LABUAN COMPANIES ACT 1990
This Act may be cited as the Labuan Companies Act 1990 and shall come into force on such date as the Minister may, by notification in the Gazette , appoint.
(1) In this Act, unless the context otherwise requires:
"allot" includes sell, issue, assign, and convey; and "allotment" has a corresponding meaning;
"annual fee payment date" means the date on which the annual fee of a Labuan company shall be payable pursuant to subsection 151(1);
[Ins. Act A988; Am. Act A1367]
"annual return" means the return required to be made by a Labuan company under section 109 and includes any document accompanying the return;
"approved auditor" means a person approved under section 10(1);
"approved liquidator" means a person approved under section 12(1);
"Authority" means the Labuan Financial Services A
(1) For the purposes of this Act, a corporation shall, subject to the provisions of subsection (3), be deemed to be a subsidiary of another corporation if:
(a) that other corporation:
(i) controls the composition of the board of directors of the first-mentioned corporation;
(ii) controls more than half of the voting power of the first-mentioned corporation; or
(iii) holds more than half of the issued share capital of the first-mentioned corporation (excluding any part thereof which carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first-mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary.
(2) For the purposes of subsection (1), the composition of a corporation's board of directors shall be deemed to be controlled by an
Where a corporation:
(a) is the holding company of another corporation;
(b) is a subsidiary of another corporation; or
(c) is a subsidiary of the holding company of another corporation,
that first-mentioned corporation and that other corporation shall for the purposes of this Act be deemed to be related to each other.
(1) A Labuan company may be incorporated for any lawful purpose and, subject to any other written laws on financial services applicable to Labuan, shall carry out business only in, from or through Labuan.
(2) Subject to subsection (3), a Labuan company may carry on a business with a resident.
(3) No Labuan company shall:
(a) issue or offer to any resident for subscription or purchase; or
(b) invite any resident to subscribe or purchase,
any interest pursuant to the relevant provisions of the Interest Schemes Act 2016 [Act 778] where such issue or offer or invitation is made in Malaysia, other than Labuan, unless the provisions of the Interest Schemes Act 2016 are complied with.(4) No Labuan company shall carry on business in ringgit:
[Am. Act A1653:s.4]
(4) ( Deleted by Act A1653:s.4 )
(5) ( Deleted by Act A1653:
(1) The Authority is responsible for the due administration of this Act, and subject to the general direction and control of the Authority and to such restrictions and limitations as may be prescribed, anything which is required by this Act to be appointed, authorized, done or signed by the Authority may be appointed, authorized, done or signed by an authorized officer of the Authority and shall be as valid and effectual as if appointed, authorized, done or signed by the Authority.
(2) No person dealing with any authorized officer of the Authority shall be concerned to see or inquire whether any restrictions or limitations have been prescribed, and every act or omission of the authorized officer, so far as the act or omission affects any such person, shall be as valid and effectual as if done or omitted by the Authority.
(3) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Authority.
Section 8 of the Labuan Companies Act 1990 (LCA 1990) primarily addresses the legal requirements and restrictions related to the electronic lodging and filing of documents by Labuan companies. It ensures compliance with procedural standards for electronic submissions, aligning with modern technological practices and maintaining the integrity of corporate records in Labuan’s legal framework.
Section 8 stipulates that documents lodged or filed electronically by Labuan companies must adhere to the provisions relating to electronic filing as prescribed under the Act. It emphasizes the importance of compliance to ensure validity and enforceability, and grants authority to the relevant regulatory body to provide services for electronic lodgment or filing of documents.
Section 8 applies to all Labuan companies, including foreign Labuan companies, that lodge or file documents electronically with the Registrar or relevant authority. It covers corporate filings such as incorporation documents, annual returns, and other statutory submissions, ensuring they meet the prescribed electronic filing standards.
While Section 8 itself does not specify penalties directly, non-compliance with the electronic filing provisions may attract penalties under related sections or general enforcement provisions. Penalties for non-compliance with filing requirements, in general, may include fines, cancellation of registration, or other sanctions as provided elsewhere in the Act .
Note: The references are based on the provided sources, primarily focusing on the general provisions related to electronic filing and regulatory authority. Specific penalties or detailed procedural rules may be found in related sections or regulations not explicitly cited here.
(1) Every document required or permitted to be lodged or filed with the Authority under the provisions of this Act shall be lodged or filed through a Labuan trust company or any other entity which may be approved by the Authority.
[Am. Act A1367]
(2) Every application to the Authority for any certificate to be issued under this Act or for any extract or copy of any certificate issued under this Act or of any document lodged or filed with the Authority shall be made through a Labuan trust company or any other entity which may be approved by the Authority:
[Am. Act A1367]
Provided that this subsection shall not apply:
[Subs. Act A988]
(a) where an application is made in respect of a Labuan company or a foreign Labuan company by a member of that company and the document, certificate, extract or copy is for his own pers
9A PART II ADMINISTRATION OF ACT-9A. Electronic lodgement or filing of documents.
(1) The Authority may provide a service for the electronic lodgement or filing of documents required by this Act to be lodged or filed with the Authority.
(2) A Labuan trust company or any other person approved by the Authority shall become a subscriber to the service provided under subsection (1) and shall pay the prescribed fee and comply with such terms and conditions as may be determined by the Authority.
[(2) Gen. Am. Act A1367:s.2; Am. Act A1653:s.6]
(3) A document electronically lodged or filed under this section shall be deemed to have satisfied the requirement for lodgement or filing if the document is communicated or transmitted to the Authority in such manner as may be specified or approved by the Authority.
(4) The Authority may, by notice in writing, specify the documents that may be electronically lodged or filed.
(5) A document that is required to be certified or authenticate
9B PART II ADMINISTRATION OF ACT-9B. Evidentiary value of electronically lodged or filed documents.
(1) A copy of or an extract from any document electronically lodged or filed with the Authority under section 9A duly certified by the Authority as a true copy of or extract from that document shall be admissible in evidence in any proceedings as of equal validity as the original document.
[Ins. Act A1090; Am. Act A1367]
(2) Nothing in subsection (1) shall be deemed to be inconsistent with sections 90A, 90B and 90C of the Evidence Act 1950, and the "person responsible for the management of the operation of the computer" shall for the purposes of this section be deemed to be the Authority.
[Ins. Act A1367]
9C PART II ADMINISTRATION OF ACT-9C. Original copies to be kept at office of Labuan trust company.
(1) The original copies of the documents specified or approved by the Authority to be electronically lodged or filed with the Authority by the Labuan trust company shall, at all times, be kept at the office of the Labuan trust company.
(2) A Labuan trust company that fails to comply with subsection (1) shall be guilty of an offence against this Act.
Penalty: Ten thousand ringgit. Default penalty.
[Ins. Act A1090]
9D PART II ADMINISTRATION OF ACT-9D. Issuing of document electronically.
(1) The Authority may, by electronic means, issue any document required to be issued by it.
(2) A copy of or an extract from any document electronically issued by the Authority under subsection (1), duly certified by the Authority as a true copy of or an extract from such document, shall be admissible in evidence in any proceedings as of equal validity as the original document.
(3) Nothing in subsection (2) shall be deemed to be inconsistent with sections 90A, 90B and 90C of the Evidence Act 1950, and the "person responsible for the management of the operation of the computer" shall for the purposes of this section be deemed to be the Authority.
[Ins. Act A1367]
10 PART II ADMINISTRATION OF ACT-10. Approved auditors.
(1) Subject to such conditions as the Authority deems fit to impose, the Authority may approve any person to be an approved auditor for the purposes of this Act.
[Am. Act A1367]
(2) No person shall perform the duties of auditor of a Labuan company unless he is an approved auditor.
(2A) If default is made in complying with this section, the person who is in default commits an offence under this Act.
Penalty: One hundred thousand ringgit.
[(2A) Ins. Act A1653:s.7]
(3) The Authority may revoke any approval given under subsection (1).
(4) The Authority shall keep a register of approved auditors.
(5) An approved auditor shall pay to the Authority such annual fee as may be prescribed.
(6) An approved auditor shall lodge or file any document required to be lodged or filed under this Act within the stipulated period.
[
11 PART II ADMINISTRATION OF ACT-11. Company auditors.
(1) A person shall not knowingly consent to be appointed, and shall not knowingly act, as auditor for any Labuan company under this Act and shall not prepare for or on behalf of the company any report required by this Act to be prepared by an approved auditor:
(a) if he is not an approved auditor;
(b) if he is indebted to the company or to a company which is deemed to be related to that company by virtue of section 4 in an amount exceeding twenty thousand ringgit or an equivalent amount in any other currency;
[Am. Act A1367]
(c) if he is:
(i) an officer of the company;
(ii) a partner, employer or employee of an officer of the company;
(iii) a partner, or employee of an employee of an officer of the company;
(iv) a spouse of an officer of the company;
(v) a spouse of an employee of an officer of the company;
12 PART II ADMINISTRATION OF ACT-12. Approved liquidator.
(1) Subject to such conditions and payment of the prescribed fee as the Authority deems fit to impose, the Authority may approve any person to be an approved liquidator.
[(1) Gen. Am. Act A1367:s.2; Am. Act A1367:s.13; Am. Act A1653:s.9]
(2) The Authority may revoke any approval given under subsection (1).
(3) The Authority shall keep a register of approved liquidators.
(4) No person shall be appointed or shall act as liquidator of a Labuan company:
(a) if he is not an approved liquidator;
(b) if he is indebted to the company in liquidation or to a company which is deemed to be related to that company in liquidation by virtue of section 4 in an amount exceeding twenty thousand ringgit or an equivalent amount in any other currency; or
[Am. Act A1367]
(c) if he has not consented in writing to such appointme
13 PART II ADMINISTRATION OF ACT-13. Registers.
(1) The Authority shall keep such registers as it considers necessary in any form as it deems fit.
[Subs. Act A1367]
(2) Any officer, member, debenture-holder, director or liquidator of a Labuan company or a foreign Labuan company, or any other person having the written permission of such officer, member, debenture-holder, director or liquidator or who can demonstrate to the Authority that he has a good reason for doing so, may, subject to this Act and on payment of the prescribed fee:
(a) inspect any document filed or lodged with the Authority in respect of the company; or
(b) require any certificate to be issued under this Act or a copy or extract from any document in respect of the company to be given or given and certified by the Authority.
(3) A copy of or extract from any document filed or lodged at the office of the Authority, certified to
14 PART III CONSTITUTION OF COMPANIES DIVISION 1 INCORPORATION-14. Formation of companies.
(1) Subject to this Act, a Labuan trust company or any other person may, by subscribing its or his name to a memorandum and complying with the requirements as to registration, form a Labuan company for any lawful purpose.
(2) If a subscriber to a memorandum is a corporation or a Labuan trust company, the memorandum may be subscribed by the corporation or the Labuan trust company, as the case may be, under its seal or by some person duly authorized on its behalf.
(3) A Labuan company may be:
(a) a company limited by shares;
(b) a company limited by guarantee; or
(c) an unlimited company.
[Subs. Act A1367]
15 PART III CONSTITUTION OF COMPANIES DIVISION 1 INCORPORATION-15. Registration and incorporation.
(1) A person desiring the incorporation of a Labuan company shall lodge with the Authority the memorandum and articles of the proposed company and the other documents required to be lodged by or under this Act, and the Authority on payment of the prescribed fees shall, subject to this Act, register the company by registering the memorandum and articles.
(2) The Authority may require a statutory declaration made by an officer to be lodged stating that all or any of the requirements of this Act have been complied with, and the Authority may accept such a declaration as sufficient evidence of compliance.
(3) On the registration of the memorandum, the Authority shall certify under its seal that the company is, on and from the date specified in the certificate, incorporated as a Labuan company limited by shares or guarantee or is an unlimited company.
[Subs. Act A1367]
(4) On and from the date of incorp
16 PART III CONSTITUTION OF COMPANIES DIVISION 1 INCORPORATION-16. Application for registration of foreign company as being continued in Labuan.
(1) Subject to section 7, a foreign company incorporated under the laws of any country other than Malaysia, or of any jurisdiction within such a country, may, if it is so authorized by the laws of that country or jurisdiction, apply to the Authority to be registered as being continued in Labuan as if it had been incorporated under this Act.
(2) Upon application under subsection (1), supported by such material as it considers adequate and satisfactory, the Authority may, if it is satisfied that the consent of such number or proportion of the shareholders, debenture-holders and creditors of the foreign company as may be required by the laws of that country or jurisdiction, and the consent of the proper officer of that country or jurisdiction, to such registration has been obtained by the company, register such company as being so continued and, if so registered, the company shall be deemed thereafter to be a Labuan company incorporated under this
17 PART III CONSTITUTION OF COMPANIES DIVISION 1 INCORPORATION-17. Prior Approval in principle.
(1) A foreign company may, prior to applying for registration under section 16, request that such registration be approved in principle and upon such request and payment of the prescribed fee, the Authority may, if it is satisfied that the company is eligible for registration under section 16, issue a certificate confirming its approval of the company being so registered subject to an application under section 16 being made within a period of twelve months from the date of the certificate.
[Am. Act A1367]
(2) The certificate of approval given by the Authority under subsection (1) shall not relieve the foreign company to whom it is issued from complying with the provisions of section 16 on a subsequent application for registration.
18 PART III CONSTITUTION OF COMPANIES DIVISION 1 INCORPORATION-18. Requirement as to memorandum.
(1) The memorandum of every Labuan company shall be printed and divided into numbered paragraphs and dated and shall state the following:
(a) the name of the company;
(b) the objects of the company;
(c) the amount and the demonination of the currencies of the share capital with which it is proposed to be registered;
[(1)(c) Am. by Act A1367; Act A1428]
(d) the full name and address of each subscriber thereto;
(e) that the subscriber or subscribers to the memorandum are desirous of being formed into a Labuan company in pursuance of the memorandum and respectively agree to take the number of shares in the capital of the company set out opposite their respective names; and
(f) if the Labuan company is a company limited by guarantee:
(i) that the liability of the members is limited;
(
19 DIVISION 2 STATUS AND NAME-19. Powers of companies.
(1) Subject to this Act and any written law in Labuan on financial services, a Labuan company shall have full capacity, rights, powers and privileges to carry on or undertake any business or activity, do any act, or enter into any transaction.
