Prior to the enactment of the Companies Act, Chapter 386 of the laws of Malta (hereinafter the ‘Act’), a company incorporated under the laws of Malta was not obliged to appoint a company secretary even if the role was already recognised in commercial practice.
The obligation to appoint a company secretary for every company incorporated in Malta was only introduced with the enactment of the Act. It included a list of duties that every company secretary was bound to be responsible for and the condition that such person has the requisite knowledge and experience to discharge the functions of a company secretary.
The shareholders of the company appoint the first company secretary in the Memorandum of Association and subsequently. The company’s directors may remove such company secretary if they deem to be inefficient. In the event of the removal of the company secretary, the company’s directors are then obliged to appoint a new company secretary within fourteen days of the removal of the first company secretary.
As a rule of thumb, the company secretary is obliged to be an individual; nonetheless, in the case of an investment company with variable share capital and/or with fixed share capital, the company secretary may be a body corporate.
Following the Act, a company cannot have its sole director as company secretary, nor can a company have as its sole director a body corporate whose sole director is the company secretary of the company. However, a sole director may also be a company secretary if the latter has private exempt status.
The Act permits a company to appoint more than one company secretary. This only often happens, though, since each company secretary would then be required to fulfil all the requirements imposed on them under Maltese law.
The role of the company secretary is mainly administrative and relate to the keeping of registers and records and the filing of returns and documents. Although the Act does not always specify the duties that the company secretary is specifically responsible for, the Act provides for the requirements that a company is obliged to carry out. The latter is to be carried out by the company’s officers. Therefore, this includes the company secretary.
The Act requires every company to keep a register of members, debentures, minutes of board and general meetings and minute books for the latter. The company secretary furthermore generally takes care of, among other things, the procedures involved with regards to the issue of shares for a consideration other than cash, an increase in the issued share capital of the company, offering of shares on a pre-emptive basis, the return of allotments, and the acquisition by a company of its own shares.
The redemption of preference shares is also under the company secretary, as well as the transfer and pledge of shares, amendments to the memorandum and/or articles of association, and the removal of a director. Include the changes amongst the officers and persons vested with representation, the appointment of auditors and removal or resignation of the same, and notices of dissolution and changes to the company’s status.
The company secretary is generally the person to file the company’s annual return and sign and deliver a draft of the terms of merger or division. Other duties typically vested in the company secretary relate to the authentication of documents, the issue of share certificate and recording changes effected in the register of members and directors.
The company secretary’s responsibilities may emanate either from the Act and/or those delegated to them by the company. They could also be whichever relates to general company secretarial practice.