MT
MERCHANT SHIPPING (SHIPPING ORGANISATIONS - PRIVATE COMPANIES) REGULATIONS
Table of Provisions (197)
Statutory Text (197 Articles)
SUBSIDIARY LEGISLATION 234.42
MERCHANT SHIPPING (SHIPPING ORGANISATIONS - PRIVATE
COMPANIES) REGULATIONS
1st May, 2004 *
LEGAL NOTICE 223 of 2004, as amended by Legal Notices 181 and 186 of 2006, 411 of
2007 and 31 of 2020.
(1) The title of these regulations is the Merchant Shipping
(Shipping Organisations - Private Companies) Regulations.
(2) These regulations shall come into effect on the 1st May
2004 except as hereunder provided.
(3) These regulations shall apply , with effect from the 1 st August
2004, to shipping companies formed and registered under the
Commercial P artnersh ips Ordinance , with the exception of
regulation 37, which shall apply with effect from the 1 st May 2004
Provided that should a shipping company elect to be
governed by the Companies Act, it shall file a notice in accordance
with the provisions of subregulation (4) and these regulations shall
not apply to such shipping companies.
(4)
(a) Any shipping company which is registered and existing
as of the 30th April, 2004 which elects to be governed
by the Companies Act shall file a notice to that effect
in terms of the Ninth Schedule by not later than the 1st
August, 2004.
(b) In such event, the company shall be bound to comply
with the Companies Act within ninety days from the
filing of the notice with the Registrar of Companies.
(c) In the event of the company failing to comply with the
requirements of the Companies Act within the said
time limit, the company shall be regulated by the
regulations with effect from the 1st August, 2004 and
the filing of the notice shall have no effect.
(5) For the purposes of sub-regulations (3) and (4) and of Part
VIII, "shipping company" means a company whose objects are
limited to the sole purpose of owning, managing, administering or
operating ships and to transactions ancillary thereto formed and
registered under the Commercial Partnerships Ordinance.
PART I
PRELIMINARY PROVISIONS
Amended by
(R EGULATION 16)
L.N. 31 of 2020.
PART I - MODEL REGULATIONS FOR THE MANAGEMENT
OF A SHIPPING ORGANISATION - PRIVATE COMPANY FOR THE PURPOSES OF
THESE REGULATIONS
Share capital and variation of rights
1. Without prejudice to any special rights previously conferred on the holders
of any existing shares or class of shares, any share in the company may be issued
with such preferred, deferred or other special rights or such restrictions, whether in
regard to dividend, voting, return of capital or otherwise as the company may from
time to time by ordinary resolution determine.
2. Subject to the provisions of regulation 31 of the Merchant Shipping
(Shipping Organisations - Private Companies) Regulations, (hereinafter referred to
as "the 2004 Regulations), any preference shares may, with the sanction of an
ordinary resolution, be issued on the terms that they are, or at the option of the
company are, liable to be redeemed on such terms and in such manner as the
company before the issue of the shares may by extraordinary resolution determine.
3. If at any time the share capital is divided into different classes of shares, the
change of any shares from one class into another or the variation of the rights
attached to any class (unless otherwise provided by the terms of issue of the shares
of that class which is to be changed or the rights attached to which are to be varied,
according to the case) may, whether or not the company is being wound up, be made
with the consent in writing of the holders of three-fourths of the issued shares of any
other class affected thereby. Such change or variation may also be made with the
sanction of an extraordinary resolution passed at a separate general meeting of the
holders of the issued shares of that class and of an extraordinary resolution passed at
a separate general meeting of the holders of the issued shares of any other class
affected thereby. To every such separate general meeting the provisions of these
model regulations relating to general meetings shall apply.
4. The company may exercise the power of paying commissions or of making
discounts or allowances provided it complies with the requirements of regulation 29
of the 2004 Regulations. Such commission may be satisfied by the payment of cash
or the allotment of fully or partly paid shares or partly in one way and partly in the
other.
5. Every person whose name is entered as a member in the register of members
shall be entitled without payment to receive one certificate for all his shares or
several certificates each for one or more of his shares. If a share certificate be
defaced, lost or destroyed, it may be renewed on application of the member on such
terms, if any, as to evidence and indemnity and the payment of out-of-pocket
expenses of the company on investigating evidence as the directors think fit.
Calls on shares
6. The directors may from time to time make calls upon the members in respect
of any moneys unpaid on their shares. A call may be revoked, modified or postponed
as the directors may determine. Any member shall be entitled to at least 7 days’
notice.
7. The joint holders of a share shall be jointly and severally liable to pay all
calls in respect thereof.
8. If a sum called in respect of a share is not paid before or on the date
appointed for payment thereof, the person from whom the sum is due shall pay
interest thereon from the day appointed for payment thereof to the time of actual
payment at such rate not exceeding eight per cent per annum as the directors may
determine, but the directors shall be at liberty to waive payment of such interest
wholly or in part.
9. Any sum which by the terms of issue of a share becomes payable on
allotment or at any fixed date, whether on account of the nominal value of the share
or by way of premium, shall for the purposes of these model regulations be deemed
to be a call duly made and payable on the date on which, by the terms of issue, the
same becomes payable, and in case of non-payment, all the relevant provisions of
these model regulations as to payment of interest and expenses, forfeiture or
otherwise shall apply as if such sum had become payable by virtue of a call made
and duly notified.
10. The directors may, on the issue of shares, differentiate between the holders
as to the amount of calls to be paid and the times of payment.
11. The directors may, if they think fit, receive from any member willing to
advance the same, all or any part of the moneys uncalled and unpaid upon any shares
held by him, and upon all or any of the moneys so advanced may (until the same
would, but for such advance, become payable) pay annual interest at such rate not
exceeding eight per annum, as may be agreed upon between the directors and the
members paying such sum in advance.
Transfer and transmission of shares
12. The instrument of transfer of any share shall be executed by or on behalf of
the transferor and transferee and the transferor shall be deemed to remain a holder of
the share until the name of the transferee is entered in the register of members in
respect thereof.
13. Subject to such of the restrictions of these model regulations as may be
applicable, any member may transfer all or any of his shares by instrument in writing
in any usual or common form or any other form which the directors may approve.
14. The directors may decline to register the transfer of a share (not being a fully
paid share) to a person of whom they shall not approve.
15. The directors may also decline to recognise any instrument of transfer
unless -
(a) the instrument of transfer is accompanied by the certificate of the shares
to which it relates, and such other evidence as the directors may
reasonably require to show the right of the transferor to make the
transfer; and
(b) the instrument of transfer is in respect of only one class of share.
16. The registration of transfers may be suspended at such times and for such
periods as the directors may from time to time determine, provided always that such
registration shall not be suspended for more than thirty days in any year.
17. Any person becoming entitled to a share in consequence of the death of a
member may, upon such evidence being produced as may from time to time properly
be required by the directors and subject as hereinafter provided, elect either to be
registered himself as holder of the share or to have some person nominated by him
registered as the transferee thereof, but the directors shall, in either case, have the
same right to decline or suspend registration as they would have had in the case of a
transfer of the share by that member before his death.
18. If the person so becoming entitled shall elect to be registered himself, he
shall deliver or send to the company a notice in writing signed by him stating that he
so elects. If he shall elect to have another person registered he shall testify his
election by executing to that person a transfer of the share.
19. All the limitations, restrictions and provisions of these regulations relating
to the right to transfer and the registration of transfers of shares shall be applicable
to any such notice or transfer as aforesaid as if the death of the member had not
occurred and the notice or transfer were a transfer signed by that member.
20. A person becoming entitled to a share by reason of the death of the holder
shall be entitled to the same dividends and other advantages to which he would be
entitled if he were the registered holder of the share, except that he shall not, before
being registered as a member in respect of the share, be entitled in respect of it to
exercise any right conferred by membership in relation to meetings of the company
Provided always that the directors may at any time give notice requiring any
such person to elect either to be registered himself or to transfer the share, and if the
notice is not complied with within ninety days the directors may thereafter withhold
payment of all dividends, bonuses or other moneys payable in respect of the share
until the requirements of the notice have been complied with.
21. In respect of a share held jointly by several persons the name of only one of
such persons shall be entered in the register of members. Such person shall be
elected by the joint holders and shall for all intents and purposes be deemed, vis-à-
vis the company, to be the registered holder of the share so held.
Pledging of Securities
22. (a) The members may enter into any agreement relating to the pledging of
their shares or the creation of any rights in connection with the said
shares for any reason they may deem fit and with such third parties as
they deem appropriate.
(b) The holders of other securities issued by the company may enter into
any agreement relating to the pledging of their securities or the creation
of any rights in connection with the said securities for any reason they
may deem fit and with such third parties as they deem appropriate.
(c) Upon the company being notified of such a pledge agreement, the
company shall record that fact in its register of members or debenture
holders and the company shall recognize all rights thereby granted to
any third parties and shall act according to and consistently with the
terms of such agreement in all matters.
(d) In so far as and to the extent that such pledge vests third parties with
rights pertaining to the shares or debentures normally exercisable by the
members or debenture holders as the case may be, such rights shall be
exercisable by third parties as though they were the members or
debenture holders of the company to the exclusion of the registered
member or members or registered holders of securities.
Failure to pay upon call
23. Where a member fails to pay up such part of any share after a call has been
made to this effect such member shall be liable to the company and the company
may sue the member for the collection of a civil debt.
General meetings
24. Subject to the provisions of the 2004 Regulations, the annual general
meetings shall be held at such time and place as the directors shall appoint.
25. The directors may, whenever they think fit, convene an extraordinary
general meeting, and extraordinary general meetings shall also be convened on such
requisition, or, in default, may be convened by such requisitionists, as provided by
regulation 44 of the 2004 Regulations.
Notice of general meetings
26. A general meeting of the company shall be called by fourteen days’ notice in
writing at least. The notice shall be exclusive of the day on which it is served or
deemed to be served and of the day for which it is given, and shall specify the place,
the day and the hour of meeting and, in case of special business, the general nature
of that business, and shall be given, in the manner hereinafter mentioned or in such
other manner, if any, as may be prescribed by the company in general meeting, to
such persons as are, by the 2004 Regulations and under the regulations of the
company, entitled to receive such notices from the company
Provided that a meeting of the company shall, notwithstanding that it is called by
shorter notice than that specified in this regulation, be deemed to have been duly
called if it is so agreed by all the members entitled to attend and vote thereat.
27. The accidental omission to give notice of a meeting to, or the non-receipt of
notice of a meeting by, any person entitled to receive notice shall not invalidate the
proceedings at that meeting.
Proceedings at general meetings
28. All business shall be deemed special that is transacted at an extraordinary
general meeting, and also all that is transacted at an annual general meeting, with the
exception of declaring a dividend, the consideration of the annual accounts and the
reports of the directors and auditors, the election of directors in the place of those
retiring and the appointment of, and the fixing of the remuneration of, the auditors.
29. If within half an hour from the time appointed for the meeting a quorum is
not present, the meeting, if convened by the requisition of members, shall be
dissolved; in any other case it shall stand adjourned to the same day in the next
week, at the same time and place or to such other day and at such other time and
place as the directors may determine, and if at the adjourned meeting a quorum is not
present within half an hour from the time appointed for the meeting, the members
present shall be a quorum.
30. The chairman, if any, of the board of directors shall preside as chairman at
every general meeting of the company, or if there is no such chairman, or if he shall
not be present within fifteen minutes after the time appointed for the holding of the
meeting or is unwilling to act, the directors present shall elect one of their number to
be chairman of the meeting.
31. If at any meeting no director is willing to act as chairman or if no director is
present within fifteen minutes after the time appointed for holding the meeting, or is
unwilling to act, the directors present shall elect one of their number to be chairman
of the meeting.
32. The chairman may, with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting), adjourn the meeting from time to
time and from place to place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting from which the
adjournment took place. When a meeting is adjourned for thirty days or more, notice
of the adjourned meeting shall be given as in the case of an original meeting. Save as
aforesaid it shall not be necessary to give any notice of an adjourned meeting or of
the business to be transacted at such meeting.
33. At any general meeting a resolution put to the vote of the meeting shall be
approved by more than 50% of the voting rights in the company unless a higher
majority is required by the memorandum and articles.
The demand for a poll may be withdrawn
34. In the case of an equality of votes the chairman of the meeting shall be
entitled to a second or casting vote.
Votes of members
35. Subject to any rights or restrictions for the time being attached to any class
or classes of shares, every member shall have one vote for each share of which he is
the holder.
36. No member shall be entitled to vote at any general meeting unless all calls
or other sums presently payable by him in respect of shares in the company have
been paid.
37. No objection shall be raised to the qualification of any voter except at the
meeting or adjourned meeting at which the vote objected to is given or tendered, and
every vote not disallowed at such meeting shall be valid for all purposes. Any such
objection made in due time shall be referred to the chairman of the meeting, whose
decision shall be final and conclusive.
38. The instrument appointing a proxy and the power of attorney or other
authority, if any, under which it is signed or a notarially certified copy of that power
or authority shall, as far as possible, be deposited at the registered office of the
company or at such other place as is specified for the purpose in the notice
convening the meeting, not less than twenty-four hours before the time for holding
the meeting or adjourned meeting, at which the person named in the instrument
proposes to vote, or, in the case of a poll, not less than twenty-four hours before the
time appointed for the taking of the poll, in order to allow time for the verification of
the authenticity of the instrument by the chairman and, in default, saving verifiable
proof of the authenticity of the instrument satisfactory to the chairman, the chairman
shall be entitled, in his sole discretion, to refuse the proxy.
39. An instrument appointing a proxy shall be in the following form or a form as
near thereto as circumstances permit
.........................................(name of the company)
"I/We...............................................................
of .............................................................................................................
residing at .........................................................................................................
b e i n g a m e m b e r / m e m b e r s o f t h e a b o v e - n a m e d c o m p a n y, h e r e b y a p p o i n t
..................................................... of ............................................................ or
failing him...................................... of ............................................................ as
my/our proxy to vote for me/us on my/our behalf at the (annual or extraordinary, as
t h e c a s e m a y b e ) g e n e r a l m e e t i n g o f t h e c o m p a n y, t o b e h e l d o n t h e
................................... day of ................................. 20 ......., and at any adjournment
thereof.
Signed this ................ day of ............................ 20.......
This form is to be used in favour of/against * the resolution. Unless otherwise
instructed, the proxy will vote as he thinks fit.".
*Strike out whichever is not desired.
Directors
40. The remuneration of the directors shall from time to time be determined by
the company in general meeting. Such remuneration shall be deemed to accrue from
day to day. The directors may also be paid all travelling, hotel and other expenses
properly incurred by them in attending and returning from meetings of the directors
or any committee of the directors or general meetings of the company or in
connection with the business of the company.
41. The shareholding qualification for directors may be fixed by the company in
general meeting, and unless and until so fixed no qualification shall be required.
Powers and duties of directors
42. The directors shall exercise their powers subject to any of these model
regulations, to the provisions of the 2004 Regulations and to such regulations, being
not inconsistent with the aforesaid regulations or provisions, as may be prescribed
by the company in general meeting; but no regulation made by the company in
general meeting shall invalidate any prior act of the directors which would have been
valid if that regulation had not been made.
43. The directors shall have power to appoint any person to be the attorney of
the company for such purposes and with such powers, authorities and discretion (not
exceeding those vested in or exercisable by the directors under these model
regulations) and for such period and subject to such conditions as they may think fit,
and any such powers of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney to delegate all or any of the
powers, authorities and discretions vested in him.
44. The directors shall cause minutes to be made in books provided for the
purpose -
(a) of all appointments of officers made by the directors;
(b) of the names of the directors present at each meeting of the directors
and of any committee of the directors;
(c) of all resolutions and proceedings at all meetings of the company, and of
the directors, and of committees of directors.
45. The directors on behalf of the company may pay a gratuity or pension or
allowance on retirement to any director who has held any other salaried office or
place of profit with the company or to his widow or dependants and may make
contributions to any fund and pay premiums for the purchase or provision of any
such gratuity, pension or allowance.
Proceedings of directors
46. The directors may meet together for the despatch of business, adjourn and
otherwise regulate their meetings, as they think fit. Questions arising at any meeting
shall be decided by a majority of votes. In case of an equality of votes, the chairman
shall have a second or casting vote. A director may at any time summon a meeting of
the directors. It shall not be necessary to give notice of a meeting of directors to any
director for the time being absent from Malta.
47. The continuing directors may act notwithstanding any vacancy in their body,
but, if and so long as their number is reduced below the number fixed by or pursuant
to the regulations of the company as the necessary quorum of directors, the
continuing directors or director may act for the purpose of increasing the number of
directors to that number, or of summoning a general meeting of the company, but for
no other purpose.
48. The directors may elect a chairman of their meetings and determine the
period for which he is to hold office; but if no such chairman is elected, or if at any
meeting the chairman is not present within five minutes after the time appointed for
holding the same, the directors present may choose one of their number to be
chairman of the meeting.
49. A director may appoint any other person to act as his alternate by means of a
written instrument. Such person so appointed shall enjoy all powers of the director.
“Written instruments” include for this purpose an appointment by fax, e-mail or
letter.
50. A resolution in writing, signed by all the directors for the time being entitled
to receive notice of a meeting of the directors, shall be as valid and effectual as if it
had been passed at a meeting of the directors duly convened and held.
