MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION

1. WHAT IS MOA & AOA ?

1.1. Constitution of the co.

1.2. S 16 (1) : person desiring the incorporation of co. shall lodge the Memo & articles of co. with the registrar together with other documents required & Registrar on payment shall be subject to the Act.

1.3. S 34 (1) : Every members entitled to have copy of Memo & articles on request, on such a payment fixed by director (RM5 or less).

2. REQUIREMENTS AS TO MOA

2.1. S 16 (1) : every co. must have its MOA before it can be registered

2.2. S 18 (1) : requires MOA of every co. to be printed & divided into numbered paragraphs & dated & must contain certain clauses.

2.3. Private co. : its MOA/AOA must also contain the restrictions & prohibitions under S 15

2.4. S 122 (3) : requires MOA/AOA contain the names of director of co. S 16 (7) : Registrar must not register MOA/AOA unless either one of them contain the names of at least the first 2 directors of proposed co.

2.5. S 139 (1A) : requires 1st secretary of co. to be named in MOA/AOA *not expressly provide power to Registrar not to register if no secretary's name.

3. REQUIREMENTS AS TO AOA

3.1. S 29 (1) : not all co. must register their own AOA. - In Malaysia, unlimited co., co. limited by guarantee & co. limited by both share and guarantee must lodge their AOA while co. limited by share may elect to lodge AOA or not.

3.2. S 30 : if co. limited by share not lodge its AOA, articles contained in Table A of 4th Schedule are automatically applied & becomes its articles.

3.3. S 29 (2) : requires AOA to be printed, divided into numbered paragraphs & signed by each subscriber to MOA with at least 1 witness who must attest the sign & his address.

3.4. Unlike MOA, Companies Act does not prescribe the contents of AOA - Up to co. to decide what to include in its AOA as long as it’s lawful provision

3.5. Private co. : its AOA normally contain those restrictions, limitation & prohibitions under S 15 (1)

4. OBJECTS & POWERS (CORP. CAPACITY)

4.1. Power : legal ability of co. to do something. Object : purspose of the existence of co

4.2. S 18 (1) : MOA must contain a statement of the object / object clause of co.

4.3. 3 types of powers : 1) Explicity conferred by its MOA. Eg: power to borrow money 2) Implicit & incidental to the attainment of its object 3) Implied by law or Act Eg : provides power of co. to make donation.

4.4. Demonstrates creativity in teaching strategies

4.5. Committed to professional development in education

5. ULTRA VIRUS DOCTRINE

5.1. Ultra virus acts : acts which fall outside the scope of powers defined in the object clause.

5.2. Common Law position The act or transaction that was ultra virus : - was void - did not bind with the company - cannot be ratified by unanimous consent of shareholder to validate it CASE : ASHBURY RAILWAY CARRIAGE & IRON CO.

5.3. Malaysian position S 20 (1) : ultra virus act shall be valid in law and binding upon the company The act or transaction that was ultra virus : - binding the company CASE : PUBLIC BANK BHD. VS METRO CONSTRUCTION SDN. BHD.

5.4. Circumstances in which doctrine still relevant : a) In proceeding againts the company - S 20 (2) (a) b) In proceeding present or former officers of company - S 20 (2) (b) c) In action by the minister - S 20 (2) (c) d) Foreign company