section-2-interpretation.md

Section 2. Interpretation

1. In this Act, unless the context otherwise requires—

“accounting records”, in relation to a corporation, includes invoices, receipts, orders for payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are prepared;

“annual general meeting”, in relation to a public company, means a meeting of the company required to be held by section 340;

“annual return” means the return required to be lodged under section 68, and includes any document accompanying the return;

“approved company auditor” means a person who has been approved under section 263 as an auditor and whose approval has not been revoked;

“approved liquidator” means a person who has been approved under section 433 as a liquidator and whose approval has not been revoked;

“banking corporation” means a licensed bank, licensed investment bank, licensed Islamic bank and licensed international Islamic bank;

“beneficial owner” means the ultimate owner of the shares and does not include a nominee of any description;

“Board”, in relation to a company, means—

• directors of the company who number not less than the required quorum acting as a board of directors; or

• if the company has only one director, that director;

“books” includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document;

“borrowing corporation” means a corporation that is or will be under a liability, whether or not such liability is present or future, to repay any money received or to be received by it in response to an invitation to the public to subscribe for or purchase debentures of the corporation in accordance with the provisions of Subdivision 10 of Division 1 of Part III;

“branch register” means—

• in relation to a company—
  • a branch register of members of the company kept under section 53; or
  • a branch register of debenture holders kept under section 60, as the case may require; and
• in relation to a foreign company, a branch register of members of the company kept under section 568;

“Central Bank of Malaysia” means the Bank as defined in section 3 of the Central Bank of Malaysia Act 2009 [Act 701];

“certified”, in relation to a copy of a document, means certified in the manner determined by the Registrar to be a true copy of the document and, in relation to a translation of a document, means certified in the manner determined by the Registrar to be a correct translation of the document into the national language or into the English language, as the case requires;

“charge” includes a mortgage and any agreement to give or execute a charge or mortgage whether upon demand or otherwise;

“Commission” means the Companies Commission of Malaysia established under the Companies Commission of Malaysia Act 2001 [Act 614];

“company” means a company incorporated under this Act or under any corresponding previous written law;

“company having a share capital” includes an unlimited company with a share capital;

“constitution” means a document referred to in section 34;

“contributory”, in relation to a company, means a person liable to contribute to the assets of the company in the event of its being wound up, and includes the holder of fully paid shares in the company and, prior to the final determination of the persons who are contributories, includes any person alleged to be a contributory;

“corresponding previous written law” means any written law relating to companies which has been at any time in force in any part of Malaysia and which corresponds with any provision of this Act;

“Court” means the High Court or a judge of the High Court;

“creditors’ voluntary winding up” means a winding up under Subdivision 5 of Division 1 of Part IV;

“debenture” includes debenture stock, bonds, sukuk, notes and any other securities of a corporation whether constituting a charge on the assets of the corporation or not;

“director” includes any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the majority of directors of a corporation are accustomed to act and an alternate or substitute director;

“Director General of Inland Revenue Board” means the Director General of Inland Revenue as provided in section 134 of the Income Tax Act 1967 [Act 53];

“Division” means a Division of a Part of this Act and a reference to a specified Division is a reference to that Division of the Part of this Act in which the reference occurs;

“document” has the meaning assigned to it in the Evidence Act 1950 [Act 56];

“equity share” means any share which is not a preference share;

“exempt private company” means a private company in the shares of which no beneficial interest is held directly or indirectly by any corporation and which has not more than twenty members none of whom is a corporation;

“expert” includes engineer, valuer, accountant and any other person whose profession or reputation gives authority to a statement made by him;

“financial statements” has the same meaning as set out in the approved accounting standards issued or approved by the Malaysian Accounting Standards Board under the Financial Reporting Act 1997 [Act 558];

“financial year” means the period in respect of which any financial statements of a corporation is made up whether that period is a year or not;

“foreign company” means—

• a company ,corporation, society, association or other body incorporated outside Malaysia; or
• an unincorporated society, association or other body which under the law of its place of origin may sue or be sued, or hold property in the name of the secretary or other officer of the body or association duly appointed for that purpose and which does not have its head office or principal place of business in Malaysia;