(2) The memorandum and articles of a Labuan company may contain a provision relating to the limited capacity, rights, powers or privileges of the company.
[Subs. Act A1367]
20 DIVISION 2 STATUS AND NAME-20. Ultra vires transactions.
(1) No act or purported act of a Labuan company (including the entering into of an agreement by the company and including any act done on behalf of the company by an officer or agent of the company under any purported authority, whether express or implied, of the company) and no conveyance or transfer of property, whether real or personal, to or by a Labuan company shall be invalid by reason only of the fact that the company was without capacity or power to do the act or to execute or take the conveyance or transfer.
(2) Any such lack of capacity or power may be asserted or relied upon only in:
(a) any proceedings against the Labuan company by any member of the company or, where the company has issued debentures secured by a floating charge over all or any of the company's property, by the holder of any of those debentures, or by a Labuan trust company acting as trustee for the holders of those debentures, to restr
21 DIVISION 2 STATUS AND NAME-21. Names of Labuan companies.
(1) Except with the consent of the Minister, a Labuan company shall not be registered by a name that, in the opinion of the Authority, is undesirable or is a name, or includes a name, of a kind that the Authority is not otherwise willing to accept for registration.
(2) A Labuan company shall have:
[Subs. Act A988]
(a) the word "Corporation" or the word "Incorporated" or the abbreviation "Corp." or "Inc.";
(b) the word "Limited" or the abbreviation "Ltd.";
(c) the words "Public Limited Company" or the abbreviation "P.L.C.";
(d) the words "Societe Anonyme" or "Sociedad Anonima" or the abbreviation "S.A.";
(e) the words "Aktiengesellschaft" or the abbreviation "A.G.";
(f) the words "Naamloze Vennootschap" or the abbreviation "N.V.";
(g) the words "Perseroan Terbatas" or the abbreviation
22 DIVISION 2 STATUS AND NAME-22. Change of name.
(1) A Labuan company may, by special resolution, resolve that its name should be changed to a name by which the company could have been registered without contravention of section 21(1).
(2) If the Authority approves the name which the company has resolved should be its new name, the Authority shall, on payment of the prescribed fee, issue a certificate of incorporation of the company under the new name and upon the issue of such certificate of incorporation the change of name shall become effective.
[Am. Act A1367]
(3) If the name of a Labuan company is (whether through inadvertence or otherwise and whether originally or by a change of name) a name by which the company could not be registered without contravention of section 21(1), the company may, by special resolution, change its name to a name by which the company could be registered without contravention of that subsection and, if the Authority so dir
23 DIVISION 2 STATUS AND NAME-23. Articles of association.
(1) There shall be lodged with the memorandum of a Labuan company articles of association signed by the subscribers to the memorandum prescribing regulations for the company.
(2) Articles shall be:
(a) printed;
(b) divided into numbered paragraphs; and
(c) signed by each subscriber to the memorandum or, if any subscriber is a company, sealed with its company seal or signed on its behalf.
(3) Articles may be lodged in any foreign character, alphabet or language, provided that it is accompanied by an accurate and certified translation in the English language thereof, and in the event of conflict, the meaning of words in the original foreign character, alphabet or language shall prevail.
[Ins. Act A1367]
24 DIVISION 2 STATUS AND NAME-24. Alteration of memorandum or articles.
(1) Subject to this Act, a Labuan company may, by special resolution, alter or add to its memorandum or articles.
(2) Any alteration or addition so made in the memorandum or articles shall take effect from the date the notice of the relevant resolution is lodged with the Authority and be as valid as if originally contained therein and be subject in like manner to alteration by special resolution.
25 DIVISION 2 STATUS AND NAME-25. Copies of memorandum and articles.
(1) A Labuan company shall, on being so required by any member, furnish to him a copy of the memorandum and of the articles (if any) on payment by the member of such amount as the directors may determine to be reasonably necessary to defray the cost of preparing and furnishing it.
(2) Where an alternation is made in the memorandum or articles of a Labuan company, a copy of the memorandum or articles shall not be issued by the company after the date of alteration unless:
(a) the copy is in accordance with the alteration; or
(b) a printed copy of the resolution making the alteration is annexed to the copy of the memorandum or articles and the particular clauses or articles affected are indicated in ink.
(3) If default is made in complying with this section, the Labuan company and every Labuan of the company who is in default commits an offence under this Act.
[Ins. Act A1367]
44 DIVISION 3 SHARES-44. Calls.
A Labuan company may:
(a) make arrangements, on the issue of shares, for varying the amounts and times of payment of calls as between shareholders;
(b) accept from any member the whole or any part of the amount remaining unpaid on any shares although no part of that amount has been called up; and
(c) 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.
45 DIVISION 3 SHARES-45. Reserve liability.
A Labuan company may, by special resolution, determine that any portion of its uncalled share capital shall not be capable of being called up except in the event of the company being wound up, but no such resolution shall prejudice the rights acquired by any person before the passing of the resolution.
46 DIVISION 3 SHARES-46. No par or nominal value shares.
(1) Shares of a Labuan company shall have no par or nominal value.
(2) In relation to a share issued by a Labuan company before the effective date:
(a) the amount paid on the share shall be the sum of all amounts paid to the Labuan company at any time for the share (but not including any premium); and
(b) the amount unpaid on the share shall be the difference between the price of issue of the share (but not including any premium) and the amount paid on the share.
(3) Any amount standing to the credit of a Labuan company's share premium account and any amount standing to the credit of a Labuan company's capital redemption reserve before the effective date shall become part of the company's share capital.
(4) Notwithstanding subsection (3), a Labuan company may use the amount standing to the credit of its share premium account to:
(a) provid
46A DIVISION 3 SHARES-46A. Prohibition to issue bearer share or bearer share warrants.
(1) A Labuan company shall not:
(a) issue a bearer share or bearer share warrants;
(b) convert a share into a bearer share or bearer share warrants into share warrants; or
(c) exchange a share for a bearer share.
(2) Any purported issuance, conversion or exchange of such bearer share, bearer share warrants, share or share warrants under subsection (1) is void.
(3) A provision in a Labuan company's memorandum or articles which purports to enable the company to issue, convert or exchange any of the bearer share, bearer share warrants, share or share warrants is void.
(4) This section shall apply to a foreign Labuan company.
(5) If default is made in complying with this section, the Labuan company, foreign Labuan company and every officer of the company who is in default commits an offence under this Act.
[46A. Ins. Act A
47 DIVISION 3 SHARES-47. Power to issue shares and voting rights.
(1) A Labuan company shall have power:
(a) to issue shares which may be divided into one or more classes, with such designations, preferences, limitations and relative rights as shall be stated or provided for in the articles, and all prices and values given in respect of the shares shall be expressed in a currency other than ringgit; and
(b) subject to its articles, to issue fractions of its shares, and such fractional shares shall have the corresponding fractional liabilities, limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a whole share of the same class or series of shares.
[Subs. Act A1367]
(2) The articles may limit or deny voting rights of, or provide special voting rights for, the shares of any class or the shares within any class to any extent not inconsistent with the provisions of this Act or
47A DIVISION 3 SHARES-47A. Treasury shares.
(1) A Labuan company may hold its own shares that are purchased or otherwise acquired pursuant to section 48A as treasury shares where:
(a) the articles of the Labuan company so permits; and
(b) the number of shares purchased or acquired, when aggregated with shares of the same class held by the Labuan company at the time of the purchase or acquisition, does not exceed fifteen percent of the shares of that class previously issued by the Labuan company.
(2) The Labuan company whilst holding its own shares as treasury shares:
(a) shall not exercise any right in respect of the treasury shares and any purported exercise of such a right is void and the treasury shares shall be treated as having no voting rights;
(b) may not make or receive any dividend or distribution of the Labuan company's asset, including any distribution of assets to membe
48 DIVISION 3 SHARES-48. Dealing by a Labuan company in its own shares, etc.
(1) A Labuan company may provide financial assistance, whether directly or indirectly, for the purpose of or in connection with the purchase of its own shares or the shares of any of its subsidiaries or of its holding company:
(a) in the ordinary course of its business, if the lending of money is part of the ordinary business of the Labuan company;
(b) where the transaction has been approved by a special resolution of the company, and the directors have certified to the meeting, in writing, to the effect that there are no reasonable grounds for believing that:
(i) the company is, or would after giving the financial assistance be, insolvent; or
(ii) the realisable value of the company's assets, excluding the amount of any financial assistance in the form of a loan and in the form of assets pledged or encumbered to secure a guarantee, would, after giving the financial assistance
48A DIVISION 3 SHARES-48A. Purchase by a Labuan company of its own shares, etc.
(1) Subject to subsections (2) and (3), a Labuan company may purchase its own shares:
(a) where its memorandum or articles so provide; and
(b) by special resolution, provided that the purchases thereof, whether direct or indirect, shall be made to the extent of any solvent surplus available.
(2) A payment made by the Labuan company in consideration of the purchase of its own shares in accordance with subsection (1) may be made out of the Labuan company's capital or profits so long as the directors declare by way of a solvency declaration that:
(a) the Labuan company is able to pay its debts in full at the time of such payment and will be able to pay its debts as they fall due in the normal course of business during the period of twelve months immediately following the date of the payment; and
(b) the value of the Labuan company's assets i
49 DIVISION 3 SHARES-49. [Deleted by Act A1367].
50 DIVISION 3 SHARES-50. [Deleted by Act A1367].
51 DIVISION 3 SHARES-51. Alteration of share capital.
(1) A Labuan company may, by ordinary resolution, alter the conditions of its memorandum and articles in any one or more of the following ways:
[Am. Act A1367]
(a) [Deleted by Act A1367];
(b) consolidating and dividing all or any of its share capital;
[Am. Act A1367]
(c) subdividing its shares or any of them, 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;
[Am. Act A1367]
(d) converting all or any of its paid-up shares into stock and reconverting that stock into paid-up shares;
[Am. Act A1367]
(e) cancelling shares which, at the date of the passing of the resolutio
52 DIVISION 3 SHARES-52. Validation of shares improperly issued.
Where a Labuan company has purported to issue or allot shares, and the issue or allotment of those shares was invalid by reason of any provision of this Act or of the memorandum or articles of the company or otherwise, or the terms of issue or allotment were inconsistent with or unauthorized by any such provision, the Court may, upon application lodged with it by the company or by a holder or mortgagee of any of those shares or by a creditor of the company, and upon being satisfied that in all the circumstances it is just and equitable so to do, make an order validating the issue or allotment of those shares, or confirming the terms of issue or allotment thereof, or both, subject to such conditions, if any, as it may impose, and upon such order being made and a copy thereof being lodged by the company or by such holder, mortgagee or creditor with the Authority, those shares shall be deemed to have been validly issued or allotted upon the terms of issue
53 DIVISION 3 SHARES-53. Special resolution for reduction of share capital.
(1) Subject to confirmation by the Court, a Labuan company may, if so authorized by its articles, by special resolution reduce its share capital in any way and in particular, without limiting the generality of the foregoing, may:
(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
(b) cancel any paid-up capital which is lost or unrepresented by available assets; or
(c) pay off any paid-up share capital which is in excess of the needs of the company, or which it is otherwise in the interests of the company as a whole to have paid off,
and may, so far as necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.
(2) Where the proposed reduction of share capital involves diminution of liability in respect of unpaid share capital or the payment to any shareholder of an
54 DIVISION 3 SHARES-54. Rights of holders of preference shares to be set out in articles.
(1) No Labuan company shall allot a preference share, or convert an issued share into a preference share, unless there is set out in its articles the rights of the holder of such a share with respect to the repayment of capital, participation in surplus assets and profits, cumulative or non-cumulative dividends, voting and priority of payment of capital and dividend in relation to other shares or other classes of preference shares.
(2) The issue by a Labuan company of preference shares ranking pari passu with existing preference shares issued by the company shall be deemed to be a variation of the rights attached to those existing preference shares unless the issue of the first-mentioned shares was authorized by the terms of issue of existing preference shares or by the articles in force at the time the existing preference shares were issued.
(3) If default is made in complying with this section, the Labuan company and every offi55 DIVISION 3 SHARES-55. Redeemable preference shares.
(1) Subject to this section, a Labuan company having a share capital 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, and the redemption shall be effected only on such terms and in such manner as are provided by the articles.
(2) The redemption shall not be taken as reducing the amount of share capital of the company.
[Am. Act A1367]
(3) The shares shall not be redeemed unless they are fully paid up.
[Subs. Act A1367]
(3A) The shares may be redeemed out of the profits or, subject to subsection (3B), out of the capital of the Labuan company.
[Ins. Act A1367]
(3B) The shares shall not be redeemed out of the capital of the Labuan company unless the directors declare by way of a solvency declaration:
(a) that in th
Legal Commentary on Labuan Companies Act 1990 - Section 55
Introduction
The Labuan Companies Act 1990 (Act 441) is a pivotal piece of legislation that governs the incorporation, registration, and administration of companies in Labuan, Malaysia. Section 55 specifically addresses the provisions related to redeemable preference shares, which are a type of share that can be redeemed by the company at a future date.
What does Section 55 Say
Section 55 of the Labuan Companies Act 1990 outlines the framework for the issuance and management of redeemable preference shares by Labuan companies. It specifies the conditions under which these shares can be issued and the rights associated with them.
Essential Ingredients
- Definition: Redeemable preference shares are defined as shares that can be redeemed by the issuing company at a specified time or under certain conditions.
- Issuance Conditions: The section stipulates the requirements for issuing redeemable preference shares, including the need for clear terms regarding redemption.
