Companies Ordinance (CKI) (Cth)
TERRITORY OF COCOS (KEELING) ISLANDS
The Companies Ordinance
comprising Chapter 174 of the Revised Laws of the Colony of Singapore in its application to the Territory as amended and in force under the
Cocos (Keeling) Islands Act 1955
Consolidated as in force on 17 February 2000
(includes amendments up to Ordinance No. 2 of 1973)
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
TERRITORY OF COCOS (KEELING) ISLANDS
The Companies Ordinance
comprising Chapter 174 of the Revised Laws of the Colony of Singapore in its application to the Territory as amended and in force under the
Cocos (Keeling) Islands Act 1955
To amend and re-enact the law relating to companies
Contents
Page
Part I Preliminary
1 Short title [see Note 1] 19
2 Interpretation 19
Part II Incorporation of companies and matters incidental thereto
Memorandum of association
3 Mode of forming incorporated company 21
4 Requirements with respect to memorandum 21
5 Stamp and signature of memorandum 22
6 Restriction on alteration of memorandum 22
7 Mode in which and extent to which objects of company may be altered 23
Articles of association
8 Articles prescribing regulations for companies 25
9 Regulations required in case of unlimited company or company limited by guarantee 25
10 Adoption and application of Table A 25
11 Printing, stamp, and signature of articles 26
12 Alteration of articles by special resolution 26
Form of memorandum and articles
13 Statutory forms of memorandum and articles 26
Registration
14 Registration of memorandum and articles 27
15 Effect of registration 27
16 Power of company to hold lands 27
Appeal to the Governor in Council
17 Conclusiveness of certificate of incorporation 28
18 Registration of unlimited company as limited 29
Provisions with respect to names of companies
19 Restriction on registration of companies by certain names 30
20 Power to dispense with the use of the word Limited in certain circumstances 31
21 Change of name 32
General provisions with respect to memorandum and articles
22 Effect of memorandum and articles 34
23 Provision as to memorandum and articles of companies limited by guarantee 34
24 Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent 35
25 Copies of memorandum and articles to be given to members 35
26 Issued copies of memorandum to embody alterations 35
Membership of company
27 Definition of member 36
Private companies
28 Meaning of private company 36
29 Circumstances in which company ceases to be, or to enjoy privileges of, a private company 37
Reduction of number of members below legal minimum
30 Prohibition of carrying on business with fewer than seven or, in the case of a private company, two members 38
Contracts, etc
31 Form of contracts 38
32 Bills of exchange and promissory notes 39
33 Execution of deeds out of the Colony 39
34 Power for company to have official seal for use out of the Colony 39
Authentication of documents
35 Authentication of documents 40
Part III Share capital and debentures
Prospectus
36 Dating and registration of prospectus 41
37 Specific requirements as to particulars in prospectus 41
38 Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus 43
39 Liability for statements in prospectus 43
40 Document containing offer of shares or debentures for sale to be deemed prospectus 46
41 Prohibition of allotment unless minimum subscription received 47
42 Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar 48
43 Effect of irregular allotment 49
44 Return as to allotments 49
Commissions and discounts
45 Power to pay certain commissions and prohibition of payment of all other commissions, discounts, etc 51
46 Statement in balance sheet as to commissions and discounts 53
47 Purchase of, and loan on, company’s shares prohibited 53
48 Prohibition of provision of financial assistance by company for purchase of its own shares 53
Issue of redeemable preference shares and shares at discount
49 Power to issue redeemable preference shares 54
50 Power to issue shares at a discount 56
Miscellaneous provisions as to share capital
51 Power of company to arrange for different amounts being paid on shares 57
52 Reserve liability of limited company 57
53 Power of company limited by shares to alter its share capital 57
54 Notice to Registrar of consolidation of share capital, conversion of shares into stock, etc 58
55 Notice of increase of share capital 59
56 Power of unlimited company to provide for reserve share capital on re‑registration 59
57 Power of company to pay interest out of capital in certain cases 60
Reduction of share capital
58 Special resolution for reduction of share capital 61
59 Application to court for confirming order, objections by creditors and settlement of list of objecting creditors 61
60 Order confirming reduction and powers of court on making such order 63
61 Registration of order and minute of reduction 64
62 Liability of members in respect of reduced shares 64
63 Penalty on concealment of name of creditor 65
Variation of shareholders’ rights
64 Rights of holders of special classes of shares 66
Transfer of shares and debentures, evidence of title, etc
65 Nature of shares 67
66 Transfer not to be registered except on production of instrument of transfer 67
67 Transfer by personal representative 67
68 Registration of transfer at request of transferor 68
69 Notice of refusal to register transfer 68
70 Duties of company with respect to issue of certificates 68
71 Certificate to be evidence of title 69
72 Evidence of grant of probate 69
73 Issue and effect of share warrants to bearer 69
74 Penalty for personation of shareholder 70
Special provisions as to debentures
75 Right of debenture holders and shareholders to inspect register of debenture holders and to have copies of trust deed 70
76 Perpetual debentures 71
77 Power to re‑issue redeemed debentures in certain cases 72
78 Specific performance of contracts to subscribe for debentures 73
79 Payment of certain debts out of assets subject to floating charge in priority to claims under the charge 73
Part IV Registration of charges
Registration of charges with Registrar
80 Registration of charges created by companies registered in the Colony 75
81 Duty of company to register charges created by company 78
82 Duty of company to register charges existing on property acquired 79
83 Register of charges to be kept by Registrar 79
84 Endorsement of certificate of registration on debentures 80
85 Entry of satisfaction 81
86 Rectification of register of charges 81
87 Registration of enforcement of security 81
Provisions as to company’s register of charges and as to copies of instruments creating charges
88 Copies of instruments creating charges to be kept by company 82
89 Company’s register of charges 82
90 Right to inspect copies of instruments creating mortgages and charges and company’s register of charges 83
Application of Part IV to companies incorporated outside the Colony
91 Application of Part IV to charges created and property subject to charge acquired by company incorporated outside the Colony 83
Part V Management and administration
Registered office and name
93 Registered office of company 84
94 Publication of name by company 84
Restrictions on commencement of business
95 Restrictions on commencement of business 86
Register of members
96 Register of members 87
97 Index of members of company 88
98 Provisions as to entries in register in relation to share warrants 88
99 Inspection of register of members 89
100 Power to close register 90
101 Power of Court to rectify register 90
102 Trusts not to be entered on register 91
103 Register to be evidence 91
Branch register
104 Power for company to keep branch register 91
105 Regulations as to branch register 92
106 Stamp duties in case of shares registered in branch registers 93
107 Provisions as to branch registers of companies kept in the Colony 93
108 Interpretation of sections 104 to 107 94
Annual return
109 Annual return to be made by company having a share capital 94
110 Annual return to be made by company not having share capital 96
111 General provisions as to annual returns 97
112 Certificates to be sent by private company with annual return 99
Meetings and proceedings
113 Annual general meeting 99
114 Statutory meeting and statutory report 99
115 Convening of extraordinary general meeting on requisition 101
116 Provisions as to meetings and votes 102
117 Representation of companies at meetings of other companies and of creditors 104
118 Provisions as to extraordinary and special resolutions 104
119 Registration and copies of certain resolutions and agreements 106
120 Resolutions passed at adjourned meetings 107
121 Minutes of proceedings of meetings and directors 107
122 Inspection of minute books 108
Accounts and audit
123 Keeping of books of account 108
124 Profit and loss account and balance sheet 109
125 Contents of balance sheet 110
126 Assets consisting of shares in subsidiary companies to be set out separately in balance sheet 111
127 Balance sheet to include particulars as to subsidiary companies 112
128 Meaning of subsidiary company 113
129 Accounts to contain particulars as to loans to, and remuneration of, directors, etc 114
130 Signing of balance sheet 115
131 Right to receive copies of balance sheets and auditors’ report 116
132 Appointment and remuneration of auditors 117
133 Disqualification for appointment as auditor 118
134 Auditors to be authorized by Minister 119
135 Auditors’ report and auditors’ right of access to books and right to attend general meeting 119
Special provisions relating to banking and certain other companies
136 Periodical statements of assets and liabilities to be published 120
137 Loans to officers to be secured 121
Inspection
138 Investigation of affairs of company by inspectors appointed by Minister 122
139 Proceedings on report by inspectors 123
140 Power of company to appoint inspectors 125
141 Report of inspectors to be evidence 125
Directors and managers
142 Number of directors 125
143 Restrictions on appointment or advertisement of director 126
144 Qualification of director or manager 127
145 Provisions as to undischarged bankrupts acting as directors 128
146 Validity of acts of directors 128
147 Register of directors 129
148 Limited company may have directors with unlimited liability 130
149 Special resolution of limited company making liability of directors unlimited 131
150 Statement as to remuneration of directors to be furnished to shareholders 131
151 Disclosure by directors of interest in contracts 132
152 Provision as to payments received by directors for loss of office or on retirement 133
153 Provisions as to assignment of office by directors 134
Avoidance of provisions in articles or contracts relieving officers from liability
154 Provisions as to liability of officers and auditors 135
Arbitration
155 Power of companies to go to arbitration 136
Arrangements and reconstructions
156 Power of compromise with creditors and members 136
157 Provisions for facilitating reconstruction and amalgamation of companies 137
158 Power to acquire shares of shareholders dissenting from scheme or contract approved by majority 139
Part VI Winding up
(i) Preliminary
Modes of winding up
159 Modes of winding up 141
Contributories
160 Liability as contributories of present and past members 141
161 Definition of contributory 143
162 Nature of liability of contributory 144
163 Contributories in case of death of member 144
164 Contributories in case of bankruptcy of member 144
165 Provision as to married women 145
(ii) Winding up by the Court
Cases in which company may be wound up by court
166 Circumstances in which company may be wound up by court 145
167 Definition of inability to pay debts 146
Petition for winding up and effects thereof
168 Provisions as to applications for winding up 146
169 Powers of court on hearing petition 148
170 Power to stay or restrain proceedings against company 148
171 Avoidance of dispositions of property, etc, after commencement of winding up 149
172 Avoidance of attachments, etc 149
Commencement of winding up
173 Commencement of winding up by the court 149
Consequences of winding-up order
174 Copy of order to be forwarded to Registrar 150
175 Actions stayed on winding-up order 150
176 Effect of winding-up order 150
Statement of company’s affairs and report by Official Receiver
177 Statement of company’s affairs to be submitted to Official Receiver 150
178 Report by Official Receiver 152
Liquidators
179 Power of court to appoint liquidators 153
180 Appointment and powers of provisional liquidator 153
181 Appointment, style, etc, of liquidators 153
182 Provisions where person other than Official Receiver is appointed liquidator 154
