(1) The provisions of Part VIII and Part X (in so far as they relate to a company limited by shares) of the Companies Act 1965 shall apply to the receivership and winding up of an offshore company, subject to such modifications and adaptations as may be necessary, and in particular reterences to a "company" shall be taken as references to an offshore
[Pt. IX, S. 131-133]
(2) The Companies (Winding-Up) Rules 1972 shall also 23912! apply to the winding up of an offshore company, subject to such modifications and adaptations as may be necessary, and in particular references to a "company" shall be taken as references to an offshore company.
Any document may be served on an offshore company tecangee or a foreign offshore company by leaving it at, or sending it by post to, the registered office of the company.
(1) An offshore company may, upon obtaining the Transfer approval of the Registrar and within two months from the date from on which the approval is obtained, apply to the proper officer Labuan. of another country or of a jurisdiction within such a country, by the laws of which such transfer is authorized, for an instrument transferring a company as if it had been incorporated under the laws of that other country or jurisdiction, and on the date of the instrument of transfer, the company shall, subject to the provisions of this section, become a company under the laws of that country or jurisdiction and be domiciled therein.
(2) An offshore company shall not apply to the Registrar for approval under subsection (1) unless—
(a) the application is authorized—
(i) where the company has a share capital, by the holders of not less than threefourths of the shares of each class;
(ii) by the holders of not less than threefourths of the company's debentures (if any) of each class; and
(iii) by all the directors of the company; and
(b) the company, not less than thirty days before applying to the Registrar for such approval, has published a notice in a newspaper circulating generally in Labuan of its intention to make the application,
A [Pt. IX, S. 133] and an application shall not be accepted unless it is accompanied with an affidavit sworn by a director of the company in which are set out-
(c) the names and addresses of its creditors and the total amount of its indebtedness to creditors; and*?
(d) a statement to the effect that the proposed transfer of domicile is unlikely to be detrimental to the rights or proper interests of any of the 'company's members, debenture hölders or creditors.
(3) The Registrar shall not give his approval to an offshore company applying for transfer to another country or jurisdiction unless he is satisfied that—
(a) the requirements of subsection (2) have been complied with; and
(b) the company has complied with any provision of this Act which it should have complied with, and he may grant his approval on such conditions as he thinks necessary to safeguard the rights and proper interests of any member, debenture-holder or creditor of the company or any class of such members, debenture-holders or creditors and upon the company taking such steps as he considers necessary to remedy any failure to comply with any provision of this Act.
(4) Upon an instrument transferring the company to another country or jurisdiction being executed by the proper officer of that other country or jurisdiction, the company shall forthwith notify the Registrar the details and the company shall be deemed to have ceased to be a company incorporated in Labuan from the date of its transfer to that other country or jurisdiction takes effect and the Registrar shall remove its name from the register: Provided that nothing in this subsection shall take away or affect the jurisdiction of any Court (whether the High Court or otherwise) to hear and determine any proceedings commenced therein by or against the company before it ceased to be a company incorporated in Labuan.
[Pt. IX, S. 133-136]
(5) Where an offshore company notifies the Registrar under subsection (4) that an instrument transferring the company to another country or jurisdiction has been executed by the proper officer of that other country or jurisdiction and that notification is false, then, notwithstanding that the Registrar has removed the name of the company from the
(a) the liability (if any) of any officer or member of the company shall continue and may be enforced as if the company were still registered under this Act;
(b) the company shall be liable to be wound up pursuant to the provisions of this Act as if it were still registered under this Act.
In respect of any proceedings before the Court under Costs of this Act, the Court may, at its own discretion, direct that the proceedings before costs of one party be paid in such amount and by such other Court. party as it thinks just.
Where an offshore company is a plaintiff in any Court action or other legal proceedings, the Court may, at any time, require sufficient security to be given for costs and stay all proceedings until the security is given. Security for costs.
(1) Where after exercising reasonable diligence an off- Disposal of shore company is unable to discover the whereabouts of a shares of registered shareholder for a period of not less than ten years, whose shareholder the company may cause a notice to be published in a daily whereabouts newspaper circulating in the place shown in the register of are unknown. members as the address of the shareholder stating that the shares, after the expiration of one month from the date of the notice, will be liable to be forfeited to the Registrar.