Company Secretary
51. The directors may appoint a secretary for such term, at such remuneration
and upon such conditions as they may think fit; and any secretary so appointed may
be removed by them
Provided that no person shall be appointed or hold office as secretary who is
the sole director of the company.
Dividends and reserve
52. The company in general meeting may declare dividends, but no dividend
shall exceed the amount recommended by the directors.
53. The directors may from time to time pay to the members such interim
dividends as appear to the directors to be justified by the profits of the company.
54. The directors may, before recommending any dividend, set aside out of the
profits of the company such sums as they think proper as a reserve or reserves which
shall, at the discretion of the directors, be applicable for any purpose to which the
profits of the company may be properly applied, and pending such application may,
at the like discretion, either be employed in the business of the company or be
invested in such investments, other than shares of the company, as the directors may
from time to time think fit. The directors may also without placing the same to
reserve carry forward any profits which they may think prudent not to divide.
55. Subject to the rights of persons, if any, entitled to shares with special rights
as to dividend, all dividends shall be declared and paid according to the amounts
paid or credited as paid on a share in advance of calls shall be treated for the
purposes of this regulation as paid on the share. All dividends shall be apportioned
and paid proportionately to the amounts paid or credited as paid on the shares during
any portion or portions of the period in respect of which the dividend is paid; but if
any share is issued on terms providing that it shall rank for dividend as from a
particular date such share shall rank for dividend accordingly.
56. The directors may deduct from any dividend payable to any member all
sums of money, if any, presently payable by him to the company on account of calls
or otherwise in relation to the shares of the company.
57. No dividend shall bear interest against the company.
Accounts
58. Subject to the provisions of regulation 76 of the 2004 Regulations, the
directors shall from time to time determine whether and to what extent and at what
times and places and under what conditions or regulations the annual accounts and
accounting records of the company or any of them shall be open to the inspection of
members not being directors, and no member, not being a director, shall have any
right of inspecting any such account or record or other document of the company
except as conferred by law or authorised by the directors or by the company in
general meeting.
Capitalisation of profits
59. The company in general meeting may upon the recommendation of the
directors resolve that it is desirable to capitalise any part of the amount for the time
being standing to the credit of any of the company’s reserve accounts or to the credit
of the profit and loss account or otherwise available for distribution, and accordingly
that such sum be set free for distribution amongst the members who would have been
entitled thereto if distributed by way of dividend and in the same proportions on
condition that the same be not paid in cash but be applied either in or towards paying
up any amounts for the time being unpaid on any shares held by such members
respectively or paying up in full unissued shares or debentures of the company to be
allotted and distributed credited as fully paid up to and amongst such members in the
proportion aforesaid, or partly in the one way and partly in the other, and the
directors shall give effect to such resolution
Provided that a share premium account and a capital redemption reserve may, for
the purposes of this regulation, only be applied in the paying up of unissued shares to
be issued to members of the company as fully paid bonus shares
Provided further that the directors may in giving effect to such resolution make
such provision by payment in cash or otherwise as they think fit for the case of
shares or debentures becoming distributable in fractions.
Indemnity
60. Every managing director, director holding any other executive office or
other director, and every agent, auditor or company secretary and in general any
officer for the time being of the company shall be indemnified out of the assets of
the company against any liability incurred by him in defending any proceedings in
which judgment is given in his favour or in which he is acquitted.
PART II - MODEL REGULATIONS FOR THE MANAGEMENT OF A
SINGLE MEMBER COMPANY
1. The regulations contained in Part I of these model regulations shall apply
subject to the following modeifications
2. The company is a single member company and accordingly -
(a) any decision required to be taken by the single member in general
meeting shall be taken in the form of a written resolution passed by the
single member.
(b) the single member minutes shall be recorded in the minute book in
terms of regulation 63 of the 2004 regulations.
3. Regulations 24 to 39 of these Model Regulations both inclusive shall not
apply.
These regulations shall apply to any organisation formed as
a private limited liability company and qualifying as a shipping
organisation in terms of article 84Z of the Merchant Shipping Act
unless it ceases to so qualify.
(Regulation 66)
Deleted by Legal Notice 31 of 2020.
(1) In these regulations, unless the context otherwise
requires, the following expressions have the meaning hereby
assigned to them -
"the Act" means the Merchant Shipping Act;
"appointed day" means the date appointed by the Minister for the
coming into force of these regulations;
"approved country or jurisdiction" means such country or
jurisdiction as may be established from time to time by guidelines
issued by the Registrar;
"auditor" means a person who is an individual who holds a
warrant to act as auditor issued under the Accountancy Profession
Act or is a partnership of auditors duly registered under the said
Act;
"body corporate" means any entity having a legal personality
distinct from that of its members, and includes a foreign body
corporate;
"certificate of registration", when used in relation to a company,
means a certificate of registration issued under these regulations
and the Companies Act and the words "registration", "registered"
and their derivatives shall be construed accordingly;
"Companies Act" means Chapter 386 of the Laws of Malta;
"company" means a company formed and registered under Part
III of these regulations;
"court" means the Civil Court;
"debenture" includes debenture stock, bonds and any other debt
securities of a company;
"director" includes any person occupying the position of director
of a company by whatever name he may be called carrying out
substantially the same functions in relation to the direction of the
company as those carried out by a director;
"directors’ report" in relation to a company, means the directors’
report required by regulation 73;
"euro" refers to the currency unit of the participating states in the
European Monetary Union;
"expert", except where otherwise specifically defined in these
regulations, means an auditor whether Maltese or foreign and
whether or not assisted by a specialist valuer;
"extraordinary resolution" has the meaning given to it by
regulation 50;
"instrument of continuation" includes any document or certificate
confirming that a company has been registered as continuing in an
approved country or jurisdiction other than Malta;
"in writing" includes any electronic representation except in so
far as relates to documents delivered to the Registrar for
registration;
"member" means a shareholder of a company;
"notice" shall mean a notice in writing of any kind;
"officer" in relation to a company, means a director but does not
include an auditor;
"ordinary resolution" has the meaning given to it by regulation
50;
"parent company" is a company which -
(a) has a majority of the members’ voting rights in another
undertaking (subsidiary undertaking); or
(b) has the right to appoint or remove a majority of the
members of the board of directors or persons entrusted
with the administration of another undertaking (a
subsidiary undertaking) and is at the same time a
member of that undertaking; or
(c) has the right to exercise a dominant influence over an
undertaking (a subsidiary undertaking) of which it is a
member, pursuant to a contract entered into with that
undertaking or to a provision in that undertaking’s
memorandum or articles of association; or
(d) is a member of an undertaking and controls alone
pursuant to an agreement with other members of that
undertaking (a subsidiary undertaking), a majority of
members’ voting rights in that undertaking; or
(e) holds a participating interest in another undertaking
and actually exercises a dominant influence over the
undertaking (a subsidiary undertaking) or manages the
subsidiary undertaking on a unified basis together with
it;
and the term "parent undertaking" shall be construed accordingly;
"participating interest" shall mean rights in the capital of other
undertakings, whether or not represented by certificates, which, by
creating a durable link with those undertakings, are intended to
contribute to those undertakings’ activities. The holding of twenty
per cent of the capital of another undertaking shall be presumed to
constitute a participating interest unless the contrary is shown. An
interest in shares includes an interest which is convertible into an
interest in shares and an option to acquire an interest in shares.
Interests in shares held by subsidiary undertakings or held by third
parties on behalf of the company or its subsidiary undertakings
shall be deemed to be held by the company;
"private company" means a private company as defined in
regulation 6;
"Registrar" means the person appointed as Registrar of
Companies under the Companies Act;
"security" includes a share, debenture or any other similar
instrument issued by a company;
"share" includes stock except where a distinction between stock
and shares is express or implied;
"shareholder" means a person entered in the register of members
of a company pursuant to regulation 38;
"true and fair view" in re la tion to a ccounts r efers to the
requirements of regulation 66(3).
(2) For the purposes of these regulations, where a document
required to be delivered to the Registrar for registration is required
to state the name and residence or address of a person, it shall be
deemed to require further the official identification, by number or
otherwise of such person, as may be applicable.
(3) Where a matter is not specifically dealt with under these
regulations, reference shall be made to the provisions of the
Companies Act on such matter including any relevant regulations
issued under the Companies Act.
PART II
GENERAL PROVISIONS
(Regulation 68)
Deleted by Legal Notice 31 of 2020.
A company to which these regulations apply has a legal
personality distinct from that of its member or members, and such
legal personality shall continue until the name of the company is
struck off the register, whereupon the company ceases to exist.
(Regulation 73)
Deleted by Legal Notice 31 of 2020.
(1) In all its business letters and order forms a company
shall mention in legible characters its name, the fact that it is a
limited liability company, its registered office and registration
number.
(2) Where a company is being wound up, every letter, invoice
or other document by or on behalf of the company, being a
document on or in which the name of the company appears, shall in
addition to the requirements of the preceding paragraph of this
regulation, contain a statement that the company is being wound up
and shall contain the names of the liquidators.
(3) If default is made in complying with the provisions of
subregulations (1) and (2) every officer or liquidator, as the case
may be, of the company who is in default shall be liable to a
penalty.
PART III
FORMATION OF COMPANIES
Chapter I - Private Companies
Amended by
L.N. 411 of 2007;
(Regulation 80)
L.N. 31 of 2020.
Company No: ........................
CONTENTS AND FORM OF ANNUAL RETURN
ANNUAL RETURN of .........................................................................................
........................................................................................ (name of the company)
Date to which this return is made up: ......................................
(being the anniversary of the company’s date of registration)
1. Address
(Address of the registered office of the company)
This form must be completed in BOLD TYPE FORM
2. Summary of Share Capital and Debentures
All Euro amounts are to be preceded by the symbol €. Symbols used for other
currencies are to be indicated (where applicable).
Currency
Symbol
(a)
Nominal Share Capital
Nominal Share Capital € ............................................................ divided into
(Insert number and class)
shares of
................................. each
shares of
................................. each
shares of
................................. each
shares of
................................. each
(b)
Issued Share Capital and Debenture
Number
Class
N u m b e r o f s h a r e s o f e a c h c l a s s .......................
...................... shares
taken up to the date of this return .......................
...................... shares
(which number must agree with the .......................
...................... shares
total shown on the list as held by .......................
...................... shares
existing members).
...................... shares
N u m b e r o f sh a r e s o f e a c h c l a s s
issued as paid up to the extent of ..............
issued as partly paid up and extent
per share .................... ................... shares
to which each such share is so paid
issued as paid up to the extent of ..............
up.
per share .................... ................... shares
issued as paid up to the extent of ..............
per share .................... ................... shares
issued as paid up to the extent of ..............
per share .................... ................... shares
N u m b e r o f sh a r e s o f e a c h c l a s s
...................... shares
issued as fully paid up for a
...................... shares
consideration other than cash.
...................... shares
...................... shares
...................... shares
N u m b e r o f sh a r e s o f e a c h c l a s s
issued as paid up to the extent of ..............
issued as partly paid up for a
per share .................... ................... shares
consideration other than cash and
issued as paid up to the extent of ..............
extent to which each such share is
per share .................... ................... shares
so paid up.
issued as paid up to the extent of ..............
per share .................... ................... shares
issued as paid up to the extent of ..............
per share .................... ................... shares
Total number of shares of each
Number
Class
class forfeited.
.................................. shares
.................................. shares
.................................. shares
.................................. shares
Total amount paid, if any, on
shares forfeited. ........... .............. .........................................
3. List of Past and Present Members
List of persons holding shares or stock in the company on the date to which this
return is made up, and of persons who have held shares or stock therein at any time
since the date of the last return, or in the case of the first return, of the registration
of the company.
Folio in
Names
register ledger
Addresses (in the
containing
Account of Shares
Remarks
case of a body
particulars
corporate, its
registered office)
Number of
Particulars of shares
shares held
transferred or transmitted
by existing
causa mortis si nce the
members at
date of the last return, or,
the date of
in t he ca se o f th e f i r st
return*§
return, of the registration
o f t h e c o m p a n y b y (a )
persons who are still
members and (b) persons
who have ceased to be
members**
Number
Date of
§
registration
or transfer
(a)
(b)
3. List of Past and Present Members (cont. sheet)
The aggregate number of shares held by each member shall be stated, and the aggregates
shall be added up so as to agree with the number of the shares stated in the Summary of
Share Capital and Debentures to have been taken up.
§ When the shares are divided into different classes these columns should be sub-divided
so that the number of each class held, transferred or transmitted causa mortis, may be
shown separately. Where any shares have been converted into stock the amount of stock
held by each member shall be shown.
** The date of registration of each transfer or transmission causa mortis shall be given as
well as the number of shares transferred or transmitted causa mortis on each date. The
particulars shall be placed opposite the name of the transferor and not opposite that of
the transferee, but the name of the transferee may be inserted in the "Remarks" column
immediately opposite the particulars of each transfer. (The word "transferor" shall mean
the deceased and the word "transferee" shall mean the heir or legatee, in the case of
transmission causa mortis).
4. Particulars of Directors
Particulars of the persons who are directors of the company at the date of this return.
Name
Nationality
Usual residential address
(in the case of a body
(in the case of an individual,
corporate, its registered office)
name or names and surname.
In the case of a body corpo-
rate, the corporate name)
Signed …………………………… Director/Secretary/Representative
(1) A private company is a company which, besides
fulfilling the requirements of these regulations for it to hold the
status of a private company, is one which, by its memorandum or
articles -
(a) restricts the right to transfer its shares; and
(b) limits the number of its members to fifty; and
(c) prohibits any invitation to the public to subscribe for
any shares or debentures of the company.
(2)
A private company shall not -
(a) offer to the public, whether for cash or otherwise, any
shares in or debentures of the company; or
(b) allot or agree to allot, whether for cash or otherwise,
any shares in or debentures of the company with a
view to all or any of those shares or debentures being
offered for sale to the public; or
(c) have the power to issue share warrants to bearer.
(3) Where a private company contravenes the provisions of
subregulation (2), every officer thereof who is in default shall be
liable to a penalty.
(Regulation 3)
EXPLANATION OF EXPRESSIONS USED IN PARAGRAPH (1) OF
REGULATION 3 OF THESE REGULATIONS AND PROVISIONS
SUPPLEMENTARY THERETO
Voting rights in an undertaking
1. (a) References to voting rights in an undertaking are to the rights conferred
on s h a r e h o l d e r s in r e s p e c t o f t h e i r sh a r e s or, i n t h e c a s e o f a n
undertaking not having a share capital, on members, to vote at general
meetings of the undertaking on all, or substantially all, matters.
(b) References to directors shall be taken to include references to persons
entrusted with the administration of undertakings not having directors
and references to the board of directors shall be taken to include the
equivalent body in such undertakings.
2. In relation to an undertaking which does not have general meetings at which
matters are decided by the exercise of voting rights, the references to holding a
majority of the voting rights in the undertaking shall be construed as references to
having the right under the constitution of the undertaking to direct overall policy of
the undertaking or to alter the terms of its constitution.
Rights to appoint or remove a majority of the directors
3. Reference to the right to appoint or remove a majority of the board of
directors is to the right to appoint or remove directors holding a majority of the
voting rights at meetings of the board on all, or substantially all, matters.
4. An undertaking shall be treated as having the right to appoint to a
directorship if -
(a) a person’s appointment to it follows necessarily from his appointment as
director of the undertaking; or
(b) the directorship is held by the undertaking itself.
5. The right to appoint or remove which is exercisable only with the consent or
concurrence of another person shall not be taken into account unless no other person
has a right to appoint or, as the case may be, to remove in relation to that
directorship.
Right to exercise dominant influence
6. An undertaking shall not be regarded as having the right to exercise a
dominant influence over another undertaking unless it has a right to give directions
with respect to the operating and financial policies of that other undertaking which
its directors are obliged to comply with, whether or not those directions are for the
benefit of that other undertaking.
Rights exercisable only in certain circumstances
7. Rights which are exercisable only in certain circumstances shall be taken
into account only -
(a) when the circumstances have arisen, and for so long as they continue to
exist; or
(b) when the circumstances are within the control of the person having the
rights.
8. Rights which are normally exercisable but which are temporarily incapable of
exercise shall continue to be taken into account.
Rights held by one person on behalf of another
9. Rights held by a person in a fiduciary capacity shall be treated as not held by
him.
10. Rights held by a person as nominee for another shall be treated as held by
the other.
11. Rights shall be regarded as held by a person as nominee for another if they
are exercisable on that other’s instructions or with his consent or concurrence.
Rights attached to shares held by way of security
12. Rights attached to shares held by way of security shall be treated as held by
the person providing the security -
(a) where, apart from the right to exercise them for the purpose of
preserving the value of the security, or of realising it, the rights are
exercisable only in accordance with the instructions of the person
providing the security; and
(b) where the shares are held in connection with the granting of loans as
part of normal business activities and apart from the right to exercise
them for the purpose of preserving the value of the security, or of
realising it, the rights are exercisable only in the interests of the person
providing the security.
Rights attributed to parent undertaking
13. Rights shall be treated as held by a parent undertaking if they are held by
any of its subsidiary undertakings.
Disregard of certain rights
14. The voting rights in an undertaking shall be reduced by any rights held by
the undertaking itself.
Subject to the provisions of these regulations, a resolution
in writing signed by all the members for the time being entitled to
receive notice of and to attend and vote at the general meetings
shall be as valid and effective as if the same had been passed at a
general meeting of the company duly convened and held.
Amended by
FORM S
L.N. 31 of 2020.