Scope of Section
- Applicability: This section applies to all Labuan companies that wish to issue redeemable preference shares.
- Regulatory Compliance: Companies must comply with the provisions set forth in this section to ensure the legality of the shares issued.
Punishment for Section
While the specific penalties for non-compliance with Section 55 are not detailed in this section, the broader context of the Labuan Companies Act indicates that violations can lead to significant fines or imprisonment, as outlined in other sections of the Act.
Legal Comments
- Definition - "Redeemable Preference Shares" - Section 55 defines redeemable preference shares, establishing a clear legal framework for their issuance. - [Source Reference]
- Regulatory Framework - "Governance" - The Labuan Companies Act 1990 provides a comprehensive governance structure for Labuan companies, including provisions for redeemable preference shares. - [Source Reference]
- Compliance Requirement - "Legal Compliance" - Companies must adhere to the stipulations in Section 55 to ensure the validity of their redeemable preference shares. - [Source Reference]
- Rights of Shareholders - "Shareholder Rights" - The section outlines the rights associated with redeemable preference shares, which may differ from ordinary shares. - [Source Reference]
- Amendments - "Legislative Changes" - The Labuan Companies (Amendment) Act 2022 may impact the provisions related to redeemable preference shares, necessitating companies to stay updated. - [Source Reference]
- Penalties - "Non-Compliance Penalties" - Non-compliance with the provisions of the Labuan Companies Act can result in severe penalties, including fines and imprisonment. - [Source Reference]
- Business Operations - "Business Flexibility" - The ability to issue redeemable preference shares provides Labuan companies with flexibility in capital management. - [Source Reference]
- Investor Attraction - "Investment Appeal" - The provisions for redeemable preference shares can enhance the attractiveness of Labuan companies to potential investors. - [Source Reference]
- Shareholder Protection - "Investor Protection" - The Act aims to protect the rights of shareholders, including those holding redeemable preference shares. - [Source Reference]
- Corporate Governance - "Governance Standards" - Section 55 contributes to the overall corporate governance standards expected of Labuan companies. - [Source Reference]
- Financial Structuring - "Capital Structuring" - Redeemable preference shares are a strategic tool for companies in structuring their capital effectively. - [Source Reference]
- Legal Certainty - "Clarity in Law" - The clear definition and regulation of redeemable preference shares provide legal certainty for companies and investors alike. - [Source Reference]
- Market Competitiveness - "Competitive Edge" - The ability to issue redeemable preference shares can give Labuan companies a competitive edge in the market. - [Source Reference]
- Regulatory Oversight - "Authority Oversight" - The Labuan Financial Services Authority oversees compliance with the provisions of the Labuan Companies Act, including Section 55. - [Source Reference]
- Impact of Amendments - "Future Implications" - Amendments to the Act may have future implications for the issuance and management of redeemable preference shares. - [Source Reference]
- Legal Framework - "Comprehensive Legislation" - The Labuan Companies Act 1990 serves as a comprehensive legal framework for the operation of companies in Labuan. - [Source Reference]
- International Standards - "Global Compliance" - The Act aligns with international standards for corporate governance and financial practices. - [Source Reference]
- Shareholder Agreements - "Contractual Obligations" - Companies may need to draft shareholder agreements that reflect the terms of redeemable preference shares as per Section 55. - [Source Reference]
- Tax Implications - "Tax Considerations" - The issuance of redeemable preference shares may have specific tax implications that companies should consider. - [Source Reference]
- Legal Precedents - "Case Law" - Legal precedents related to redeemable preference shares can provide guidance on the interpretation of Section 55. - [Source Reference]
56 DIVISION 4 DEBENTURES-56. [Deleted by Act A1367].
57 DIVISION 4 DEBENTURES-57. [Deleted by Act A1367].
58 DIVISION 4 DEBENTURES-58. Labuan company to maintain register of debentures holders.
(1) Subject to the provisions of this section, every Labuan company which issues debentures shall keep and maintain at its registered office in Labuan:
(a) a register of holders of the debentures;
(b) a copy of all the terms of debentures so issued;
(c) a statement of account of the status of the debentures; and
[Ins. Act A1367]
(d) a register of all cancelled or redeemed debentures.
[Ins. Act A1367]
(1A) If default is made in complying with subsection (1), the Labuan company which is in default commits an offence under this Act.
Penalty: Twenty thousand ringgit. Default penalty.
[(1A) Ins. Act A1653:s.18]
(2) Every register of holders of debentures of a Labuan company shall, except when duly closed, be open to the inspection of the registered
59 DIVISION 4 DEBENTURES-59. Perpetual debentures.
A condition contained in a debenture, or in a deed for securing a debenture, shall not be invalid by reason only that the debenture is thereby made irredeemable or redeemable only on the happening of a contingency, however remote, or on the expiration of a period, however long, any rule of law or equity to the contrary notwithstanding.
60 DIVISION 4 DEBENTURES-60. Reissue of redeemed debentures.
(1) Where a Labuan company has redeemed any debentures:
(a) unless any provision to the contrary, whether express or implied, is contained in any contract entered into by the company; or
(b) unless the company has, by passing a resolution to that effect or by some other act, manifested its intention that the debentures shall be cancelled,
that company shall have power to reissue the debentures, either by reissuing the same debentures or by issuing other debentures in their place, but the reissue of a debenture or the issue of one debenture in place of another under this subsection shall not be regarded as the issue of a new debenture for the purpose of any provision limiting the amount or number of debentures that may be issued by the company.
(2) On the reissue of redeemed debentures, the person entitled to the debenture shall have, and shall be deemed always to have had, the
61 DIVISION 4 DEBENTURES-61. [Deleted by Act A1367].
62 DIVISION 4 DEBENTURES-62. [Deleted by Act A1367].
63 DIVISION 4 DEBENTURES-63. [Deleted by Act A1367].
64 DIVISION 4 DEBENTURES-64. [Deleted by Act A1367].
65 DIVISION 4 DEBENTURES-65. [Deleted by Act A1367].
66 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-66. Interpretation.
(1) In this Division, unless the context otherwise requires:
"interest" means any right to participate, or any interest, whether enforceable or not, and whether actual, prospective or contingent:
(a) in any profits, assets or realization of any financial or business undertaking or scheme whether in Malaysia or elsewhere;
(b) in any common enterprise, whether in Malaysia or elsewhere, in which the holder of the right or interest is led to expect profits, rent or interest from the efforts of the promoter of the enterprise or a third party; or
(c) in any investment contract,
whether or not the right or interest is evidenced by a formal document, and whether or not the right or interest relates to a physical asset, but does not include:
(d) any share in or debenture of a corporation;
(da) any interest in a limited
67 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-67. Approved deeds.
For the purposes of this Division, a deed shall be an approved deed if:
(a) the Authority has granted his approval to the deed under this Division; and
(b) the Authority has granted its approval under this Division to the Labuan trust company appointed for the purposes of the deed acting as a trustee or representative, and that approval has not been revoked and the trustee or representative has not ceased to hold office.
[Am. Act A1367]
68 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-68. Approval of deeds.
(1) Where a deed makes a provision for the appointment of a trustee for, or a representative of, the holders of the interests issued or proposed to be issued by a Labuan company or a foreign Labuan company, the Authority may, subject to this section, grant its approval to the deed.
[Subs. Act A1367]
(2) The Authority shall not grant its approval to a deed unless the deed:
[Am. Act A1367]
(a) stipulates that no part of the interests to which the deed relates shall be offered to residents of Malaysia;
(b) complies with the requirements of this Division; and
(c) makes provision for such other matters and things as are required by or under the regulations to be included in the deed, and if regulations have been made prescribing the charges that may be made by a management company, unless the deed provides:
<69 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-69. Interests to be issued by a Labuan company or a foreign Labuan company only.
[Shoulder note Gen. Am. Act A1367:s.2]
(1) No person, except a Labuan company or a foreign Labuan company or an agent of such company authorized in that behalf under the seal of the company, shall issue or offer to the public for subscription or purchase, or shall invite the public to subscribe for or purchase, any interest.
[Gen. Am. Act A1367:s.2; Renumbering by Act A1653:s.19]
(2) If default is made in complying with this section, the person who is in default commits an offence under this Act.
Penalty: Three million ringgit or imprisonment for a term not exceeding five years or both.
[(2) Ins. Act A1653:s.19]
70 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-70. Statement to be issued.
(1) Before a Labuan company or a foreign Labuan company or an agent of such company issues or offers to the public for subscription or purchase, or invites the public to subscribe for or purchase, any interest, the company shall issue, or cause to be issued, a statement in writing in connection therewith, which statement shall for all purposes be deemed to be a prospectus issued by a company, and all provisions of this Act and rules of law relating to prospectuses or to the offering or to an intended offering of shares for subscription or purchase to the public shall, with such adaptations as are necessary, apply and have effect accordingly as if the interest were shares offered or intended to be offered to the public for subscription or purchase, and as if persons accepting any offer or invitation in respect of subscribing for or purchasing any such interest were subscribers for shares.
[Gen. Am. Act A1367:s.2; Renumbering by
71 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-71. No issue without approved deed.
(1) No person shall issue or offer to the public for subscription or purchase, or invite the public to subscribe for or purchase, any interest unless, at the time of the issue, offer or invitation, there is in force, in relation to the interest, a deed that is an approved deed.
(2) A person shall not, in any deed, prospectus, statement, advertisement or other document relating to any interest, make any reference to an approval of a deed or of a trustee or representative granted under this Division.
(3) If default is made in complying with this section, the person who is in default commits an offence under this Act.
Penalty: One million ringgit or imprisonment for a term not exceeding three years or both.
[(3) Ins. Act A1653:s.21]
72 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-72. Register of interest holders.
(1) The management company shall, in respect of each deed with which the company is concerned, keep a register of the holders of interests under the deed and enter therein:
(a) the names and addresses of the holders;
(b) the extent of the holding of each holder and, if his interest consists of a specific interest in any property, a description of the property and its location sufficient to identify it;
(c) the date at which the name of each person was entered in the register as a holder; and
(d) the date at which any person ceased to be a holder.
(2) Division 4 of Part V shall, so far as is applicable and with such adaptations as are necessary, apply to and in relation to the register.
(3) If default is made in complying with this section, the Labuan company and every officer of the company who is in default commits an offence under this Act.<
73 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-73. Penalty for contravention of Division, etc.
(1) A person shall not:
(a) contravene or fail to comply with this Division; or
(b) fail to comply with a covenant contained, or deemed to be contained, in any deed that is or at any time has been an approved deed.
Penalty: Imprisonment for three years or ten thousand ringgit or both.
(2) No person shall be relieved from any liability to any holder of an interest by reason of any contravention of, or failure to comply with, this Division.
(3) Subsection (1) shall not apply to sections 69, 70, 71 and 72.
[(3) Ins. Act A1653:s.23]
74 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-74. Winding up of schemes, etc.
(1) Where the management company under a deed is in liquidation or where, in the opinion of the trustee or representative, the management company has ceased to carry on business or has, to the prejudice of holders of interests to which the deed relates, failed to comply with the deed, the trustee or representative shall summon a meeting of the holders.
(2) A meeting under subsection (1) shall be summoned:
(a) by sending by post notice of the proposed meeting, at least twenty-one days before the proposed meeting, to each holder at his last known address, or, in the case of joint holders, to the joint holder whose name stands first in the company's records; and
(b) by publishing, at least twenty-one days before the proposed meeting, an advertisement giving notice of the meeting in a newspaper circulating in Labuan.
(3) If at any such meeting a resolution is passed by a majority
75 DIVISION 5 INTERESTS OTHER THAN SHARES, DEBENTURES, ETC.-75. Liability of trustees.
(1) Subject to this section, any provision contained in a deed, or in any contract with the holders of interests to which such a deed relates, shall be void so far as it would have the effect of exempting a trustee or representative under the deed from, or indemnifying a trustee or representative against, liability for breach of trust where the trustee or representative fails to show the degree of care and diligence required of a trustee or representative.
(2) Subsection (1) shall not invalidate:
(a) any release otherwise validly given in respect of anything done, or omitted to be done, by a trustee or representative before the giving of the release; or
(b) any provision enabling such a release to be given:
(i) on the agreement thereto of a majority of not less than three-fourths of the holders of interests as vote in person or by proxy at a meeting summoned for the purpose; an
76 DIVISION 6 TITLE AND TRANSFERS-76. Nature of shares.
The share or other interest of any member in a Labuan Labuan company shall be movable property, transferable in the manner provided by the articles, and shall not be of the nature of immovable property.
77 DIVISION 6 TITLE AND TRANSFERS-77. Numbering of shares.
(1) Each share in a Labuan company shall be distinguished by its appropriate number.
(2) Notwithstanding subsection (1):
(a) if at any time all the issued shares in a Labuan company, or all the issued shares therein of a particular class, are fully paid up and rank pari passu for all purposes, none of those shares need thereafter have a distinguishing number so long as it remains fully paid up and ranks pari passu for all purposes with all shares of the same class for the time being issued and fully paid up; or
(b) if all the issued shares in a Labuan company are evidenced by certificates in accordance with section 78 and each certificate is distinguished by its appropriate number and that number is recorded in the register of members, none of those shares need have a distinguishing number.
78 DIVISION 6 TITLE AND TRANSFERS-78. Certificate to be evidence of title.
(1) A certificate, under the seal of a Labuan company or any branch thereof, specifying any shares held by a member shall be prima facie evidence of his title to the shares.
(2) Every share certificate shall be under the seal of the Labuan company or a branch thereof and shall state:
(a) the name of the company and the authority under which the company is constituted;
(b) the address of the registered office of the company in Labuan or, where the certificate is issued by a branch of the company, the address of that branch;
(c) for a foreign Labuan company the nominal value and the extent to which the shares are paid up; and
[(c) Am. Act A1653:s.24]
(d) the class of the shares.