(2) If after the expiration of one month from the date of a notice under subsection (1) the whereabouts of a shareholder remain unknown, the company may transfer the shares held by the shareholder in the company to the Registrar and for that purpose may execute for and on behalf of the owner a transfer of those shares to the Registrar; and the person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but shall, notwithstanding the forfeiture, remain liable to pay to the company all moneys which, at the
Power to grant relief. Irregularities in proceedings. [Pt. IX, S. 136-138] date of forfeiture, were payable by him to the company in respect of the shares, but his liability shall cease if and when the company receives payment in full of all such moneys in respect of the shares.
(1) In any proceedings for negligence, default, breach of duty or breach of trust against a person to whom this section applies, if it appears to the Court before which the proceedings are taken that he is or may be liable in respect thereof but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case including those connected with his appointment, he ought fairly to be excused for the negligence, default or breach, the Court may relieve him either wholly or partly from his liability on such terms as the Court thinks fit.
(2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court forrelief, and the Court shall have the same power to relieve him under this section as it would have had if it had been a Court before which proceedings against him for the negligence, default, breach of duty or breach of trust had been brought.
(3) The persons to whom this section applies are-
(a) officers of an offshore company;
(b) persons employed by an offshore company as auditors, whether or not they are officers of the company;
(c) experts within the meaning of this Act; and
(d) all persons, including receivers and managers or liquidators, who are appointed oi directed by the Court or the Registrar to carry out any duty under this Act in relation to an offshore company.
(1) No proceedings under this Act shall be invalidated by any omission, defect, error, irregularity or deficiency of notice or time unless the Court is of the opinion that substantial injustice has been or may be caused thereby which cannot be remedied by any order of the Court and the Court may, if it thinks fit, make an order or direction declaring that
[Pt. IX, S. 138] such proceedings are valid notwithstanding any such omission, defect, error, irregularity or deficiency.
(2) Without affecting the generality of subsection (1) or of any other provisions of this Act, where any omission, defect, error, irregularity or deficiency, including the absence of a quorum at any meeting of the ottshore company, has occurred in the management or administration of an offshore company whereby any breach of the provisions of this Act has occurred, or whereby there has been default in the observance of the memorandum or articles of the company or whereby any proceedings at or in connection with any meeting or purported meeting have been rendered ineffective, including the failure to make or lodge any declaration of solvency, the Court—
(a) may, either of its own motion or on an application lodged by any interested person, make such order or direction as it thinks fit to rectify or cause to be rectified or to negative or modify or cause to be negatived oi modified thé consequences in law of any such omission, defect, error, irregularity or deficiency, or to validate any act, matter or thing rendered invalid by or as a result of any such omission, defect, error, irregularity or deficiency;
(b) shall, before making any such order or direction, satisfy itself that such an order or direction would not do injustice to the company or to any member or creditor thereof, or any other person;
(c) where any such order or direction is made, may give such ancillary or consequential directions as it thinks fit; and
(d) may determine what notice or summons is to be given to other persons of the intention to make any such application or of the intention to make such an order or direction and whether it should be advertised in any newspaper.
(3) For the purposes of subsection (2), "meeting", in relation to an offshore company, includes—
(a) a meeting of the company;
(b) a meeting of any class of members of the company;
[Pt. IX, S. 138-139] Translation instruments.
(c) a meeting of the debenture-holders or any class of • debenture-holders of the company;
(d) a meeting of the directors of the company or of any committee of the directors; and
(e) a meeting of the creditors or any class of the creditors of the company.
(4) The Court, whether the company is in the process of being wound up or not, may extend or shorten any time for doing any act or taking any proceedings allowed or limited by this Act or the regulations on such terms, it any, as the justice of the case may require, and any such extension may be ordered although the application for the same is not made until after the time originally allowed or limited.
(1) Where under this Act an offshore company or a foreign off shore company or a foreign company is required to lodge with the Registrar an instrument, certificate, contract or document or a certified copy thereof and the same is not written in the national language or in the English language, the company shall lodge at the same time with the Registrar a certified translation thereof in the national language or in the English language.
(2) Where under this Act an offshore company or a foreign offshore company is required to make available for public inspection any instrument, certificate, contract or document and the same is not written in the national language or in the English language, the company shall keep at its registered office in Labuan a certified translation thereof in the national' language or in the English language.