FORM A
Form A
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice that a company has become a Single-Member Company
Pursuant to Regulation 8(2)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) .................................................................... hereby gives notice in accordance
with regulation 8(2) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations that with effect from .................... it has become a single
member company through the acquisition of all its shares by ( b ) ........................ as
a result of transfer inter vivos/transmission causa mortis*, and that the provisions
of regulation 8 have been complied with.
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
(b)
State name, residence and identification document number.
*
Delete as necessary
Form B
No. of Company .............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice that a company has ceased to be a Single-Member Company
Pursuant to Regulation 8(6)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) .................................................................... hereby gives notice that it has
ceased to be a single member company with effect from the ..............................
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary
Form C
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Return of allotments of shares( a )
Pursuant to Regulation 25(7)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
Date/s on which the shares were allotted (complete (a) or (b) as applicable)
a) on ................................................................................................... or
b) from .................................................... to ......................................................
A.
This section must be completed for allotments made for cash
Description of shares (ordinary/preference/others)
Number of shares allotted
Nominal value of each share and
Premium (if any) on each share
Total amount paid on each share on account of
nominal value/premium
Amount due and payable (if any) on account of
nominal value /premium
B.
This section must be completed for allotments made other than for cash
Description of shares (ordinary/preference/others)
Number of shares allotted
Nominal value of each share and
Premium (if any) on each share
Extent to which each share is to be treated as paid
up on account of nominal value/premium
Consideration for which the shares have been
allotted
C.
This section must be completed in all cases
Names and Addresses of the allottees
Number of shares allotted
Ordinary
Preference
Others
TOTAL
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
To be delivered within one month.
*
Delete as necessary
Form D
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of disclosure of financial assistance
Pursuant to Regulation 26(b)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I hereby give notice in accordance with with regulation 26(b) of the Merchant
Shipping (Shipping Organisations - Private Companies) Regulations that with
effect from ...................... the undermentioned financial assistance for the purpose
of an acquisition/subscription* of shares was/will be made* as follows
Signature ...............................................
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
*
Delete as necessary
Form E
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of redemption of preference shares
Pursuant to Regulation 31(5)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ................................................................ hereby gives notice in accordance
with regulation 31(5) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations that ( b ) .................. fully paid preference shares have
been redeemed and the price of redemption has been paid in full.
Names and address of holders of redeeemed preference shares
Name
Address
No. of shares
Class
redeemed
TOTAL
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
(b)
State number of shares.
*
Delete as necessary.
Form F
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of transfer or transmission of shares
Pursuant to Regulation 36(3)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ................................................................ hereby gives notice in accordance
with regulation 36(3) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations that ( b ) .......................... shares having a nominal value
of ................................ per share have been transferred/transmitted causa mortis*
as indicated hereunder.
Name and Address of
Name and Address of of
No. of shares
Type and Class
transferor/deceased*
transferee/person entitled to
transferred/
of shares
shares transmitted*
transmitted*
The above transfer/transmission causa mortis* of shares has been registered with
the company/in the name of the person entitled to be the registered holder * on the
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
(b)
State number of shares.
*
Delete as necessary.
Form G
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of a pledge of securities
Pursuant to Regulation 37(2)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I hereby give notice in accordance with regulation 37(2) of the Merchant Shipping
(Shipping Organisations - Private Companies) Regulations that with effect from
..................................... the undermentioned securities have been pledged as
follows
Pledgor
Pledgee
Securities
(Name and Address)
(Name and Address)
Number
Type
Nominal
Value
Signature ...............................................
Pledgor/Pledgee*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
*
Delete as necessary.
Form H
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of termination of a pledge of securities
Pursuant to Regulation 37(13)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I hereby give notice in accordance with regulation 37(13) of the Merchant
Shipping (Shipping Organisations - Private Companies) Regulations that with
effect from ..................................... the pledge of the undermentioned securities
has been terminated.
Pledgor
Pledgee
Securities
(Name and Address)
(Name and Address)
Number
Type
Nominal
Value
Signature ...............................................
Pledgee
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
Form I
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notification of changes among directors, in the representation or in the secretary of a
company
Pursuant to Regulation 60
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ............................................................. hereby gives notice in accordance with
regulation 60 of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations that
Effective date of change ........................................................................................
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary
Form J
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of accounting periods
Pursuant to Regulation 65(2)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ................................................................ hereby gives notice in accordance
with paragraph (2) of regulation 65 of the Merchant Shipping (Shipping
Organisations - Private Companies) Regulations that the accounting periods of the
company shall be from ..................... to ........................ .
Date of resolution of directors ...........................................
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary.
Form K
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice to the Registrar to exercise his power to appoint an auditor
Pursuant to Regulation 83(5)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ..................................................................................................... hereby gives
notice in accordance with regulation 83(5) of the Merchant Shipping (Shipping
Organisations - Private Companies) Regulations that the power of the Registrar of
Companies to apply to the court for the appointment of an auditor in terms of
regulation 84(5) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations has now become exercisable.
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary
Form L
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of the removal of an auditor
Pursuant to Regulation 89(2)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) .................................................................... hereby gives notice in accordance
with regulation 90(2) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations that .................................. has been removed from
auditor of the company with effect from .....................
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary
Form M
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notification by company of the resignation of an auditor
Pursuant to Regulation 91(3)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) ............................................................... hereby gives notice of the resignation
of ........................................ from the post of auditor of the company and is
hereby submitting a certified true copy of the notice of resignation in accordance
with regulation 91(3) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations.
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary
Form N
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of appointment of liquidator by the court
Pursuant to Regulation 107(4)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I hereby give notice that I have been appointed by the Court as liquidator of ( a )
............................................. with effect from .............................
Signature ...............................................
Liquidator
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
Form O
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notification of bank account by liquidator
Pursuant to Regulation 113(1)
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I ................................................, being the liquidator of
( a ) .................................. hereby give notice in accordance with regulation 113(1)
of the Merchant Shipping (Shipping Organisations - Private Companies)
Regulations that I shall be using Bank
Account Number ( b ) ..................................... held with
( c ) ..................................... for the purposes of receiving and making payments on
behalf of the said company.
Signature ...............................................
Liquidator
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
(b)
State account number.
(c)
State name of bank.
Form P
No. of Company .................................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of appointment of liquidator
Pursuant to Regulation 126
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I/We hereby give notice in accordance with regulation 126 of the Merchant
Shipping (Shipping Organisations - Private Companies) Regulations that I/we
have been appointed liquidator(s) of the above-named company.
Name
Address
Date of appointment .............................................................................................
Signature ...............................................
Liquidator/s( a )
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
To be signed by each liquidator, if more than one.
Form Q
Substituted by
L.N. 31 of 2020.
No. of Company ……………..............………………
M E R C H AN T S HI P P I NG (S h ip p in g O rgan i s a t io n s - P ri v a t e C om p a n i e s )
REGULATIONS
Notice of completion of liquidation and holding of final meeting
Pursuant to Regulation 132(3) and regulation 138(2)
Name of Company …………………….....………......
Delivered by …………………………….....…………
To the Registrar of Companies
I ……………………………being the liquidator of
(a) ………………………………………………….
hereby give notice that
(i)
the liquidation of the said company has been completed on …………… of
……………………. of the year ……………………; and
(ii) *the account of the winding up was laid before a general meeting held on
……………. of ……………. of the year ……………./* the meeting was duly
summoned on ……………… of the year……………… and that no quorum was
present thereat.
Signature ………………………......…… Liquidator
Dated
this
……………......……..
day
of
…………………...............................................…… of the year ………………......
This form must be completed in typed form.
(a)
State company name.
Form R
No. of Company .................................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Declaration of seizure of ship
Pursuant to Regulation 140
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I/We ..................................................................................................... being the
director/s ( b ) of ( c ) .............................................. hereby declare that
(a) the company is the owner of the ship ………………….which is its sole
asset;
(b) the ship has been arrested by the company’s creditors in the port of
.................................;
(c) the value of the ship appears to us to be less than the total value of
claims against the company.
By this notice we therefore notify that no liquidation proceedings will be pursued
in terms of the Regulations and the creditors shall pursue their claims in the court of
……………………………………………………..
Note
The company rights are hereby preserved and further notice will be filed in the
Registry when the ship is sold and proceeds distributed which will result in the
Company being struck off the Register.
Signature ...........................
Director/s
Dated this .................................day of .......................................of the year
This form must be completed in typed form.
(a)
This declaration is to be delivered together with the notice of dissolution.
(b)
In the case of a company having more than two directors, this declaration is to be
submitted and signed by the majority of the directors.
(c)
State company name.
Form S
No. of Company .............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of dissolution and consequential winding up
Pursuant to Regulation 152
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
( a ) .........................................................................................................................
hereby gives notice in accordance with regulation 152 of the Merchant Shipping
(Shipping Organisations - Private Companies) Regulations of dissolution on the
.......................... and consequential winding up.
Signature ...............................................
Director/Secretary/Representative*
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary.
Form T
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notification of resignation of liquidator
Pursuant to Regulation 158
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
I ................................................, being the liquidator of
( a ) .................................. hereby give notice that I have resigned from the post of
liquidator of the said company with effect
from the ............................ of ...................... of the year ....................
Signature ...............................................
Liquidator
Dated this .......................... day of ...................... of the year ...............
This form must be completed in typed form.
(a)
State company name.
Form U
No. of Company ...............................
MERCHANT SHIPPING (Shipping Organisations - Private Companies) Regulations
Notice of winding up without procedures
Pursuant to Regulation 161
Name of Company ................................................................................................
Delivered by .........................................................................................................
To the Registrar of Companies
Notice is hereby given in terms of regulation 161 of the Merchant Shipping
(Shipping Organisations – Private Companies) Regulations that the Company’s ship
……………………… has been sold by judicial auction and all proceeds therefrom
deposited in the court of …………..…………………………
The procedure for ranking of creditors has been concluded and therefore the
company is hereby dissolved and wound up without the need for further procedures
in terms of the said regulation 161 of the Merchant Shipping (Shipping
Organisations - Private Companies) Regulations.
Signed…………………………….
Directors
Dated this …………………..day of…………………of the year ………………….
This form must be completed in typed form.
(a)
State company name.
F ORM V
Added by
L.N. 31 of 2020.
No. of Company ........................
MER CH A NT SH IPPING ( Shi p pi n g O rga ni sa ti o ns - P ri va te C o m pa ni es )
REGULATIONS
Notification of change in registered office of a company
Pursuant to Regulation 20(2)
Name of Company: ....................................................
Delivered by:...............................................................
To the Registrar of Companies
(a) ……………………………………hereby gives notice in accordance with
Regulation 20(2) of the Merchant Shipping (Shipping Organisations - Private
Companies) Regulations, 2004 that the company has changed its registered office to
………………………………...........
Effective Date of Change …………………………
Name and signature………………...............
Director/Secretary/Representative*
Dated this ……………………….. day of ……………….. of the year …..............
This form must be completed in typed form.
(a)
State company name.
*Delete as necessary.
(1) Companies regulated by these regulations may be
constituted by and have a single member notwithstanding any other
provision of these regulations.
(2) A company may have a single member upon registration or
it may become a single member company through the acquisition of
all its shares by one person inter vivos or causa mortis, in which
case it shall file a notice to that effect within fourteen days in terms
of the Seventh Schedule.
(3) The single member shall exercise the powers of the general
meeting of the company and the decisions taken by him in this
capacity shall be recorded as minutes of the general meeting and
the provisions of these regulations regulating general meetings
shall be construed accordingly. The decisions referred to in this
paragraph shall be deemed to be resolutions of the company for the
purposes of the application of the provisions of these regulations
Provided that the provisions of this paragraph shall not
prejudice the rights of the auditors of the company under the
provisions of regulation 87 of these regulations and the directors of
the company under the provisions of regulation 52, and the rights
granted to persons as are, by the articles of the company, entitled to
receive notices of, attend and be heard at general meetings of the
company.
(4) When a single member of a company is also the sole
director of the company all provisions of these regulations and any
memorandum and articles of association relating to general
meetings shall be deemed to refer to the board of directors, and
resolutions of the board of directors shall qualify as general
meeting resolutions when the latter are required by law or the
articles of the company.
(5) The single member shall record in writing all the
agreements between him and the company as represented by him in
a minute book kept by the company specifically for the purpose
Provided that current operations concluded under normal
conditions need not be recorded in such minute book.
(6) When a company ceases to be a single member company, it
shall within fourteen days, deliver to the Registrar for registration a
notice specifying the fact that it is no longer a single member
company and the provisions of this regulation shall not apply to
such company from the date it has ceased to be a single member
company.
(7) All decisions taken by the single member as aforesaid shall
be considered as extraordinary resolutions for the purposes of these
regulations.
(8) If default is made in complying with the provisions of
subregulations (2) and (6) every officer of the company who is in
default shall be liable to a penalty and, for every day during which
the default continues, to a further penalty.
(Regulation 12(2)(b))
CONVERSION RULES APPLICABLE ON A CHANGE IN THE CURRENCY
IN WHICH THE SHARE CAPITAL OF A COMPANY IS EXPRESSED AND
THE CORRESPONDING REPORTING CURRENCY
Interpretation
1. In this Schedule, unless the context otherwise requires -
"Reporting Currency" shall mean the currency used in presenting the annual
accounts in accordance with the provisions of regulation 82 of these Regulations.
On a change in the reporting currency consequent to a change in the currency in
which the share capital of a company is expressed which is effected in
accordance with the provisions of regulation 12 of these Regulations, the term
"original reporting currency" shall refer to the reporting currency in operation
before the change; and the term "new reporting currency" shall refer to the
reporting currency applicable following the change, and in the case of the change
taking place in the first accounting period, to the reporting currency which would
have been used had such change not taken place.
"Foreign currency" means a currency other than the reporting currency.
"Exchange rate" means the ratio at which the currencies of two countries are
exchanged at a particular point in time.
"Spot rate" means the middle exchange rate on a particular day for the
exchange of currencies on that day.
"Closing rate" means the spot rate that exists at the balance sheet date which
immediately precedes the accounting period to which the change in reporting
currency applies.
"Monetary items" are money held and items to be received or paid in money.
All other assets and liabilities are "non-monetary items".
"Average annual exchange rate" means an average of the exchange rates that
existed during an accounting period. For the purpose of calculating this average
it shall be sufficient to take an average of the spot rates applicable on the last
working day of each week comprised within the said accounting period.
General rules
2. On a change in the reporting currency, the new reporting currency shall
become applicable from the first day of the accounting period to which the change in
reporting currency applies, which day is referred to as the "applicable date" in the
rest of this Schedule.
3. (1) The balance sheet items existing at the applicable date shall be
converted from the original reporting currency to the new reporting currency in
accordance with the rules set out in the remaining paragraphs of this Schedule.
(2) Such conversion shall be deemed to take place before any transactions stand
to be accounted for within the accounting period to which the change in reporting
currency applies.
Conversion rules
4. (1) The paid-up share capital and the balance on the share premium account
shall be converted at the exchange rate or rates applicable on the respective date or
dates when the shares in question were issued by the company.
(2) The amount which is still uncalled on any shares issued by the company
shall be converted at the exchange rate or rates applicable on the respective date or
dates when the shares in question were issued.
(3) The nominal value per share in the new reporting currency shall be
calculated by taking the aggregate of the paid-up share capital converted as set out in
sub-paragraph (1) of this paragraph and the uncalled amount, if any, on any shares
issued by the company converted in accordance with sub-paragraph (2) of this
paragraph, and dividing this aggregate amount (the issued share capital) by the
number of shares in issue
Provided that where there exists -
(a) preference shares or different classes of preference shares; or
(b) different classes of ordinary shares and where the nominal value per
share varies between one class and the other,
the conversion of the nominal value per share to the new reporting currency shall be
carried out separately for the ordinary shares and the preference shares, or for each
class of ordinary shares in so far as the nominal value per share varies between one
class and the other, as the case may be.
(4) The authorised share capital of the company shall be converted by taking the
aggregate of -
(a) the aggregate amount referred to in sub-paragraph (3) of this paragraph
(the converted issued share capital); and
(b) the amount of the authorised share capital, which has not yet been
issued, converted from the original share capital at the closing date.
5. (1) For the purposes of this paragraph, the terms "reserves created out of
profits" and "accumulated losses" shall be calculated for each accounting period by
taking the profits or losses for such period to the exclusion of any provisions for
exchange variations.
(2) Reserves created out of profits, including retained profits, shall be converted
at the average annual exchange rate pertaining to the accounting period during which
the profits from which such reserves originated were earned.
(3) For the purposes of determining the amount of profits pertaining to an
accounting period from which reserves were created the following rules shall apply -
(a) when dividends are paid out of profits and the accounting period to
which such profits relate has not been nominated, such dividends shall
be deemed to have been paid on a first in first out basis;
(b) losses resulting during an accounting period shall not be netted off
against profits earned in other accounting periods, but shall be
converted at the average annual exchange rate for the accounting period
during which such losses were incurred.
(4) Where at the date of conversion there is an amount representing
accumulated losses such amount shall be converted at the average annual exchange
rate for the accounting period or periods during which such losses were incurred.
(5) For the purposes of sub-paragraph (4) above, any profits earned during any
accounting period shall not be netted off against losses incurred in other accounting
periods, but shall be converted at the average annual exchange rate for the
accounting period or periods during which such profits were earned.