183 General provisions as to liquidators 154
184 Custody of company’s property 155
185 Vesting of property of company in liquidator 155
186 Powers of liquidator 155
187 Exercise and control of liquidator’s powers 157
188 Books to be kept by liquidator 158
189 Control of funds in hands of unofficial liquidator 158
190 Bank account of official liquidator 159
191 Audit of accounts of unofficial liquidator 160
192 Accounts of official liquidator 160
193 Control of unofficial liquidators by Official Receiver 161
194 Control of Official Receivers by Minister 162
195 Release of unofficial liquidators 162
Committees of inspection
196 Meetings of creditors and contributories to determine whether committee of inspection shall be appointed 163
197 Constitution and proceedings of committee of inspection 164
198 Powers of Official Receiver where no committee of inspection 165
General powers of court in case of winding up by court
199 Power to stay winding up 165
200 Settlement of list of contributories and application of assets 166
201 Delivery of property to liquidator 166
202 Payment of debts due by contributory to company and extent to which set-off allowed 166
203 Power of court to make calls 167
204 Payment into Companies Liquidation Account of moneys due to company 167
205 Order on contributory conclusive evidence 168
206 Appointment of special manager 168
207 Power to exclude creditors not proving in time 168
208 Adjustment of rights of contributories 169
209 Inspection of books by creditors and contributories 169
210 Power to order costs of winding up to be paid out of assets 169
211 Power to summon persons suspected of having property of company 169
212 Power to order public examination of promoters, directors, etc 170
213 Power to restrain fraudulent persons from managing companies 172
214 Power to arrest absconding contributory 173
215 Powers of court cumulative 173
216 Delegation to liquidator of certain powers of court 173
217 Dissolution of company 174
(iii) Voluntary winding up
Resolutions for, and commencement of, voluntary winding up
218 Circumstances in which company may be wound up voluntarily 175
219 Notice of resolution to wind up voluntarily 175
220 Commencement of voluntary winding up 176
Consequences of voluntary winding up
221 Effect of voluntary winding up on business and status of company 176
222 Avoidance of transfers, etc, after commencement of voluntary winding up 176
Declaration of solvency
223 Statutory declaration of solvency in case of proposal to wind up voluntarily 177
Provisions applicable to a members’ voluntary winding up
224 Provisions applicable to a members’ winding up 177
225 Power of company to appoint and fix remuneration of liquidators 178
226 Power to fill vacancy in office of liquidator 178
227 Power of liquidator to accept shares, etc, as consideration for sale of property of company 179
228 Duty of liquidator to call general meeting at end of each year 180
229 Final meeting and dissolution 180
Provisions applicable to a creditors’ voluntary winding up
230 Provisions applicable to a creditors’ winding up 181
231 Meeting of creditors 182
232 Appointment of liquidator 183
233 Appointment of committee of inspection 184
234 Fixing of liquidators’ remuneration and cesser of directors’ powers 184
235 Power to fill vacancy in office of liquidator 185
236 Application of s 227 to a creditors’ voluntary winding up 185
237 Duty of liquidator to call meetings of company and of creditors at end of each year 185
238 Final meeting and dissolution 185
Provisions applicable to every voluntary winding up
239 Provisions applicable to every voluntary winding up 187
240 Distribution of property of company 187
241 Powers and duties of liquidator in voluntary winding up 187
242 Power of court to appoint and remove liquidator in voluntary winding up 188
243 Notice by liquidator of his appointment 188
244 Arrangement when binding on creditors 188
245 Power to apply to court to have questions determined or powers exercised 189
246 Costs of voluntary winding up 189
247 Saving for rights of creditors and contributories 189
(iv) Winding up subject to supervision of Court
248 Power to order winding up subject to supervision 190
249 Effect of petition for winding up subject to supervision 190
250 Application of ss 171 and 172 to winding up subject to supervision 190
251 Power of court to appoint or remove liquidators 190
252 Effect of supervision order 191
(v) Provisions applicable to every mode of winding up
Proof and ranking of claims
253 Debts of all descriptions to be proved 192
254 Application of bankruptcy rules in winding up of insolvent companies 192
255 Preferential payments 193
Effect of winding up on antecedent and other transactions
256 Fraudulent preference 194
257 Effect of floating charge 195
258 Disclaimer of onerous property 195
259 Restriction of rights of creditor as to execution or attachment 198
260 Duties of Sheriff as to goods taken in execution 199
Offences antecedent to or in course of winding up
261 Offences by officers of companies in liquidation 200
262 Penalty for falsification of books 203
263 Frauds by officers of companies which have gone into liquidation 203
264 Liability where proper accounts not kept 204
265 Responsibility of directors for fraudulent trading 204
266 Power of court to restrain directors, etc, from leaving Colony 206
267 Power of court to assess damages against delinquent directors, etc 207
268 Prosecution of delinquent officers and members of company 208
269 Swearing of affidavits 210
Supplementary provisions as to winding up
270 Disqualification for appointment as liquidator 210
271 Enforcement of duty of liquidator to make returns, etc 211
272 Notification that a company is in liquidation 211
273 Exemption of certain documents from stamp duty on winding up of companies 212
274 Books of company to be evidence 212
275 Disposal of books and papers of company 212
276 Information as to pending liquidations 213
277 Recovery of, and claims to, undistributed assets, etc 214
278 Resolutions passed at adjourned meetings of creditors and contributories 215
279 Meetings to ascertain wishes of creditors or contributories 215
Provisions as to dissolution
280 Power of court to declare dissolution of company void 216
281 Registrar may strike defunct company off register 216
282 Property of dissolved company to be bona vacantia 218
Central accounts
283 Companies Liquidation Account 218
284 Investment of surplus funds on general account 219
285 Separate accounts of particular estates 220
286 Audit of accounts 220
Part VII Receivers and managers
287 Official Receiver as receiver for debenture holders or creditors 221
288 Notification that receiver or manager appointed 221
289 Penalty for default 221
290 Power of court to fix remuneration on application of liquidator 221
291 Delivery to Registrar of accounts of receivers and managers 222
292 Enforcement of duty of receiver to make returns, etc 222
Part VIII Application of ordinance to companies formed or registered under former Ordinances
293 Application of ordinance to existing companies 224
Part IX Winding up of unregistered companies
294 Meaning of unregistered company 225
295 Winding up of unregistered companies 225
296 Contributories in winding up of unregistered company 227
297 Power of court to stay or restrain proceedings 228
298 Actions stayed on winding-up order 228
299 Provisions of Part IX cumulative 228
Part X Companies incorporated outside the Colony carrying on business within the Colony
300 Companies to which Part X applies 229
301 Documents, etc, to be delivered to Registrar by companies carrying on business in the Colony 229
302 Return to be delivered to Registrar where documents, etc, altered 230
303 Balance sheet of company carrying on business in the Colony 231
304 Obligation to state name of company, whether limited, and country where incorporated 231
305 Service on company to which Part X applies 232
306 Company to give notice to Registrar of cessation of business 232
307 Penalties 232
308 Interpretation of Part X 233
309 Banking companies incorporated outside the Colony may only operate under licence 233
Part XI Restrictions on sale of shares and offers of shares for sale
310 Provisions with respect to prospectuses of foreign companies inviting subscriptions for shares or offering shares for sale 235
311 Requirements as to prospectus 237
312 Restrictions on offering of shares for subscription or sale 239
Part XII Miscellaneous
General provisions as to legal proceedings
316 Enforcement of orders 242
317 Costs in actions by certain limited companies 242
318 Power of court to grant relief in certain cases 242
319 Service of documents on company 243
The Official Receiver and the Registrar of Companies
320 Official Receiver 243
321 Assistants and staff 243
322 Other officers 244
323 Liability of funds of Colony 244
324 Registrar of Companies 244
325 Inspection, production, and evidence of documents kept by the Registrar 245
326 Enforcement of duty of company to make returns to Registrar 246
327 Annual reports 246
Rules and forms
328 Power to make general rules 246
329 Regulations and forms for Registrar 247
330 Power to vary forms in Schedules 247
Prohibition of partnerships with more than twenty members
331 Prohibition of partnerships with more than twenty members 248
Provisions relating to banks
332 Prohibition of banking partnerships with more than ten members 248
333 Privileges of banks making annual return 248
Miscellaneous offences
334 Penalty for false statement 249
335 Penalty for improper use of word Limited 249
General provisions as to offences
336 Provision with respect to default fines and meaning of officer in default 249
337 Application of fines 250
338 Registrar empowered to fine for default 250
Repeal and savings
339 Repeal 250
340 Savings 251
341 Saving of pending proceedings for winding up 252
Part XIII Reciprocal extension of winding-up orders
342 Power of Governor to make arrangements with the Federation of Malaya 253
343 Judicial notice of seals and signatures 253
344 Other powers and remedies not affected 253
Extension to the Colony of winding-up orders made in the Federation
345 Court of the Federation empowered to transmit winding-up orders for action in aid 254
346 Power to stay or restrain proceedings against company 255
Effect of ancillary winding up order
347 Avoidance of attachments, etc 256
348 Copy of order to be forwarded to Registrar 256
349 Actions stayed on ancillary winding up order 256
350 Powers of ancillary liquidator 256
351 Power to compel discovery of property and affairs of company 258
352 Power of court to determine issue transmitted by court of Federation 259
Extension of winding-up order to Federation
353 Winding-up order may be transmitted to Federation with request for aid 259
354 Discharge of ancillary liquidator 260
355 Power to appoint provisional ancillary liquidator of a company incorporated in the Federation 260
356 Effect of record of evidence of person examined by court of Federation 261
First Schedule 262
Table A Regulations for management of a Company limited by shares 262
Table B Form of memorandum of association of a company limited by shares 284
Table C Form of memorandum and articles of Association of a company limited by guarantee, and not having a share capital 285
Table D Memorandum and articles of association of a company limited by guarantee and having a share capital 298
Table E Memorandum and articles of association of an unlimited company having a share capital 301
Second Schedule Form of licence to hold lands 303
Third Schedule Form of Statement in lieu of prospectus to be delivered to Registrar by a Private Company on becoming a Public Company 304
Fourth Schedule 309
Part I Matters required to be stated in prospectus 309
Part II Reports to be set out in prospectus 312
Part III Provisions applying to Parts I and II of Schedule 313
Fifth Schedule Form of statement in lieu of prospectus to be delivered to registrar by a company which does not issue a prospectus or which does not go to allotment on a prospectus issued 315
Sixth Schedule Form of annual return of a company having a share capital 319
Seventh Schedule Form of Statement to be published by Banking and Insurance Companies 325
Eighth Schedule Provisions relating to arbitration referred to in section 227 of the Ordinance 326
Ninth Schedule Provisions relating to arbitration referred to in section 227 of the Ordinance 328
Tenth Schedule Provisions referred to in section 334 of the Ordinance 330
Part I Preliminary
1 Short title [see Note 1]
(1) This Ordinance may be cited as the Companies Ordinance.