(3) Where any accounts, minute books or other records of an offshore company or a foreign offshore company required to be kept by this Act are not kept in the national language or in the English language, the directors of the company shall cause a true translation in the national language or in the English language of such accounts, minute books and other records to be made from time to time at intervals of not more than seven days and shall cause such translations to be kept with the original accounts, minute books and other records for so long as the original accounts, minute books and other records are required to be kept by this Act.
[Pt. IX, S. 140-143]
No dividend shall be payable to any shareholder of any Dividends offshore company except out of profits. payable from profits only.
Every person who carries on business in Labuan under Use of word any name or title which incorporates the word or words "Corporation", 'Berhad", "Corporation", "Incorporated", "Limited", "Societe Anonyme"/or "Sociedad Anonima" or any other word o {AA988 words in the national language of any country which connotes a joint stock company limited by shares, or any abbreviation of those words, unless it is an offshore company or foreign offshore company duly created, incorporated or registered under this Act, or a domestic company or incorporated body, shall be guilty of an offence against this Act.
(1) A person who General penalty.
(a) does that which by or under this Act he is forbidden to do;
(b) does not do that which by or under this Act he is required or directed to do; or
(c) otherwise contravenes or fails to comply with any provision of this Act, shall be guilty of an offence against this Act.
(2) A person who is guilty of an offence against this Act shall be liable on conviction to a penalty or punishment expressly mentioned as the penalty or punishment for the offence, or if a penalty or punishment is not so mentioned, to a penalty not exceeding five thousand ringgit.
(3) The penalty or punishment, pecuniary or otherwise, set out in, or at the foot of, any section or part of a section of this Act, shall indicate that the offence is punishable upon conviction by a penalty or punishment not exceeding that so set out, and where the penalty or punishment is expressed to apply to a part only of the section, it shall apply to that part only.
(1) Where in, or at the foot of, any section or part of a Default section of this. Act there appears the expression "Default penalties. penalty", it shall indicate that any person who is convicted of an offence against this Act in relation to that section or part shall be guilty of a further offence against this Act if the
[Pt. IX, S. 143-144] offence continues after he is so convicted and liable to an additional penalty for each day during which the offence so continues of not more than the amount expressed in the section or part as the amount of the default penalty or, if an amount is not so expressed, of not more than two hundred ringgit.
(2) Where any ottence is committed by a person by reason of his failure to comply with any provision of this Act by or under which he is required or directed to do anything within a particular period, that offence, for the purposes of subsection (1), shall be deemed to continue so long as the thing so required or directed to be done by him remains undone, notwithstanding that the period has elapsed.
(3) For the purposes of any provision of this Act which provides that an officer of an offshore company, a foreign offshore company or a guarantor company who is in default is guilty of an offence against this Act or is liable to a penalty or punishment, the expression "officer who is in default" or any like phrase means any officer of the company who knowingly and wilfully-
(a) is guilty of the offence; or
(b) authorizes or permits the commission of the offence. Compounding of offences.
(1) The Registrar may, in a case where he deems it fit to do so, compound any offence committed by any person under this Act, by making a written offer to such person to compound the offence by paying to the Registrar within such time as may be specified in the offer such sum of money as may be specified in the offer, which shall not exceed fifty per centum of the amount of the maximum fine to which that person would have been liable if he had been convicted of the offence.
(2) An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted, and where the amount specified in the offer is not paid within the time specified in the offer, or within such extended period as the Registrar may grant, prosecution for the offence may be instituted at any time thereatter against the person to whom the ofter was made.
IPt. IX, S. 144-147]
(3) Where an offence has been compounded under subsection (1), no prosecution shall thereafter be instituted in respect of such offence against the person to whom the offer to compound was made. to be done or taken under this Act and no form is prescribed
In tihe event that any act or step is required or permitted plochene or procedure laid down either in this Act or the regulations, application may be made to the Registrar for directions as to the manner in which the same may be done or taken, and any act or step done or taken in accordance with his directions shall be a valid performance of such act or step.
The Minister may from time to time make regulations Regulations. prescribing all matters and things required or authorized by this Act to be prescribed or provided, or which are necessary or convenient to be prescribed or provided, for the carrying out of, or giving full effect to, the provisions of this Act and for its due administration, including all or any of the following particular purposes:
(a) prescribing forms to be used for the purposes of this Act and the matters to be specified in such forms;
(b) prescribing forms of applications and other notices under this Act;
(c) fixing the fees and charges to be paid under this Act and the penalties for late payment, or delegating the power of fixing such fees, charges and penalties to prescribed persons or bodies; and
(d) prescribing the manner in which accounting and other records required to be made or kept under this Act are to be made or kept, and the declarations, reports, annexures, schedules or details which are to accompany or to be attached to such accounts or other records.