(6) Reserves which were not created out of profits shall be converted at the
exchange rate or rates applicable on the date or dates when such reserves were
created.
6. (1)
All monetary items shall be converted at the closing rate.
(2) Non-monetary items that are recorded in terms of past events (for example
historical cost), shall be converted at the average annual exchange rates for the
relevant accounting period.
(3) Non-monetary items that are revalued shall be converted at the exchange
rates that existed on the dates of their revaluations.
(4) Provisions for depreciation or for diminution in the value of non-monetary
assets shall be converted at the average annual exchange rate applied to convert the
cost or revalued amount of the relative assets in accordance with the provisions of
sub-paragraph (2) or (3) of this paragraph.
7. (1) Where following conversion to the new reporting currency the total
assets exceed the aggregate of total liabilities and the funds attributable to
shareholders, such excess shall be shown as a separate item within reserves under the
heading "Reporting currency conversion difference".
(2) The reporting currency conversion difference shall not be distributed by way
of dividend.
(3) Where following conversion to the new reporting currency the aggregate of
total liabilities and the funds attributable to shareholders exceeds total assets, such
excess shall be netted off against distributable reserves or added to accumulated
losses, as the case may be.
8. (1) In the annual accounts of the accounting period to which the change in
reporting currency applies, the amounts of the previous accounting period
corresponding to the items included in the balance sheet and, where applicable, in
the notes to the accounts, whether individual or consolidated, shall be stated at the
new reporting currency after applying the conversion rules set out in the previous
provisions of this Schedule.
(2) In the annual accounts of the accounting period to which the change in
reporting currency applies, the amounts of the previous accounting period
corresponding to the items included in the profit and loss account and, where
applicable, in the notes to the accounts, whether individual or consolidated, shall be
converted to the new reporting currency at the average annual exchange rate
pertaining to the previous accounting period.
Disclosure
9. In the first annual accounts following the conversion, the notes to the
accounts, whether individual or consolidated, shall include full details of the method
of conversion and the exchange rates used for each category of assets and liabilities
as categorised in this Schedule.
(1) A private company may change its status to a public
company in terms of the Companies Act whereupon the company
shall no longer be regulated by these regulations but shall be
subject to the provisions of the Companies Act.
(2) A public company may change its status to a private
company in terms of these regulations whereupon it shall no longer
be regulated by the Companies Act but shall be subject to the
provisions of these regulations.
Chapter II - Formation of a Company
(Regulation 1(4)(a))
Form relating to Notice by Shipping Company electing to be governed
by the Companies Act
No. of Company ……………….
Name of Company …………………………………............………………………
Delivered by ……………………………………….....……………………………..
To the Registrar of Companies
( a ) ……………………………………………………………………………………
hereby gives notice that it elects to be regulated by the Companies Act and that the
requirements of the Companies Act will be complied with within ninety days from
the filing of this notice.
Signature ……………………………………
Director/Secretary/Representative*
Dated this ....................... day of ........................... of the year ............. .
This form must be completed in typed form.
(a)
State company name.
*
Delete as necessary.
A company is formed by means of a capital divided into
shares held by two or more members unless it is a single member
company. The liability of each member is limited to the amount, if
any, unpaid on the shares respectively held by each of them.
Added by
(Regulation 166)
L.N. 31 of 2020.
PENALTIES
Daily
Regulation
Default
Penalty
Penalty
5(3)
Failure to indicate particulars
500 euro
None
concerning
company
on
business letters, etc.; liquidator
failing to include statement on
business letters, etc., that
company is being wound up or
failing to include names of
liquidators of company being
wound up
6(3)
Officers of private company
2500 euro
None
offering shares or debentures
for sale to the public
8(8)
Officers of company failing to
500 euro
25 euro
deliver notice to Registrar of
becoming or ceasing to be a
single member company
20(4)
Failure of officer to deliver a
500 euro
25 euro
copy of any resolution altering
or adding to a company’s
memorandum or articles to the
Registrar or failure to deliver
amended memorandum and
articles
25(4)
Failure of officer to file copy of
500 euro
25 euro
resolution increasing share
capital
31(6)
Failure of officers to provide
500 euro
25 euro
Registrar with notice of
redemption of preference shares
35(6)
Failure of company to send
500 euro
25 euro
notice to transferee of refusal to
register transfer of shares and
debentures
36(4)
Failure of officers to comply
500 euro
25 euro
with provisions as to issue of
share certificates
Daily
Regulation
Default
Penalty
Penalty
38(4)
Failure of officers of company
500 euro
25 euro
to comply with provisions as to
register of members
39(4)
Failure of officers of company
500 euro
25 euro
to keep proper register of
debentures
43(3)
Failure of officers of company
2500 euro
50 euro
to hold annual general meeting
48(3)
Failure of officers of company
500 euro
None
to give notice to members of
right to vote by proxy at a
meeting of the company
48(5)
Officer
of
company
500 euro
None
contravening further provisions
as to votes by proxy at meetings
of the company
59(2)
Director failing to disclose
2,500 euro
None
interest in contract
60(2)
Officers of company failing to
500 euro
25 euro
make return as to change in
directors
63(4)
Officers of company failing to
1,200 euro
None
make minutes of general
meetings and to keep minute
book at registered office
80(3)
Officers of company failing to
2,500 euro
50 euro
file annual return
83(6)
Officers of company failing to
500 euro
25 euro
give notice to Registrar of
default in appointment of
auditors
86(3)
Officer and auditors of
500 euro
None
subsidiary undertaking failing
to give information to auditors
of parent company
86(4)
Officers of parent company
500 euro
None
failing to provide auditors with
information concerning oversea
subsidiary
89(2)
Officers of company failing to
500 euro
25 euro
give notice to Registrar of
resolution removing an auditor
91(3)
Officer of company failing to
2,500 euro
50 euro
give notice to Registrar of
resignation of auditor
Daily
Regulation
Default
Penalty
Penalty
92(5)
Directors failing to take
2,500 euro
None
reasonable steps to convene a
meeting requisitioned by a
resigning auditor
94(1)
Auditor failing to comply with
1,200 euro
35 euro
requirement of regulation 93
upon ceasing to hold office
94(3)
Officers of company failing to
1,200 euro
35 euro
comply with regulation 93 upon
an auditor’s ceasing to hold
office
128. Officers of company failing to
500 euro
25 euro
give to Registrar notice of
resolution for dissolution and
voluntary winding up
128. Directors failing to summon
2,500 euro
50 euro
general meeting or failing to
apply to the court for
appointment of liquidator
128. Liquidator failing to notify
500 euro
25 euro
Registrar of appointment
131(2)
Liquidator failing to comply
1,200 euro
35 euro
with
periodic
reporting
requirements
132(4)
Liquidator failing to provide
500 euro
25 euro
Registrar with notice of
completion of liquidation
138(2)
Liquidator failing to provide
500 euro
25 euro
Registrar with copy of the
winding up account or a return
of the general meeting on
members’ voluntary winding up
138(4)
Liquidator failing to call final
500 euro
None
meeting in members’ voluntary
winding up
141(5)
Directors failing to comply with
2,500 euro
None
requirements as to creditors’
meeting following resolution
for dissolution and voluntary
winding up
142(4)
Failure of directors to apply to
2,500 euro
50 euro
the court to appoint liquidator
Daily
Regulation
Default
Penalty
Penalty
146(3)
Liquidator failing to convene
500 euro
None
meetings of company and of
creditors where winding up
continues for more than twelve
months
147(2)
Liquidator failing to provide
500 euro
25 euro
Registrar with copy of winding
up account or a return of the
company
and
creditors’
meetings on a creditors’
voluntary winding up
147(3)
Liquidator failing to call
1,200 euro
None".
general meeting or creditors’
meeting on creditors’ voluntary
winding up
A company shall not be validly constituted under these
regulations unless a memorandum of association is entered into and
a certificate of registration is issued in respect thereof.
(1) The memorandum of every company shall state
(a) that it is a shipping organisation for the purposes of the
Act;
(b) that the company is a private company;
(c) the name and residence of each of the subscribers
thereto;
(d) the name of the company;
(e) the registered office in Malta of the company;
(f)
the objects of the company which shall be limited to one
or more of the activities referred to in sub-article (1) of
article 84Z of the Act;
(g) the amount of share capital with which the company
proposes to be registered (hereinafter referred to as
"the authorised capital"), the division thereof into
shares of a fixed amount, the number of shares taken
up by each of the subscribers and the amount paid up
in respect of each share and, where the share capital is
divided into different classes of shares, the rights
attaching to the shares of each class;
(h) the number of the directors, the name and residence of
the first directors and, where any of the directors is a
body corporate, the name and registered or principal
office of the body corporate;
(i)
the manner in which the representation of the company
is to be exercised, and the name of the first person or
persons vested with such representation
Provided that the company may appoint other
persons in addition to the said named representatives
to represent the company in a class or classes of cases
by means of a clause in the memorandum or articles of
association, by a resolution of the board of directors or
by means of a power of attorney issued by such named
representatives;
(j)
the period, if any, fixed for the duration of the
company.
(2)
(a) The share capital of a company may be denominated in
any currency which is a convertible currency within
the meaning assigned to it by the Central Bank of
Malta Act, and, for the purposes of these regulations,
the euro, shall be a convertible currency.
(b) A company may by extraordinary resolution change
the currency in which its share capital is expressed,
and for this purpose the conversion rules set out in the
provisions of the Eighth Schedule shall apply in
respect of any company regulated by these regulations.
(c) For the purposes of applying the provisions of these
regulations relating to minimum share capital, share
capital expressed in a currency other than euros shall
be calculated on the basis of the euro equivalent at the
date of -
(i)
the registration of the memorandum, in the case
of formation of a company; or
(ii) the registration of the extraordinary resolution,
in the case referred to in subregulation (2)(b); or
(iii) the registration of the extraordinary resolution
effecting a reduction of the issued share capital,
in the case where a company reduces its issued
share capital.
(3) Without prejudice to the provisions of regulation 24, a copy
of the extraordinary resolution referred to in subregulation (2)(b)
shall be delivered to the Registrar for registration and shall not be
effective until it is so registered.
(4) The exchange rate to be used shall be the average of the
buying and selling rates prevailing at the date of registration
referred to in subregulation (2), as the case may be.
(1) A company may be designated by any name, but such
name shall end with the words "private limited company" or the
word "limited" or its abbreviation "ltd.".
(2)
A company shall not be registered by a name which -
(a) is the same as a name of another commercial
partnership or so nearly similar as in the opinion of the
Registrar it could create confusion; or
(b) is in the opinion of the Registrar offensive or
otherwise undesirable; or
(c) has been reserved for registration for another
commercial partnership by a notice in writing to the
Registrar given not more than three months before the
date of the second request
Provided that the Registrar shall notify any refusal
under this paragraph without delay to the person
requesting the registration
Provided further that in applying paragraph (b), the
Registrar shall have regard to the business or proposed
business of the company, to the protection of the
names of individuals who are not connected in any
way with the company, and to the names of the
members.
The objects of a company registered shall be limited to one or
more of the activities referred to in sub-article (1) of article 84Z of the
Act and to transactions ancillary thereto.
(1) The authorised share capital of a company shall be not
less than one thousand and one hundred and sixty-four euros and
sixty-nine cents (1,164.69).
(2) Where the authorised share capital is equal to the minimum
aforesaid, it shall be fully subscribed in the memorandum, and
where it exceeds such minimum, at least that minimum shall be
subscribed in the memorandum.
(3) At least twenty per cent of the nominal value of each share
taken up shall be paid up on the formation of the company.
(4) The ordinary shares of a company shall not be redeemable,
and every company shall at all times have ordinary shares.
(1) There may be registered with the memorandum,
articles of association (hereinafter referred to as "articles"), which
shall b e sign ed by the subscribers t o the m em orandu m and
prescribing regulations for the company.
(2) If articles are not registered, or, if articles are registered, in
so far as the articles do not exclude or modify the model
regulations contained in the First Schedule, such model regulations
shall be the regulations of the company in the same manner and to
the same extent as if they were contained in duly registered articles
Provided that this provision shall not apply in relation to
model regulation 22 of the First Schedule, unless that provision is
expressly reproduced in the memorandum or articles of the company.
Chapter III - Registration
The memorandum and articles, if any, shall be delivered
for registration to the Registrar who, being satisfied that all the
requirements of regulations 11 to 16 and of regulation 53 have been
complied with, shall register them.
(1) On the registration of the memorandum and articles, if
any, of a company, the Registrar shall certify under his hand that
the company is registered as stated under these regulations, and the
company shall come into existence and shall be authorised to
commence business as from the date of registration which date
shall be indicated in the certificate.
(2) A certificate of registration given in respect of a company
is conclusive evidence that the requirements of these regulations in
respect of registration and of matters precedent and incidental to it
have been complied with and that the company is duly registered as
a private company under these regulations.
(1) All persons carrying on business or entering into
agreements in the name of or on behalf of a company in respect of
which a certificate of registration has not been issued under these
regulations and the Companies Act, in terms of these regulations
shall, unless otherwise agreed, be personally and jointly and
severally liable for their dealings with third parties entered into by
them in the aforementioned capacity.
(2) Failing agreement to the contrary, the persons referred to in
subregulation (1) shall have, as against one another and in respect
of the assets and liabilities arising out of the business carried on in
the company’s name or on its behalf, the rights and obligations of
joint owners.
(3) Notwithstanding the provisions of subregulation (1), the
dealings referred to in that subregulation shall, with respect to a
third party who has dealt in good faith with persons purporting to
act in the name of or on behalf of a company in respect of which a
certificate of registration has not been issued with effect from the
date on which the company shall come into existence, be treated as
having been undertaken by the company: provided that in such an
event the provisions of subregulation (1) shall not apply. The
company shall be entitled to be indemnified by the persons who had
acted in its name or on its behalf in respect of its liability under this
subregulation towards the said third party.
(4) When an agreement is entered into in the name of a
company and it is expressly stated that the company is in
formation, any such agreement shall be valid and binding on the
parties thereto upon registration of the company and the preceding
paragraphs of this regulation shall not apply.
(1) A company may by extraordinary resolution alter or
add to its memorandum or articles
Provided that it shall be permissible for the members
without prejudice to the company remaining a shipping
organization to authorise, and subject such authorisation to
restrictions as they deem fit, the board of directors to alter or add to
the memorandum and articles clauses which -
(a) amend the name of the company;
(b) amend the registered address;
(c) amend the articles of the company relating to internal
administration provided the rights of the members are
not affected; and
(d) amend the objects and powers of the company so as to
facilitate the carrying on of the business of the
company as a shipping organisation.
(2) It shall be the duty of the directors to deliver to the
Registrar for registration a printed copy of any resolution as
aforesaid within fourteen days after the date of the resolution,
together with a revised and updated copy of the memorandum, and
of the articles, if any, as amended by the said resolution and
incorporating all the changes effected to date relating to the
directors, the representation of the company or any transfer or
transmission of shares or any allotment of shares. Any previous
amended text of the memorandum and articles, if any, may be
discarded by the Registrar when a subsequent amended text is
delivered to him for registration
Provided that in the event of a discrepancy between the text
of any amended memorandum and articles, if any, and the text of
the original memorandum and articles, if any, registered in
accordance with the provisions of regulation 17, the latter text
together with resolutions registered in accordance with the
provisions of subregulation (2) shall prevail.
Notwithstanding the provisions of subregulation (2), where
the alteration consists in a change in the registered office in Malta
of the company, the directors shall send to the Registrar for
registration a return of any change in the registered office,
specifying the date of the change, together with the new registered
office, within fourteen days from the happening thereof.
(3) Any alteration or addition to the memorandum or articles of
a company shall not take effect vis-à-vis third parties, unless and
until it is registered.
(4) If default is made in complying with the provisions of
subregulation (2), every officer of the company who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(5) The responsibility for ensuring that any proposed
amendments to the articles of association, if any, of a company, are
correct, complete and in full compliance with these regulations and
any other applicable law shall lie with the directors of the company.
Where a company changes its name under the provisions of
regulation 20, the Registrar shall enter the new name on the register
in place of the former name and shall issue a certificate of
registration altered to meet the circumstances of the case.
Notwithstanding anything in the memorandum or articles
of a company no member shall be bound by any alteration made in
the memorandum or articles after the date on which he became a
member if and so far as the alteration requires him to subscribe for
more shares than the number held by him at the date on which the
alteration is made, or in any way increases his liability as at that
date to contribute to the share capital of, or otherwise pay money
to, the company
Provided that this regulation shall not apply in any case
where the member agrees in writing, either before or after the
alteration is made, to be bound thereby.
(1) A document or proceeding requiring authentication by
a company may be signed by a director, or other authorised officer
of the company or other person authorised in writing.
(2) All documents supplied to the Registrar
shall
be
authenticated in accordance with this regulation.
Chapter IV - Changes to a company’s share capital
(1) Notwithstanding the provisions of regulation 20(3),
where the alteration consists in the reduction of the issued share
capital, any such reduction shall not take effect until three months
from the date of the publication of the statement to this effect in the
Gazette or on a website maintained by the Registrar and in a daily
newspaper showing the date at which the reduction was made and
giving such details as are necessary to distinguish the company to
which the statement relates
Provided that if a creditor of the company whose debt
existed prior to the publication of the statement mentioned in this
paragraph objects thereto by sworn application filed within the
period of three months reckoned as aforesaid and shows good cause
why it should not take effect, the court shall either uphold the
objection or allow the reduction on sufficient security being given
Provided further that a reduction in share capital shall be
void to the extent that it reduces the capital to less than the
minimum prescribed by regulation 15 of these regulations.