(2) The provisions of this Ordinance shall not apply to any trade union and the registration of any trade union thereunder shall be void.
2 Interpretation
(1) In this Ordinance, unless the context otherwise requires the following expressions have the meanings hereby assigned to them (that is to say):
annual return means the return required to be made, in the case of a company having a share capital, under section 109, and, in the case of a company not having a share capital, under section 110 of this Ordinance.
articles means the articles of association of a company, as originally framed or as altered by special resolution, including as far as they apply to the company the regulations contained (as the case may be) in Table A in the First Schedule to this Ordinance, or in any corresponding Table enacted by any former Ordinance.
book and paper and book or paper include accounts, deeds, writings and documents.
company means a company formed and registered under this Ordinance or an existing company.
existing company means a company formed and registered under any former Ordinance.
the court means the High Court.
debenture includes debenture stock, bonds and any other securities of a company whether constituting a charge on the assets of the company or not.
director includes any person occupying the position of director by whatever name called.
document includes summons, notice, order, and other legal process, and registers.
former Ordinance means any Act or Ordinance formerly in force in the Colony relating to companies.
general rules means rules made under section 328 of this Ordinance and includes forms.
memorandum means the memorandum of association of a company as originally framed or as altered in pursuance of any enactment.
prospectus means any prospectus, notice, circular, advertisement, or other invitation, offering to the public for subscription or purchase any shares or debentures of a company.
prescribed means as respects the provisions of this Ordinance relating to the winding up of companies, prescribed by general rules and as respects the other provisions of this Ordinance prescribed by the Minister.
Registrar means the Registrar of Companies.
share means share in the share capital of a company, and includes stock except where a distinction between stock and shares is expressed or implied.
Table A means Table A in the First Schedule to this Ordinance.
(2) A person shall not be deemed to be, within the meaning of any provision of this Ordinance, a person in accordance with whose directions or instructions the directors of a company are accustomed to act, by reason only that the directors of the company act on advice given by him in a professional capacity.
Part II Incorporation of companies and matters incidental thereto
Memorandum of association
3 Mode of forming incorporated company
(1) Any seven or more persons, or, where the company to be formed will be a private company, any two or more persons, associated for any lawful purpose may, by subscribing their names to a memorandum of association and otherwise complying with the requirements of this Ordinance in respect of registration, form an incorporated company, with or without limited liability.
(2) Such a company may be either:
(a) a company having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Ordinance termed a company limited by shares); or
(b) a company having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Ordinance termed a company limited by guarantee); or
(c) a company not having any limit on the liability of its members (in this Ordinance termed an unlimited company).
4 Requirements with respect to memorandum
(1) The memorandum of every company must state:
(a) the name of the company, with Limited as the last word of the name in the case of a company limited by shares or by guarantee;
(b) the objects of the company.
(2) The memorandum of a company limited by shares or by guarantee must also state that the liability of its members is limited.
(3) The memorandum of a company limited by guarantee must also state that each member undertakes to contribute to the assets of the company in the event of its being wound up while he is a member, or within one year after he ceases to be a member, for payment of the debts and liabilities of the company contracted before he ceases to be a member, and of the costs, charges, and expenses of winding up, and for adjustment of the rights of the contributories among themselves, such amount as may be required, not exceeding a specified amount.
(4) In the case of a company having a share capital:
(a) the memorandum must also, unless the company is an unlimited company, state the amount of share capital with which the company proposes to be registered and the division thereof into shares of a fixed amount;
(b) no subscriber of the memorandum may take less than one share;
(c) each subscriber must write opposite to his name the number of shares he takes.
5 Stamp and signature of memorandum
The memorandum must be signed by each subscriber in the presence of at least one witness who must attest the signature.
6 Restriction on alteration of memorandum
A company may not alter the conditions contained in its memorandum except in the cases, in the mode and to the extent for which express provision is made in this Ordinance.
7 Mode in which and extent to which objects of company may be altered
(1) Subject to the provisions of this section, a company may, by special resolution, alter the provisions of its memorandum with respect to the objects of the company, so far as may be required to enable it:
(a) to carry on its business more economically or more efficiently; or
(b) to attain its main purpose by new or improved means; or
(c) to enlarge or change the local area of its operations; or
(d) to carry on some business which under existing circumstances may conveniently or advantageously be combined with the business of the company; or
(e) to restrict or abandon any of the objects specified in the memorandum; or
(f) to sell or dispose of the whole or any part of the undertaking of the company; or
(g) to amalgamate with any other company or body of persons.
(2) The alteration shall not take effect until, and except in so far as, it is confirmed on petition by the court.
(3) Before confirming the alteration the court must be satisfied:
(a) that sufficient notice has been given to every holder of debentures of the company, and to any persons or class of persons whose interests will, in the opinion of the court, be affected by the alteration; and
(b) that, with respect to every creditor who in the opinion of the court is entitled to object and who signifies his objection in manner directed by the court, either his consent to the alteration has been obtained or his debt or claim has been discharged or has determined, or has been secured to the satisfaction of the court:
Provided that the court may, in the case of any person or class, for special reasons, dispense with the notice required by this section.
(4) The court may make an order confirming the alteration either wholly or in part, and on such terms and conditions as it thinks fit.
(5) The court shall, in exercising its discretion under this section, have regard to the rights and interests of the members of the company or of any class of them, as well as to the rights and interests of the creditors, and may, if it thinks fit, adjourn the proceedings in order that an arrangement may be made to the satisfaction of the court for the purchase of the interests of dissentient members, and may give such directions and make such orders as it may think expedient for facilitating or carrying into effect any such arrangement:
Provided that no part of the capital of the company shall be expended in any such purchase.
(6) An office copy of the order confirming the alteration together with a printed copy of the memorandum as altered shall, within fifteen days from the date of the order, be delivered by the company to the Registrar, who shall register the same and shall certify the registration under his hand.
(7) Such certificate shall be conclusive evidence that all the requirements of this Ordinance with respect to the alteration and the confirmation thereof have been complied with, and thenceforth the memorandum so altered shall be the memorandum of the company.
(8) The court may by order at any time extend the time for the delivery of documents to the Registrar under this section for such period as the court thinks proper.
(9) If a company makes default in delivering to the Registrar any document required by this section to be delivered to him, the company shall be liable to a fine not exceeding one hundred dollars for every day during which the default continues.
Articles of association
8 Articles prescribing regulations for companies
There may in the case of a company limited by shares, and there shall in the case of a company limited by guarantee or unlimited, be registered with the memorandum articles of association signed by the subscribers to the memorandum and prescribing regulations for the company.
9 Regulations required in case of unlimited company or company limited by guarantee
(1) In the case of an unlimited company the articles, if the company has a share capital, must state the amount of share capital with which the company proposes to be registered.
(2) In the case of an unlimited company or a company limited by guarantee, the articles, if the company has not a share capital, must state the number of members with which the company proposes to be registered.
(3) Where a company not having a share capital has increased the number of its members beyond the registered number, it shall, within fifteen days after the increase was resolved on or took place, give to the Registrar notice of the increase, and the Registrar shall record the increase.
If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.
10 Adoption and application of Table A
(1) Articles of association may adopt all or any of the regulations contained in Table A.
(2) In the case of a company limited by shares and registered after the commencement of this Ordinance if articles are not registered, or, if articles are registered, in so far as the articles do not exclude or modify the regulations contained in Table A, those regulations shall, so far as applicable, be the regulations of the company in the same manner and to the same extent as if they were contained in duly registered articles.
11 Printing, stamp, and signature of articles
Articles must:
(1) be printed;
(2) be divided into paragraphs numbered consecutively;
(4) be signed by each subscriber of the memorandum of association in the presence of at least one witness who must attest the signature.
12 Alteration of articles by special resolution
(1) Subject to the provisions of this Ordinance and to the conditions contained in its memorandum, a company may by special resolution alter or add to its articles.
(2) Any alteration or addition so made in the articles shall, subject to the provisions of this Ordinance, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.
Form of memorandum and articles
13 Statutory forms of memorandum and articles
The form of:
(1) the memorandum of association of a company limited by shares;
(2) the memorandum and articles of association of a company limited by guarantee and not having a share capital;
(3) the memorandum and articles of association of a company limited by guarantee and having a share capital;
(4) the memorandum and articles of association of an unlimited company having a share capital,
shall be respectively in accordance with the forms set out in Tables B, C, D and E in the First Schedule to this Ordinance, or as near thereto as circumstances admit.
Registration
14 Registration of memorandum and articles
The memorandum and the articles, if any, shall be delivered to the Registrar, and he shall register and retain them.
15 Effect of registration
(1) On the registration of the memorandum of a company the Registrar shall certify under his hand that the company is incorporated and, in the case of a limited company, that the company is limited.
(2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Ordinance.
16 Power of company to hold lands
(1) A company formed for the purpose of promoting art, science, religion, charity or any other like object not involving the acquisition of gain by the company or by its individual members shall not after the commencement of this Ordinance acquire any land without the licence of the Minister but the Minister may by licence empower any such company to hold lands in such quantity and subject to such conditions as he thinks fit.
(2) A licence given by the Minister under this section shall be in accordance with the form in the Second Schedule to this Ordinance, or as near thereto as circumstances admit.
Appeal to the Governor in Council
(3) Any company which is dissatisfied with any decision of the Minister under this section may within one month of such decision appeal to the Governor in Council who shall have power to confirm, reverse or vary such decision.
(4) Every decision by the Governor in Council under this section, and every decision by the Minister under this section, unless such decision is reversed or varied by the Governor in Council under this section, shall be final and shall not be called into question by any court.
17 Conclusiveness of certificate of incorporation
(1) A certificate of incorporation given by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Ordinance in respect of registration and of matters precedent and incidental thereto have been complied with, and that the association is a company authorized to be registered and duly registered under this Ordinance.
(2) A statutory declaration by an advocate and solicitor of the Supreme Court, engaged in the formation of the company, or by a person named in the articles as a director or secretary of the company, of compliance with all or any of the said requirements shall be produced to the Registrar, and the Registrar may accept such a declaration as sufficient evidence of compliance.
18 Registration of unlimited company as limited
(1) Subject to the provisions of this section, a company registered as unlimited may register under this Ordinance as limited, but the registration of an unlimited company as a limited company shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into, by, to, with, or on behalf of the company before the registration.
(2) On registration in pursuance of this section the Registrar shall close the former registration of the company, and may dispense with the delivery to him of copies of any documents with copies of which he was furnished on the occasion of the original registration of the company, but, save as aforesaid, the registration shall take place in the same manner and shall have effect as if it were the first registration of the company under this Ordinance, and as if the provisions of the Ordinance under which the company was previously registered and regulated had been contained in a different ordinance from that under which the company is registered as a limited company.