(3) Failure to comply with this section shall not affect the rights of any holder of shares.
(4) If default is made in co
79 DIVISION 6 TITLE AND TRANSFERS-79. A Labuan company may have share seal.
A Labuan company may, if authorized by its articles, have a seal which shall have on its face the name of the company and the words "Share Seal", and a share certificate under such seal shall be deemed to be sealed with the common seal of the company for the purposes of this Act.
80 DIVISION 6 TITLE AND TRANSFERS-80. Instruments of transfer, and transfer by personal representative.
(1) A Labuan company shall not register a transfer of shares or debentures unless a proper instrument of transfer has been delivered to the company, but this subsection shall not prejudice any power to register as a shareholder or debenture holder any person to whom the right to any shares in, or debenture of, the company has been transmitted by operation of law.
(1A) A Labuan company shall within thirty days notify the Authority in the prescribed form of any transfer of shares or debentures or any change of the information submitted under subsection (1).
[(1A) Ins. Act A1653:s.25]
(2) A transfer of the share, debenture or other interest of a deceased person made by his personal representative shall, although the personal representative is not himself a member of the company, be as valid as if he had been such a member at the time of the execution of the instrument of transfer.
(3) The production t
81 DIVISION 6 TITLE AND TRANSFERS-81. Duties of Labuan company with respect to issue of certificate.
(1) Every Labuan company shall, within two months after the allotment of any of its shares or debentures, and within one month after the date on which a transfer (other than such a transfer as the company is, for any reason, entitled to refuse to register and does not register) of any of its shares or debentures is lodged with the company, complete and have ready for delivery all the appropriate certificates and debentures in connection with the allotment or transfer, unless the conditions of issue of the shares or debentures otherwise provide.
(2) If default is made in complying with this section, the Labuan company and every officer of the company who is in default shall be guilty of an offence against this Act.
Penalty: Ten thousand ringgit. Default penalty.
[Am. Act A1367]
(3) If a Labuan company on which a notice has been served requiring it to make good any default in complying with the provi
82 DIVISION 7 REGISTER OF CHARGES-82. Non application of Division.
Nothing in this Division shall apply to a charge created by a foreign Labuan company on property outside Malaysia.
83 DIVISION 7 REGISTER OF CHARGES-83. Register of charges.
(1) Every Labuan company or foreign Labuan company shall keep at its registered office a register of charges and shall enter in it all charges specifically affecting property of the company within one month after the creation of such charges, giving in each case a short description of the property charged, the amount secured by the charge, the names of the chargees or persons entitled to such charge, and particulars relating to the satisfaction of or release from such charge.
[Am. Act A988]
(2) (2) If any property of a Labuan company or a foreign Labuan company is charged without such entry as required by subsection (1) being made, every officer of the company who knowingly and wilfully authorizes or permits the omission of such entry commits an offence under this Act.
[(2) Gen. Am. Act A1367:s.2; Gen. Am. Act A1653:s.2]
Penalty: Fifty thousand ringgit and default penalty of
84 DIVISION 7 REGISTER OF CHARGES-84. Notice of creation and satisfaction of charge.
(1) Every Labuan company or foreign Labuan company shall, within one month after the creation of each charge, lodge a statement of the prescribed particulars with the Authority, and within one month after such charge is satisfied or released, lodge a notice in the prescribed form with the Authority.
[Am. Act A988]
(2) If default is made in complying with this section, the Labuan company or foreign Labuan company and every officer of the company who is in default commits an offence under this Act.
[(2) Gen. Am. Act A1367:s.2; Gen. Am. Act A1653:s.2]
Penalty: Fifty thousand ringgit. Default penalty.
[Am. Act A1367:s.45; Am. Act A1653:s.27]
84A DIVISION 7 REGISTER OF CHARGES-84A. Assignment and variation of charge.
(1) If after a charge on property of a Labuan company has been created and lodged pursuant to section 84 and if a person other than the original charge holder becomes the new holder of the charge or any variation to the particulars of the charge, the company shall, within thirty days and upon payment of a prescribed fee, lodge with the Authority a notice stating the assignment or variation and the notice shall contain other information as may be determined by the Authority.
(2) If default is made in complying with this section, the Labuan company and every officer of the company who is in default commits an offence under this Act.
Penalty: Fifty thousand ringgit. Default penalty.
[84A. Ins. Act A1653:s.28]
85 PART V MANAGEMENT AND ADMINISTRATION DIVISION 1 OFFICE AND NAME-85. Registered office of a Labuan company.
[Shoulder note Gen. Am. Act A1367:s.2]
(1) Every Labuan company shall at all times have a registered office in Labuan, which office shall be the principal office of a Labuan trust company, or any other office approved by the Authority.
[(1) Gen. Am. Act A1367:s.2; Am. Act A1653:s.29]
(2) Notice of the situation of a Labuan company's registered office shall be given in the prescribed form to the Authority within one month after the date of the company's incorporation.
[(2) Am. Act A988:s.12; Gen. Am. Act A1367:s.2]
(3) Where a Labuan company has changed its registered office, it shall give notice of such change in the prescribed form to the Authority within one month of the change.
[(3) Am. Act A988:s.12; Gen. Am. Act A1367:s.2]
(4) A Labuan trust company shall display at its principal office, in a conspicuo
86 PART V MANAGEMENT AND ADMINISTRATION DIVISION 1 OFFICE AND NAME-86. Name to be displayed at all offices and to appear on seals, letters, etc.
(1) Every Labuan company or foreign Labuan company shall paint or affix, and keep painted or affixed, its name in a conspicuous position, in romanised letters easily legible, on the outside of every office or place in which its business is carried on.
[(1) Gen. Am. Act A1367:s.2]
(1A) If default is made in complying with subsection (1), the Labuan company and every officer of the company who is in default commits an offence under this Act.
Penalty: Fifty thousand ringgit. Default penalty.
[(1A) Ins. Act A1653:s.30]
(2) The name of a Labuan company or a foreign Labuan company shall (whether or not it is carrying on business under a business name) appear in legible romanised letters on:
(a) its seal; and
(b) all business letters, statements of account, invoices, official notices, publications, bills of exchange, promissory
87 DIVISION 2 DIRECTORS AND OFFICERS-87. Directors.
(1) Every Labuan company shall have one or more directors at least one of whom shall be resident director.
[(1) Gen. Am. Act A1367:s.2; Am. Act A1653:s.31]
(2) A resident director of a Labuan company under subsection (1) shall be:
(a) a trust officer of a Labuan trust company approved by the Authority under the Labuan Financial Services and Securities Act 2010 made available by the Labuan trust company to be appointed as resident director; or
(b) any natural person who has attained the age of eighteen, who is otherwise of full legal capacity, fulfills such criteria or requirement as may be determined by the Authority and has consented in writing to be appointed as resident director.
[(2) Am. Act A817:s.5; Am. Act A988:s.14; Subs. Act A1367:s.48; Subs. Act A1653:s.31]
(3) Any casual vacancy in directors may, so far a
88 DIVISION 2 DIRECTORS AND OFFICERS-88. Consent to act as director.
A person shall not be appointed or named as a director or proposed director in the articles of a Labuan company unless, before the registration of the articles , he has, by himself or by his agent authorized in writing for the purpose, signed and caused to be lodged with the Authority a consent in writing to act as a director.
[Am. Act A1367]
89 DIVISION 2 DIRECTORS AND OFFICERS-89. Validity of acts of directors.
The acts of a director of a Labuan company shall be valid notwithstanding any defect that may be discovered in his appointment or qualification.
90 DIVISION 2 DIRECTORS AND OFFICERS-90. Authority power to restrain persons from managing Labuan companies.
(1) A person shall not be appointed as a director or hold office or take part or be in any way directly or indirectly concerned with or in the management of a Labuan company, if the person:
(a) has been convicted of any offence in connection with the formation or management of a corporation or company;
(b) has been convicted of any offence involving fraud, bribery or dishonesty;
(c) is an undischarged bankrupt or insolvent; or
(d) is deemed unfit by the Authority.
(2) The Labuan company shall ensure that no person acting or nominated to act as a director or hold office or take part or be in any way directly or indirectly concerned with or in the management of a Labuan company is a disqualified person under subsection (1).
(3) If default is made in complying with this section, the person who is in default commits an offence under this Act.
91 DIVISION 2 DIRECTORS AND OFFICERS-91. Disclosure of interest in contracts, property, offices, etc.
(1) Subject to this section, every director of a Labuan company who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the company shall, as soon as practicable after the relevant facts have come to his knowledge, declare the nature of his interest at a meeting of the directors of the company or cause to be circulated in writing to all the other directors particulars of his interest.
(2) Subsection (1) shall not apply in a case where the interest of the director of a Labuan company consists only in him being a member or creditor of another Labuan company which is interested in a contract or proposed contract with the first-mentioned company, if that interest may properly be regarded as not being a material interest.
(3) For the purposes of this section, a resident director shall be deemed to be interested in all contracts or proposed contracts with any Labuan company of which he is a direct
92 DIVISION 2 DIRECTORS AND OFFICERS-92. Duty and liability of officers.
(1) Every officer of a Labuan company shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office.
(2) A director of a Labuan company shall at all times exercise his powers for a proper purpose and in good faith in the best interest of the Labuan company.
(3) A director of a Labuan company shall exercise reasonable care, skill and diligence with:
(a) the knowledge, skill and experience which may reasonably be expected of a director having the same responsibilities; and
(b) any additional knowledge, skill and experience which the director in fact has.
(4) A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (3) and the equivalent duties under the common law and in equity if the director:
(a) makes the business judgment in good faith for a prope
93 DIVISION 2 DIRECTORS AND OFFICERS-93. Secretary.
(1) Every Labuan company shall appoint one or more secretaries at least one of whom shall be a resident secretary.
(1A) Subject to subsection (2) and any contrary provision in the memorandum and articles of association of a Labuan company, a secretary of a Labuan company may be a corporation and such corporation may act by itself or through a nominee appointed in writing and may be appointed or may act as a secretary of more than one company.
[Ins. Act A988]
(2) No person, other than a trust officer of a Labuan trust company approved by the Authority under the Labuan Financial Services and Securities Act 2010, or a Labuan company or a domestic company, wholly owned by the Labuan trust company and approved by the Authority, made available for the appointment by the Labuan trust company shall act or be appointed as a resident secretary.
[(2) Am. Act A988:s.15; Subs. Act A1367:s.53;
94 DIVISION 2 DIRECTORS AND OFFICERS-94. Register of directors and secretaries.
(1) Every Labuan company shall keep at its registered office in Labuan a register of its directors and secretaries.
(2) The register shall contain with respect to each director, in the case of an individual, his present full name and any former name, his usual business or residential address and identification (if any), and the name of the Labuan trust company of which he is an officer and the address of its registered office, or in the case of a corporation, the corporation's full name, the address of its registered office and the names of its authorized nominees and representatives in Labuan.
[Am. Act A988; Am. Act A1367]
(3) The register shall contain with respect to each secretary, in the case of an individual, his present full name and any former name, his usual business or residential address and identification (if any) and the name of the Labuan trust company of which he is an officer and the addres
94A DIVISION 2 DIRECTORS AND OFFICERS-94A. Offence against any provision of this Act committed by directors and secretaries.
Where any offence against any provision of this Act has been committed by any domestic company or Labuan made available by a Labuan trust company to act or be appointed as resident director or resident secretary of a Labuan company, any person who at the time of the commission of the offence was a director or an officer of the Labuan trust company or was purporting to act in any such capacity, or was in any manner or to any extent responsible for the management of any of the affairs of such Labuan trust company, shall be guilty of that offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his function in that capacity and all the circumstances.
[Ins. Act A988; Am. Act A1367]
94B DIVISION 2 DIRECTORS AND OFFICERS-94B. Removal of director.
(1) Notwithstanding anything in the constituent documents of a Labuan company or in any agreement between a Labuan company and a director, a director of the Labuan company may be removed from office by its shareholder's resolution, in accordance to its memorandum or articles, which is passed at a meeting called for the purpose that include the removal of a director.
(2) The notice of the meeting shall state that the purpose of the meeting is the removal of the director.
(3) Where permitted by the memorandum or articles of a Labuan company, a director of the Labuan company may be removed from office by the directors of the Labuan company.
[Ins. Act A1367]
95 DIVISION 3 MEETINGS AND PROCEEDINGS-95. Meetings of members.
(1) Subject to any limitations in the memorandum or articles, the directors of a Labuan company may convene meetings of the members of the company in such manner and at such times and places within or outside Labuan as the directors consider necessary or desirable.
(2) The directors of a Labuan company, notwithstanding anything in the articles, shall, on the requisition of ten or more members, or members holding at the date of the deposit of the requisition not less than one-tenth of the total paid-up capital of the company, forthwith proceed to convene a meeting of members.
(3) Subject to any limitations in its memorandum and articles, a Labuan company may hold all meetings of its members within Malaysia, or elsewhere, at more than one venue using any technology that allows all members a reasonable opportunity to participate in the meetings.
[Subs. Act A1367]
(4) A member may be represented at a m
96 DIVISION 3 MEETINGS AND PROCEEDINGS-96. Notice of meetings of members.
(1) Subject to any requirement in the memorandum or articles to give longer notice, the directors shall give not less than seven days' notice of meetings of members to those persons whose names on the date the notice is given appear as members in the register of members referred to in section 105 and who are entitled to vote at the meeting.
(2) Notwithstanding subsection (1), but subject to any limitations in the memorandum or articles, a meeting of members held in contravention of the requirement to give notice is valid if members holding a ninety per centum majority, or such lesser majority as may be specified in the memorandum or articles, of:
(a) the total number of the shares of the members entitled to vote on all the matters to be considered at the meeting; or
(b) the votes of each class or series of shares where members are entitled to vote thereon as a class or series together with an absol
97 DIVISION 3 MEETINGS AND PROCEEDINGS-97. Quorum, chairman, voting, etc., at meetings 98. Voting by members.
(1) Except as otherwise provided in the articles of a Labuan company, where a Labuan company has more than one member, and two or more members are present at a meeting of members, the members present shall be a quorum, and at the meeting:
(a) any member elected by those members may be chairman thereof; and
(b) every member shall have one vote in respect of each share held by him.