“guarantor corporation”, in relation to a borrowing corporation, means a corporation that has guaranteed or has agreed to guarantee the repayment of any money received or to be received by the borrowing corporation in response to an invitation to the public to subscribe for or purchase debentures of the borrowing corporation;

“interest” includes returns or compensation as recognized under Shariah principles;

“insolvency practitioner” means a person who is an approved liquidator other than the Official Receiver;

“licensed business” has the meaning assigned to it in the Financial Services Act 2013 [Act 758] or the Islamic Financial Services Act 2013 [Act 759], as the case may be;

“licensed institution” means a licensed bank, licensed investment bank, licensed Islamic bank, licensed international Islamic bank, licensed insurer, licensed takaful operator and licensed international takaful operator;

“liquidator” includes the Official Receiver when acting as the liquidator of a corporation;

“lodged” means lodged or filed under this Act or any corresponding previous written law;

“manager”, in relation to a company, means the principal executive officer of the company for the time being by whatever name called and whether or not he is a director;

“member” means—

• in the case of a company limited by shares, a person whose name is entered in the register of members as the holder for the time being of one or more shares in the company; or

• in the case of a company limited by guarantee, a person whose name is entered in the register of members;

“members’ voluntary winding up” means a winding up under Subdivision 4 of Division 1 of Part IV, where a declaration has been made and lodged under section 443;

“minimum subscription”—

• in relation to any shares of an unlisted recreational club which are offered to the public for subscription, means the amount stated in the prospectus relating to the offer as stated in the First Schedule;

• in relation to any issue of, offer for subscription or purchase of, or invitation to subscribe for or purchase, shares made under the Capital Markets and Services Act 2007 [Act 671], means the amount stated in the prospectus relating to the issue, offer or invitation in accordance with the requirements of the Securities Commission relating to contents of prospectuses,

as the minimum amount which in the opinion of the directors must be raised by the issue of the shares so offered;

“Minister” means the Minister charged with the responsibility for companies;

“office copy”, in relation to any Court order or other Court document, means a copy authenticated under the hand or seal of the Registrar of the Court or other proper officer of the Court;

“officer”, in relation to a corporation, includes—

• any director, secretary or employee of the corporation;
• a receiver and manager of any part of the undertaking of the corporation appointed under a power contained in any instrument; and
• any liquidator of a company appointed in a voluntary winding up,

but does not include—

* any receiver who is not also a manager;  
* any receiver and manager appointed by the Court; or  
* any liquidator appointed by the Court or by the creditors;

“Official Receiver” means the Director General of Insolvency, Deputy Director General of Insolvency, Directors of Insolvency, Deputy Directors of Insolvency, Senior Assistant Directors of Insolvency, Assistant Directors of Insolvency, Insolvency officers and any other officer appointed under the Bankruptcy Act 1967 [Act 360];

“preference share” means a share by whatever name called, which does not entitle the holder to the right to vote on a resolution or to any right to participate beyond a specified amount in any distribution whether by way of dividend, or on redemption, in a winding up, or otherwise;

“prescribed” means prescribed by the Minister under this Act;

“principal register”, in relation to a company, means the register of members of the company kept under section 50;

“printed” includes typewritten or lithographed or reproduced by any mechanical means;

“private company” means—

• any company which immediately prior to the commencement of this Act was a private company under any corresponding previous written law;
• any company incorporated as a private company under this Act; or
• any company converted into a private company under section 41,

being a company which has not ceased to be a private company under section 42;

“profit and loss account” includes income and expenditure account, revenue account or any other account showing the results of the business of a corporation for a period;

“promoter”, in relation to a prospectus issued by or in connection with a corporation, means a promoter of the corporation who was a party to the preparation of the prospectus or of any relevant portion of the prospectus; but does not include any person by reason only of his acting in a professional capacity;

“property”, in relation to a corporation, includes land, money, goods, chose in action, things in action, goodwill and every valuable thing, whether corporal or incorporeal, movable or immovable, and whether situated in Malaysia or elsewhere and also includes obligations, servitudes, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to the property;

“prospectus” means any prospectus, notice, circular, advertisement or invitation inviting applications or offers from the public to subscribe for or purchase or offering to the public for subscription or purchase any shares in or debentures of or any units of shares in or units of debentures of a corporation or proposed corporation and, in relation to any prospectus registered under the Capital Markets and Services Act 2007, means a prospectus as defined in that Act;