(2) The Registrar of Courts shall without delay cause a copy of
any sworn application filed under subregulation (1) and of any
judgment given thereon to be served on the Registrar for
registration.
(3) The total or partial waiving of the unpaid part of the issued
shares and the release of the holders of those shares from their
obligation to pay up that unpaid part shall, notwithstanding
anything contained in the memorandum or articles of a company, in
all cases be considered as a reduction in share capital.
(4) Where there are different classes of shares the decision by
the general meeting concerning a reduction in the issued share
capital shall be subject to a separate vote for each class of
shareholders whose rights are affected by the reduction, and for
every separate vote taken the same majority shall be required as
where the shares are not divided into different classes.
(5) An alteration consisting in the reduction of the issued share
capital whose purpose is to offset losses incurred or to include
sums of money in a reserve shall take effect immediately on the
registration of the resolution concerning such a reduction and the
provisions of subregulation (1) relating to the rights granted to
creditors of the company shall not apply
Provided that, following this operation, the amount of such
reserve is not more than ten per cent of the reduced issued share
capital
Provided further that any such reserve shall be used only
for offsetting losses incurred or for increasing the issued share
capital by the capitalisation of such reserve.
(6) In the cases referred to in subregulation (5) the amounts
deriving from the reduction of the issued share capital may not be
used for making payments or distributions to shareholders or to
discharge shareholders from the obligation to pay calls on their
shares
Provided that if the provisions of subregulations (1) and (2)
relating to the rights granted to the creditors of the company are
followed for the purpose of reducing any sum of money contained
in any such reserve, as is referred to in subregulation (5), the
amounts deriving therefrom may be used for making payments or
distributions to shareholders.
(7) The notice convening the general meeting at which the
extraordinary resolution for the reduction of issued share capital is
to be taken, shall, specify the purpose expressly and the way in
which it is to be carried out.
(1) Any increase in the issued share capital of a company
shall be decided upon by an ordinary resolution of the company,
unless the memorandum or articles require a higher percentage than
that required for an ordinary resolution.
(2) The memorandum or articles of a company may permit the
board of directors to issue shares up to the authorised share capital
as may be specified in the same memorandum and articles.
(3) Where there are several classes of shares, if resolution of
the general meeting is required, in terms of subregulation (1), it
shall be subject to a separate vote for each class of shareholders
whose rights are affected by that resolution and the provisions
relating to the majority required for the resolution by virtue of
subregulation (1) shall apply for each class.
(4) A copy of any such ordinary or extraordinary resolution
referred to in subregulations (1) and (3) shall be delivered to the
Registrar for registration, within fourteen days after the date of the
relative resolution, failing which every officer of the company who
is in default shall be liable to a penalty, and for every day during
which the default continues, to a further penalty.
(5) The provisions of subregulations (1) to (4) shall apply to
the issue of all securities which are convertible into shares or which
carry the right to subscribe for shares, but not to the conversion of
such securities, nor to the exercise of the right to subscribe.
(6) Where an increase in the issued share capital is not fully
taken up, the issued share capital shall be increased by the amount
of subscriptions received only if the conditions of the issue so
provide.
(7) Whenever a company makes any allotment of its shares, the
company shall, within one month thereafter, deliver to the Registrar
in accordance with the provisions of the Seventh Schedule for
registration -
(a) a return of the allotments stating the number and the
nominal amount of the share comprised in the
allotment, the names and addresses of the allottees and
the amount paid and that due, and payable, on each
share, whether on account of the nominal value of the
share or by way of premiums; and
(b) in the case of shares allotted as fully or partly paid up
otherwise than in cash, a contract in writing or, where
the contract is not reduced to writing, a document
containing the particulars of the contract, constituting
the title of the allottee to the allotment, together with
any contract of sale, or for services rendered to other
consideration in respect of which the allotment was
made, and a return stating the number and nominal
value of shares so allotted, the extent to which they are
to be treated as paid up, and the consideration for
which they have been allotted.
Chapter V - Maintenance of share capital and protection
of class rights
It shall not be lawful for an undertaking -
(a) to subscribe for, hold, acquire or otherwise deal in
shares in a company which is its parent company; or
(b) except after notice has been given in the prescribed
form in accordance with the Seventh Schedule,
whether directly or indirectly, and whether by means
of a loan, guarantee, the provision of security or
otherwise, to give any financial assistance for the
purpose of an acquisition or subscription made or to be
made by any person of or for any shares in the
company or its parent company.
The acceptance of a company’s own shares by way of
pledge or other form of security shall be treated as an acquisition
by the company of such shares.
Any share in a company may be forfeited from any
shareholder in favour of the company and any shareholder may
surrender any or all of his shares in a company in favour of that
company if the shareholder fails to pay any call or instalment of a
call on the day appointed for payment thereof and as long as
provision to that effect is contained in the memorandum or articles
of the company.
(1) It shall be lawful for a company to pay a commission
or make a discount or allowance to any person in consideration for
his subscribing or agreeing to subscribe, whether absolutely or
conditionally for any shares in the company, or procuring or
agreeing to procure subscriptions, whether absolute or conditional,
for any shares in the company
Provided that -
(a) authority therefor is given by the memorandum or
articles; and
(b) the commission, discount or allowance does not
exceed ten per cent of the price at which the shares are
issued or the amount authorised by the memorandum
or articles, whichever is the less; and
(c) the amount or rate per cent of the commission,
discount or allowance and the number of shares which
persons have agreed in consideration thereof to
subscribe absolutely shall be disclosed in any circular
or notice whereby the shares are privately offered; and
(d) in no event may the value of such shares be reduced to
below their nominal value as a result of the payment of
such commission, discount or allowance.
(2) If shares are issued in contravention of the provisions of
this regulation the holder thereof shall be bound to pay the
company an amount equal to the amount of the commission,
discount or allowance given in excess of that permitted by this
regulation, with annual interest at the rate of two percentage points
over the Central Bank of Malta minimum discount rate.
(1) Where a company issues shares at a premium whether
for cash or otherwise, a sum equal to the aggregate amount or value
of the premiums on those shares shall be immediately paid in full
and transferred to an account, to be called "the share premium
account", and the provisions of these regulations relating to the
reduction of the issued share capital of a company shall, except as
provided in this regulation, apply as if the share premium account
were paid up share capital of the company.
(2) The share premium account may, notwithstanding anything
contained in the foregoing subregulation, be applied by the
company -
(a) in paying up unissued shares of the company to be
issued to members of the company as fully paid bonus
shares; or
(b) in writing off the preliminary expenses of the company
or the expenses of or the commission paid or discount
allowed on, any issue of shares or debentures of the
company; or
(c) in providing for the premium payable on redemption
of any redeemable preference shares or of any
debentures of the company.
(1) Where a company, duly authorised by its memorandum
or articles, issues preference shares which are to be redeemed or are
liable to be redeemed at the option of the company or the
shareholder -
(a) no such shares shall be redeemed except out of the
profits of the company which would otherwise be
available for dividend or, in accordance with
subregulation (4), out of the proceeds of a fresh issue
of shares made for the purpose of the redemption;
(b) no such shares shall be issued unless the following
conditions are satisfied as regards the terms and
manner of redemption -
(i)
the date on or by which, or dates between which,
the shares are to be or may be redeemed must be
specified in the company’s memorandum or
articles or, if the memorandum or articles so
provide, fixed by the directors, and in the latter
case the date or dates must be fixed before the
shares are issued;
(ii) any other circumstances in which the shares are
to be or may be redeemed must be specified in
the company’s memorandum or articles;
(iii) the amount payable on redemption must be
specified in, or determined in accordance with,
the company’s memorandum or articles, and in
the latter case the memorandum or articles must
not provide for the amount to be determined by
reference to any person’s discretion or opinion;
and
(iv) any other terms and conditions of redemption
shall be specified in the company’s
memorandum or articles;
(c) no such shares shall be redeemed unless they are fully
paid up and the terms of redemption shall require full
payment on redemption;
(d) the premium, if any, payable on redemption shall have
been provided for out of the profits of the company or
out of the company’s share premium account before
the shares are redeemed;
(e) where any such shares are redeemed otherwise than
out of the proceeds of a fresh issue, there shall, out of
profits, which would otherwise have been available for
distribution as dividend, be transferred to a reserve to
be called "the capital redemption reserve", a sum equal
to the nominal amount of the shares redeemed, and the
provisions of these regulations relating to the
reduction of the issued share capital of a company
shall, except as provided in this regulation, apply as if
the capital redemption reserve were paid up share
capital of the company.
(2) The capital redemption reserve may, notwithstanding
anything contained in this regulation, be applied by the company in
paying up unissued shares of the company to be issued to members
of the company as fully paid bonus shares.
(3) Preference shares redeemed under this regulation shall be
tr e a t e d a s c a n c e l l e d on r e d e m p ti o n , an d t h e a m ou n t of t h e
company’s issued share capital shall be diminished by the nominal
value of those shares accordingly
Provided that a redemption of preference shares by a
c o m p a n y s h a l l n o t b e t ak en a s r e d u c i n g t h e a m o u n t o f t h e
company’s authorised share capital.
(4) Without prejudice to the provisions of subregulation (3),
where a company is about to redeem preference shares, it shall have
the power to issue shares up to the nominal value of the preference
shares to be redeemed as if those preference shares had never been
issued.
(5) A notice of the redemption of preference shares referred to
in the preceding paragraphs of this regulation shall be delivered by
the company to the Registrar for registration, within fourteen days
after the date of redemption.
(6) If default is made in complying with the provisions of
subregulation (5) every officer of the company who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(1) If, in the case of a company the share capital of which
is divided into different classes of shares, provision is made by the
memorandum or articles for authorising the change of any shares in
the company from one class into another or for the variation of the
rights attached to any class of shares in the company, subject to the
consent of any specified proportion of the holders of the issued
shares of that class and of any other class affected thereby or the
sanction of a resolution passed at a separate meeting of the holders
of those shares and of the holders of any other shares affected
thereby, and in pursuance of the said provision the shares are
changed from one class into another or the rights attached to any
such class of shares are at any time varied, the holders of not less in
the aggregate than fifteen per cent either of the issued shares of that
class or of any other class affected thereby, being persons who did
not consent to or vote in favour of the resolution for the change or
variation, may by sworn application filed within twenty-one days
of the consent or the resolution, demand that the change or
variation shall not have effect.
(2) On any such demand the court, if it is satisfied, having
regard to all circumstances of the case, that the change or variation
would unfairly prejudice the holders of shares, the class of which is
being changed or the rights of which are being varied, or the
holders of any other class of shares affected thereby, shall disallow
the change or variation.
(3) The Registrar of Courts shall without delay cause a copy of
any sworn application filed under subregulation (1) and of any
judgment given thereon to be served on the Registrar for
registration, and the said sworn application shall, on pain of nullity,
include a demand to that effect.
(4) Regulation 20(2) and (4) shall apply in respect of any
consent or resolution given or taken in terms of subregulation (1).
(5) Where no provision is made by the memorandum or
articles for authorising the change or variation referred to in
subregulation (1), no such change or variation may be made.
Chapter VI - Miscellaneous provisions about shares and debentures
Each share in a company shall be distinguished by its
appropriate number
Provided that, if at any time all the issued shares in a
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 they
remain fully paid up and rank pari passu for all purposes with all
shares of the same class for the time being issued and fully paid up.
(1) Notwithstanding any provisions contained in any other
law, a transfer of shares in or debentures of a company may be
made by private writing unless the memorandum and articles, if
any, provide for another form.
(2) It shall not be lawful for a company to register a transfer of
shares in or debentures of the company unless a proper instrument
of transfer or an authentic copy thereof has been delivered to the
company.
(1) On the application of the transferor or of the transferee
of any share in or debenture of a company, the company shall enter
in its register of members or of debentures, as the case may be, the
name and address of the transferee and where the application is
made by the transferor the entry shall be made in the same manner
and subject to the same conditions as if the application for the entry
were made by the transferee.
(2) If a company refuses to register a transfer of shares or
debentures, it shall, within two months after the date on which the
transfer was lodged, send to the transferee notice of the refusal.
(3) The directors of a company shall be obliged to register the
transfer of any shares in the company in favour of any person who
has acquired those shares as a result of any court sanctioned sale
thereof.
(4) On the application of the person to whom the right to any
share in or debentures of a company has been transmitted causa
mortis, the company shall register in its register of members or
debentures, as the case may be, the name and address of such
person.
(5) If a company refuses to register a transmission as is
referred to in subregulation (4), it shall, within two months after the
date on which the transmission is lodged, send to the person to
whom the right to any shares or debentures of a company has been
transmitted causa mortis, notice of the refusal.
(6) If default is made in complying with the provisions of
subregulations (2) or (5), every officer of the company who is in
default, shall be liable to a penalty, and, for every day during which
the default continues, to a further penalty.
(1) Every company shall, within two months after the
allotment of any of its shares or debentures and within two months
after the date on which a transfer of any such shares or debentures
is registered with the company, and within one month from the date
on which any such shares or debentures transmitted causa mortis
have been registered in the name of the person entitled to be
registered as the holder thereof, deliver the certificates of all
shares, debentures or debenture stock allotted, transferred or
transmitted causa mortis to the persons entitled thereto, unless the
conditions of issue of the shares or debentures otherwise provide.
(2) The expression "transfer" for the purposes of this regulation
means a transfer on which the relevant duty, if any, has been paid
and is otherwise valid, and does not include such a transfer as the
company is for any reason entitled to refuse to register and does not
register.
(3) In the case of a transfer or of a transmission causa mortis of
shares the company shall within fourteen days after the date on
which a transfer of any such shares is registered with the company,
and within one month from the date on which any such shares
transmitted causa mortis have been registered in the name of the
person entitled to be registered as the holder thereof, deliver to the
Registrar for registration a notice of the transfer or the transmission
causa mortis stating the names and addresses of the transferees or
the names and addresses of the persons entitled to the shares
transmitted causa mortis, as the case may be.
(4) If default is made in complying with any of the provisions
of this regulation, every officer of the company who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(1) Securities may, provided it is expressly permitted in the
memorandum or articles of the company or under the conditions of
issue of those securities, be pledged by their holder in favour of any
person as security for any obligation. The pledge of securities shall
be constituted by means of an instrument in writing entered into
between the pledgor and the pledgee
Provided that in relation to transfers of shares, any restriction
resulting from the Memorandum or Articles of the company shall,
subject to the provisions of paragraph (10) of this regulation, be
deemed not to apply to transfers by the pledgee in terms of paragraph
(6) of this regulation or resulting from any judicial sale.
(2) Notice of the pledge shall be delivered by the pledgor or the
pledgee to the Registrar for registration within fourteen days of the
granting of the pledge. The company whose securities have been
pledged, shall also be notified of the pledge in writing within the
said period and the company shall record that fact in the register of
holders of the respective securities.
(3) Failure to deliver notice of the pledge to the Registrar or the
company within the time stated in the preceding sub-regulation shall
not render invalid the pledge entered into between the parties; however
the pledge of securities shall be effective in relation to a third party
only after the registration by the Registrar of the notice.
(4) Saving the provisions of subregulation (3), during the
existence of a pledge of securities, any transfer or other
assignment, made by the pledgor, whether by onerous or gratuitous
title, of the pledged securities shall be null and void.
(5) Notwithstanding the provisions of subregulation (4), any
transfer or other assignment of securities made with the consent of
the pledgee shall be valid and the securities to be transferred shall
continue to be subject to the pledge.
(6) Without prejudice to the right of the pledgee to apply for
the judicial sale of the securities and notwithstanding the
provisions of the Civil Code or of the memorandum or articles of
the company, in the event of a default under the agreement of
pledge and upon giving notice by judicial act to the pledgor and the
company, the pledgee shall be entitled to
(a) dispose of the securities which are pledged in his
favour; or
(b) appropriate and acquire the shares himself, in
settlement of the debt due to him or of part thereof.
(7) For the purposes of subregulation (6) the value of the
securities may be established by agreement between the pledgor
and the pledgee after notice of default has been given by the
pledgee to the pledgor in terms of the said subregulation (6), and no
prior agreement thereon shall be valid
Provided that, in case of disagreement, the fair value for the
sale or appropriation of the securities shall be determined by a
certified public accountant or a certified public accountant and
auditor appointed by the court on the application of the pledgee or
in such other manner as the parties may agree in writing.
(8) For the purposes of subregulation (7), the fair value of the
securities shall be that obtaining on the date of the notice referred
to in subregulation (6).
(9) The pledgee shall, in selling the securities in accordance
with the provisions of subregulation (6), be obliged to seek the best
p r i ce b e i n g n o t l e s s t h a n t h e i r f a i r v a l u e a s d e t e r m i n e d i n
accordance with subregulation (7). In the event that a buyer cannot
be found for the securities at their fair value, the pledgee may apply
to the court for the securities to be sold at less than their fair value
as aforesaid subject to such conditions as the court may deem fit.
(10) The pledgee shall be obliged, prior to the exercise of the
right granted by subregulation (6), to offer the shares to other
shareholders of the company in accordance with any pre-emption
rights relating to the transfer of shares as laid down in the
memorandum or articles of that company, and, in the absence of
such preemptive rights, to all the other shareholders of the company
in proportion to their holdings. In either case the shareholders shall
be entitled to purchase the shares at the price determined in
accordance with subregulation (7). Such offer shall be kept open
for at least ten working days.
