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CONSTITUTION OF A COMPANY (Company Limited by Guarantee (S38(3) (Shall…
CONSTITUTION OF A COMPANY
INTRODUCTION
1965
Required to have M&A
M&A is a fudamental document
M&A regulate external affairs and contained internal regulation of company
2016
M&A = constitution
optional to have (except for company limited by company
if have, follow constitution
if don't have, follow comapnis act 2016
EXISTING COMPANY WITH M&A
s619(2)
M&A =constitution , remain valid
can recoke entirely, but need to pass a resolution
if amend certain clause, also need to pass a resolution
CONSITUTION FOR PUBLIC COMPANY
Option
have
dont have (except of company limited by guarantee), but need approval from shareholder
notify SSM its decision
have
dont have
amend
Company Limited by Guarantee
S38(3)
Shall state
Company limited by gurantee
Object of company
Capacity, rights, powers and priviledges of company
Number of member
Matters contemplated by CA2016
Other matter as company wishes
S38(4)
To divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital
S38(1)
Shall have constitution
S38(2)
Shall be signed by a person intending to incorporation
S38(5)
purporting to give any person a right to participate in the divisible profits of the company, otherwise than as a member, shall be void.
S38(6)
Shall be binding on company and its members
if it was signed by each member and contained covenants on each member to observe all provisions in the constitution
Effect of Constitution
Sec 33(1)
Bind the company and the members to the same extent as if the constitution had been signed and sealed by each member and contained covenants on the part of each member to observe all the provisions.
Sec 33(2)
All moneys payable by any member to the company under the constitution shall be a debt due from such member to the company.
Form of Constitution
Sec 34
Company limited by shares - document adopted as its constitution under section 32
Company limited by guarantee - document lodged for registration of the company under sec38
Company registered under the previous written law - memorandum and articles as originally registered or as altered in accordance with the previous written law
Any alteration or amendment made under section 36 and 37
Contents of Constitution
Sec 35(1)
Objects
Capacity, rights, powers or privileges
Matters contemplated by this Act to be included
other matters as the company wishes to include
Sec 35(2)
Restricted from carrying on any business or activity that is not within those objects
Shall have full capacity and powers to achieve such objects, unless restricted by the constitution
Alteration or amendment of Constitution
:warning:
Sec 36(1)
) : : :red_flag:
A company must pass a special resolution
if not the constitution itself prohibits the alteration or amendment
Sec 36(2)
:red_flag:
once the special resolution was passed or a later date as specified in the resolution
any alteration or amendment to the constitution shall bind the company and the members accordingly
Sec 36(3)
: :red_flag:
The company shall notify the Registrar of the alteration or amendment of its constitution
within 30 days from the date the special resolution was passed and lodge a copy of the constitution as altered or amended
Amendment by Court
: :explode:
Sec 37(1)
, :red_flag:
if there is application from a director or member of a company,
the Court may make an order to alter the constitution of a company on such terms and conditions as it thinks fit.
Sec 37(2))
:red_flag:
The company must make sure that documents copy of the order, together with a copy of the constitution as altered or amended is lodged with the Registrar
to register within 30 days from the date of the order
Sec 37(3)
: :red_flag:
the company and every officer who contravene the above subsection commit an offence and shall, on conviction
be liable to a fine not exceeding
RM10,000
case of a continuing offence
further fine not exceeding
RM500
for each day
Adoption of a Constitution
Sec 32(1)
adopt by special resolution
Sec 32(4)
lodge the Constitution with SSM within 30 days after it is adopted
Sec 32(2)
constitution has no effect to the extent that it contravenes or is inconsistent
Sec 32(3)
binding on the company, its directors and its members
Sec 32(5)
the company and every officer who contravene sec 32(4) will commit an offence
not exceeding RM50,000
continuing offence, to a further fine not exceeding RM500 for each day
Company Without Constitution
Sec 31(3)
director & member have the rights, powers, duties and obligations as set out in this Act
required to notify the Registrar
nature of business
change to the company’s nature of business