(2) On a poll taken at a meeting, a person entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.
(3) A corporation may, by resolution of its directors or other governing body:
(a) if it is a member of a Labuan company, authorize such person as it thinks fit to act as its representative either at a particular meeting of members or at all meetings of members of the company or of any class of members; or
98 DIVISION 3 MEETINGS AND PROCEEDINGS-98. Voting by members.
(1) Except as otherwise provided in the memorandum or articles of a Labuan company, all shares vote as one class and each share has one vote.
(2) The directors of a Labuan company may fix the date notice is given of a meeting as the record date for determining the shares that are entitled to vote at the meeting.
99 DIVISION 3 MEETINGS AND PROCEEDINGS-99. Action by consent of members in writing.
Subject to any limitations in the memorandum or articles of a Labuan company, an action that may be taken by members at a meeting of members may also be taken by a resolution of all members consented to in writing, or by telex, telegram, telefax, cable or other written electronic communication, without the need for any notice.
100 DIVISION 3 MEETINGS AND PROCEEDINGS-100. Power of Court to direct meetings to be called.
(1) If for any reason it is impracticable to call a meeting in any manner in which meetings may be called or to conduct the meeting in the manner prescribed by the articles or this Act, the Court may, either of its own motion or on the application of any director or of any member who would be entitled to vote at the meeting or of the personal representative of any such member, order a meeting to be called, held and conducted in such manner as the Court thinks fit, and the Court may give such ancillary or consequential directions as it thinks expedient.
(2) Any meeting called, held and conducted in accordance with any direction made pursuant to this section shall, for all purposes, be deemed to be a meeting duly called, held and conducted.
101 DIVISION 3 MEETINGS AND PROCEEDINGS-101. Special resolution.
(1) A resolution shall be a special resolution when it has been passed by a majority of not less than three-fourths of such members as, being entitled so to do, vote in person or, where proxies are allowed, by proxy, at a meeting of members of which not less than twenty-one days' notice specifying the intention to propose the resolution as a special resolution has been duly given.
(2) Notwithstanding subsection (1), if it is so agreed by a majority in number of the members having the right to vote at the meeting, being a majority which together holds in aggregate not less than seventy-five per centum of the total votes of the members entitled to vote, a resolution may be proposed and passed as a special resolution at a meeting of which less than twenty-one days' notice has been given.
101A DIVISION 3 MEETINGS AND PROCEEDINGS-101A. Resolutions signed by all members deemed to be duly passed at meeting.
(1) Notwithstanding anything to the contrary in this Act or the articles of the Labuan company, a resolution in writing signed by or on behalf of all persons for the time being entitled to receive notice of, and to attend and vote at, general meetings of a Labuan company, shall for the purposes of this Act, be treated as a resolution duly passed at a general meeting of the Labuan company and, where relevant, as a special resolution so passed.
(2) Any such resolution shall be deemed to have been passed at a meeting held at the registered office on the date on which it was signed by the last member.
(3) This section shall not be construed as requiring that the persons signing a resolution under this section shall sign the same document containing the resolution; but where two or more documents are used for the purpose of obtaining signatures under this section in respect of any resolution, each such document shall be certified in advance
102 DIVISION 3 MEETINGS AND PROCEEDINGS-102. Resolution requiring special notice.
Where by this Act special notice is required of a resolution, the resolution shall not be effective unless notice of the intention to move it has been given to the Labuan company not less than twenty-eight days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as it gives notice of the meeting or, if that is not practicable, shall give them notice thereof in any manner allowed by the articles not less than fourteen days before the meeting, but if, after notice of the intention to move such a resolution has been given to the company, a meeting is called for a date twenty-eight days or less after the notice has been given, the notice, although not given to the company within the time required by this section, shall be deemed to be properly given.
103 DIVISION 3 MEETINGS AND PROCEEDINGS-103. [Deleted by Act A1367].
104 DIVISION 3 MEETINGS AND PROCEEDINGS-104. Minutes of proceedings.
(1) Every Labuan company shall cause minutes of all proceedings of meetings of members and of meetings of directors to be entered in books kept for that purpose.
(2) Unless the Authority otherwise directs, all minute books of a Labuan company shall be kept at the registered office of the company but duplicates of the minute books or any of them may be kept elsewhere and shall be open for inspection by any member without charge.
105 DIVISION 4 REGISTER OF MEMBERS-105. Register of members.
(1) Every Labuan company shall keep a register of its members and enter therein:
(a) the names, nationalities and addresses, and any other relevant information and particulars, of the members, and a statement of the shares held by each member, distinguishing each share by its number (if any) or by the number (if any) of the certificate evidencing the member's holding and of the amount paid or agreed to be considered as paid on the shares of each member;
(b) the date at which the name of each person was entered in the register as a member;
(c) the date at which any person who ceased to be a member during the previous seven years so ceased to be a member; and
(d) the date of every allotment of shares to members and the number of shares comprised in each allotment.
(2) The register of members shall be prima facie evidence of any matters inserted
106 DIVISION 4 REGISTER OF MEMBERS-106. Where register to be kept.
(1) Unless the Authority otherwise directs, the register of members of a Labuan company shall be kept at the registered office of the company and shall be open for the inspection of any member without charge.
(2) Every Labuan company shall, within one month after the register is first kept at a place other than the registered office of the company, lodge with the Authority notice of the place where the register is kept and shall, within one month after any change in the place at which the register is kept, lodge with the Authority notice of the change.
[Am. Act A988]
107 DIVISION 4 REGISTER OF MEMBERS-107. Consequences of default by agent.
Where the register of members is kept at some place other than the registered office of a Labuan company and, by reason of any default of the person in charge of such office, the company fails to comply with section 106 or with any other requirements of this Act as to the production of the register, that person shall be liable to the same penalties as if he were an officer of the company who was in default.
108 DIVISION 4 REGISTER OF MEMBERS-108. Power of Court to rectify register.
(1) If, in relation to a Labuan company:
(a) the name of any person is, without sufficient cause, entered in or omitted from the register; or
(b) default is made or unnecessary delay takes place in entering in the register the fact of any person having ceased to be a member,
the person aggrieved or any member of the company may apply to the Court for rectification of the register, and the Court may refuse the application or may direct rectification of the register and payment by the company of any damages sustained by any party to the application.
(2) On any application under subsection (1), the Court may decide:
(a) any question relating to the right or title of any person who is a party to the application to have his name entered in or omitted from the register, whether the question arises between members or alleged members on the one hand and t
109 DIVISION 5 ANNUAL return-109. Annual return.
(1) A Labuan company shall make an annual return containing the prescribed particulars and accompanied by such copies of documents as are required to be included in the return.
(2) The annual return shall be in accordance with the form prescribed for the purpose or as near thereto as circumstances permit and shall be dated not earlier than fourteen days before the date of lodgement.
[Am. Act A1367]
(3) The annual return signed by a director or secretary of the company shall be lodged with the Authority, once in each calendar year, not later than thirty days prior to the anniversary of the date of its incorporation.
(4) A Labuan company not having a share capital shall lodge with the Authority a return in the prescribed form containing the particulars referred to in subsection (5) and made up in accordance with subsection (3).
[Subs. Act A1367]
(5) The return o
110 PART VI ACCOUNTS AND AUDIT DIVISION 1 ACCOUNTS-110. Accounts to be kept.
(1) A Labuan company shall cause to be kept proper accounting and other records as will sufficiently explain the transaction and financial position of the company.
(2) Every company and the directors thereof shall cause appropriate entries to be made in the accounting and other records of the company within ninety days of the completion of the transactions to which they relate.
[Am. Act A1367]
(3) The accounting and other records of a Labuan company shall be kept at the registered office of the company or at such other place in Labuan as the directors think fit and shall at all times be open to inspection by any director and shall be kept in such manner as to enable them to be conveniently and properly audited.
(4) The Authority may, in any particular case, direct that the accounting and other records of a Labuan company be open to inspection by an approved auditor acting for a director, but only u
111 PART VI ACCOUNTS AND AUDIT DIVISION 1 ACCOUNTS-111. Audited accounts to be laid before meeting.
(1) The directors of a Labuan company shall cause to be laid before the company at a meeting of members the audited accounts or unaudited accounts, as the case may be, of the company not more than nine months after the date to which the audited accounts or unaudited accounts are made up.
[Am. Act A817]
(1A) A Labuan company shall lodge with the Authority an annual certificate from a director within thirty days of the accounts being laid before the company at a meeting of members stating that he has considered the audited or unaudited accounts mentioned in subsection (1) and certifying, with or without qualifications:
(a) that those accounts show that the company was solvent at the date they were made up;
(b) that he is unaware of any circumstances which may render those accounts untrue; and
(c) that no circumstances have occurred since the date to whi
112 PART VI ACCOUNTS AND AUDIT DIVISION 1 ACCOUNTS-112. Audited accounts to be sent to members.
A copy of every audited accounts or unaudited accounts, as the case may be, which are to be laid before a Labuan company at a meeting of members accompanied by a copy of the auditor's report thereon (if applicable) shall, not less than seven days before the date of the meeting, be sent to all members of the company.
[Am. Act A817]
113 DIVISION 2 AUDIT-113. Auditor to be appointed.
(1) A Labuan company or a foreign Labuan company shall not be required to appoint a person or persons to be the auditor or auditors of the company unless:
(a) it is required to do so under any other written laws in Labuan in respect of financial services;
(b) its articles so provide; or
(c) it makes an offer for subscription or purchase, or issues an invitation to subscribe for or purchase, securities pursuant to subsection 8(1) of the Labuan Financial Services and Securities Act 2010 and such offer or invitation is not excluded under subsection 8(5) of that Act, or subsection 13(1) of the Labuan Islamic Financial Services and Securities Act 2010 and such offer or invitation is not excluded under subsection 13(5) of that Act.
[Subs. Act A1367]
(1A) Notwithstanding subsection (1), the Authority may, if it is satisfied that there has been
113A DIVISION 2 AUDIT-113A. [Deleted by Act A1367].
114 DIVISION 2 AUDIT-114. Removal and resignation of auditors.
(1) A Labuan company may, at a meeting of members of which special notice has been given to the auditor and the Authority, but not otherwise, remove an auditor from office, but shall, at that meeting at which the auditor is removed or at a meeting of members held within one month thereafter, appoint an approved auditor to take the place of the auditor so removed.
(2) An auditor of a Labuan company may, if he is not a sole auditor, resign at any time but a sole auditor of a Labuan company may only resign at a meeting of members.
(3) If an auditor gives notice in writing to the directors of a Labuan company that he desires to resign, the directors shall, as soon as is practicable, call a meeting of members of the company for the purpose of appointing an auditor in place of the auditor who desires to resign, and on the appointment of another auditor, the resignation shall take effect.
(4) [Deleted by Act A1367].
115 DIVISION 2 AUDIT-115. Remuneration of auditor.
The fees and expenses of an auditor of a Labuan company, unless required by the auditor to be fixed by a resolution of the members of the company, may be fixed by the directors.
116 DIVISION 2 AUDIT-116. Auditor may attend meetings.
An auditor of a Labuan company may attend and address all meetings of members of the company.
117 DIVISION 2 AUDIT-117. Rights and duties of auditors.
(1) Every auditor of a Labuan company shall report to the members whether, in his opinion, the accounts of the company are properly drawn up so as to give a true and fair view of the company's affairs.
(2) Every auditor of a Labuan company shall be entitled to be furnished with a copy of the memorandum and articles of the company and shall familiarise himself with the terms and conditions contained therein.
(3) If an auditor in the course of performance of his duties as an auditor of a Labuan company is of the opinion that a serious offence involving fraud or dishonesty is being or has been committed against the Labuan company or this Act by the officers of the Labuan company, he shall forthwith report the matter in writing to the Authority.
[Ins. Act A1367]
(4) No duty to which an auditor of a Labuan company may be subjected to shall be regarded as having been contravened by reason of his reportin
118 PART VII ARRANGEMENTS AND RECONSTRUCTIONS-118. Arrangements.
(1) In this section "arrangement" means:
(a) a reorganisation or reconstruction of a Labuan company incorporated under this Act;
(b) a merger or consolidation of one or more Labuan companies with one or more other Labuan companies, if the surviving company or the consolidated company is a Labuan company;
(c) a separation of two or more businesses carried on by a Labuan company;
(ca) a merger or consolidation of one or more Labuan companies with one or more corporations; or
[Ins. Act A1367]
(d) any combination of any of the things specified in paragraphs (a) to (ca) .
[Am. Act A1367]
(2) The directors of a Labuan company may, by a resolution of directors, approve a plan of arrangement that contains the details of the proposed arrangement.
(3) Upon ap
118A PART VII ARRANGEMENTS AND RECONSTRUCTIONS-118A. Amalgamations.
(1) Notwithstanding section 118, two or more Labuan companies (each to be referred to as an "amalgamating Labuan company") may amalgamate and continue as a new Labuan company:
Provided that an amalgamating Labuan company shall not be a licensed entity under the Labuan Financial Services and Securities Act 2010 or the Labuan Islamic Financial Services and Securities Act 2010.
(2) An amalgamation proposal shall contain the terms of an amalgamation under subsection (1) and, in particular:
(a) the name of the amalgamated Labuan company;
(b) the registered office of the amalgamated Labuan company;
(c) the full name and residential address of every director of the amalgamated company;
(d) the share structure of the amalgamated Labuan company, specifying:
(i) the number of shares of the amalgamated Labuan company;
118B PART VII ARRANGEMENTS AND RECONSTRUCTIONS-118B. Amalgamation of a Labuan company, a foreign Labuan company or a corporation and continuation as a Labuan company.