“public company” means a company other than a private company;

“registered” means registered under this Act or any corresponding

“Registrar” means the Registrar designated under subsection 20a(1) of the Companies Commission of Malaysia Act 2001 [Act 614];

“regulations” means regulations under this Act;

“related corporation”, in relation to a corporation, means a corporation which is deemed to be related to the first-mentioned corporation by virtue of section 7;

“rules” means any rules made by the Rules Committee under section 616;

“securities” has the meaning assigned to it in the Capital Markets and Services Act 2007;

“Securities Commission” means the Securities Commission established under section 3 of the Securities Commission Act 1993 [Act 498];

“service address”, in relation to a director, means an address, electronic or otherwise, provided to the company to which any communication may be sent;

“share” means issued share capital of a corporation and includes stock except where a distinction between stock and shares is expressed or implied;

“stock exchange” has the meaning assigned to it in the Capital Markets and Services Act 2007;

“substantial shareholder” means the person referred to in subsection 136(2);

“substantial shareholding” has the meaning assigned to it in section 136;

“this Act” includes any subsidiary legislation made under this Act;

“unit”, in relation to a share, debenture or other interest, means any right or interest therein, by whatever term called;

“unlisted recreational club” has the meaning assigned to it in the Capital Markets and Services Act 2007;

“voting share”, in relation to a body corporate, means an issued share of the body corporate—

• to which there is attached a right to vote in all circumstances; or

• not being a share to which a right to vote is limited only to one or more of the following circumstances:

  • during a period in which a dividend, or part of a dividend, in respect of the share is in arrears;
  • upon a proposal to reduce the share capital of the body corporate;
  • upon a proposal affecting the rights attached to the share;
  • upon a proposal to wind up the body corporate;
  • upon a proposal for the disposal of the whole of the property, business and undertakings of the body corporate;
  • during the winding up of the body corporate.

2. A person shall not be regarded as a person in accordance with whose directions or instructions the directors of a company are accustomed to act by reason only that the directors act on advice given by him in a professional capacity.

3. A statement included in a prospectus or statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included.

4. A statement shall be deemed to be included in a prospectus or statement in lieu of prospectus if it is contained in any report or memorandum appearing on the face of or by reference incorporated in or issued with the prospectus or statement in lieu of prospectus.

5. Any invitation to the public to deposit money with or to lend money to a corporation shall be deemed to be an invitation to subscribe for or purchase debentures of the corporation and any document that is issued or intended or required to be issued by a corporation acknowledging or evidencing or constituting an acknowledgment of the indebtedness of the corporation in respect of any money that is or may be deposited with or lent to the corporation in response to such an invitation shall be deemed to be a debenture, but an invitation to the public by a prescribed corporation as defined in subsection 158(8) shall not be deemed to be an invitation to the public to deposit money with or to lend money to the corporation for the purpose of the Interest Schemes Act 2016 [Act 778];

6. Any reference in this Act to offering shares or debentures to the public shall, unless the context otherwise requires, be construed as including a reference to offering shares or debentures to any section of the public, whether selected as clients of the person issuing the prospectus or in any other manner; but a bona fide offer or invitation with respect to shares or debentures shall not be deemed to be an offer to the public if it is—

• an offer or invitation to enter into an underwriting agreement;
• made to a person whose ordinary business is to buy or sell shares or debentures whether as principal or agent;
• made to existing members or debenture holders of a corporation and relates to shares in or debentures of that corporation and is not an offer to which section 233 of the Capital Markets and Services Act 2007 applies; or
• made to existing members of a company within the meaning of section 457 and relates to shares in the corporation within the meaning of that section.

7. Unless the context otherwise requires, any reference in this Act to a person being or becoming bankrupt or to a person assigning his estate for the benefit of his creditors or making an arrangement with his creditors under any written law relating to bankruptcy or to a person being an undischarged bankrupt or to any status, condition, act, matter or thing under or in relation to the law of bankruptcy shall be construed as including a reference to a person being or becoming bankrupt or insolvent or to a person making any such assignment or arrangement or to a person being an undischarged bankrupt or insolvent or to the corresponding status, condition, act, matter or thing, as the case requires, under any written law relating to bankruptcy or insolvency.