(11) In the exercise of his rights under this regulation, the
pledgee shall only sell or appropriate such number of securities as
are needed to raise sufficient proceeds to repay the debt due. All
remaining shares shall be released to the pledgor
Provided that it shall be lawful for a pledgee to sell all the
shares pledged in the event that it is not possible to achieve a fair
in the proceeds shall be released to the pledgor.
(12) It shall be lawful for the parties to an agreement of pledge
of securities to agree on the person or persons who shall exercise
all the rights belonging to the holder of securities including voting
rights and the right to receive dividends and interest payments
Provided that, should the agreement between the parties not
make provision for such matters, all rights pertaining to a holder of
securities shall, for the duration of the pledge, be exercised by the
pledgor until such time as he defaults under the agreement of
pledge or until the pledgee enforces his security; and in any such
case, upon giving notice by a judicial act to the pledgor and the
company, all the rights belonging to the pledgor shall immediately
become exercisable by the pledgee
Provided further that, unless the pledgor and the pledgee
have otherwise agreed in the pledge agreement and notice thereof
has been given to the company, dividends or interest payments due
on securities which are pledged shall, during such time as the
pledge is registered in the register of holders of the respective
securities, be paid by the company to the pledgee who shall
appropriate any such amounts received to the interest due on the
debt secured by the pledge, and, if there is an excess, to the capital.
(13) Notice of termination of the pledge shall be delivered by
the pledgor or the pledgee to the Registrar for registration within
fourteen days of the termination of the pledge. The company,
securities in which have been pledged, shall also be notified in
writing of the termination of the pledge within the said period and
the company shall record that fact in the register of holders of the
respective securities.
(14) In the event that the parties to a pledge agreement submit
a ny di sp ut e t he re un d er t o a rb i tr a ti o n al l r ef er e nc es in th i s
regulation to the court shall be deemed to refer to the arbitration
tribunal.
(1) Every company shall keep a register of its members
and shall enter therein the following particulars -
(a) the names and addresses of the members and a
statement of the shares held by each member,
distinguishing each share by its number, so long as the
share has a number, and of the amount paid or agreed
to be considered as paid on the shares of each member;
(b) the date at which each person was entered in the
register as a member; and
(c) the date at which any person ceased to be a member
Provided that where the company has converted any of its
shares into stock and has registered the conversion with the
Registrar, the register shall show the amount of stock held by each
member instead of the amount of shares and the particulars relating
to shares specified in paragraph (a).
(2) Where two or more persons hold one or more shares in a
company jointly, they shall, for the purposes of these regulations,
be treated as a single member; and, unless otherwise provided in
the memorandum or articles, the name of only one of such persons
shall be entered in the register of members. Such person shall be
elected by the joint holders and shall for all intents and purposes be
deemed in relation to the company to be the member of the
company in respect of all the shares so held.
(3) The register of members shall be kept at the registered
office of the company or at such other place as specified in the
memorandum or articles and in such form as may be determined.
(4) If default is made in complying with any requirement of
this regulation, every officer of the company who is in default shall
be liable to a penalty, and, for every day during which the default
continues, to a further penalty.
(1) Every company shall keep a register of debentures and
shall enter therein the names and addresses of the registered
holders and particulars of the debentures held by them respectively.
(2) The register of debentures shall be kept at the registered
office of the company or at such other place as may be specified in
the memorandum or articles and in such form as may be determined
therein.
(3) Where two or more persons hold one or more debentures
jointly, they shall for the purposes of these regulations be treated as
a single debenture holder; and, unless otherwise provided in the
memorandum or articles, the name of only one of such persons
shall be entered in the register of debentures. Such person shall be
elected by the joint holders and shall for all intents and purposes be
deemed vis-à-vis the company to be the holder of all the debentures
so held.
(4) If default is made in complying with any requirement of
this regulation, every officer of the company who is in default shall
be liable to a penalty and, for every day during which the default
continues, to a further penalty.
Except when duly closed in accordance with the provisions
of regulation 41, and subject to such reasonable restrictions as the
company in general meeting may impose -
(a) the register of members shall be open to the inspection
of any member of the company without charge; and
(b) the register of debentures shall be open to the
inspection of any person without charge.
(1) A company may, on giving notice to the members,
close the register of members to inspection for any period or
periods not exceeding in the whole thirty days in each year.
(2) The register of debentures may be closed to inspection in
accordance with provisions contained in the memorandum or
articles or in the debentures or, in the case of debenture stock, in
the stock certificates, during such period or periods, not exceeding
in the whole thirty days in any one year, as may be therein
specified.
(3) The memorandum or articles may provide that, during such
time as the register of members or the register of debentures is
closed in accordance with the provisions of subregulations (1) or
(2), no new particulars may be entered therein.
Unless otherwise provided in its articles, a company
formed and registered in Malta shall not recognise any nominee
relationship or trust in respect of any security issued by it, and the
company shall not recognise, even when having notice thereof, any
interest or other right in such security, but shall only recognise the
registered holder thereof.
Chapter VII - Meetings and Resolutions
(1) Every company shall in each year hold a general
meeting as its annual general meeting in addition to any other
meetings in that year, and shall specify the meeting as such in the
notices calling it, and not more than fifteen months shall elapse
between the date of one annual general meeting of the company and
that of the next
Provided that so long as a company holds its first annual
general meeting within eighteen months of its registration it need
not hold it in the year of its registration or in the following year.
(2) Every general meeting other than an annual general meeting
shall be an extraordinary general meeting.
(3) If default is made in complying with the provisions of
subregulation (1), every officer of the company who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(1) The directors of a company shall, on the requisition of
a member or members of the company holding at the date of the
deposit of the requisition not less than one-tenth of such of the paid
up share capital of the company as at the date of the deposit carried
the right of voting at general meetings of the company, forthwith
proceed duly to convene an extraordinary general meeting of the
company.
(2) The requisition shall state the objects of the meeting and
shall be signed by the requisitionist or requisitionists and deposited
at the registered office of the company and may consist of several
documents in like form each signed by the requisitionist, or if there
is more than one requisitionist in any one document by all of them.
(3) If the directors do not within twenty-one days from the date
of the deposit of the requisition proceed duly to convene a meeting,
the requisitionist or requisitionists may convene a meeting in the
same manner, as nearly as possible, as that in which meetings are to
be convened by the directors, but a meeting so convened shall not
be held after the expiration of three months from the date of the
deposit of the requisition.
(4)
Any reasonable expense incurred by the requisitionist or
requisitionists by reason of the failure of the directors duly to
convene a meeting shall be repaid to the requisitionist or
requisitionists by the company, and any sum so paid shall be due
personally by the directors who were in default and may be retained
by the company out of any sums due or to become due from the
company by way of fees or other remuneration in respect of their
services to such of the directors as were in default.
A general meeting of a company shall be deemed not to
have been duly convened unless at least fourteen days’ notice has
been g iven in w rit ing , an d any provi si on i n t he com pany ’s
memorandum or articles shall be construed as requiring fourteen
days’ notice in writing in so far as it provides for the calling of a
meeting of a company, other than an adjourned meeting, by a
shorter notice
Provided that a meeting of the company shall
notwithstanding that it is called by a shorter notice, be deemed to
have been duly convened if it is so agreed by all the members
entitled to attend and vote thereat.
The following provisions shall have effect in so far as the
articles of a company do not contain other provisions in that behalf
(a) notice of any general meeting of a company shall be
given to every member of the company and shall be
served at the address specified in the register of
members in the manner in which notices are required
to be served by the First Schedule;
(b) two members personally present shall be a quorum;
(c) any member elected by the members present at a
meeting may be chairman thereof;
(d) every member shall have one vote in respect of each
share or each euro or the equivalent of stock held by
him unless otherwise provided in the terms of issue of
such shares or stock;
(e) service of notice at the last known address of the
shareholder as appears in the register of members shall
be deemed to be an effective service of notice. It is the
duty of the shareholders to inform the company of any
change of address.
(1) If for any reason it is impracticable to call a meeting of
a company in any manner in which meetings of the company may
be called, or to conduct the meetings of that company in the manner
prescribed by the articles or these regulations, the court may, either
on its own motion or on the demand of either of the parties to the
proceedings during the course of such proceedings or, in the
absence of any proceedings, on the application of any director of
the company or of any member of the company who would be
entitled to vote at the meeting, order a meeting of the company to
be called, held and conducted in such manner as the court thinks fit,
and where any such order is made, may give such ancillary or
consequential directions as it thinks expedient, including a
direction that one member of the company present in person or by
proxy shall be deemed to constitute a meeting.
(2) The provisions of subregulation (1) shall also apply to the
calling of meetings of the board of directors of a company, if the
court considers that the circumstances justify such course of action.
(1) Notwithstanding
anything
contained
in
the
memorandum or articles of a company, any member entitled to
attend and vote at a meeting of the company or at a meeting of any
class of members of the company shall be entitled to appoint
another person, whether a member or not, as his proxy to attend and
vote instead of him, and a proxy so appointed shall have the same
right as the member to speak at the meeting and to demand a poll.
(2)
The appointment of a proxy shall be in writing.
(3) In every notice calling a meeting of a company there shall
appear with reasonable prominence a statement that a member
entitled to attend and vote is entitled to appoint a proxy and that a
proxy need not also be a member. If default is made in complying
with this paragraph, every officer of the company who is in default
shall be liable to a penalty.
(4) A provision in a company’s memorandum or articles shall
be void in so far as it would have the effect of requiring an
instrument appointing a proxy, or any other document necessary to
show the validity of, or otherwise relating to, the appointment of a
proxy, to be received by the company or any other person more
than forty-eight hours before a meeting or adjourned meeting for
that appointment to be effective.
(5) A company shall not issue at its own expense to some only
of the members entitled to be sent a notice of a meeting and to vote
thereat by proxy, invitations to appoint as proxy a person or one of
a number of persons specified in the invitations. If default is made
in complying with this paragraph, every officer of the company
who is in default shall be liable to a penalty
Provided that an officer shall not be liable to a penalty by
reason only of the issue to a member at his request in writing of a
form of appointment naming the proxy, or of a list of persons
willing to act as proxy, if the form or list is available on request in
writing to every member entitled to vote at the meeting by proxy.
(6) The provisions of this regulation shall apply to meetings of
any class of members of a company as they apply to general
meetings of the company.
(1) Any provision contained in the memorandum or
articles of a company shall be void in so far as it would have the
effect either -
(a) of excluding the right to demand a poll at a general
meeting on any question other than the election of the
chairman of the meeting or the adjournment of the
meeting; or
(b) of making ineffective a demand for a poll on any such
question which is made either -
(i)
by not less than five members having the right to
vote at the meeting; or
(ii) by a member or members representing not less
than one-tenth of the total voting rights of all the
members having the right to vote at the meeting;
or
(iii) by a member or members holding shares in the
company conferring a right to vote at the
meeting being shares on which an aggregate sum
has been paid up equal to not less than one-tenth
of the total sum paid up on all the shares
conferring that right.
(2) The instrument appointing a proxy to vote at a meeting of
the company shall be deemed to confer authority to demand or join
in demanding a poll; and for the purposes of subregulation (1) a
demand by a person as proxy for a member shall be the same as a
demand by the member.
(3) On a poll taken at a meeting of a company or a meeting of
any class of members of that company, a member 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.
(1) Unless otherwise provided in the memorandum, a
resolution shall be an extraordinary resolution where it has been
passed by more than fifty percent of the members having the right
to attend and vote at any such meeting
Provided that an extraordinary resolution shall be taken at a
general meeting of which notice specifying the intention to propose
the text of the resolution as an extraordinary resolution and the
principal purpose thereof has been duly given.
(2) Unless otherwise provided in the memorandum or articles,
an ordinary resolution shall be passed by a member or members
having the right to attend and vote at a meeting holding in the
aggregate more than fifty per cent of the voting rights attached to
shares represented and entitled to vote at the meeting.
Chapter VIII - Management and Administration
(1) In this regulation
"guarantee" shall mean the undertaking of any obligation by
what ever name whereby the company agrees t o perform an
obligation in the event of failure to do so by any other person;
"corporate benefit" shall mean any financial, commercial,
trading or reputational benefit to be derived by the company, its
holding company, its subsidiaries or subsidiaries of its holding
company, any related company or its subsidiaries, its trading
partners or counterparts or its members but not only its officers.
(2) A company shall, unless otherwise provided in its
memorandum or articles, have the power to borrow money and to
guarantee the obligations of any third party and, for such purpose,
to hypothecate or charge its undertaking, property and uncalled
capital or any part thereof including as security for its direct
obligations or for those of third parties, and to issue debentures,
debenture stock and other securities whether outright or as security
for its direct liabilities or obligations or for those of any third party
Provided that when the grant of a guarantee for the
obligations of a third party by a company is made on a purely
gratuitous basis, with no corporate benefit being derived therefrom
by the company, unless the memorandum states otherwise, the issue
of such guarantee shall require the consent of the members by
extraordinary resolution
Provided further that nothing in this regulation shall render
invalid any guarantee granted by any company which was entered
into prior to the coming into force of these regulations.
(1) Every company shall have at least one director, and
w h e r e a c o m p a n y h a s o n e d i r e c t o r, a l l r e f e r e n c e s i n t h e s e
r e g u l a t i o n s t o t w o o r m o r e d ir e c t o r s s h a l l b e c o n s t r u e d a s
references to such one director.
(2) The business of a company shall be managed by the
directors who may exercise all such powers of the company,
including those specified in regulation 51.
(3) Notwithstanding anything contained in the memorandum
and articles of association relating to the names in which the
representation of the company is to be exercised, anything done by
the board of directors of a company which exceeds the limits of
their authority or by any director which is beyond his powers, shall
be binding on the company unless that act exceeds the powers
granted to the board of directors or to a director, as the case may be
by virtue of these regulations.
(4) Any limitation on the powers of the board of directors or of
any director of the company shall not be relied on as against third
parties, independently of whether that limitation, published or not,
arises from the memorandum or articles or from any resolution of
the general meeting or from a decision of the board of directors of
the company.
(5) Where an act of the company falls outside the company’s
objects, the company shall not be bound if it proves that, when the
act was done, the third party knew that it was outside the
company’s objects or the third party could not in view of the
circumstances have been unaware thereof
Provided that the publication of the memorandum and
articles of the company shall not in itself be sufficient to prove that
the third party knew, or could not have been unaware, that the act
was outside the company’s objects.
(6) When a vacancy arises in the board of directors the vacancy
can be filled by a general meeting or equivalent resolution or in its
absence a board of directors’ resolution. In the absence of either
one any member may apply to the court to appoint a director until
the next annual general meeting.
(7) A person appointed by the court in accordance with the
provisions of subregulation (6) shall hold office until the next
annual general meeting although he shall be eligible for re-election.
(8) The provisions of subregulation (6) shall furthermore be
without prejudice to the provisions of regulation 54(1) to (5) and of
regulation 99(2)(b)(iv) and to the right of the company to fill any
such vacancy in general meeting.
(1) Where a director is by the memorandum required to
hold a specified share qualification, he shall either sign the
memorandum for a number of shares not less than his qualification
or sign and deliver to the Registrar for registration an undertaking
in writing to take from the company and pay for his qualification
shares
Provided that he shall vacate his office if he fails to obtain
his qualification within two months after his appointment, or such
shorter time as may be fixed by the memorandum or articles, or if
at any time thereafter he ceases to hold his qualification; and he
shall be incapable of being re-appointed director of the company
until he has obtained his qualification.
(2) Unless otherwise provided in the memorandum or articles
of a company, a director of a company other than the first directors
shall be appointed by ordinary resolution of the company in general
meeting.
(3) Where the holders of a particular class of shares have the
right to appoint one or more directors, in terms of the memorandum
and articles of the company, such appointment shall be made by a
member or members holding in the aggregate more than fifty per
cent in nominal value of the shares represented and entitled to vote
at the meeting of the holders of the shares of that class.
(1) A company may remove a director before the
expiration of his period of office by a resolution taken at a general
meeting of the company and passed by a member or members
having the right to attend and vote, holding in the aggregate shares
entitling the holder or holders thereof to more than fifty per cent of
the voting rights attached to shares represented and entitled to vote
at the meeting.
(2) The provisions of subregulation (1) shall apply
notwithstanding anything in the company’s memorandum or
articles or in any agreement between it and the director.
(3) On receipt of a notice of an intended resolution to remove a
director under this regulation the company shall forthwith send a
copy thereof to the director concerned and the director, whether or
not he is a member of the company, shall be entitled to be heard on
the resolution at the meeting.
(4) A vacancy created by the removal of a director under this
regulation, if not filled at the meeting at which he is removed, may
be filled as a casual vacancy.
(5)
Nothing in this regulation shall be taken as -
MERCHANT SHIPPING
(SHIPPING ORGANISATIONS - PRIVATE COMPANIES)
(a) depriving a person removed hereunder of
compensation or damages payable to him in respect of
the termination of his appointment as director or of
any other appointment terminating with the
termination of his appointment as director; or
(b) derogating from any power to remove a director which
may exist apart from this regulation.
(6)
(a) Unless otherwise provided in the memorandum or
articles of a company, a casual vacancy may be filled
by the continuing director or directors, and without
prejudice to the aforesaid powers of the directors, it
may be filled by the company in general meeting.