No offshore company or foreign offshore company Investment shall invest in any domestic company other than a trust in domestic company.
Prohibition by Minister. Secrecy. [Pt. IX, S. 148-149]
(1) The Ministermay, withoutassigningreasons therefor, issue, by notification in the Gazette, a Minister, direction—
(a) prohibiting the initial incorporation of any offshore company or class of companies;
(b) prohibiting the initial registration of a foreign offshore company; or
(c) directing any offshore company or foreign offshore company to cease to carry on its business or part of its business either immediately or within such time as may be specified in the direction.
(2) A direction made under this section may be revoked or varied by the Minister.
(1) All proceedings (other than criminal proceedings) relating to any offshore company or foreign offshore company commenced in any Court, either under the provisions of this Act or for the purpose solely of determining the rights or obligations of officers, members or holders of debentures, and any appeal therefrom, shall, unless the Court otherwise orders, be heard in camera and no details of the proceedings shall be published by any person without leave of the Court.
(2) Where—
(a) in any proceedings for the winding up of an offshore company the Court is satisfied that the company or any officer thereof has failed to comply with any provisions of this Act; or
(b) an offshore company or any officer thereof is convicted by the Court of any offence under this Act, the Court may, if it thinks fit, order that the records, books and registers of that company and the entries in the Registrar's registers and records relating to that company be opened to the public for inspection.
(3) A person who, with respect to any offshore company or foreign offshore company, otherwise than for the purpose of the administration of this Act or the carrying on of the business of the company, in Labuan or elsewhere—
(a) divulges;
[Pt. IX, S. 149, Schedule] OFFSHORE COMPANY
(b) attempts, offers or threatens to divulge; and
(c) induces or attempts to induce other persons to divulge, any infomation concerning or touching upon—
(d) the shareholding in, or beneficial ownership of, any share or shares in such company;
(e) the management of such company; and
(f) any of the business, financial or other affairs or transactions of the company, shall be guilty of an offence against this Act.
(4) Nothing in this section shall prevent any Court from exercising its discretion to require any person to produce any document or to give any evidence in any proceedings before the Court which is relevant to those proceedings. 150→152,..... = AA 817 Schedule (Section 19) Powers of an Offshore Company 1. To carry on any business, other than a business which is prohibited oy this Act or the regulations from being carried on, which may seem to the company capable of being conveniently carried on or calculated directly or indirectly to enhance the value of or render profitable any of the company's property or rights. 2. To enter into or be a party to any transaction or document. 3. To acquire, hold, dispose of a deal with any information or rights or property of any kind 4. To acquire, hold, dispose of or deal with the whole or any part of the undertaking of any other company, association or business. 5. To dispose of or otherwise deal with the whole or any part of its undertaking or business. 6. To assume any duties, obligations or liabilities. 7. To acquire any rights or interests. 8. To provide or procure provision of any services.
[Schedule] 9. To lend and borrow. 10. To procure its registration or recognition in any place outside Labuan. 11. To create and extinguish liabilities and rights and interests. 12. To issue shares, debentures and options, and to take shares, debentures and options and to redeem and forfeit the same. 13. To employ or retain persons in and about its business or the business of any other company or person. 14. To give indemnities and guarantees and obtain indemnities and guarantees. 15. To take out insurance of all kinds whether over the property or rights of the company or not. 16. To promote any other company. 17. To make gifts, donations and wages which may lawfully be made, whether the same may, or may not, be for the purpose of advancing its business. 18. By way of settlement or other dealing or disposition, to give the right to a person not a member of the company to share in the whole or any part of its gains or profits to the exclusion of its members, provided that in exercising such power no distribution of gains or profits shall be made pursuant to such settlement, disposition or other dealing which would exceed the amount properly distributable as a dividend or properly capable of being returned as capital surplus were such distribution a distribution to some or to all of the members of the company. Todo any of the things which it may do in association with any other person and as principal or agents or as trustee or for its own benefit. 20. To promote any other business. 21. To do all such things as are incidental or conducive to the exercise of the powers of the company. 22. To do all other things which are not prohibited by or under this Act or the regulations or otherwise by any written law of Malaysia.
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