Provisions with respect to names of companies
19 Restriction on registration of companies by certain names
(1) No company shall be registered by a name which:
(a) is identical with that of any other company; or
(b) so nearly resembles the name of any other company as to be calculated to deceive, except where such other company is in the course of being dissolved and signifies its consent in such manner as the Registrar requires; or
(c) contains the words Chamber of Commerce unless the company is a company which is to be registered in pursuance of a licence granted under section 20 of this Ordinance without the addition of the word Limited to its name.
For the purposes of paragraphs (a) and (b) of this subsection the words other company shall mean either a company within the meaning of section 2 of this Ordinance or a company incorporated outside the Colony which has established a place of business in the Colony and is for the time being complying with the requirements of Part X of this Ordinance.
(2) Except with the consent of the Minister no company shall be registered by a name which:
(a) contains the word Royal or Imperial or in the opinion of the Registrar suggests, or is calculated to suggest, the patronage of Her Majesty or of any member of the Royal Family or of the Ruler of any Malay State or connection with Her Majesty’s Government in the Colony or any department thereof or with Her Majesty’s Government in any other part of Her Majesty’s dominions or with the Government of India or any Malay State or with any department of any such Government; or
(b) contains the word Municipal or Chartered or in the opinion of the Registrar suggests, or is calculated to suggest, connection with any municipality or other local authority or with any society or body incorporated by Royal Charter; or
(c) contains the word Co-operative.
20 Power to dispense with the use of the word Limited in certain circumstances
(1) Where it is proved to the satisfaction of the Minister that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion charity or any other useful object, and intends to apply tis profits or other income in promoting its objects and to prohibit the payment of any dividend to its members, the Minister may by licence direct the association to be registered as a company with limited liability, without the addition of the word Limited to its name, and the association may be registered accordingly.
(2) A licence by the Minister under this section may be granted on such conditions and subject to such regulations as the Minister thinks fit to impose, and those conditions and regulations shall be binding on the association and shall, if the Minister so directs, be inserted in the memorandum and articles, or in one of those documents.
(3) The association shall on registration enjoy all the privileges of limited companies and be subject to all their obligations, except those of using the word Limited as any part of its name, and of publishing its name, and of sending lists of members and directors or managers to the Registrar.
(4) A licence under this section may at any time be revoked by the Minister, and upon revocation the Registrar shall enter the word Limited at the end of the name of the association upon the register, and the association shall cease to enjoy the exemption and privileges granted by this section:
Provided that, before a licence is so revoked, the Minister shall give to the association notice in writing of his intention, and shall afford the association an opportunity of being heard in opposition to the revocation.
(5) Where the name of the association contains the words Chamber of Commerce, the notice to be given as aforesaid shall include a statement of the effect of the provisions of subsections (3) and (4) of section 21 of this Ordinance.
(6) Any association which is dissatisfied with any decision of the Minister under this section may within one month of such decision appeal to the Governor in Council who shall have power to confirm, reverse or vary such decision.
(7) Every decision by the governor in Council under this section, and every decision by the Minister under this section, unless such decision is reversed or varied by the Governor in Council under this section, shall be final and shall not be called into question by any court.
21 Change of name
(1) A company may by special resolution and with the prior approval of the Registrar change its name.
(2) If a company through inadvertence or otherwise is registered by a name which is in contravention of the provisions of section 19 of this Ordinance, such company shall, if so required by the Registrar, change its name to a name which does not contravene the provisions of the said section, within six weeks of the date of being so required by the Registrar or such longer period as the Registrar may think fit to allow.
(3) Where a licence granted in pursuance of section 20 of this Ordinance to a company the name of which contains the words Chamber of Commerce is revoked, the company shall, within a period of six weeks from the date of the revocation or such longer period as the Registrar may allow change its name to a name which does not contain those words.
(4) If a company makes default in complying with the provisions of subsection (2) or (3) of this section, it shall be liable to a fine not exceeding five hundred dollars for every day during which the default continues.
(5) Where a company changes its name, the Registrar shall enter the new name on the register in place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case.
(6) The change of name shall not affect any rights or obligations of the company, or render defective any legal proceedings by or against the company, and any legal proceedings that might have been continued or commenced against it by its former name may be continued or commenced against it by its new name.
General provisions with respect to memorandum and articles
22 Effect of memorandum and articles
(1) Subject to the provisions of this Ordinance, the memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member, and contained covenants on the part of each member his executors and administrators to observe all the provisions of the memorandum and of the articles.
(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company.
23 Provision as to memorandum and articles of companies limited by guarantee
(1) In the case of a company limited by guarantee and not having a share capital, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.
(2) For the purpose of the provisions of this Ordinance relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles, or in any resolution, of a company limited by guarantee purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital, notwithstanding that the nominal amount or number of the shares or interests is not specified thereby.
24 Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent
Notwithstanding anything in the memorandum or articles of a company, no member of the company shall be bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company:
Provided that this section shall not apply in any case where the member agrees in writing, either before or after the alteration is made, to be bound thereby.
25 Copies of memorandum and articles to be given to members
(1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any ordinance which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles, of fifty cents or such less sum as the company may prescribe, and, in the case of a copy of an ordinance, of such sum not exceeding the published price thereof as the company may require.
(2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine not exceeding twenty dollars.
26 Issued copies of memorandum to embody alterations
(1) Where an alteration is made in the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.
(2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, it shall be liable to a fine not exceeding twenty dollars for each copy so issued, and every officer of the company who is in default shall be liable to the like penalty.
Membership of company
27 Definition of member
(1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.
Private companies
28 Meaning of private company
(1) For the purposes of this Ordinance, the expression private company means a company which by its articles:
(a) restricts the right to transfer its shares; and
(b) limits the number of its members to fifty, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were while in that employment, and have continued after the determination of that employment to be, members of the company; and
(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.
(2) Where two or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.
29 Circumstances in which company ceases to be, or to enjoy privileges of, a private company
(1) If a company, being a private company, alters its articles in such manner that they no longer include all the provisions which, under the last foregoing section of this Ordinance, are required to be included in the articles of a company in order to constitute it a private company, the company shall, as on the date of the alteration, cease to be a private company and shall, within a period of fourteen days after the said date, deliver to the Registrar for registration a prospectus or a statement in lieu of prospectus in the form and containing the particulars set out in the Third Schedule to this Ordinance.
(2) If default is made in complying with subsection (1) of this section, the company and every officer of the company who is in default shall be liable to a default fine of one thousand dollars.
(3) Where the articles of a company include the provisions aforesaid but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies under the provisions contained in section 30, subsection (3) of section 111, subsection (1) of section 131 and paragraph (4) of section 166 of this Ordinance, and thereupon the said provisions shall apply to the company as if it were not a private company:
Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the court just and expedient, order that the company be relieved from such consequences as aforesaid.
Reduction of number of members below legal minimum
30 Prohibition of carrying on business with fewer than seven or, in the case of a private company, two members
If at any time the number of members of a company is reduced, in the case of a private company, below two, or, in the case of any other company, below seven, and it carries on business for more than six months while the number is so reduced, every person who is a member of the company during the time that it so carries on business after those six months and is cognizant of the fact that it is carrying on business with fewer than two members, or seven members, as the case may be, shall be severally liable for the payment of the whole debts of the company contracted during that time, and may be severally sued therefor.
Contracts, etc
31 Form of contracts
(1) Contracts on behalf of a company may be made as follows:
(a) a contract which if made between private persons would be by law required to be in writing, and if made according to the law of the Colony to be under seal, may be made on behalf of the company in writing under the common seal of the company;
(b) a contract which if made between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express the company;
(c) a contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied.
(2) A contract made according to this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto.
(3) A contract made according to this section may be varied or discharged in the same manner in which it is authorized by this section to be made.
32 Bills of exchange and promissory notes
A bill of exchange or promissory note shall be deemed to have been made, accepted or endorsed on behalf of a company if made, accepted or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority.
33 Execution of deeds out of the Colony
(1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate in the Colony.
(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.
34 Power for company to have official seal for use out of the Colony
(1) A company whose objects require or comprise the transaction of business out of the Colony may, if authorized by its articles, have for use in any territory, district or place not situate in the Colony, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of every territory, district or place where it is to be used.
(2) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.
(3) A company having an official seal for use in any such territory, district or place may, by writing under its common seal, authorize any person appointed for the purpose in that territory, district or place, to affix the official seal to any deed or other document to which the company is party in that territory, district or place.
(4) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent’s authority has been given to the person dealing with him.
(5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instrument, to which the seal is affixed, the date on which and the place at which it is affixed.
Authentication of documents
35 Authentication of documents
A document or proceeding requiring authentication by a company may be signed by a director, secretary or other authorized officer of the company, and need not be under its common seal.
Part III Share capital and debentures
Prospectus
36 Dating and registration of prospectus
(1) A prospectus issued by or on behalf of a company or in relation to an intended company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the prospectus.
(2) A copy of every such prospectus, signed by every person who is named therein as a director or proposed director of the company, or by his agent authorized in writing, shall be delivered to the Registrar for registration on or before the date of its publication, and no such prospectus shall be issued until a copy thereof has been so delivered for registration.
(3) The Registrar shall not register any prospectus unless it is dated, and the copy thereof signed, in manner required by this section.
(4) Every prospectus shall state on the face of it that a copy has been delivered for registration as required by this section.
(5) If a prospectus is issued without a copy thereof being so delivered, the company, and every person who is knowingly a party to the issue of the prospectus, shall be liable to a fine not exceeding one hundred dollars for every day from the date of the issue of the prospectus until a copy thereof is so delivered.
37 Specific requirements as to particulars in prospectus
(1) Every prospectus issued by or on behalf of a company, or by or on behalf of any person who is or has been engaged or interested in the formation of the company, must state the matters specified in Part I of the Fourth Schedule to this Ordinance and set out the reports specified in Part II of that Schedule, and the said Parts I and II shall have effect subject to the provisions contained in Part III of the said Schedule.
(2) A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.
(3) It shall not be lawful to issue any form of application for shares in or debentures of a company unless the form is issued with a prospectus which complies with the requirements of this section:
Provided that this subsection shall not apply if it is shown that the form of application was issued either:
(a) in connection with a bonâ fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures; or
(b) in relation to shares or debentures which were not offered to the public.
If any person acts in contravention of the provisions of this subsection, he shall be liable to a fine not exceeding ten thousand dollars.