(b) A person appointed by the directors to fill a casual
vacancy shall hold office until the next following
annual general meeting and shall be eligible for re-
election, but shall not be taken into account in
determining the directors who are to retire by rotation
at that meeting.
(c) A person appointed to fill a casual vacancy by the
company in general meeting shall be treated for the
purpose of determining the time at which he or any
other director is to retire, as if he had become director
on the day on which the person in whose place he is
appointed was last appointed director.
(1) Where for any reason the representation of a company
ceases to be vested in any person or persons, the company shall
appoint another person or persons to exercise such function. The
appointment shall be made by ordinary resolution taken at a general
meeting notice of which shall be issued within fourteen days from
the date when the vacancy occurs.
(2) The company may by ordinary resolution replace any
person or persons vested with the representation of the company.
(3) Where and for as long as, the representation of the company
cannot be exercised in accordance with the memorandum of the
company, any director shall represent the company in judicial
proceedings against it.
(1) A person shall not be qualified for appointment or to
hold office as director of a company if -
(a) he is interdicted or incapacitated or is an undischarged
bankrupt;
(b) he has been convicted of any of the crimes affecting
public trust or of theft or of fraud or of knowingly
receiving property obtained by theft or fraud;
(c) he is a minor who has not been emancipated to trade;
(d) he is subject to a disqualification order under article
320 of the Companies Act or equivalent legislation
overseas.
(2) Notwithstanding the provisions of these regulations or of
the memorandum and articles of a co mp any relat ing to th e
formalities of the appointment of a director or other officer and to
his qualification, any irregularity concerning the appointment of a
director or other officer of a company raised after the completion of
the publication of his appointment shall not be relied upon by the
company as against third parties unless the company proves that
such parties were aware of the irregularity at the relevant time.
(3) Third parties who were not aware of the irregularities
referred to in subregulation (2) at the relevant time may rely on that
irregularity as against the company.
(1) Unless authorised in the memorandum or articles of a
company a director may not, in competition with the company and
without the approval in writing of all the members of the company
given at a general meeting, carry on business on his own account
nor may he be a partner with unlimited liability in another
partnership which is in competition with that company.
(2) Where a director acts in violation of the prohibition
contained in this regulation, the company may, at its option, either
take action for damages and interest against him or demand
payment of any profits made by him in contravention of this
regulation.
(3) The provisions of this regulation shall be without prejudice
to any other remedy which a company may have against a director
for breach of duty.
It shall not be lawful for a company -
(a) to make a loan to any person who is its director or a
director of its parent company, or to enter into any
guarantee or provide any security in connection with a
loan made to such a person as aforesaid by any other
person
Provided that nothing in this paragraph shall apply
either -
(i)
to anything done, with the approval of the
company given at a general meeting, to provide
any such person as aforesaid with funds to meet
expenditure incurred or to be incurred by him
for the purposes of the company or for the
purpose of enabling him properly to perform his
duties as an officer of the company; or
(ii) in the case of a company whose ordinary
business includes the lending of money or the
giving of guarantees in connection with loans
made by other persons, to anything done by the
company in the ordinary course of that business;
(b) to make to any director of the company any payment
by way of compensation for loss of office, or as
consideration for or in connection with his retirement
from office, without particulars with respect to the
proposed payment, including the amount thereof,
being disclosed to members of the company and the
proposal being approved by the company in general
meeting.
(1) It shall be the duty of a director of a company who is
in any way, whether directly or indirectly, interested in his personal
capacity in a contract or proposed contract with the company to
declare the nature of his interest to the other directors either at the
meeting of the directors at which the question of entering into the
contract is first taken into consideration, or, if the director was not
at the date of that meeting interested in the contract or proposed
contract, at the next meeting of the directors held after he became
so interested.
(2) Any director who fails to comply with the provisions of this
regulation shall be liable to a penalty.
(1) Every company shall send to the Registrar for
registration a return of any change among its directors or the person
who is vested with the representation of the company, specifying the
date of the change together with the name and residence of any new
director, within fourteen days from the happening thereof in terms
of the Seventh Schedule
Provided that the Registrar may, before registering the
return, take such steps and require such information as he may
deem necessary to ascertain the correctness of the return and to
determine whether the provisions of these regulations have been
complied with.
(2) Where the company has appointed a company secretary the
directors shall send the return referred to in sub-regulation (1). The
return shall also be submitted in the case of any change in the company
secretary.
(3) If default is made in complying with the provisions of
subregulation (1), every officer of the company who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(1) The personal liability of the directors in damages for
any breach of duty shall be joint and several
Provided that where a particular duty has been entrusted to
one or more of the directors, only such director or directors shall be
liable in damages.
(2) A director shall not be liable for the acts of his co-directors
if he proves either -
(a) that he did not know of the breach of duty before or at
the time of its occurrence and that on becoming aware
of it after its occurrence he signified forthwith to the
co-directors his dissent in writing; or
(b) that, knowing that the co-directors intended to commit
a breach of duty, he took all reasonable steps to
prevent it.
Any provision, whether contained in the memorandum or
articles of a company or in any contract with a company or
otherwise for exempting any officer of the company or any person
engaged by the company as auditor from, or indemnifying him
against, any liability which by virtue of any rule of law would in
the absence thereof have been attached to him in respect of
negligence, default or breach of duty or otherwise of which he may
be guilty in relation to the company shall be void
Provided that a company may, in pursuance of any such
provision as aforesaid, indemnify any such officer or auditor
against any liability incurred by him in defending any proceedings
in w hich j udgm ent i s given in h is favo ur or i n wh ich he is
acquitted.
(1) Every company shall cause minutes of all proceedings
of general meetings and all proceedings at meetings of its directors
to be entered in books kept for that purpose.
(2) Any such minute, if purporting to be signed by the
chairman of the meeting at which the proceedings were held, or by
the chairman of the next succeeding meeting, shall be evidence of
the proceedings.
(3) The books containing the minutes of proceedings of any
general meeting of a company shall be kept at the registered office
of the company, or at such other place, including a place outside
Malta, as may be specified in the memorandum or articles, and
shall, during business hours, subject to such reasonable restrictions
as the company may by its articles or in general meeting impose, be
open to the inspection of any member of the company without
charge.
(4) If a company fails to comply with the requirements of
subregulations (1) or (3), every officer of the company who is in
default shall be liable to a penalty.
Chapter IX - Accounts, Audit and Annual Return
(1) The provisions of articles 163, 167, 170 to 183 and
articles 185 to 187 of Part V, Title I, Chapter X and the Third and
Sixth Schedule of the Companies Act shall apply mutatis mutandis
to companies formed and registered under these regulations,
provided that the balance sheet total and turnover mentioned in
sub-article (1) of article 185 of the Companies Act shall be read as
follows
-
balance sheet total: six million euro (6,000,000);
-
turnover: twelve million euro (12,000,000);
-
and provided further that the aggregate balance sheet
total and aggregate turnover mentioned in sub-article
(5) of article 185 of the Companies Act shall be read as
follows
-
aggregate balance sheet total: six million euro
(6,000,000) net or seven million and two hundred
thousand euro (7,200,000) gross;
-
aggregate turnover: twelve million euro (12,000,000)
net or fourteen million and four hundred thousand euro
(14,400,000) gross
Provided further that companies which qualify as
small companies shall also be entitled to the
exemptions mentioned in sub-article (2) of article 185
of the Companies Act and in the provisos to sub-article
(2) of article 183 of the Companies Act.
(2) The penalties in the Eleventh Schedule of the Companies Act
which would be applicable to any default in terms of the articles
mentioned in sub-regulation (1) shall apply
(1) A company’s accounting periods shall be of not more
than one year except the first accounting period which may be of
not less than 6 months and not more than eighteen months from the
date of registration.
(2) Accounting periods shall be from and to such dates as are
determined by the directors from time to time during an accounting
period.
(3) In the case specified in subregulation (2), the company
shall within fourteen days file a notice with the Registrar for
registration in terms of the Seventh Schedule.
Deleted by Legal Notice 31 of 2020.
Deleted by Legal Notice 31 of 2020.
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(1) Every company shall upon each anniversary of its
registration, make a return in the form set out in the Fifth Schedule
showing the matters therein specified and made up to the date of
such anniversary
Provided that -
(a) where a company was, immediately before the coming
into force of these regulations in default with respect to
the delivery of one or more annual returns, this
regulation shall not affect the obligation of the
company to make such a return or returns or the
payment of any penalty arising from such a default;
(b) where a company has converted any of its shares into
stock and registered the conversion as provided in
regulation 20, the list of past and present members
shown in Part 3 of the Fifth Schedule, shall state the
amount of stock held by each of the existing members
instead of the amount of shares and the particulars
relating to shares required by that part.
(2) The annual return, duly completed, shall be signed by at
least one director of the company and forwarded to the Registrar
for registration within forty-two days after the date to which it is
made up.
(3) If default is made in complying with the provisions of this
regulation, every officer of the company who is in default shall be
liable to a penalty, and, for every day during which the default
continues, to a further penalty.
Deleted by Legal Notice 31 of 2020.
Deleted by Legal Notice 31 of 2020.
Chapter X - Auditors
(1) A company shall, at each general meeting at which the
annual accounts are laid, appoint an auditor or auditors to hold
office from the conclusion of that meeting until the conclusion of
the next general meeting at which the accounts are laid. The
company may appoint joint auditors and reference in these
regulations to auditor or auditors shall be deemed to include
references to single or joint auditors as the case may be.
(2) The first auditors of the company may be appointed by the
directors at any time before the first general meeting of the
company at which the annual accounts are laid, and the auditors so
appointed shall hold office until the conclusion of that meeting.
(3) If the directors fail to exercise their powers under
subregulation (2), the powers may be exercised by the company in
general meeting.
(4) If no auditors are appointed or re-appointed as required by
the foregoing subregulations, the court on an application made by
any of the directors or by any member of the company or by the
Registrar may appoint a person to fill the vacancy.
(5) In the case specified in subregulation (4), the company
shall within two weeks of the general meeting at which an auditor
or auditors should have been appointed by virtue of subregulation
(1), give notice to the Registrar that his power to apply to the court
has become exercisable.
(6) If a company fails to give the notice required by
subregulation (5), every officer of the company who is in default
shall be liable to a penalty and, for every day during which the
default continues, to a further penalty.
(1) The directors shall at any time before the general
meeting of the company at which the annual accounts are laid fill a
casual vacancy in the office of auditor
Provided that the company in general meeting may fill such
a casual vacancy itself.
(2) While such a vacancy continues, any surviving or
continuing auditor or auditors may continue to act.
(3)
Where it is proposed -
(a) to appoint an auditor to fill a casual vacancy in the
office of auditor by resolution of the general meeting;
or
(b) to re-appoint by resolution of the general meeting a
retiring auditor who was appointed by the directors to
fill a casual vacancy, as auditor, or to appoint a new
auditor instead of that auditor,
notice specifying in terms of the proposed resolution shall be given
forthwith to the person proposed to be appointed and, if the casual
vacancy was caused by the resignation of an auditor, to the auditor
who resigned.
(4) Any director who fails to comply with the provisions of
subregulation (1) shall be liable to the same penalty as that
provided for in regulation 83(6).
(1) A person shall be disqualified from appointment as
auditor or from holding the office of auditor of a company if -
(a) in the case of an individual, he has at any time during
the previous three years been -
(i) an officer or employee of the company; or
(ii) a partner, employer or employee of an officer of
the company; or
(iii) a partner or employee of an employee of the
company; or
(iv) related by consanguinity or affinity in the direct
line, or up to the third degree, in the collateral
line, to any officer of the company.
(2) An auditor must at all times adhere to the rules on
independence and professional ethics set out in the Code of Ethics
and any other regulations, directives or guidelines issued from time
to time in terms of the Accountancy Profession Act.
(1) The auditors of a company shall have a right of access
at all times to the company’s accounting records, accounts and
vouchers, and shall be entitled to require from the company’s
officers such information and explanations as they think necessary
for the performance of their duties as auditors.
(2) An officer of a company who knowingly or recklessly
makes to the company’s auditors a statement, whether written or
oral which -
(a) conveys or purports to convey any information or
explanations which the auditors require, or are entitled
to require, as auditors of the company; and
(b) is misleading, false or deceptive in a material
particular;
shall be guilty of an offence and liable on conviction to a fine
(multa) of not more than four thousand and six hundred and fifty-
eight euros and seventy-five cents (4,658.75) or to imprisonment
for a term not exceeding six months or to both such fine and
imprisonment.
(3) A subsidiary undertaking which is registered in Malta, and
the auditors of such an undertaking, shall give to the auditors of
any parent company of the subsidiary undertaking such information
and explanations as they may reasonably require for the purposes
of their duties as audit ors of th at com pany. If a subsidiary
undertaking fails to comply with the provisions of this paragraph,
every officer thereof who is in default shall be liable to a penalty;
and if an auditor fails without reasonable cause to comply with this
paragraph he shall be liable to a penalty.
(4) A parent company having a subsidiary undertaking which is
not registered in Malta shall, if required by its auditors to do so,
take all such steps as are reasonably open to it to obtain from the
subsidiary undertaking such information and explanations as they
may reasonably require for the purposes of their duties as auditors
of that company. If a parent company fails to comply with the
provisions of this subregulation, every officer of the company who
is in default shall be liable to a penalty.
A company’s auditors shall be entitled -
(a) to receive all notices of, and other communications
relating to, any general meeting which a member of
the company is entitled to receive;
(b) to attend any general meeting of the company; and
(c) to be heard at any general meeting which they attend
on any part of the business of the meeting which
concerns them as auditors.
(1) The remuneration of auditors appointed by the
company in general meeting shall be fixed by the company in
general meeting or in such manner as the company in general
meeting may determine. The remuneration of auditors appointed by
the directors or the court shall be fixed by the directors or the court
as the case may be.
(2) There shall be stated in the notes to the accounts the amount
of the remuneration of the company’s auditors in their capacity as
such; and where consolidated accounts are prepared, the notes to
the consolidated accounts shall state the total remuneration paid to
the auditors of the parent company in respect of all undertakings
included in the consolidation, and also the total remuneration paid
to all other auditors in respect of such undertakings.
(3) For the purposes of this article, "remuneration" includes
sums paid in respect of expenses.
(4) The provisions of this regulation shall apply in relation to
benefits in kind as to payments in cash, and in relation to any such
benefit references to its amount are to its estimated money value.
The nature of any such benefit shall also be disclosed.
(1) Notwithstanding
anything
in
a
company’s
memorandum or articles or in any other agreement, the company
may at any time remove an auditor from office in the same manner
as that specified in regulation 54(1).
(2) Where a resolution removing an auditor is passed at a
general meeting of a company, the company shall within fourteen
days give notice thereof to the Registrar for registration. If a
company fails to give the notice required by this subregulation,
every officer of the company who is in default shall be liable to a
penalty and, for every day during which the default continues, to a
further penalty.
(3) Nothing in this regulation shall be taken as depriving a
person removed under its provisions of compensation for damages
payable to him in respect of the termination of his appointment as
auditor or of any appointment terminating with that of auditor.
(4) An auditor of a company who has been removed shall have,
notwithstanding his removal, the rights conferred by regulation 87
in relation to any general meeting of the company -
(a) at which his term of office would otherwise have
expired; or
(b) at which it is proposed to fill the vacancy caused by
his removal.
In such a case the references in that regulation to matters
concerning the auditor as auditor shall be construed as references to
matters concerning him as a former auditor.
(1) Notice specifying the text of and reasons for a
proposed resolution of a general meeting of a company whereby it
is intended to -
(a) remove an auditor before the expiration of his term of
office; or
(b) appoint as auditor a person other than a retiring
auditor;
shall be sent forthwith by the company to the person proposed to be
removed, to the person proposed to be appointed and to the retiring
auditor, as the case may be.
(2) The auditor proposed to be removed or, as the case may be,
the retiring au dito r m ay m ake wi th resp ect to the i ntended
resolution representations in writing to the company not exceeding
a reasonable length and request their notification to members of the
company.
(3) The company shall, unless the representations are received
by it too late for it to do so -
(a) in any notice of the resolution given to members of the
company, state the fact of the representations having
been made; and
(b) send a copy of the representations to every member of
the company to whom notice of the meeting is or has
been sent.
(4) If a copy of any such representations is not sent out as
required because it was received too late or because of the
company’s default, the auditor may, without prejudice to his right
to be heard orally, require that the representations be read out at the
meeting.
(1) An auditor of a company may resign his office by
depositing a notice in writing to that effect at the company’s
registered office and he shall so resign if he ceases to be qualified
as an auditor or if he fails to satisfy the conditions of qualification
provided in regulation 86. The notice shall not be effective unless it
is accompanied by the statement required by regulation 93.
(2) An effective notice of resignation shall operate to bring the
auditor’s term of office to an end as of the date on which the notice
is deposited or on such later date as may be specified in it.
(3) The company shall within fourteen days of the deposit of a
notice of resignation send a copy of the notice to the Registrar for
registration. If default is made in complying with this
subregulation, every officer of the company who is in default shall
be liable to a penalty and, for every day during which the default
continues, to a further penalty.
(1) The provisions of this regulation shall apply where an
auditor’s notice of resignation is accompanied by a statement of
circumstances which he considers should be brought to the
attention of members or creditors of the company.