(1) A Labuan company, a foreign Labuan company or a corporation may amalgamate and continue as a Labuan company registered in Labuan to which the provisions of this Act and any other law applicable to Labuan companies shall apply:
Provided that the Labuan company, the foreign Labuan company or the corporation, as the case may be, shall not be a licensed entity under the Labuan Financial Services and Securities Act 2010 or the Labuan Islamic Financial Services and Securities Act 2010.
(2) A foreign Labuan company or corporation shall obtain all the necessary authorizations, if any, required under the laws of the jurisdiction in which it was incorporated or is presently registered in order to enable it to amalgamate and continue as a Labuan company registered in Labuan, and shall file with the Authority documentary proof of such authorizations.
(3) The provisions of section 118A shall apply, mutatis
118C PART VII ARRANGEMENTS AND RECONSTRUCTIONS-118C. Short form amalgamation.
(1) Subject to subsection 118B(2), a Labuan company (referred to as the "amalgamating holding company") and one or more of its wholly-owned subsidiaries (referred to as the "amalgamating subsidiary company") may amalgamate and continue as one Labuan company, being the amalgamated holding company, without complying with subsections 118A(2) to (13) if the members of each amalgamating company, by special resolution , resolve to approve an amalgamation of the amalgamating companies on the terms that:
(a) the shares of each amalgamating subsidiary company will be cancelled without any payment or any other consideration;
(b) the memorandum of the amalgamated Labuan company will be the same as the memorandum of the amalgamating holding company;
(c) the directors of the amalgamating holding company and every amalgamating subsidiary company are satisfied that the amalgamated Labuan company will be
118D PART VII ARRANGEMENTS AND RECONSTRUCTIONS-118D. Effect of amalgamation.
(1) A certificate of amalgamation issued by the Authority under subsection 118A(13) shall be conclusive evidence that the assets of the Labuan companies being amalgamated are vested in the amalgamated Labuan company as at the date of registration.
(2) The Authority shall, as soon as practicable after the effective date of an amalgamation, remove each of the amalgamating Labuan companies previous names from the register.
(3) A certificate of amalgamation and incorporation issued by the Authority shall be proof of compliance with all the requirements of this Act in respect of the amalgamation and incorporation.
(4) The amalgamated Labuan company shall lodge, within thirty days from the issue of the certificate in subsection 118A(13), an authenticated copy of the certificate and an authenticated copy of the amalgamation proposal with the appropriate authority, if any, concerned with the registration or recording of dealings in any
119 PART VII ARRANGEMENTS AND RECONSTRUCTIONS-119. Regulations in respect of takeovers, mergers and amalgamation.
[Am. Act A1367]
The Minister may make regulations for the supervision and control of takeover, merger and amalgamation transactions.
[Am. Act A1367]
120 PART VIII FOREIGN LABUAN COMPANIES-120. Application and interpretation.
(1) This Part applies to a foreign company only if it has a place of business or is carrying on business in Labuan and is not registered under the Companies Act 1965.
(2) In this Part the expression "carrying on business in Labuan" includes:
(a) carrying on business in, from or through Labuan;
(b) establishing or using a share transfer or share registration office in Labuan or administering, managing or otherwise dealing with property situated in Labuan as an agent, legal personal representative or trustee, whether by servants or agents or otherwise; and
(c) in the case of a foreign Labuan company which the Minister has by notice in writing specified for the purposes of this paragraph:
[Am. Act A1367]
(i) permitting or suffering the company's own shares to be, in Labuan, dealt with, issued, transferred or made the subject of optio
121 PART VIII FOREIGN LABUAN COMPANIES-121. Registration of foreign Labuan companies.
(1) A foreign company shall not have a place of business in Labuan or carry on business in Labuan unless it is registered as a foreign Labuan company under this Part, and a foreign company which acts, and every officer thereof who permits the foreign company to act, in contravention of this subsection shall be guilty of an offence against this Act.
(2) Every foreign company shall, prior to establishing a place of business, or carrying on business, in Labuan, lodge with the Authority for registration:
(a) a certified copy of the certificate of its incorporation or registration in its place of incorporation or origin, or a document of similar effect;
(b) a certified copy of its charter, statute or memorandum and articles or other instrument constituting or defining its constitution;
(c) a list of its directors and officers containing similar particulars with respect to its directors
122 PART VIII FOREIGN LABUAN COMPANIES-122. Prohibition and restriction on foreign Labuan company.
(1) A foreign Labuan company shall not carry on in Labuan any business which an Labuan company is prohibited to carry on.
(2) The Minister may, by notice in writing, order that any foreign Labuan company be restricted from carrying on any specified business in Labuan and may, by notice in writing, impose conditions subject to which any specified business may be carried on by a foreign Labuan company in Labuan.
[Am. Act A1367]
123 PART VIII FOREIGN LABUAN COMPANIES-123. Registered office of foreign Labuan companies.
(1) Every foreign Labuan company shall at all times have a registered office in Labuan, which office shall be the principal office of a Labuan trust company.
(2) Notice in the prescribed form of the situation of the registered office and any change thereof shall be lodged with the Authority within one month after the date of registration of the foreign Labuan company or the date of the change, as the case may be.
(3) If default is made in complying with this section the foreign Labuan company and every officer of the company who is in default shall be guilty of an offence against this Act.
Penalty: Ten thousand ringgit. Default penalty.
[Am. Act A1367]
124 PART VIII FOREIGN LABUAN COMPANIES-124. Return to be lodged where documents, etc, altered.
(1) Where any change or alteration is made in:
(a) the charter, statute, memorandum or articles of a foreign Labuan company, or other instrument relating to the company, lodged with the Authority;
(b) the directors of a foreign Labuan company or in the name or address of any director;
(c) the address of the registered office of a foreign Labuan company in its place of incorporation or origin;
(d) the name of a foreign Labuan company;
(e) the powers of any directors resident in Labuan who are members of the local board of directors of a foreign Labuan company; or
(f) the Labuan trust company or the name or address of the Labuan trust company referred to in section 121(2) (e) ,
the foreign Labuan company shall, within one month after the change or alteration, lodge with the Authority particulars of the change o
125 PART VIII FOREIGN LABUAN COMPANIES-125. Service on foreign Labuan companies.
Any process or document required to be served on a foreign Labuan company shall be sufficiently served if addressed to the foreign Labuan company and left at or sent by post to its registered office in Labuan, but:
(a) where any such company makes default in filing with the Authority the name and address of a registered office which is authorized to accept on behalf of the company service of process or notices;
(b) if at any time the registered office so notified has ceased to exist; or
(c) if for any other reason service of process or notice cannot be effected,
the document may be served on the company by leaving it at, or sending it by post to, any place of business established by the company in Labuan, or, if no such place of business has been established, the document may be served on the company by registered post to any place of business of the company in the co
126 PART VIII FOREIGN LABUAN COMPANIES-126. Cessation of business in labuan.
If a foreign Labuan company ceases to have a place of business or to carry on business in Labuan it shall, within one month after it so ceases, lodge with the Authority notice of that fact, and as from the day on which the notice is so lodged, its obligation to lodge any document (not being a document that ought to have been lodged before that day) with the Authority shall cease, and the Authority shall forthwith remove the name of the foreign Labuan company from the register.
[Am. Act A988]
127 PART VIII FOREIGN LABUAN COMPANIES-127. Liquidation or dissolution of company in place of incorporation, establishment or origin.
(1) If a foreign Labuan company goes into liquidation or is dissolved in its place of incorporation, establishment or origin, the foreign Labuan company shall, within one month after the commencement of the liquidation or dissolution or within such further time as the Authority in special circumstances allows, lodge or cause to be lodged with the Authority:
(a) a notice of such liquidation or dissolution; and
(b) where a liquidator is appointed to such foreign Labuan company in its place of incorporation, establishment or origin ("foreign liquidator"), a notice of such appointment.
(2) Upon receipt of the notice in paragraph (1) (a) , the Authority shall forthwith appoint an approved liquidator, and until such time that an approved liquidator is appointed to the foreign Labuan company, the foreign liquidator shall have the powers and functions of an approved liquidator.
128 PART VIII FOREIGN LABUAN COMPANIES-128. Names of foreign Labuan companies.
(1) Except with the consent of the Minister, a foreign Labuan company shall not be registered by a name that, in the opinion of the Authority, is undesirable or is a name, or includes a name, of a kind that the Authority is not otherwise willing to accept for registration.
(2) If a foreign Labuan company is registered, either in error or otherwise, with a name with which it should not have been registered, the Authority may, after giving thirty days' notice to the foreign Labuan company requiring it to change its name, strike the company from the register upon default in complying.
(3) No foreign Labuan company shall use, in Labuan or elsewhere, in respect of acts done or to be done in Labuan, any name other than that under which it is registered under this Part and every foreign Labuan company and every officer of the company who knowingly authorizes or permits the default shall be guilty of an offence against this Act.
129 PART VIII FOREIGN LABUAN COMPANIES-129. Returns by foreign Labuan companies.
(1) A foreign Labuan company shall make an annual return containing the prescribed particulars and accompanied by such copies of documents as are required to be included in the return, and shall lodge the return with the Authority once in each calendar year not later than thirty days prior to the anniversary of the date of its registration.
(2) The Minister may make regulations:
(a) prescribing the registers and returns to be kept and made by a foreign Labuan company and fixing the times within which the same must be kept and made; and
(b) prescribing the fees and charges to be paid for the lodging of any annual return.
130 PART VIII FOREIGN LABUAN COMPANIES-130. Application of this Part to certain foreign companies registered under Companies Act 2016.
[Shoulder note Am. Act A1653:s.48]
Notwithstanding any other provision in this Part, a foreign company registered under the Companies Act 2016 and licensed under the Financial Services Act 2013 and the Islamic Financial Services Act 2013, as the case may be, may be registered under this Part as a foreign Labuan company, and upon its registration the provisions of this Part shall apply accordingly to the company.
[Gen. Am. Act A1367:s.2; Am. Act A1653:s.48]
130A PART VIIIA COMPANY MANAGEMENT-130A. [Deleted by Act A1367].
130B PART VIIIA COMPANY MANAGEMENT-130B. [Deleted by Act A1367].
130C PART VIIIA COMPANY MANAGEMENT-130C. [Deleted by Act A1367].
130D PART VIIIA COMPANY MANAGEMENT-130D. [Deleted by Act A1367].
130E PART VIIIA COMPANY MANAGEMENT-130E. [Deleted by Act A1367].
130F PART VIIIA COMPANY MANAGEMENT-130F. [Deleted by Act A1367].
130G PART VIIIA COMPANY MANAGEMENT-130G. [Deleted by Act A1367].
130H PART VIIIA COMPANY MANAGEMENT-130H. [Deleted by Act A1367].
130I PART VIIIA COMPANY MANAGEMENT-130I. [Deleted by Act A1367].
130J PART VIIIA COMPANY MANAGEMENT-130J. [Deleted by Act A1367].
130K PART VIIIA COMPANY MANAGEMENT-130K. [Deleted by Act A1367].
130L PART VIIIA COMPANY MANAGEMENT-130L. [Deleted by Act A1367].
130M PART VIIIA COMPANY MANAGEMENT-130M. [Deleted by Act A1367].
130N PART VIIIB LABUAN PROTECTED CELL COMPANIES-130N. Interpretation.
(1) In this Part, unless the context otherwise requires:
"cell" means a cell created by a Labuan protected cell company for the purpose of segregating and protecting cell assets in the manner provided under this Part;
"cell assets" means the assets of a Labuan protected cell company attributable to the Labuan protected cell company's cells;
"cell capital" means the proceeds of the issue of cell shares;
"cell dividend" means the dividend paid by a Labuan protected cell company in respect of cell shares;
"cell shares" means shares created and issued by a cell in a Labuan protected cell company;
"Labuan protected cell company" means a Labuan company
130O PART VIIIB LABUAN PROTECTED CELL COMPANIES-130O. Labuan protected cell companies.
(1) Subject to the provisions of this Act:
(a) a Labuan company may be incorporated as a Labuan protected cell company; and
(b) an existing Labuan company may, if authorized by its articles and by special resolution, be converted into a Labuan protected cell company.
(2) A Labuan protected cell company may establish one or more cells for the purpose of segregating and protecting cell assets in the manner provided by this Part.
(3) For the purposes of this Act, notwithstanding that a Labuan protected cell company may create one or more cells pursuant to the provisions of this Part, the Labuan protected cell company shall be a single legal person, and the creation by the Labuan protected cell company of a cell does not create, in respect of the cell, a legal person separate from the Labuan protected cell company.
(4) No Labuan company or foreign Labuan company shall be i
130P PART VIIIB LABUAN PROTECTED CELL COMPANIES-130P. Approval of the Authority.
(1) A Labuan company shall not be incorporated as, or operate as, or be converted into, a Labuan protected cell company except in accordance with the terms and conditions of the written approval of the Authority, which may prescribe classes or descriptions of companies which may be Labuan protected cell companies.
(2) The Authority may at any time and in such manner as it thinks fit:
(a) vary or revoke any term or condition subject to which an approval under subsection (1) was granted; and
(b) impose any new term or condition to any such
approval.
(3) An application for approval of the Authority as required in subsection (1) shall be:
(a) made in such form and shall be accompanied by such documents and information, verified in such manner, as the Authority may require; and
(b) accompanied by the prescribed fee.
130Q PART VIIIB LABUAN PROTECTED CELL COMPANIES-130Q. Incorporation of, or conversion into, a Labuan protected cell company.
(1) The incorporation or conversion of a Labuan company or a foreign Labuan company as a Labuan protected cell company shall be made by filing the company's memorandum and articles or amended memorandum or articles under this Part, accompanied by:
(a) a certified copy of the approval of the Authority granted under section 130P;
(b) all such documents and information as are required for the registration or conversion of the memorandum and articles of a Labuan company or foreign Labuan company as a Labuan protected cell company required under this Act; and
(c) the prescribed fee.