(4) In the event of non‑compliance with or contravention of any of the requirements of this section, a director or other person responsible for the prospectus shall not incur any liability by reason of the non‑compliance or contravention if:
(a) as regards any matter not disclosed, he proves that he was not cognizant thereof; or
(b) he proves that the non‑compliance or contravention arose from an honest mistake of fact on his part; or
(c) the non‑compliance or contravention was in respect of matters which in the opinion of the court dealing with the case were immaterial or was otherwise such as ought, in the opinion of that court, having regard to all the circumstances of the case, reasonably to be excused:
Provided that, in the event of failure to include in a prospectus a statement with respect to the matters specified in paragraph 15 of Part I of the Fourth Schedule to this Ordinance, no director or other person shall incur any liability in respect of the failure unless it be proved that he had knowledge of the matters not disclosed.
(5) This section shall not apply to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons, but subject as aforesaid, this section shall apply to a prospectus or a form of application whether issued on or with reference to the formation of a company or subsequently.
(6) Nothing in this section shall limit or diminish any liability which any person may incur under the general law or this Ordinance apart from this section.
38 Restriction on alteration of terms mentioned in prospectus or statement in lieu of prospectus
(1) A company limited by shares or a company limited by guarantee and having a share capital shall not previously to the statutory meeting vary the terms of a contract referred to in the prospectus, or statement in lieu of prospectus, except subject to the approval of the statutory meeting.
(2) This section shall not apply to a private company.
39 Liability for statements in prospectus
(1) Where a prospectus invites persons to subscribe for shares in or debentures of a company:
(a) every person who is a director of a company at the time of the issue of the prospectus; and
(b) every person who has authorized himself to be named and is named in the prospectus as a director or as having agreed to become a director either immediately or after an interval of time; and
(c) every person being a promoter of the company; and
(d) every person who has authorized the issue of the prospectus,
shall be liable to pay compensation to all persons who subscribe for any shares or debentures on the faith of the prospectus for the loss or damage they may have sustained by reason of any untrue statement therein, or in any report or memorandum appearing on the face thereof, or by reference incorporated therein or issued therewith, unless it is proved:
(i) that having consented to become a director of the company he withdrew his consent before the issue of the prospectus, and that it was issued without his authority or consent; or
(ii) that the prospectus was issued without his knowledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(iii) that after the issue of the prospectus and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto, and gave reasonable public notice of the withdrawal, and of the reason therefor; or
(iv) that:
(a) as regards every untrue statement not purporting to be made on the authority of an expert or of a public official document or statement, he had reasonable ground to believe, and did up to the time of the allotment of the shares or debentures, as the case may be, believe, that the statement was true; and
(b) as regards every untrue statement purporting to be a statement by an expert or contained in what purports to be a copy of or extract from a report or valuation of an expert, it fairly represented the statement, or was a correct and fair copy of or extract from the report or valuation; and
(c) as regards every untrue statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document:
Provided that a person shall be liable to pay compensation as aforesaid if it is proved that he had not reasonable ground to believe that the person making any such statement, report or valuation as is mentioned in paragraph (iv) (b) of this subsection was competent to make it.
(2) Where the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof, the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof, shall be liable to indemnify the person named as aforesaid against all damages, costs and expenses to which he may be made liable by reason of his name having been inserted in the prospectus, or in defending himself against any action or legal proceedings brought against him in respect thereof.
(3) Every person who, by reason of his being a director or named as a director or as having agreed to become a director, or of his having authorized the issue of the prospectus, becomes liable to make any payment under this section may recover contribution, as in cases of contract, from any other person who, if sued separately, would have been liable to make the same payment, unless the person who has become so liable was, and that other person was not, guilty of fraudulent misrepresentation.
(4) for the purposes of this section:
the expression promoter means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company;
the expression expert includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him.
40 Document containing offer of shares or debentures for sale to be deemed prospectus
(1) Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed to be a prospectus issued by the company, and all enactments and rules of law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of mis‑statements contained in the document or otherwise in respect thereof.
(2) For the purposes of this Ordinance, it shall, unless the contrary is proved, be evidence that an allotment of, or an agreement to allot, shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown:
(a) that an offer of the shares or debentures or of any of them for sale to the public was made within six months after the allotment or agreement to allot; or
(b) that at the date when the offer was made the whole consideration to be received by the company in respect of the shares or debentures had not been so received.
(3) Section 36 of this Ordinance as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company, and section 37 of this Ordinance as applied by this section shall have effect as if it required a prospectus to state in addition to the matters required by that section to be stated in a prospectus:
(a) the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and
(b) the place and time at which the contract under which the said shares or debentures have been or are to be allotted may be inspected.
(4) Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by two directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorized in writing.
41 Prohibition of allotment unless minimum subscription received
(1) No allotment shall be made of any share capital of a company offered to the public for subscription unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors, must be raised by the issue of share capital in order to provide for the matters specified in paragraph 5 in Part I of the Fourth Schedule to this Ordinance has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company.
For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the cheque will not be paid.
(2) The amount so stated in the prospectus shall be reckoned exclusively of any amount payable otherwise than in cash and is in this Ordinance referred to as the minimum subscription.
(3) The amount payable on application on each share shall not be less than five per centum of the nominal amount of the share.
(4) If the conditions aforesaid have not been complied with on the expiration of eighty days after the first issue of the prospectus, all money received from applicants for shares shall be forthwith repaid to them without interest, and, if any such money is not so repaid within ninety days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of five per centum per annum from the expiration of the ninetieth day:
Provided that a director shall not be liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.
(5) Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void.
(6) This section, except subsection (3) thereof, shall not apply to any allotment of shares subsequent to the first allotment of shares offered to the public for subscription.
42 Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar
(1) A company having a share capital which does not issue a prospectus on or with reference to its formation, or which has issued such a prospectus but has not proceeded to allot any of the shares offered to the public for subscription, shall not allot any of its shares or debentures unless at least three days before the first allotment of either shares or debentures there has been delivered to the Registrar for registration a statement in lieu of prospectus, signed by every person who is named therein as a director or a proposed director of the company or by his agent authorized in writing, in the form and containing the particulars set out in the Fifth Schedule to this Ordinance.
(2) This section shall not apply to a private company.
(3) If a company acts in contravention of this section the company and every director of the company who knowingly authorizes or permits the contravention shall be liable to a fine not exceeding two thousand dollars.
43 Effect of irregular allotment
(1) An allotment made by a company to an applicant in contravention of the provisions of the two last foregoing sections of this Ordinance, shall be voidable at the instance of the applicant within one month after the holding of the statutory meeting of the company and not later, or, in any case where the company is not required to hold a statutory meeting, or where the allotment is made after the holding of the statutory meeting, within one month after the date of the allotment, and not later, and shall be so voidable not withstanding that the company is in course of being wound up.
(2) If any director of a company knowingly contravenes, or permits or authorizes the contravention of, any of the provisions of the said sections with respect to allotment, he shall be liable to compensate the company and the allottee respectively for any loss, damages or costs which the company or the allottee may have sustained or incurred thereby:
Provided that proceedings to recover any such loss, damages or costs shall not be commenced after the expiration of two years from the date of the allotment.
44 Return as to allotments
(1) Whenever a company limited by shares or a company limited by guarantee and having a share capital makes any allotment of its shares, the company shall within one month thereafter deliver to the Registrar for registration:
(a) a return of the allotments, stating the number and nominal amount of the shares comprised in the allotment, the names, addresses and descriptions of the allottees, and the amount, if any, paid or due and payable on each share; and
(b) in the case of shares allotted as fully or partly paid up otherwise than in cash, a contract in writing constituting the title of the allottee to the allotment together with any contract of sale, or for services or other consideration in respect of which that allotment was made, such contracts being duly stamped, and a return stating the number and nominal amount of shares so allotted, the extent to which they are to be treated as paid up, and the consideration for which they have been allotted.
(2) It shall be deemed to be sufficient compliance with the provisions of paragraph (b) of the foregoing subsection if the company produces to the Registrar the original contract duly stamped with the full stamp duty and delivers for registration:
(a) a duly stamped counterpart of such contract executed by the parties thereto; or
(b) a duly stamped copy of such contract certified to be a true copy thereof under the hand of the Registrar after payment of the prescribed fee.
(3) Where such a contract as above mentioned is not reduced to writing, the company shall within one month after the allotment deliver to the Registrar for registration the prescribed particulars of the contract stamped with the same stamp duty as would have been payable if the contract had been reduced to writing, and those particulars shall be deemed to be an instrument within the meaning of the Stamp Ordinance, and the Registrar may, as a condition of filing the particulars, require that the duty payable thereon be adjudicated under section 36 of that ordinance.
(4) If default is made in complying with this section, every director, manager, secretary or other officer of the company, who is knowingly a party to the default, shall be liable to a fine not exceeding one thousand dollars for every day during which the default continues:
Provided that, in case of default in delivering to the Registrar within one month after the allotment any document required to be delivered by this section, the company, or any person liable for the default, may apply to the court for relief, and the court, if satisfied that the omission to deliver the document was accidental or due to inadvertence or that it is just and equitable to grant relief, may make an order extending the time for the delivery of the document for such period as the court may think proper.
Commissions and discounts
45 Power to pay certain commissions and prohibition of payment of all other commissions, discounts, etc
(1) It shall be lawful for a company to pay a commission to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares in the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company if:
(a) the payment of the commission is authorized by the articles; and
(b) the commission paid or agreed to be paid does not exceed ten per centum of the price at which the shares are issued or the amount or rate authorized by the articles, whichever is the less; and
(c) the amount or rate per centum of the commission paid or agreed to be paid is:
(i) in the case of shares offered to the public for subscription, disclosed in the prospectus; or
(ii) in the case of shares not offered to the public for subscription, disclosed in the statement in lieu of prospectus, or in a statement in the prescribed form signed in like manner as a statement in lieu of prospectus and delivered before the payment of the commission to the Registrar for registration, and, where a circular or notice, not being a prospectus, inviting subscription for the shares is issued, also disclosed in that circular or notice; and
(d) the number of shares which persons have agreed for a commission to subscribe absolutely is disclosed in manner aforesaid.
(2) Save as aforesaid, no company shall apply any of its shares or capital money either directly or indirectly in payment of any commission, discount or allowance, to any person in consideration of his subscribing or agreeing to subscribe, whether absolutely or conditionally, for any shares of the company, or procuring or agreeing to procure subscriptions, whether absolute or conditional, for any shares in the company, whether the shares or money be so applied by being added to the purchase money of any property acquired by the company or to the contract price of any work to be executed for the company, or the money be paid out of the nominal purchase money or contract price, or otherwise.
(3) Nothing in this section shall affect the power of any company to pay such brokerage as it has heretofore been lawful for a company to pay.
(4) A vendor to, promoter of, or other person who receives payment in money or shares from, a company shall have and shall be deemed always to have had power to apply any part of the money or shares so received in payment of any commission, the payment of which, if made directly by the company, would have been legal under this section.
