MYANMAR COMPANIES LAW V – WINDING UP ... This Law shall be called the Myanmar Companies Law. (b) This…

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    MYANMAR COMPANIES LAW (Unofficial Translation)

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    DRAFT MYANMAR COMPANIES LAW

    TABLE OF CONTENTS

    PART I PRELIMINARY ........................................................................................................................... 1

    Division 1: Citation, commencement and definitions ...................................................................... 1

    PART II CONSTITUTION, INCORPORATION AND POWERS OF COMPANIES ............................. 8

    Division 2: Registration of companies ............................................................................................. 8

    Division 3: Nature of companies ..................................................................................................... 8

    Division 4: Incorporations and registrations under this Law ........................................................... 9

    Division 5: The company constitution ........................................................................................... 12

    Division 6: Company names .......................................................................................................... 15

    Division 7: Company dealings ....................................................................................................... 16

    Division 8: Activities prior to registration ..................................................................................... 18

    Division 9: Other corporations authorised to register or taken to be registered under this Law.... 20

    Division 10: Change of company type ........................................................................................... 27

    PART III SHARES AND MATTERS RELATING TO A COMPANYS CAPITAL ............................ 30

    Division 11: Shares and other securities ........................................................................................ 30

    Division 12: Transfers of shares and other securities .................................................................... 36

    Division 13: Registers and certification of interests in a company ................................................ 37

    Division 14: Dividends .................................................................................................................. 43

    Division 15: Transactions and matters affecting share capital....................................................... 45

    PART IV MANAGEMENT, ADMINISTRATION AND GOVERNANCE; OFFERS OF

    SECURITIES TO THE PUBLIC; GRANT OF SECURITY BY A COMPANY; MAINTENANCE OF

    COMPANY ACCOUNTS .......................................................................................................................... 56

    Division 16: Office and name ........................................................................................................ 56

    Division 17: Meetings and proceedings ......................................................................................... 57

    Division 18: Directors and their powers and duties ....................................................................... 67

    Division 19: Members rights and remedies ................................................................................... 81

    Division 20: Matters relating to share offers by public companies ............................................... 86

    Division 21: Share offers by corporations incorporated outside the Republic of the Union of

    Myanmar ........................................................................................................................................ 96

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    Division 22: Mortgages and charges granted by a company ......................................................... 99

    Division 23: Appointment of receivers, keeping of book and registration of charges granted by

    corporations incorporated outside the Republic of the Union of Myanmar ................................. 105

    Division 24: Financial Reports and Audit ................................................................................... 106

    Division 25: Arbitration, compromise with creditors and members and buy-out rights ............ 116

    PART V WINDING UP ......................................................................................................................... 119

    Division 26: Winding up a company ........................................................................................... 119

    Division 27: Winding up of unregistered companies ................................................................... 154

    PART VI THE REGISTRAR, REGISTRATION OFFICE, REGISTRATION OF DOCUMENTS,

    POWERS OF INSPECTION AND FEES; REMOVAL OF COMPANIES FROM THE REGISTER ... 157

    Division 28: The Registrar, registration office, registration of documents, powers of inspection

    and fees and removal of companies from the register.................................................................. 157

    PART VII PROCEEDINGS; OFFENCES; REGULATIONS AND TRANSITIONAL PROVISIONS

    165

    Division 29: Jurisdiction of the Courts and legal proceedings .................................................... 165

    Division 30: Offences and defences ............................................................................................ 175

    PART VIII MISCELLANEOUS ........................................................................................................... 180

    Division 32: Regulations, notifications and guidelines................................................................ 180

    Division 31: Savings and transitional provisions ......................................................................... 181

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    MYANMAR COMPANIES LAW

    (2017, PyidaungsuHluttaw Law No.29)

    6th December 2017

    The Pyidaungsu Hluttaw hereby enacts this Law.

    PART I

    COMMENCEMENT AND DEFINITIONS

    Division 1

    Name, commencement and definitions

    1. Citation and commencement of this Law and definitions

    (a) This Law shall be called the Myanmar Companies Law.

    (b) This Law commences on the date of notification determined by the President of the

    Union.

    (c) In this Law, unless the context otherwise implies:

    (i) applicable law means any law, rule, regulation, by-law, notification or order

    having the force of law in the Union which may have an effect on the matter

    concerned;

    (ii) associate:

    (A) specifically, in relation to a company, means:

    (I) a director or secretary of the company;

    (II) a related body corporate;

    (III) a director or secretary of a related body corporate; and

    (IV) a person who controls the company, or who is controlled by the

    company; and

    (B) generally, in relation to a person (including a company), means:

    (I) a person in concert with whom the person is acting, or proposes

    to act in relation to the relevant matter;

    (II) a person with whom the person is, or proposes to become,

    associated, whether formally or informally, in any other way in

    relation to the relevant matter; and

    (III) a prescribed person in relation to the relevant matter,

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    (C) does not in any case include someone who may otherwise be considered

    an associate under paragraphs (A) or (B) merely because they:

    (I) give advice to the person, or act on the persons behalf, in the

    proper performance of the functions attaching to a professional

    capacity or a business relationship; or

    (II) have been appointed to as a proxy or representative of a person at

    a meeting of members, or of a class of members, of a company.