[Ins. Act A1367]
130R PART VIIIB LABUAN PROTECTED CELL COMPANIES-130R. Name and memorandum or articles of a Labuan protected cell company.
(1) The name of a Labuan protected cell company shall, without prejudice to the provisions of section 21 of this Act, include the expressions "Protected Cell Company" or "PCC".
(2) Each cell of a Labuan protected cell company shall have its own distinct name or designation.
(3) The memorandum or articles of a Labuan protected cell company shall state that it is a Labuan protected cell company.
(4) A Labuan protected cell company may, in order to comply with subsection (3), alter its memorandum or articles by a special resolution, and the provisions of this Act relating to alteration of the memorandum or articles shall apply.
(5) Unless and until a Labuan protected cell company has complied with the provisions of this section, it shall not be deemed to be a Labuan protected cell company for the purposes of this Part.
[Ins. Act A1367]
130S PART VIIIB LABUAN PROTECTED CELL COMPANIES-130S. Cell and general assets.
(1) The assets of a Labuan protected cell company shall be either:
(a) cell assets which comprise the assets of the Labuan protected cell company held within or on behalf of the protected cells of the company; or
(b) general assets which comprise the assets of the Labuan protected cell company which are not cell assets.
(2) The assets of a protected cell comprise:
(a) assets representing the consideration paid or payable for the issue of the protected cell shares and reserves attributable to the protected cell; and
(b) all other assets attributable or held within the protected cell.
(3) A Labuan protected cell company shall:
(a) maintain separate records for cell assets and keep the cell assets held for each cell separate from cell assets held for other such cells and from general assets
130T PART VIIIB LABUAN PROTECTED CELL COMPANIES-130T. Cell shares and cell share capital.
(1) A Labuan protected cell company may, in respect of any of its cells, create and issue cell shares and the cell capital of which shall be comprised in the cell assets attributable to the cell in respect of which the shares were issued.
(1A) Where a Labuan protected cell company makes any allotment of its cell shares, the protected cell company shall, within thirty days, lodge with the Authority the information of such allotment.
[(1A) Ins. Act A1653:s.49]
(2) The proceeds of the issue of shares other than cell shares created and issued by a Labuan protected cell company shall be comprised in the general assets of the Labuan protected cell company.
(3) Cell dividend may be paid by a Labuan protected cell company in respect of cell shares by reference only to the cell assets and liabilities attributable to the cell in respect of which the cell shares were issued.
(4) In determining the cel
130U PART VIIIB LABUAN PROTECTED CELL COMPANIES-130U. Register of shareholders.
(1) Subject to section 105, every Labuan protected cell company shall keep an index of the names of its shareholders, which shall:
(a) contain, in relation to each shareholder, a sufficient indication to enable the account of that shareholder to be readily found;
(b) specify the particular cell or cells to which an account or accounts of that shareholder relate;
(c) be readily searchable by reference to the account of the shareholder or by reference to a cell;
(d) be kept at all times at the same place as the register of shareholders; and
(e) be altered when any alteration is made to the register of shareholders.
(2) The provisions of section 106 in respect of inspection of register of shareholders shall apply to this Part.
[Ins. Act A1367]
130V PART VIIIB LABUAN PROTECTED CELL COMPANIES-130V. Reduction of cell capital.
(1) The provisions of section 53 in respect of the reduction of share capital of a Labuan company shall apply mutatis mutandis in respect of the reduction of share capital of the general assets of a Labuan protected cell company and the cell capital of the respective cell assets of a Labuan protected cell company.
[(1) Am. by Act A1428]
(2) A Labuan protected cell company shall not reduce the share capital of its general assets to less than the cell capital of any cell assets of the Labuan protected cell company.
[Ins. by Act A1367]
130W PART VIIIB LABUAN PROTECTED CELL COMPANIES-130W. Rights of creditors.
(1) The rights of the creditors of a Labuan protected cell company shall correspond with the liabilities provided for in this Part and no such creditor of a Labuan protected cell company shall have any rights other than the rights referred to in this Part.
(2) The following terms shall be implied in every transaction entered into by a Labuan protected cell company:
(a) that no party shall, whether in any proceeding or by any other means, use any cell assets attributable to any cell of the Labuan protected cell company to satisfy a liability not attributable to that cell;
(b) that if any party shall succeed by any means in using any cell assets attributable to any cell of the Labuan protected cell company to satisfy a liability not attributable to that cell, that party shall be liable to the Labuan protected cell company to pay a sum equal to the value of the benefit thereby obtained by him; and
130X PART VIIIB LABUAN PROTECTED CELL COMPANIES-130X. Liabilities.
(1) Where a liability arises which is attributable to a particular cell of a Labuan protected cell company:
(a) the cell assets attributable to that cell shall be used to satisfy the liability; and
(b) a creditor in respect of that cell shall not be entitled to have recourse against the cell assets of any other cell or the general assets of the Labuan protected cell company.
(2) Where a liability arises which is not attributable to a particular cell of a Labuan protected cell company:
(a) the liability shall be satisfied solely from the Labuan protected cell company's general assets; and
(b) a creditor in respect of that liability shall not be entitled to have recourse to the cell assets of any cell of the Labuan protected cell company.
(3) Without prejudice to the foregoing provisions:
(a)
130Y PART VIIIB LABUAN PROTECTED CELL COMPANIES-130Y. Disclosure.
(1) A Labuan protected cell company shall:
(a) inform any person with whom it transacts that it is a Labuan protected cell company;
(b) for the purposes of that transaction, identify or specify the cell in respect of which that person is transacting, unless that transaction is not a transaction in respect of a particular cell; and
(c) where the transaction is in respect of a particular cell, inform the person that the cell assets of that cell, and only those assets, are available to pay the obligations and liabilities of that cell.
(2) If, in contravention of subsection (1), a Labuan protected cell company:
(a) fails to inform a person that he is transacting with a Labuan protected cell company, and that person is otherwise unaware that, and has no reasonable grounds to believe that, he is transacting with a Labuan protected cell company;
130Z PART VIIIB LABUAN PROTECTED CELL COMPANIES-130Z. Dealings and transactions between cell assets.
A Labuan protected cell company may:
(a) transfer a cell asset attributable to a cell of the Labuan protected cell company to another cell of the Labuan protected cell company; or
(b) amalgamate or consolidate a cell of the Labuan protected cell company with, or into, one or more other cells of the Labuan protected cell company:
Provided that the Authority has given its written consent when it is satisfied that:
(i) the creditors of the Labuan protected cell company entitled to have recourse to the cell assets attributable to the cell have consented to the transfer, amalgamation or consolidation, as the case may be, or otherwise would not be unfairly prejudiced; and
(ii) the shareholders of the Labuan protected cell company and of each relevant cell consent to the transfer, amalgamation or consolidation, as the case may be, or otherwise would not be unfairl
130ZA PART VIIIB LABUAN PROTECTED CELL COMPANIES-130ZA. Transfer of cell assets.
(1) Subject to the provisions of this section, a Labuan protected cell company may transfer cell assets attributable to any cell of the Labuan protected cell company, but not the general assets of the Labuan protected cell company, to another person, whether resident or incorporated, and whether or not a Labuan protected cell company.
(2) No transfer in subsection (1) may be made except where it was made under the authority of a special resolution of the shareholders made on the recommendation of a directors' resolution:
Provided that the directors shall not make a recommendation in relation to a cell in a Labuan protected cell company unless they are satisfied that:
(a) the creditors of the Labuan protected cell company entitled to have recourse to the cell assets attributable to the cell have consented to the transfer; or
(b) those creditors would not be unfairly prejudiced b
130ZB PART VIIIB LABUAN PROTECTED CELL COMPANIES-130ZB. Receivership and winding up of Labuan protected cell company and cell liquidation.
(1) Notwithstanding any written law or rule of law to the contrary, in the receivership and winding up of a Labuan protected cell company or any cell of a Labuan protected cell company, the approved liquidator:
(a) shall be bound to deal with the general assets of the Labuan protected cell company or the cell assets of each cell of the Labuan protected cell company in accordance with the requirements set out in subsection 130S(3); and
(b) in the discharge of the claims of creditors of the Labuan protected cell company or of each cell of the Labuan protected cell company, shall apply the assets of the protected cell company to those entitled to have recourse thereto in conformity with the provisions of this Part.
(2) The provisions relating to the distribution of property on receivership and winding up shall apply to the protected cell company, subject to such modifications as may be n
130ZC PART VIIIB LABUAN PROTECTED CELL COMPANIES-130ZC. Application of this Act.
For the avoidance of doubt, all the provisions of this Act relating to a Labuan company shall apply to a Labuan protected cell company, and where the context permits or requires, shall apply with the necessary modifications to a cell of a Labuan protected cell company.
[Ins. Act A1367]
131 PART IX RECEIVERSHIP AND WINDING UP-131. Receivership and winding up.
(1) The provisions of Subdivision 3 of Division 7 of Part III and Division 1 and Division 2 of Part IV of the Companies Act 2016 shall apply to the receivership and winding up of a Labuan company, subject to such modifications and adaptations as may be necessary, and in particular references to a "company" shall be taken as references to a Labuan company.
[(1) Gen. Am. A1367:s.2; Am. Act A1367:s.80; Am. Act A1653:s.50]
(2) The Companies (Winding-Up) Rules 1972 shall also apply to the winding-up of a Labuan company, subject to such modifications and adaptations as may be necessary, and in particular references to a "company" shall be taken as references to a Labuan company.
(3) A liquidator appointed under the provisions of this Part shall be an approved liquidator as required by subsection 12(1).
[Ins. Act A1367]
131A PART IX RECEIVERSHIP AND WINDING UP-131A. Alternative procedure for voluntary winding up of solvent Labuan companies.
(1) Where a Labuan company has ceased to operate and has discharged all its debts and liabilities, any officer or member of the Labuan company may, after giving notice in accordance with subsection (3), apply to the Authority for a declaration of dissolution of the Labuan company.
(2) An application for a declaration of dissolution under subsection (1) shall be in writing and shall be accompanied by:
(a) a statutory declaration made by a director or member of the Labuan company stating:
(i) that the Labuan company has ceased to operate and has discharged all its debts and liabilities (other than those owed to its members); and
(ii) that the notice required by subsection (3) has been given in accordance with that subsection and the date the last of such notice was published or posted, as the case may be;
(b) a copy of the notice given under subsection (3);
132 PART IX RECEIVERSHIP AND WINDING UP-132. Service of documents on companies.
Any document served under this Act shall be deemed to have been served on a Labuan company or foreign Labuan company if the document:
(a) is left, or sent by ordinary or registered post to it's last-known registered office or registered principal place of business of the company; or
(b) is sent by electronic means to the address or numbers provided by the Labuan company or foreign Labuan company.
[Gen. Am. Act A1367:s.2; Subs. Act A1653:s.51]
133 PART IX RECEIVERSHIP AND WINDING UP-133. Transfer from Labuan.
(1) A Labuan company may, upon obtaining the approval of the Authority and within two months from the date on which the approval is obtained, apply to the proper officer of another country or of a jurisdiction within such a country, by the laws of which such transfer is authorized, for an instrument transferring a company as if it had been incorporated under the laws of that other country or jurisdiction, and on the date of the instrument of transfer, the company shall, subject to the provisions of this section, become a company under the laws of that country or jurisdiction and be domiciled therein.
(2) A Labuan company shall not apply to the Authority for approval under subsection (1) unless:
(a) the application is authorized:
(i) where the company has a share capital, by the holders of not less than three-fourths of the shares of each class;
(ii) by the holders of not less than three
134 PART IX RECEIVERSHIP AND WINDING UP-134. Costs of proceedings before court.
[Am. Act A1367]
In respect of any proceedings before the court under this Act, the court may, at its own discretion, direct that the costs of one party be paid in such amount and by such other party as it thinks just.
[Am. Act A1367]
135 PART IX RECEIVERSHIP AND WINDING UP-135. Security for costs.
Where a Labuan company is a plaintiff in any court action or other legal proceedings, the court may, at any time, require sufficient security to be given for costs and stay all proceedings until the security is given.
[Am. Act A1367]
136 PART IX RECEIVERSHIP AND WINDING UP-136. Disposal of shares of shareholder whose whereabouts are unknown.
(1) Where after exercising reasonable diligence a Labuan company is unable to discover the whereabouts of a registered shareholder for a period of not less than ten years, the company may cause a notice to be published in a daily newspaper circulating in the place shown in the register of members as the address of the shareholder stating that the shares, after the expiration of one month from the date of the notice, will be liable to be forfeited to the Authority.
(2) If after the expiration of one month from the date of a notice under subsection (1) the whereabouts of a shareholder remain unknown, the company may transfer the shares held by the shareholder in the company to the Authority and for that purpose may execute for and on behalf of the owner a transfer of those shares to the Authority; and the person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but shall, notwithstanding the forfeitur
137 PART IX RECEIVERSHIP AND WINDING UP-137. Power to grant relief.
(1) In any proceedings for negligence, default, breach of duty or breach of trust against a person to whom this section applies, if it appears to the Court before which the proceedings are taken that he is or may be liable in respect thereof but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case including those connected with his appointment, he ought fairly to be excused for the negligence, default or breach, the Court may relieve him either wholly or partly from his liability on such terms as the Court thinks fit.
(2) Where any person to whom this section applies has reason to apprehend that any claim will or might be made against him in respect of any negligence, default, breach of duty or breach of trust, he may apply to the Court for relief, and the Court shall have the same power to relieve him under this section as it would have had if it had been a Court before which proceedings agains
137A PART IX RECEIVERSHIP AND WINDING UP-137A. Injunctions.