(5) If default is made in complying with the provisions of this section relating to the delivery to the Registrar of the statement in the prescribed form, the company and every officer of the company who is in default shall be liable to a fine not exceeding five hundred dollars.
46 Statement in balance sheet as to commissions and discounts
(1) Where a company has paid any sums by way of commission in respect of any shares or debentures, or allowed any sums by way of discount in respect of any debentures, the total amount so paid or allowed, or so much thereof as has not been written off, shall be stated in every balance sheet of the company until the whole amount thereof has been written off.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.
47 Purchase of, and loan on, company’s shares prohibited
None of the funds of any company shall be employed in the purchase of, or lent on, shares of the company, and the company shall not, except as authorized by the next following section of this Ordinance give any financial assistance for the purpose of or in connection with any purchase of shares in the company.
48 Prohibition of provision of financial assistance by company for purchase of its own shares
(1) Subject as provided in this section, it shall not be lawful for a company to give, whether directly or indirectly, and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of or in connection with a purchase made or to be made by any person of any shares in the company:
Provided that nothing in this section shall be taken to prohibit:
(a) where the lending of money is part of the ordinary business of a company, the lending of money by the company in the ordinary course of its business;
(b) the provision by a company, in accordance with any scheme for the time being in force, of money for the purchase by trustees of fully paid shares in the company to be held by or for the benefit of employees of the company, including any director holding a salaried employment or office in the company;
(c) the making by a company of loans to persons, other than directors, bonâ fide in the employment of the company with a view to enabling those persons to purchase fully paid shares in the company to be held by themselves by way of beneficial ownership.
(2) The aggregate amount of any outstanding loans made under the authority of provisoes (b) and (c) to subsection (1) of this section shall be shown as a separate item in every balance sheet of the company.
(3) If a company acts in contravention of this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding two thousand dollars.
Issue of redeemable preference shares and shares at discount
49 Power to issue redeemable preference shares
(1) Subject to the provisions of this section, a company limited by shares may, if so authorized by its articles, issue preference shares which are, or at the option of the company are to be liable, to be redeemed:
Provided that:
(a) no such shares shall be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption;
(b) no such shares shall be redeemed unless they are fully paid;
(c) where any such shares are redeemed otherwise then out of the proceeds of a fresh issue, there shall out of profits which would otherwise have been available for dividend be transferred to a reserve fund, to be called the capital redemption reserve fund, a sum equal to the amount applied in redeeming the shares, and the provisions of this Ordinance relating to the reduction of the share capital of a company shall, except as provided in this section, apply as if the capital redemption reserve fund were paid‑up share capital of the company;
(d) where any such shares are redeemed out of the proceeds of a fresh issue, the premium, if any, payable on redemption, must have been provided for out of the profits of the company before the shares are redeemed.
(2) There shall be included in every balance sheet of a company which has issued redeemable preference shares a statement specifying what part of the issued capital of the company consists of such shares and the date on or before which those shares are, or are to be liable, to be redeemed.
If a company fails to comply with the provisions of this subsection, the company and every officer of the company who is in default shall be liable to a fine not exceeding two thousand dollars.
(3) Subject to the provisions of this section, the redemption of preference shares thereunder may be effected on such terms and in such manner as may be provided by the articles of the company.
(4) Where in pursuance of this section a company has redeemed or is about to redeem any preference shares, it shall have power to issue shares up to the nominal amount of the shares redeemed or to be redeemed as if those shares had never been issued.
(5) Where new shares have been issued in pursuance of the last foregoing subsection, the capital redemption reserve fund may, notwithstanding anything in this section, be applied by the company, up to an amount equal to the nominal amount of the shares so issued, in paying up un‑issued shares of the company to be issued to members of the company as fully paid bonus shares.
50 Power to issue shares at a discount
(1) Subject as provided in this section, it shall be lawful for a company to issue at a discount shares in the company of a class already issued:
Provided that:
(a) the issue of the shares at a discount must be authorized by resolution passed in general meeting of the company, and must be sanctioned by the court;
(b) the resolution must specify the maximum rate of discount at which the shares are to be issued;
(c) not less than one year must at the date of the issue have elapsed since the date on which the company was entitled to commence business;
(d) the shares to be issued at a discount must be issued within one month after the date on which the issue is sanctioned by the court or within such extended time as the court may allow.
(2) Where a company has passed a resolution authorizing the issue of shares at a discount, it may apply to the court for an order sanctioning the issue, and on any such application the court, if, having regard to all the circumstances of the case, it thinks proper so to do, may make an order sanctioning the issue on such terms and conditions as it thinks fit.
(3) Every prospectus relating to the issue of the shares and every balance sheet issued by the company subsequently to the issue of the shares must contain particulars of the discount allowed on the issue of the shares or of so much of that discount as has not been written off at the date of the issue of the document in question.
If default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a default fine.
Miscellaneous provisions as to share capital
51 Power of company to arrange for different amounts being paid on shares
A company, if so authorized by its articles, may do any one or more of the following things:
(1) make arrangements on the issue of shares for a difference between the shareholders in the amounts and times of payment of calls on their shares;
(2) accept from any member the whole or a part of the amount remaining unpaid on any shares held by him, although no part of that amount has been called up;
(3) pay dividends in proportion to the amount paid up on each share where a larger amount is paid up on some shares than on others.
52 Reserve liability of limited company
A limited company may by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up, except in the event and for the purposes of the company being wound up, and thereupon that portion of its share capital shall not be capable of being called up except in the event and for the purposes aforesaid.
53 Power of company limited by shares to alter its share capital
(1) A company limited by shares or a company limited by guarantee and having a share capital, if so authorized by its articles, may alter the conditions of its memorandum as follows, that is to say, it may:
(a) increase its share capital by new shares of such amount as it thinks expedient;
(b) consolidate and divide all or any of its share capital into shares of larger amount than its existing shares;
(c) convert all or any of its paid‑up shares into stock, and reconvert that stock into paid‑up shares of any denomination;
(d) subdivide its shares, or any of them, into shares of smaller amount than is fixed by the memorandum, so, however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived;
(e) cancel shares which, at the date of the passing of the resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so cancelled.
(2) The powers conferred by this section must be exercised by the company in general meeting.
(3) A cancellation of shares in pursuance of this section shall not be deemed to be a reduction of share capital within the meaning of this Ordinance.
54 Notice to Registrar of consolidation of share capital, conversion of shares into stock, etc
(1) If a company having a share capital has:
(a) consolidated and divided its share capital into shares of larger amount than its existing shares; or
(b) converted any shares into stock; or
(c) re‑converted stock into shares; or
(d) subdivided its shares or any of them; or
(e) redeemed any redeemable preference shares; or
(f) cancelled any shares, otherwise than in connection with a reduction of share capital under section 58 of this Ordinance,
it shall within one month after so doing give notice thereof to the Registrar specifying, as the case may be, the shares consolidated, divided, converted, subdivided, redeemed or cancelled, or the stock re‑converted.
(2) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.
55 Notice of increase of share capital
(1) Where a company having a share capital, whether its shares have or have not been converted into stock, has increased its share capital beyond the registered capital, it shall within fifteen days after the passing of the resolution authorizing the increase, give to the Registrar notice of the increase, and the Registrar shall record the increase.
(2) The notice to be given as aforesaid shall include such particulars as may be prescribed with respect to the classes of shares affected and the conditions subject to which the new shares have been or are to be issued, and there shall be forwarded to the Registrar together with the notice a printed copy of the resolution authorizing the increase.
(3) If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a default fine.
56 Power of unlimited company to provide for reserve share capital on re‑registration
An unlimited company having a share capital may, by its resolution for registration as a limited company in pursuance of this Ordinance, do either or both of the following things, namely:
(1) increase the nominal amount of its share capital by increasing the nominal amount of each of its shares, but subject to the condition that no part of the increased capital shall be capable of being called up except in the event and for the purposes of the company being wound up;
(2) provide that a specified portion of its uncalled share capital shall not be capable of being called up except in the event and for the purposes of the company being wound up.
57 Power of company to pay interest out of capital in certain cases
(1) Where any shares of a company are issued for the purpose of raising money to defray the expenses of the construction of any works or buildings or the provision of any plant which cannot be made profitable for a lengthened period, the company may pay interest on so much of that share capital as is for the time being paid up for the period and subject to the conditions and restrictions in this section mentioned, and may charge the sum so paid by way of interest to capital as part of the cost of construction of the work or building, or the provision of plant:
Provided that:
(a) no such payment shall be made unless it is authorized by the articles or by special resolution;
(b) no such payment, whether authorized by the articles or by special resolution, shall be made without the previous sanction of the Governor;
(c) before sanctioning any such payment the Governor may, at the expense of the company, appoint a person to inquire and report to him as to the circumstances of the case, and may, before making the appointment, require the company to give security for the payment of the costs of the inquiry;
(d) the payment shall be made only for such period as may be determined by the Governor, and that period shall in no case extend beyond the close of the half‑year next after the half‑year during which the works or buildings have been actually completed or the plant provided;
(e) the rate of interest shall in no case exceed four per centum per annum or such other rate as may for the time being be prescribed by regulation made under this Ordinance;
(f) the payment of the interest shall not operate as a reduction of the amount paid up on the shares in respect of which it is paid;
(g) the accounts of the company shall show the share capital on which, and the rate at which, interest has been paid out of capital during the period to which the accounts relate.
(2) If default is made in complying with proviso (g) to subsection (1) of this section, the company and every officer of the company who is in default shall be liable to a fine not exceeding one thousand dollars.
Reduction of share capital
58 Special resolution for reduction of share capital
(1) Subject to confirmation by the court, a company limited by shares or a company limited by guarantee and having a share capital may, if so authorized by its articles, by special resolution reduce its share capital in any way, and in particular, without prejudice to the generality of the foregoing power, may:
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up; or
(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid‑up share capital which is lost or unrepresented by available assets; or
(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid‑up share capital which is in excess of the wants of the company,
and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
(2) A special resolution under this section is in this Ordinance referred to as a resolution for reducing share capital.
59 Application to court for confirming order, objections by creditors and settlement of list of objecting creditors
(1) Where a company has passed a resolution for reducing share capital, it may apply by petition to the court for an order confirming the reduction.
(2) Where the proposed reduction of share capital involves either diminution of liability in respect of unpaid share capital or the payment to any shareholder of any paid‑up share capital, and in any other case if the court so directs the following provisions shall have effect, subject nevertheless to the next following subsection:
(a) every creditor of the company who at the date fixed by the court is entitled to any debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, shall be entitled to object to the reduction;
Note In this Form the expression vendor includes a vendor as defined in Part III of the Fourth Schedule to this Ordinance, and the expression financial year has the meaning assigned to it in that Part of the said Schedule.