    (iii) authorised officer means a person ordinarily resident in the Union who is

    appointed by an overseas corporation to act as its representative for the purpose

    of this Law;

    (iv) board or board of directors mean in relation to a company or other body

    corporate mean directors of the company acting together as a board of directors

    (which will be the single director in the case of a single director company);

    (v) company means a company incorporated and registered under this Law or an

    existing company;

    (vi) contributory means every person liable to contribute to the assets of a company

    in the event of its being wound up, and, in all proceedings for determining and in

    all proceedings prior to the final determination of the persons who are to be

    deemed contributories, includes any person alleged to be a contributory;

    (vii) corporation means a body corporate formed under a law other than this Law,

    including a law of a jurisdiction other than the Union, whether or not it is

    registered under this Law;

    (viii) Court means the Court having jurisdiction under this Law;

    (ix) debenture means a security issued by a company to borrow money and

    includes debenture stock;

    (x) director for the purpose of this Law of a company or other body corporate,

    means:

    (A) an individual person who is appointed to the position of director or is

    appointed to the position of alternate director and is acting in that

    capacity; or

    (B) a person who, while not appointed to the position of director or alternate

    director:

    (I) acts as if appointed in the position of director; or

    (II) has wishes or provides instructions that the directors of the

    company or body are accustomed to acting in accordance with or

    who otherwise exercises or controls the exercise of powers which

    would fall to be exercised by the board.

    Sub-section (B)(II) does not apply merely because the directors act on the

    advice of a person given in the proper performance of the persons

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    professional functions or due to a business relationship that the person

    has with the directors, company or body;

    (xi) existing company means a company formed and registered under any repealed

    law;

    (xii) expert includes, for the purposes of section 214, an engineer, valuer,

    accountant and any other person whose profession gives authority to a statement

    made by him;

    (xiii) financial assistance includes the giving of financial assistance by means of the

    making of a loan, the giving of a guarantee, the provision of security, the release

    of an obligation or the release of a debt or otherwise;

    (xiv) foreign company means a company incorporated in the Union in which an

    overseas corporation or other foreign person (or combination of them) owns or

    controls, directly or indirectly, an ownership interest of more than thirty-five per

    cent;

    (xv) holding company in relation to a body corporate, means a body corporate of

    which the first body corporate is a subsidiary;

    (xvi) Ministry means a Ministry of the Union or a successor body, or such other

    body as may be formed under an applicable law which is responsible for the

    administration of this Law and the implementation or supervision of the

    Registrars functions;

    (xvii) officer of a company or a body corporate means a person who:

    (A) makes, or participates in the making of decisions that affect the whole, or

    a substantial part, of the business of the company or body; or

    (B) has the capacity to significantly affect the companys or bodys financial

    standing;

    (xviii) option means a right to acquire or dispose a share or security at an agreed price

    at a point in time;

    (xix) ordinarily resident means a person who is a permanent resident of the Union

    under an applicable law or is resident in the Union for at least 183 days in each

    12 month period commencing from:

    (A) in the case of an existing company or a body corporate registered under a

    repealed law, the date of commencement of this Law; and

    (B) in the case of any company or body corporate registered under this Law,

    the date of registration of the company or body corporate.

    (xx) ordinary resolution means a resolution which has been passed by a simple

    majority of the votes of members entitled to vote as are present in person or by

    proxy (where allowed) at a general meeting of which notice specifying the

    intention to propose the resolution as an ordinary resolution has been duly given;

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    (xxi) overseas corporation means a body corporate that is incorporated outside the

    Union;

    (xxii) ownership interest means a legal, equitable or prescribed interest in a company

    which may arise though means including:

    (A) a direct shareholding in the company;

    (B) a direct or indirect shareholding in another company which itself holds a

    direct shareholding, or an indirect shareholding, in the first company; or

    (C) through an agreement which provides the holder with a direct or indirect

    right to exercise control over the voting rights which may be cast on any

    resolution of the company;

    (xxiii) prescribed means prescribed by or in any rules, regulations, by-laws,

    notifications, orders, directives, table or form made under this Law;

    (xxiv) previous law means the Myanmar Companies Act 1914;

    (xxv) private company means a company incorporated under this Law or under any

    repealed law which:

    (A) must limit the number of its members to fifty not including persons who

    are in the employment of the company;

    (B) must not issue any invitation to the public to subscribe for the shares,

    debentures or other securities of the company; and

    (C) may by its constitution restrict the transfer of shares.

    Provided that where two or more persons hold one or more shares in a company

    jointly they shall, for the purposes of this definition, be treated as a single

    member;

    (xxvi) promoter means, for the purposes of section 214, a promoter who was a party

    to the preparation of the prospectus, or the portion thereof containing the

    misleading or untrue statement, but does not include any person by reason of his

    acting in a professional capacity for persons engaged in procuring the formation

    of the company;

    (xxvii) prospectus means any prospectus, notice, circular, advertisement or other

    invitation, offering to the public for subscription or purchase any shares or

    debentures or other securities of a company, but shall not include any trade

    advertisement which shows only that a formal prospectus has been prepared and

    filed;

    (xxviii) public company means a company incorporated under this Law, or under any

    repealed law, which is not a private company;

    (xxix) registrable interests means any securities for which a company maintains a

    register in accordance with Division 13;

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    (xxx) registered office, for the purposes of jurisdiction to wind up companies, means

    the place which has longest been the registered office of the company during the

    six months immediately preceding the presentation of the petition for winding up;

    (xxxi) Registrar means the Directorate of Investment and Company Administration,

    its successor, or such other Union level body or person as may be appointed to

    perform under this Law the duty of registration of companies and exercise the

    other powers and perform the other functions and duties assigned to the Registrar

    under this Law or other applicable law;

    (xxxii) related body corporate of a body corporate (which includes a company) means:

    (A) a holding company of the body corporate;

    (B) a subsidiary of the body corporate; or

    (C) a subsidiary of a holding company...