965 governs all companies in Malaysia. The Act stipulates that a person must register a company with the Registrar of Companies (ROC) in order to engage in any business activity. It provides for three types of companies:
- A company limited by shares where the personal liability of its members is limited to the par value of their shares and the number of shares taken or agreed to be taken by them.
- A company limited by guarantee where the members guarantee to meet liability up to an amount nominated in the Memorandum and Articles of Association in the event of the company being wound up.
- An unlimited company, where there is no limit to the member's liability.
1.2 c) Company Limited By Shares
The most common company structure in Malaysia is a company limited by shares. Such limited companies may be either private (Sendirian Berhad or Sdn Bhd) or public (Berhad or Bhd) companies.
A company having share capital may be incorporated as a private company if its Memorandum and Articles of Association:
- Restricts the right to transfer its shares.
- Limits the number of its members to 50, excluding employees and some former employees.
- Prohibits any invitation to the public to subscribe for its shares and debentures.
- Prohibits any invitation to the public to deposit money with the company.
A public company can be formed or, alternatively, a private company can be converted into a public company subject to Section 26 of the Companies Act 1965. Such a company can offer shares to the public provided:
- It has registered a prospectus with the Securities Commission.
- It has lodged a copy of the prospectus with the ROC on or before the date of its issue.
A public company can apply to have its shares quoted on the Kuala Lumpur Stock Exchange (KLSE) subject to compliance with the requirements laid down by the exchange. Any subsequent issue of securities (e.g. issue by way of rights or bonus, or issue arising from an acquisition, etc.) requires the approval of the Securities Commission.
1.2 d) Procedures for Incorporation
To incorporate a company, a person must apply to the ROC using Form 13A together with a payment of RM30 in order to determine if the proposed name of the intended company is available. If it is, the application will be approved and the proposed name reserved for the applicant for three months.
A person must then lodge the following documents with the ROC within the three months to secure the use of the proposed name:
- Memorandum and Articles of Association.
- Declaration of Compliance (Form 6) .
- Statutory declaration by a person before appointment as a director, or by a promoter before incorporation of a company (Form 48A) .
The Memorandum of Association documents the company's name, the objects, the amount of its authorized capital (if any) proposed for registration and its division into shares of a fixed amount.
The Articles of Association describes the regulations governing the internal management of the affairs of the company and the conduct of its business.
Once the Certificate of Incorporation is issued, 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, capable of exercising the functions of an incorporated company and of suing and being sued. It has a perpetual succession under common seal with power to hold land, but with such liability on the part of the members to contribute to its assets in the event of it being wound up, as provided for in the Companies Act.
1.2 e) Requirements of a Locally Incorporated Company
A company must maintain a registered office in Malaysia where all books and documents required under the provisions of the Act are kept. The name of the company shall appear in legible Romanized letters, together with the company number, on its seal and documents.
A company cannot deal with its own shares or hold shares in its holding company. Each equity share of a public company carries only one vote at a poll at any general meeting of the company. A private company may, however, provide for varying rights for its shareholders.
The secretary of a company must be a natural person of full age who has his principal or only place of residence in Malaysia. He must be a member of a prescribed body or is licensed by the Registrar of Companies, Malaysia. The company must also appoint an approved company auditor to be the company auditor in Malaysia.
In addition, the company shall have at least two directors who each has his principal or only place of residence within Malaysia. Directors of public companies or subsidiaries of public companies normally must not exceed 70 years of age. It is not incumbent that a company director also be a shareholder.