Fourth Schedule
Part I Matters required to be stated in prospectus
(sections 37 and 311)
1. Except where the prospectus is published as a newspaper advertisement, the contents of the memorandum, with the names, descriptions and addresses of the signatories, and the number of shares subscribed for by them respectively.
2. The number of founders or management or deferred shares, if any, and the nature and extent of the interest of the holders in the property and profits of the company.
3. The number of shares, if any, fixed by the articles as the qualification of a director, and any provision in the articles as to the remuneration of the directors.
4. The names, descriptions and addresses of the directors or proposed directors.
5. Where shares are offered to the public for subscription particulars as to:
(i) the minimum amount which, in the opinion of the directors, must be raised by the issue of those shares in order to provide the sums, or, if any part thereof is to be defrayed in any other manner, the balance of the sums, required to be provided in respect of each of the following matters:
(a) the purchase price of any property purchased or to be purchased which is to be defrayed in whole or in part out of the proceeds of the issue;
(b) any preliminary expenses payable by the company, and any commission so payable to any person in consideration of his agreeing to subscribe for, or of his procuring or agreeing to procure subscriptions for, any shares in the company;
(c) the repayment of any moneys borrowed by the company in respect of any of the foregoing matters;
(d) working capital; and
(ii) the amounts to be provided in respect of the matters aforesaid otherwise than out of the proceeds of the issue and the sources out of which those amounts are to be provided.
6. The amount payable on application and allotment on each share, and, in the case of a second or subsequent offer of shares, the amount offered for subscription on each previous allotment made within the two preceding years, the amount actually allotted, and the amount, if any, paid on the shares so allotted.
7. The number and amount of shares and debentures which within the two preceding years have been issued, or agreed to be issued, as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which those shares or debentures have been issued or are proposed or intended to be issued.
8. The names and addresses of the vendors of any property purchased or acquired by the company, or proposed so to be purchased or acquired, which is to be paid for wholly or partly out of the proceeds of the issue offered for subscription by the prospectus, or the purchase or acquisition of which has not been completed at the date of issue of the prospectus, and the amount payable in cash, shares or debentures, to the vendor, and where there is more than one separate vendor, or the company is a sub-purchaser, the amount so payable to each vendor.
9. The amount, if any, paid or payable as purchase money in cash, shares or debentures, for any such property as aforesaid, specifying the amount, if any, payable for goodwill.
10. The amount, if any, paid within the two preceding years, or payable, as commission (but not including commission to sub-underwriters) for subscribing or agreeing to subscribe, or procuring or agreeing to procure subscriptions, for any shares in, or debentures of, the company, or the rate of any such commission.
11. The amount or estimated amount of preliminary expenses.
12. The amount paid within the two preceding years or intended to be paid to any promoter, and the consideration for any such payment.
13. The dates of and parties to every material contract, not being a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company or a contract entered into more than two years before the date of issue of the prospectus, and a reasonable time and place at which any such material contract or a copy thereof may be inspected.
14. The names and addresses of the auditors, if any, of the company.
15. Full particulars of the nature and extent of the interest, if any, of every director in the promotion of, or in the property proposed to be acquired by, the company, or, where the interest of such a director consists in being a partner in a firm, the nature and extent of the interest of the firm with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares or otherwise by any person either to induce him to become, or to qualify him as a director, or, otherwise for services rendered by him or by the firm in connection with the promotion or formation of the company.
16. If the prospectus invites the public to subscribe for shares in the company and the shares capital of the company is divided into different classes of shares the right of voting at meetings of the company conferred by, and the rights in respect of capital and dividends attached to, the several classes of shares respectively.
17. In the case of a company which has been carrying on business, or of a business which has been carried on for less than three years, the length of time during which the business of the company or the business to be acquired, as the case may be, has been carried on.
Part II Reports to be set out in prospectus
1. A report by the auditors of the company with respect to the profits of the company in respect of each of the three financial years immediately preceding the issue of the prospectus, and with respect to the rates of the dividends, if any, paid by the company in respect of each class of shares in the company in respect of each of the said three years, giving particulars of each such class of shares on which such dividends have been paid and particulars of the cases in which no dividends have been paid in respect of any class of shares in respect of any of those years, and if no accounts have been made up in respect of any part of the period of three years ending on a date three months before the issue of the prospectus, containing a statement of that fact.
2. If the proceeds, or any part of the proceeds, of the issue of the shares or debentures are or is to be applied directly or indirectly in the purchase of any business, a report made by accountants who shall be named in the prospectus upon the profits of the business in respect of each of the three financial years immediately preceding the issue of the prospectus.
Part III Provisions applying to Parts I and II of Schedule
1. The provisions of this Schedule with respect to the memorandum and the qualification, remuneration and interest of directors, the names, descriptions and addresses of directors or proposed directors, and the amount or estimated amount of the preliminary expenses, shall not apply in the case of a prospectus issued more than two years after the date at which the company is entitled to commence business.
2. Every person shall for the purposes of this Schedule be deemed to be a vendor who has entered into any contract, absolute or conditional, for the sale or purchase, or for any option of purchase, of any property to be acquired by the company, in any case where:
(a) the purchase money is not fully paid at the date of the issue of the prospectus;
(b) the purchase money is to be paid or satisfied wholly or in part out of the proceeds of the issue offered for subscription by the prospectus;
(c) the contract depends for its validity or fulfilment on the result of that issue.
3. Where any property to be acquired by the company is to be taken on lease, this Schedule shall have effect as if the expression vendor included the lessor, and the expression purchase money included the consideration for the lease, and the expression sub-purchaser included a sub-lessee.
4. For the purposes of paragraph 8 of Part I of this Schedule where the vendors or any of them are a firm, the members of the firm shall not be treated as separate vendors.
5. If in the case of a company which has been carrying on business, or of a business which has been carried on for less than three years, the accounts of the company or business have only been made up in respect of two years or one year, Part II of this Schedule shall have effect as if references to two years or one year, as the case may be, were substituted for references to three years.
6. The expression financial year in Part II of this Schedule means the year in respect of which the accounts of the company or of the business, as the case may be, are made up, and where by reason of any alteration of the date on which the financial year of the company or business terminates the accounts of the company or business have been made up for a period greater or less than a year, that greater or less period shall for the purpose of the said Part of this Schedule be deemed to be a financial year.
Fifth Schedule Form of statement in lieu of prospectus to be delivered to registrar by a company which does not issue a prospectus or which does not go to allotment on a prospectus issued
(section 42)
The Companies Ordinance
Statement in lieu of Prospectus delivered for registration by
[Insert the name of the company]
Pursuant to section 42 of the Companies Ordinance, delivered for registration by
The nominal share capital of the company
$
Divided into
Shares of $ each.
Shares of $ each.
Shares of $ each.Amount (if any) of above capital which consists of redeemable preference shares
Shares of $ each.The date on or before which these shares are, or are liable, to be redeemed
Names, descriptions and addresses of directors or proposed directors
If the share capital of the Company is divided into different classes of shares, the right of voting at meetings of the Company conferred by, and the rights in respect of capital and dividends attached to, the several classes of shares respectively
Number and amount of shares and debentures agreed to be issued as fully or partly paid up otherwise than in cash
The consideration for the intended issue of those shares and debentures
1. Shares of $ fully paid.
2. Shares upon which $
per share credited as paid.
3. Debenture $
4. Consideration:Names and addresses of vendors of property purchased or acquired, or proposed to be purchased or acquired by the Company
Amount (in cash, shares or debentures) payable to each separate vendor
Amount (if any) paid or payable (in cash or shares or debentures) for any such property, specifying amount (if any) paid or payable for goodwill
Total purchase price $
Cash $
Shares $
Debentures $______Goodwill $______
Amount (if any) paid or payable as commission for subscribing or agreeing to subscribe or procuring or agreeing to procure subscriptions for any shares or debentures in the Company; or
Amount paid.
Amount payable.
Rate of the commission
Rate per cent.
The number of shares, if any, which persons have agreed for a commission to subscribe absolutely
Estimated amount of preliminary expenses
$
Amount paid or intended to be paid to any promoter
Name of promoter.
Amount $Consideration for the payment
Consideration:
Dates of, and parties to, every material contract (other than contracts entered into in the ordinary course of the business intended to be carried on by the Company or entered into more than two years before the delivery of this statement)
Time and place at which the contracts or copies thereof may be inspected
Names and addresses of the auditors of the Company (if any)
Full particulars of the nature and extent of the interest of every director in the promotion of or in the property proposed to be acquired by the Company, or, where the interest of such a director consists in being a partner in a firm, the nature and extent of the interest of the firm, with a statement of all sums paid or agreed to be paid to him or to the firm in cash or shares, or otherwise, by any person either to induce him to become, or to qualify him as, a director, or otherwise for services rendered by him or by the firm in connection with the promotion or formation of the Company
If it is proposed to acquire any business, the amount, as certified by the persons by whom the accounts of the business have been audited, of the net profits of the business in respect of each of the three financial years immediately preceding the date of this statement provided that in the case of a business which has been carried on for less than three years and the accounts of which have only been made in respect of two years or one year the above requirement shall have effect as if references to two years or one year, as the case may be, were substituted for references to three years, and in any such case the statement shall say how long the business to be acquired has been carried on.
(Signatures of the persons above‑named as directors or proposed directors, or of their agents authorized in writing.)
Date
_________________________
_________________________
_________________________
Note In this Schedule the expression vendor includes a vendor as defined in Part III of the Fourth Schedule to this Ordinance, and the expression financial year has the meaning assigned to it in that Part of the said Schedule.
Sixth Schedule Form of annual return of a company having a share capital
(section 109)
Annual Return of the Company, Limited made up to the day of , 19 (being the fourteenth day after the date of the first or only ordinary general meeting in 19 ).
The address of the registered office of the Company is as follows:
Summary of Share Capital and Shares
Nominal Share Capital $ divided
into*
) shares of
)$ each.
) shares of
)$ each.
Total number of shares taken up* to the day of , 19 , being the date of the return (which number must agree with the total shown in the list as held by existing members)
Number of shares issued subject to payment wholly in cash
Number of shares issued as fully paid up otherwise than in cash
Number of shares issued as partly paid up to the extent of per share otherwise than in cash
Number of shares (if any) issued at a discount
Total amount of discount on the issue of shares which has not been written off at the date of this Return
$
‡ There has been called up on each of shares
$
‡ There has been called up on each of shares
$
‡ There has been called up on each of shares
$
§ Total amount of calls received including payments on application and allotment
$
Total amount (if any) agreed to be considered as paid on shares which have been issued as fully paid up otherwise than in cash
$
* Where there are shares of different kinds or amounts (eg Preference and Ordinary or $5 and $1) state the number and nominal values separately.