(1) Where a person has engaged, is engaging or intends to engage in conduct that constituted, constitutes or would constitute:
(a) a contravention of this Act;
(b) an attempt to contravene this Act;
(c) an attempt that aids, abets, advises or procures a person to contravene this Act;
(d) an attempt to induce, whether by threats, promises or otherwise, a person to contravene this Act;
(e) an attempt by which any person would be in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act; or
(f) an attempt of conspiracy with others to contravene this Act,
the Court may, on the application of the Authority, or of a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining
138 PART IX RECEIVERSHIP AND WINDING UP-138. Irregularities in proceedings.
(1) No proceedings under this Act shall be invalidated by any omission, defect, error, irregularity or deficiency of notice or time unless the Court is of the opinion that substantial injustice has been or may be caused thereby which cannot be remedied by any order of the Court and the Court may, if it thinks fit, make an order or direction declaring that such proceedings are valid notwithstanding any such omission, defect, error, irregularity or deficiency.
(2) Without affecting the generality of subsection (1) or of any other provisions of this Act, where any omission, defect, error, irregularity or deficiency, including the absence of a quorum at any meeting of the Labuan company, has occurred in the management or administration of a Labuan company whereby any breach of the provisions of this Act has occurred, or whereby there has been default in the observance of the memorandum or articles of the company or whereby any proceedings at or in
139 PART IX RECEIVERSHIP AND WINDING UP-139. Translation of instruments.
(1) Where under this Act an Labuan company or a foreign Labuan company or a foreign company is required to lodge with the Authority an instrument, certificate, contract or document or a certified copy thereof and the same is not written in the national language or in the English language, the company shall lodge at the same time with the Authority a certified translation thereof in the national language or in the English language.
(2) Where under this Act a Labuan company or a foreign Labuan company is required to make available for public inspection any instrument, certificate, contract or document and the same is not written in the national language or in the English language, the company shalls keep at its registered office in Labuan a certified translation thereof in the national language or in the English language.
(3) Where any accounts, minute books or other records of an Labuan company or a foreign Labuan company required to be
140 PART IX RECEIVERSHIP AND WINDING UP-140. Dividends payable from profits only.
No dividend shall be payable to any shareholder of any Labuan company except out of profits.
141 PART IX RECEIVERSHIP AND WINDING UP-141. Use of word "Corporation", etc.
Every person who carries on business in Labuan under any name or title which incorporates the word or words "Berhad", "Corporation", "Incorporated", "Limited", "Societe Anonyme", "Sociedad Anonima", "Aktiengesellschaft", "Naamlaze Vennootschap" or "Perseroan Terbatas" or any other word or words in the national language of any country which connotes a joint stock company limited by shares or guarantee or an unlimited company, or any abbreviation of those words, unless it is a Labuan company or foreign Labuan company duly created, incorporated or registered under this Act, or a domestic company or incorporated body, shall be guilty of an offence against this Act.
[Am. Act A988; Am. Act A1367]
142 PART IX RECEIVERSHIP AND WINDING UP-142. Penalties provisions.
[Am. Act A1367]
(1) Subject to section 142A, a person who:
[Am. Act A1367]
(a) does that which by or under this Act he is forbidden to do;
(b) does not do that which by or under this Act he is required or directed to do; or
(c) contravenes or fails to comply with any provision of this Act,
[Am. Act A1367]
commits an offence under this Act.
[Gen. Am. Act A1653:s.2]
(2) A person who is guilty of an offence against this Act shall be liable on conviction to a penalty or punishment expressly mentioned as the penalty or punishment for the offence, or if a penalty or punishment is not so mentioned, to a penalty not exceeding fifty thousand ringgit.
[(2) Am. Act A1367:s.89; Am. Act A1653:s.52]
(3) The penalt
142A PART IX RECEIVERSHIP AND WINDING UP-142A. Power to impose administrative penalties.
(1) The Authority may impose an administrative penalty on any person who fails to comply with any provision of this Act.
(2) The Authority shall, before making a decision to impose an administrative penalty on a person, serve on him a written notice calling on him to show cause why the administrative penalty should not be imposed upon him.
(3) If a satisfactory explanation is not received within such period as may be specified in the written notice, the Authority may impose an administrative penalty in an amount not exceeding five hundred ringgit for each day of non-compliance and such amount shall not in total exceed the sum of fifty thousand ringgit.
[(3) Am. Act A1653:s.53]
(4) Where a person has failed to pay an administrative penalty imposed by the Authority under subsection (3), the penalty imposed by the Authority may be sued for and recovered as a debt due to the Authority.
[Am. Act A1367]
146 PART IX RECEIVERSHIP AND WINDING UP-146. Power of the Minister to make regulations.
(1) The Minister may, on the recommendation of the Authority, make regulations prescribing all matters and things required or authorized by this Act to be prescribed or provided, or which are necessary or convenient to be prescribed or provided, for the carrying out of, or giving full effect to, the provisions of this Act.
(2) Regulations made under this section may provide for:
(a) any act or omission in contravention of the regulations to be an offence; and
(b) the imposition of penalties of a fine not exceeding twenty-five thousand ringgit or to imprisonment for a term not exceeding three years or to both.
[Subs. Act A1367]
147 PART IX RECEIVERSHIP AND WINDING UP-147. [Deleted by Act A1367].
148 PART IX RECEIVERSHIP AND WINDING UP-148. Prohibition by Minister.
(1) The Minister may, without assigning reasons therefor, issue, by notification in writing, a Minister, direction:
[Am. Act A1367]
(a) prohibiting the initial incorporation of any Labuan company or class of companies;
(b) prohibiting the initial registration of a foreign Labuan company; or
(c) directing any Labuan company or foreign Labuan company to cease to carry on its business or part of its business either immediately or within such time as may be specified in the direction.
(2) A direction made under this section may be revoked or varied by the Minister.
149 PART IX RECEIVERSHIP AND WINDING UP-149. Secrecy.
(1) No person who has by any means access to any record, book, register, correspondence, document, material or information relating to the business and affairs of the Labuan company or foreign Labuan company shall give, reveal, publish or otherwise disclose to any person such record, book, register, correspondence, document, material or information.
(2) All proceeding, other than criminal proceeding, relating to a Labuan company or foreign Labuan company shall be commenced in any Court, either under the provisions of this Act or for determining the rights or obligations of officers, members or debenture holders.
(3) Such proceeding and any appeal therefrom shall, unless the Court otherwise orders, be heard in camera and no details of the proceeding shall be published by any person without leave of the Court.
(4) The provisions of subsection (1) shall not apply:
(a) when lawfully required to
150 PART IX RECEIVERSHIP AND WINDING UP-150. Power of the Minister to grant exemptions.
[Ins. Act A817; Am. Act A1367]
The Minister may, on the recommendation of the Authority, on an application in writing, exempt any Labuan company or foreign Labuan company or class of Labuan companies or foreign Labuan companies or any person or class of persons from any of the provisions of this Act and may, in granting such exemption, impose such terms and conditions as the Minister thinks fit.
[Am. Act A988]
151 PART IX RECEIVERSHIP AND WINDING UP-151. Annual fee.
[Subs. Act A988; Am. Act A1367]
(1) A Labuan company shall pay such annual fee as may be prescribed, on or before the anniversary of the date of its incorporation or establishment and in the event a Labuan company is wound up prior to its first anniversary, the Labuan company shall pay the annual fee proportionately to the number of months, weeks and days the Labuan company was in existence for that year.
[Subs. by Act A1367]
(1A) The Authority may impose an administrative penalty on payment of any annual fees received later than the anniversary date as specified in subsection (1).
[(1A) Ins. by Act A1428]
(2) Notwithstanding subsection (1A), if a Labuan company fails to pay the annual fee referred to in subsection (1) on or before the expiration of a period of six months from the annual fee payment date then there shall be payable in addition t
151A PART IX RECEIVERSHIP AND WINDING UP-151A. Company struck off liable for fees, etc.
A Labuan company incorporated under this Act shall continue to be liable for all fees, licence fees and penalties payable under this Act, including the additional amount specified in subsection (2) of section 151, notwithstanding that the name of the Labuan company has been struck off the register; and such fees, licence fees and penalties shall have priority over all other claims against the assets of the Labuan company.
151B PART IX RECEIVERSHIP AND WINDING UP-151B. Fees payable to Authority.
The Authority may refuse to take any action required of him under this Act for which a fee is prescribed until all fees have been paid.
151BA PART IX RECEIVERSHIP AND WINDING UP-151BA. Power of Authority to strike off Labuan company.
Notwithstanding any provision in this Act, the Authority may strike a Labuan company off the register, if the Labuan company:
(a) fails to pay its annual fees or any additional amount in addition to the annual fee within the time specified pursuant to section 151;
(b) fails to appoint a replacement resident secretary after the resignation of the former resident secretary pursuant to subsection 93(2C);
(c) contravenes any provision of this Act and any other law relating to Labuan financial services;
(d) being a licensed entity under the Labuan Financial Services and Securities Act 2010 or Labuan Islamic Financial Services and Securities Act 2010, has its licence, approval or registration surrendered or revoked by the Authority; or
(e) is not carrying on any business or is not in operation.
[151BA. Ins. Act A1653:s.55]
151BB PART IX RECEIVERSHIP AND WINDING UP-151BB. Notice of intention to strike off Labuan company.
(1) Before the name of a Labuan company can be struck off the register under section 151BA, the Authority shall send a notice to the Labuan company stating that if an answer showing cause to the contrary is not received the name of the Labuan company shall be struck from the register within thirty days from the date of the notice or any extended period as may be approved by the Authority.
(2) After the expiration of the period specified in the notice under subsection (1) or any extended period, unless the Labuan company has given reasons to the satisfaction of the Authority, the Authority may strike the name of the Labuan company off the register.
(3) The notice under this section shall be deemed to be served on the Labuan company if the notice:
(a) is left, or sent by ordinary or registered post to it's last-known registered office or registered principal place of business of the company; or
(b
151C PART IX RECEIVERSHIP AND WINDING UP-151C. Effect of striking off.
(1) Where the name of a Labuan company has been stuck off the register, the Labuan company, and the directors, members, approved liquidators and receivers thereof, shall not:
[Am. Act A1367]
(a) commence any legal proceedings, carry on any business or in any way deal with the assets of the Labuan company;
(b) defend any legal proceedings, make any claim or claim any right for, or in the name of, the Labuan company;
[(1)(b) Gen. Am. Act A1367:s.2; Am. Act A1653:s.56]
(c) act in any way with respect to the affairs of the Labuan company; or
[(1)(c) Gen. Am. Act A1367:s.2; Am. Act A1653:s.56]
(d) incur any new liability.
[(d) Ins. Act A1653:s.56]
(2) Notwithstanding subsection (1), where the name of the Labuan company has been struck
151D PART IX RECEIVERSHIP AND WINDING UP-151D. Dissolution of a Labuan company.
(1) If the name of a Labuan company has been struck off the register under section 151 or section 151BA and remains struck off continuously for a period of one year and six months, the Labuan company shall be deemed to have been dissolved, but the Authority may apply to the Court on or before the expiration of the period of one year and six months to have the company put into liquidation and a person appointed by the Court shall be the approved liquidator of the Labuan company.
[151D. Ins. Act A1367:s.101; Renumbering & Am. Act A1653:s.57]
(2) Where a Labuan company has been dissolved pursuant to subsection (1), the Court may, at any time within six years after the date of dissolution, on an application of any person who appears to the Court to have locus standi and legitimate interest in the Labuan company, if the Court is satisfied that at the time of the dissolution of the Labuan company, the company has not di
151E PART IX RECEIVERSHIP AND WINDING UP-151E. Letter of confirmation and letter of good standing.
(1) The Authority may issue a letter of confirmation under its seal, upon a request by any Labuan trust company, approved liquidator, receiver and manager, other person having written permission of the officer of the company, member, debenture holder, director or liquidator of the Labuan trust company or any person who can demonstrate to the Authority that he has a good reason for doing so, provided that:
(a) the name of the Labuan company is in the register;
(b) the Labuan company has paid all fees and penalties due and payable; and
(c) the prescribed fee has been paid.
[(1) Subs. Act A1653:s.58]
(2) A letter of confirmation issued under subsection (1) shall state the following:
(a) the name of the Labuan company, its date of incorporation and the company number;
(b) the registered address
152 PART IX RECEIVERSHIP AND WINDING UP-152. Non-application of specified written laws.
[Ins. Act A817]
(1) The Yang di-Pertuan Agong may, by order published in the Gazette , provide that any written law, or part thereof, specified in the order, shall not apply in relation to a Labuan company, a foreign Labuan company, a Labuan trust company, or a person who holds a valid licence granted under the Labuan Financial Services and Securities Act 2010 or the Labuan Islamic Financial Services and Securities Act 2010, or shall apply thereto with such modifications as may be set out in the order.
[Am. Act A1367]
(1A) Except as otherwise expressly provided in this Act, the provisions of the Companies Act 2016 shall not apply to a Labuan company or a foreign Labuan company incorporated or registered under this Act.
[(1A) Ins. Act A1367:s.102; Am. Act A1653:s.59]
(2) The modifications made to a written law by an order made subsection
153 PART IX RECEIVERSHIP AND WINDING UP-153. Application of specified written laws.
(1) Nothing in this Act shall affect the application of the Financial Services Act 2013, Islamic Financial Services Act 2013 the Labuan Financial Services Authority Act 1996.
[(1) Am. Act A1653:s.60]
(2) In the application of the provisions of this Act to any person, the provisions shall apply subject to the provisions of the Financial Services Act 2013, Islamic Financial Services Act 2013 and the Labuan Financial Services Authority Act 1996.
[(2) Am. Act A1653:s.60]
(3) Where there is conflict or inconsistency between the provisions of this Act and the Financial Services Act 2013, Islamic Financial Services Act 2013, the provisions of the Financial Services Act 2013, Islamic Financial Services Act 2013 shall prevail.
[(3) Am. Act A1653:s.60]
(4) Where there is conflict or inconsistency between the provisions of this Act and the Labuan F
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