If the shares are of different kinds state them separately.
‡ Where various amounts have been called or there are shares of different kinds state them separately.
§ Include what has been received on forfeited as well as on existing shares.
Total amount (if any) agreed to be considered as paid on shares which have been issued as partly paid up to the extent of per share otherwise than in cash
$
Total amount of calls unpaid
$
Total amount of the sums (if any) paid by way of commission in respect of any shares or debentures or allowed by way of discount in respect of any debentures since the date of the last Return
$
Total number of shares forfeited
Total amount paid (if any) on shares forfeited
$
Total amount of shares for which share warrants to bearer are outstanding
$
Total amount of share warrants to bearer issued and surrendered respectively since the date of the last Return
Issued $
Surrendered $
Number of shares comprised in each share warrant to bearer
In respect of every mortgage and charge which is required to be registered with the Registrar under this Ordinance, or which would have been required so to be registered if created after the tenth day of December, 1915:
(i) the amount of money lent, advanced or paid or which may become due (up to the amount which the stamp duty paid on the mortgage or charge extends to cover) upon an account current either with or without money previously due; and
(ii) the total amount of money, including interest, actually due at the date of the return.
Copy of last audited Balance Sheet of Company
Note Except where the Company is (1) a Private Company within the meaning of section 28 of the Companies Ordinance or is (2) an Assurance Company which has complied with the provisions of subsection (1) of section 10 of the Life Assurance Companies Ordinance or of subsection (1) of section 6 of the Fire Insurance Companies Ordinance, this Return must include a written copy, certified by a Director or by the Manager or Secretary of the Company to be a true copy, of the last balance sheet which has been audited by the Company’s auditors (including every document required by law to be annexed thereto) together with a copy of the report of the auditors thereon (certified as aforesaid), and if any such balance sheet is in a foreign language there must also be annexed to it a translation thereof in English certified in the prescribed manner to be a correct translation. If the said last balance sheet did not comply with the requirements of the law as in force at the date of the audit with respect to the form of balance sheets there must be made such additions to and corrections in the said copy as would have been required to be made in the said balance sheet in order to make it comply with the said requirements, and the fact that the said copy has been so amended must be stated thereon.
Private Company
Certificates to be given by a Private Company
A. ‘I certify that the Company has not since the date of the *last Annual Return issued any invitation to the public to subscribe for any shares or debentures of the Company’.
(Signature)
(State whether Director or Secretary)
B. Should the number of members of the Company exceed fifty the following certificate is also required:
‘I certify that the excess of members of the Company above fifty consists wholly of persons who are in the employment of the Company and/or of persons who, having been formerly in the employment of the Company were while in such employment, and have continued after the termination of such employment to be, members of the Company’.
(Signature)
(State whether Director or Secretary)
Note Banking companies must add a list of all their places of business.
The Return must be signed at the end by a Director or by the Manager or Secretary of the Company.
Delivered for filing by
Particulars of the Directors of the
Company, Limited, at the date of the Annual Return
‡ The present Full Name
Any former Full Name or Names
Nationality
Nationality of origin (if other than the present nationality)
Usual residential address
§ Other business occupation if any. If none state so
* In the case of the first Annual Return strike out the words ‘last Annual Return’ and substitute therefore the words ‘Incorporation of the Company’.
Director includes any person who occupies the position of a Director by whatever name called and any person in accordance with whose directions or instructions the Directors of a Company are accustomed to act.
‡ In the case of a Corporation its corporate name and registered or principal office should be shown.
§ In the case of an individual who has no business occupation but holds any other directorship or directorships particulars of that directorship or of some one of those directorships must be entered.
List of Persons holding Shares in the Company, Limited on the day of , 19 , and of Persons who have held Shares therein at any time since the date of the last Return or (in the case of the first Return) of the incorporation of the Company, showing their Names and Addresses, and an Account of the Shares so held.
Note If the names in this list are not arranged in alphabetical order an index sufficient to enable the name of any person in the list to be readily found must be annexed to this list.
| Folio in register ledger containing particulars | Names, addresses and occupations | Account of shares | |||||||
| Full name | Address | Occupation | *Number of shares held by existing members at date of return | ‡ Particulars of shares transferred since the date of the last return or (in the case of the first return) of the incorporation of the company by persons who are still members | ‡ Particulars of shares transferred since the date of the last return or (in the case of the first return) of the incorporation of the company by persons who have ceased to be members | Remarks | |||
| Number | Date of registration of transfer | Number | Date of registration of transfer | ||||||
(Signature)
(State whether Director or Manager or Secretary)
* The aggregate Number of Shares held and not the Distinctive Numbers must be stated and the column must be added up throughout so as to make one total to agree with that stated in the Summary to have been taken up.
When the Shares are of different classes these columns may be subdivided so that the number of each class held or transferred may be shown separately. Where any Shares have been converted into Stock the amount of Stock held by each member must be shown.
‡ The date of Registration of each Transfer should be given as well as the Number of Shares transferred on each date. The Particulars should be placed opposite the name of the Transferor and not opposite that of the Transferee, but the name of the Transferee may be inserted in the ‘Remarks’ column immediately opposite the particulars of each Transfer.
Seventh Schedule Form of statement to be published by banking and insurance companies
(section 136)
* The share capital of the company is , divided into shares of each.
The number of shares issued is
Calls to the amount of dollars per share have been made, under which the sum of dollars has been received.
The liabilities of the company on the first day of January (or July) were:
Debts owing to sundry persons by the company:
On judgement, $
On Specialty, $
On notes or bills, $
On simple contracts, $
On estimated liabilities, $_______
$_______
The assets of the company on that day were:
Government securities [stating them] $
Bills of exchange and promissory notes, $
Cash at the bankers, $
Other securities, $
$
* If the company has no share capital the portion of the statement relating to capital and shares must be omitted.
Eighth Schedule Provisions relating to arbitration referred to in section 227 of the Ordinance
1. When any question directed by the Ordinance to be settled by arbitration shall have arisen then unless both parties shall concur in the appointment of a single arbitrator each party on the request of the other party shall by writing under his hand nominate and appoint an arbitrator to whom such dispute shall be referred and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other nor shall the death of either party operate as such revocation and if for the space of fourteen days after any such question shall have arisen and after request in writing shall have been served by one party on the other party to appoint an arbitrator such last mentioned party fails to appoint such arbitrator then upon such failure the party making the request and having himself appointed an arbitrator may appoint such arbitrator to act on behalf of both parties and such arbitrator may proceed to hear and determine the question which shall be in dispute and in such case the award or determination of such single arbitrator shall be final.
2. If before the matter so referred shall be determined any arbitrator appointed by either party dies or becomes incapable or refuses or for seven days neglects to act as arbitrator the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place and if for the space of seven days after notice in writing from the other party for that purpose he fails to do so the remaining or other arbitrator may proceed ex parte.
3. Every arbitrator so substituted as aforesaid shall have the same powers and authorities as were vested in the former arbitrator at the time of such death, refusal or disability as aforesaid.
4. Where more arbitrators than one have been appointed, they shall, before entering upon the matters referred to them, nominate and appoint by writing under their hands an umpire to decide on any such matters on which they differ.
5. If such umpire dies or refuses or for seven days neglects to act they shall forthwith after such death, refusal or neglect appoint another umpire in his place.
6. The decision of every such umpire on the matters so referred to him shall be final.
7. The said arbitrators or their umpire may call for the production of any documents in the possession or power of either party which they or he think or thinks necessary for determining the question in dispute and may examine the parties or their witnesses on oath and administer the oaths necessary for that purpose.
8. The costs of and attending every such arbitration to be determined by the arbitrators shall be in the discretion of the arbitrators or their umpire, as the case may be.
9. On the application of either of the parties the submission to any such arbitration may be filed in the Court and an order of reference may be made thereon.
10. The provisions of the Rules of the Supreme Court shall, so far as the same are applicable, apply to every such order and to all proceedings thereunder.
Ninth Schedule Provisions relating to arbitration referred to in section 227 of the Ordinance
(section 252)
Section
Statement of Company’s affairs to be submitted to Official Receiver
177Report by Official Receiver
178
Power of court to appoint liquidators
179
Appointment and powers of provisional liquidator
180
Appointment, style, etc of liquidators
181
Provisions where person other than Official Receiver is appointed liquidator
182General provisions as to liquidators
183
except ss (5)Exercise and control of liquidators’ powers
187
Books to be kept by liquidator
188
Payments of liquidator into Companies Liquidation Account
189
Audit of liquidators’ account
191
Control of Official Receiver over liquidators
193
Release of liquidators
195
Meeting of creditors and contributories to determine whether committee of inspection shall be appointed
196Constitution and proceedings of committee of inspection
197
Powers of official Receiver where no committee of inspection
198
Appointment of special manager
206
Power to order public examination of promoters, directors, etc
212
Power to restrain fraudulent persons from managing companies
213Delegation to liquidator of certain powers of court
216
Power to appoint Official Receiver as receiver for debenture holders or creditors
287
Tenth Schedule Provisions referred to in section 334 of the Ordinance
(section 334)
Section
Provisions relating to:
Conclusiveness of certificate of incorporation
17
Specific requirements as to particulars in prospectus
37
Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar
42Return as to allotments
44
Registration of charges created by company registered in the Colony
80Duty of company to register charges created by company
81 (1)
Duty of company to register charges existing on property acquired
82Application of Part IV to companies incorporated outside the Colony
91Restrictions on commencement of business
95
The particulars as to directors and indebtedness of the company
109 (3) (n) (o)Statutory meeting and statutory report
114
Auditors’ report and right to information and explanations
135 (1) (2)
Restrictions on appointment or advertisement of director
143
Notice by liquidator of his appointment
243
Delivery to Registrar of accounts of receivers and managers
291
Documents, etc to be delivered to Registrar by companies carrying on business in the Colony
301
Return to be delivered to Registrar where documents, etc altered
302Balance sheet of company carrying on business in the Colony
303
Obligation to state name of company, etc
304
Notes to the Companies Ordinance
Note 1
The Companies Ordinance in force under sections 7A and 8 of the Cocos (Keeling) Islands Act 1955 comprises Chapter 174 of The Laws of the Colony of Singapore in its application to the Territory as in force in the Colony of Singapore on 31 December 1957 and amended by Ordinances of the Territory as indicated in the Tables below.
Table of Ordinances
Year and number
Date of notification
in GazetteDate of commencement
Application, saving or transitional provisions
No. 2, 1973 6 Dec 1973 6 Dec 1973 —
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted Provision affected
How affected
s. 5........................................... am. No. 2, 1973 s. 11........................................ am. No. 2, 1973
0
0
0