(2) The resigning auditor may deposit with the notice a signed
requisition calling on the directors of the company forthwith duly
to convene an extraordinary general meeting of the company for the
purpose of receiving and considering such explanation of the
circumstances connected with his resignation as he may wish to
place before the meeting.
(3) The resigning auditor may request the company to circulate
to its members -
(a) before the meeting convened on his requisition; or
(b) before any general meeting at which his term of office
would otherwise have expired or at which it is
proposed to fill the vacancy caused by his resignation;
a statement in writing of the circumstances connected with his
resignation as referred to in subregulation (1).
(4) The company shall, unless the statement is received too late
for it to comply -
(a) in any notice of the meeting given to members of the
company, state the fact of the statement having been
made; and
(b) send a copy of the statement to every member of the
company to whom notice of the meting is or has been
sent.
(5) If the directors do not within twenty-one days from the date
of the deposit of a requisition under this regulation proceed duly to
convene a meeting for a day not more than twenty-eight days after
the date on which the notice convening the meeting is given, every
director who failed to take all reasonable steps to secure that a
meeting was convened as mentioned in subregulation (2) shall be
liable to a penalty.
(6) If a copy of the statement is not sent out as required
because it was received too late or because of the company’s
default, the auditor may, without prejudice to his right to be heard
orally, require that the statement be read out at the meeting.
(7) An auditor who has resigned has, notwithstanding his
resignation, the rights conferred by regulation 87 in relation to any
such general meeting of the company as is mentioned in
subregulation (3)(a) or (b), and, in such a case, the references in
that regulation to matters concerning the auditor as auditor shall be
construed as references to matters concerning him as a former
auditor.
(1) Where an auditor ceases for any reason to hold office,
he shall deposit at the company’s registered office a statement of
any circumstances connected with his ceasing to hold office which
he considers should be brought to the attention of the members or
creditors of the company or, if he considers that there are no such
circumstances, a statement that there are none.
(2) In the case of resignation, the statement shall be deposited
along with the notice of resignation; in the case of failure to seek
re-appointment, the statement shall be deposited not less than
fourteen days before the general meeting at which auditors are to be
reappointed; in any other case, the statement shall be deposited not
later than the end of the period of fourteen days beginning with the
date on which the auditor ceases to hold office.
(3) Where the statement is of circumstances which the auditor
requests to be brought to the attention of the members or creditors
of the company, the company shall within fourteen days of the
deposit of the statement either -
(a) send a copy of it to every person who under regulation
76 is entitled to be sent copies of the annual accounts;
or
(b) submit an application to the court for an order that
there are grounds of sufficient gravity to warrant that
the statement should not be circulated.
(4) Where the company submits an application to the court, the
court shall notify the auditor of the application and shall hear both
parties before making a decision on the company’s application.
(5) Unless the auditor receives notice of such an application
before the end of the period of twenty-one days beginning with the
day on which he deposited the statement, he shall within a further
seven days send a copy of the statement to the Registrar.
(6) If the court is satisfied that the auditor is using the
statement to secure needless publicity for defamatory matter -
(a) it shall direct that copies of the statement need not be
sent ou;[ and
(b) it may further order the company’s costs on the
application to be paid in whole or in part by the
auditor, notwithstanding that he is not a party to the
application;
and the company shall within fourteen days of the court’s decision
send to the persons mentioned in subregulation (3)(a) a statement
setting out the effect of the order.
(7) If the court is not so satisfied, the company shall within
fourteen days of the court’s decision -
(a) send copies of the statement to the persons mentioned
in subregulation (3)(a); and
(b) notify the auditor of the court’s decision,
and the auditor shall within seven days of receiving such notice
send a copy of the statement to the Registrar.
(1) If a person ceasing to hold office as auditor fails
without just cause to comply with the provisions of regulation 93
he shall be liable to a penalty and, for every day during which the
default continues, to a further penalty.
(2) In proceedings for a default under subregulation (1) it shall
be a defence for the person against whom action is taken to show
that he took all reasonable steps and exercised all due diligence to
avoid that default.
(3) If a company makes default in complying with the
provisions of regulation 93, every officer of the company who is in
default shall be liable to a penalty and, for every day during which
the default continues, to a further penalty.
Chapter XI - Distribution of Profits and Assets
(1) A company shall not make a distribution except out of
profits available for the purpose.
(2) For the purposes of this Chapter, "distribution" means every
description of distribution of a company’s assets to its members,
whether in cash or otherwise, except distribution by way of -
(a) an issue of shares as fully or partly paid bonus shares;
(b) the redemption or purchase of any of the company’s
own shares out of capital, including the proceeds of
any fresh issue of shares, or out of undistributable
reserves;
(c) the reduction of the issued share capital by
extinguishing or reducing the liability of any of the
members on any of the company’s shares in respect of
issued share capital not paid up, or by paying off paid
up issued share capital; and
(d) a distribution of assets to members of the company on
its winding up.
(3) For the purposes of this Chapter, a company’s profits
available for distribution shall be its accumulated, realised profits,
so far as not previously utilised by distribution or capitalisation,
less its accumulated, realised losses, so far as not previously
written off in a reduction or reorganisation of issued share capital
duly made.
(4) A company shall not apply an unrealised profit in paying up
debentures, or any amounts unpaid on its issued share capital.
(1) When a distribution made by a company to any of its
members is made in contravention of the preceding provision such
members shall be bound to repay such sums to the company on a
demand in writing of the company or any interested person
Provided that nothing in this paragraph shall prohibit a
company from distributing interim dividends
Provided further that a decision to do so is based on a
reasonable expectation that the amount distributed will form part of
the distributable assets of the company at the end of the accounting
period.
(2) The provisions of this regulation shall apply without
prejudice to any obligation imposed apart from this regulation on a
member of a company to repay a distribution unlawfully made to
him.
The provisions of this chapter shall be without prejudice to
any other provision of law, or any provision of the company’s
memorandum or articles, restricting the sums out of which, or the
cases in which, a distribution may be made.
PART IV
DEFUNCT COMPANIES
(1) Where the Registrar has reasonable cause to believe
that a company is not carrying on business or is not in operation, he
may send to the company by post a letter inquiring whether the
company is carrying on business or is in operation.
(2) If the Registrar receives an answer to the effect that the
company is not carrying on business or is not in operation, or does
not within one month of sending the letter receive an answer
thereto, he may send to the company by post and publish a notice in
the Gazette or on a website maintained by the Registrar and in a daily
newspaper circulating wholly or mainly in Malta that, at the
expiration of three months from the date of the last publication of
th e s a i d n ot i c e , th e c om p a n y ’s na m e sh a l l , u n l e s s c a u s e i s
previously shown to the contrary or the Registrar is satisfied that
there are sufficient grounds not to proceed with the striking off, be
struck off the register; and the assets of the company shall devolve
upon the Government of Malta.
(3) If, in any case where a company is being wound up
voluntarily, the Registrar has reasonable cause to believe either that
no liquidator is acting or that the affairs of the company are fully
wound up, and the returns required to be made by the liquidator in
terms of regulation 131 are overdue by six months or more, the
Registrar may publish in the Gazette or on a website maintained by
the Registrar and in a daily newspaper circulating wholly or mainly
in Malta, a notice that at the expiration of three months from the
date of the last publication of the said notice, the winding up of the
company shall, unless cause is previously shown to the contrary, be
deemed to be concluded and consequently that the company’s name
be struck off the register. The Registrar shall also cause a copy of
the said notice to be sent by post to the company and to the
liquidator, if any. At the expiration of the aforesaid period of three
months the winding up of the company shall, unless cause is
previously shown to the contrary, be deemed to be concluded and
the Registrar shall strike the name of the company off the register
and the company’s assets shall devolve upon the Government of
Malta.
(4) If any member or creditor of the company, or any other
person who appears to the court to have an interest feels aggrieved
by the fact that the name of the company has been struck off the
register by virtue of this regulation, the court on an application
made by the member or creditor or such other person before the
expiration of five years from the publication of the notice of the
striking off provided for in subregulations (2) and (3) may, if
satisfied that it is proper that the name be restored to the register,
order that such name be restored to the register, and upon an
official copy of the order being delivered by the Registrar of Courts
to the Registrar for registration, the company shall be deemed to
have continued in existence as if its name had not been struck off;
and the court may by its order give such directions and make such
provisions as seem fit for placing the company and all other
persons in the same position as nearly as may be as if the name of
the company had not been struck off. The Registrar shall forthwith
proceed to publish a notice in the Gazette or on a website maintained
by the Registrar and in a daily newspaper circulating wholly or
mainly in Malta that the name of the company has been restored to
the register.
(5) A notice to be sent under this regulation to a liquidator may
be addressed to the liquidator at his last known place of business or
address, and a letter or notice to be sent under this regulation to a
company may be addressed to the company at its registered office.
(6) Notwithstanding that the name of the company has been
struck off the register in terms of the preceding provisions of this
regulation, the liability, if any, of every director or other officer of
the company and of every member of the company shall continue
and may be enforced as if the name of the company had not been
struck off the register.
PART V
DISSOLUTION AND CONSEQUENTIAL WINDING UP
OF COMPANIES
(1) Unless otherwise stated in these regulations, a
company shall be dissolved and consequently wound up voluntarily
in the following cases
(a) the company has by resolution resolved that the
company be dissolved and consequently wound up by
the court;
(b) the company has by resolution resolved that the
company be dissolved and consequently wound up
voluntarily.
For the purposes of this subregulation a resolution of the
company shall be either a resolution supported by the majority of
the directors or an extraordinary resolution taken at a general
meeting of the shareholders as may be required in terms of the
memorandum and articles of association of the company.
(2) In addition to the modes of dissolution referred to in
subregulation (1) -
(a) a company may be dissolved and wound up by the
Court when the company is unable to pay its debts; and
(b) a company shall be dissolved by the court in the
following cases
(i) when the period fixed for its duration expires;
(ii) if the undertaking forming its object is
completed or cannot be completed;
(iii) if the share capital is reduced below the statutory
minimum;
(iv) if no director is in office;
(v) if in the opinion of the court, there exist grounds
of sufficient gravity to warrant dissolution;
(vi) in such other cases for which provision is made
in the memorandum and articles.
(3) In the cases of dissolution falling within subregulation
(2)(b), the court shall, at its discretion, determine whether the
company shall be wound up by the court or, if it is satisfied that
there is sufficient support for the process to be carried out by the
majority of the members, voluntarily.
(4) For the purposes of subregulation (2)(a), a company shall
be deemed to be unable to pay its debts -
(a) if a debt due by the company has remained unsatisfied
in whole or in part after twenty four weeks from the
obtaining of a final judgement against the company;
(b) if it is proved to the satisfaction of the court that the
company is unable to pay its debts, account being
taken also of contingent and prospective liabilities of
the company.
(5) For the purposes of this Part, a company shall be wound up
by the Court if it is wound up in accordance with the provisions of
Sub-Part I of this Part; and a company shall be wound up
voluntarily if it is wound up in accordance with the provisions of
Sub-Part II of this Part.
(6) Nothing in this Part shall prejudice the rights of any
creditor under the Act to enforce his claim directly against a ship.
(7) In addition to the modes of dissolution and winding up
above referred to the court may dissolve a company and deem it to
be wound up in the case specified in regulation 101.
SUB-PART I - WINDING UP BY THE COURT
Chapter I - General provisions
An application to the court (hereinafter referred to as the
"winding up application") for the winding up of a company shall be
made by means of an application which may be made either by the
company or by any of its members or directors, or by any creditor
having a debt due and unpaid in excess of twenty-three thousand
and two hundred and ninety-three euros and seventy-three cents
(23,293.73)or by all or any of them together or separately.
(1) On the hearing of the winding up application, the
court may either dismiss the application or make an order acceding
thereto (hereinafter referred to as a "winding up order") and such
other orders, including provisional orders, and adjourn the hearing
conditionally or otherwise as it thinks fit; but no winding up order
shall be made before the application has been served on such
persons as the court in the circumstances, and upon information
given by the applicant, deems it appropriate to call upon to make
their submissions.
(2) Where the sole asset of the company is a ship subject to a
registered mortgage or other maritime claims and the outstanding
sums due under the mortgage or such maritime claims exceed the
value of the ship, the court shall not order the winding up of the
company until it is satisfied that there are excess funds deriving to
the company in Malta in relation to which a winding up order may
usefully be made.
(3) In the event contemplated in the preceding subregulation,
the court shall await the outcome of any enforcement proceedings
by the mortgagee or maritime claimants, whether in Malta or
overseas and whether private or public, by the mortgagee in terms
of article 42 of the Act, or by any maritime claimant enjoying a
right of preference in terms of article 37C of the Act, after which it
shall determine the issue.
(4) Should it result to the court that there are no excess
proceeds of sale or that there have been ranking of creditor
proceedings over the proceeds of sale of the ship, the result of
which is final and binding on all creditors, and there is no business
of the company which needs to be wound up, it shall not order the
winding up of the company but shall instead declare the company
dissolved and wound up. The court shall order that upon the filing
with the Registrar of authenticated evidence of the sale of the ship
or the closure of ranking of creditors, which evidence shall be filed
at the registry for public notice, the company shall immediately and
without further procedures, be struck off the register. In such event
any residual rights of the company shall be vested in the
shareholders of the company by operation of law or be dealt with as
may be determined by the court at its discretion.
(5) Should it result that there are any funds in Malta deriving to
the company from proceedings contemplated in the preceding
paragraph, the court may order the winding up of the company in
accordance with these regulations.
(6) If the winding up application is presented by members of
the company on the basis that there are grounds of sufficient
gravity to warrant the dissolution and winding up of the company,
the court, if it is of the opinion that such grounds exist but that the
applicants are entitled to some other remedy, including the
liquidation of only their shares, apart from the dissolution and
winding up of the company, shall only make a winding up order so
long as the applicants are not acting unreasonably in seeking to
have the company dissolved and wound up instead of pursuing that
other remedy. On the demand of any interested party, the court shall
have all the necessary powers to provide such remedy, as it
considers reasonable in the circumstances to ensure that the
company is in a position to carry on its business.
At any time after the filing of a winding up application,
and before a winding up order has been made, the company, or any
creditor, may apply to the court for a stay of judicial proceedings
pending against the company, and the court may stay those
proceedings accordingly on such terms as it thinks fit
Provided that no proceedings instituted by a holder of a
registered mortgage or a privileged creditor over a ship owned by a
company shall be stayed.
In a winding up by the court -
(a) any disposition of the property of the company other
than a ship by a mortgagee, and
(b) any transfer of shares other than shares which have
been pledged, or
(c) any transaction involving the closing out of a netting
provision in terms of the Set-off and Netting on
Insolvency Act,
made after the date of its deemed dissolution, shall be void, unless
the court otherwise orders.
When a company is being wound up by the court, any act
or warrant, whether precautionary or executive, other than a
warrant of prohibitory injunction or any impediment of departure
or warrant of seizure of a ship by a holder of a registered mortgage
or a privileged creditor, issued or carried into effect against the
company after the date of its deemed dissolution, shall be void,
unless authorised by a court with specific reference to the company
being in a state of dissolution.
(1) Where, before the filing of a winding up application,
an extraordinary resolution had been passed by the company for it
to be dissolved and consequently wound up voluntarily, the
company shall be deemed to have been dissolved at the time of the
passing of the resolution, and unless the court, upon proof of fraud
or mistake thinks fit otherwise to direct, all proceedings taken in
the voluntary winding up shall be deemed to have been validly
taken.
(2) In any other case the company shall be deemed to have been
dissolved at the time of the filing of the winding up application.
(1) On the making of a winding up order, or on the
dismissal of a winding up application, a copy thereof shall
forthwith be forwarded by the Registrar of Courts to the Registrar
for registration.
(2) Where a winding up order has been made or a provisional
administrator has been appointed in accordance with the provisions
of regulation 107, no action or proceeding, other than any action
instituted by a holder of a registered mortgage or a privileged
creditor, shall be proceeded with or commenced against the
company or its property except by the leave of the court and subject
to such terms as the court may impose.
Chapter II - Liquidators in a winding up by the court
(1) The court may appoint a provisional administrator at
any time after the presentation of a winding up application.
(2) The provisional administrator shall carry out such functions
and shall have such powers as the court may confer on him by the
order appointing him.
(3) The provisional administrator holds office until such time
as the winding up order is made or the winding up application is
dismissed unless before such time he resigns or he is removed by
the court upon good cause being shown.
(4) The court shall appoint a liquidator on making up a winding
up order and the liquidator shall not resume office until he has
notified the acceptance of his appointment to the Registrar in
accordance with the Seventh Schedule.
(1) A liquidator appointed by the court may resign or, on
sufficient cause being shown, be removed by the court.
(2) More than one person may be appointed to exercise the
function of liquidator of a company, and the remuneration of each
liquidator so appointed shall be determined on such basis as the
court may direct.
(3) A vacancy in the office of a liquidator appointed by the
court shall be filled by the court.
(4) If more than one liquidator is appointed by the court, the
court shall declare whether any act which is by these regulations
required or authorised to be done by the liquidator is to be done by
all or any one or more of the persons so appointed.
(5) The acts of a liquidator shall be valid notwithstanding any
defects that may afterwards be discovered in his appointment or
qualification.
Where a company is being wound up by the court, the
liquidator or the provisional administrator, as the case may be, shall
take into his custody or under his control all the property and all
rights to which he has reasonable cause to believe the company to
be entitled
Provided that nothing herein shall entitle a liquidator or
provisional administrator to dispossess -
(a) a mortgagee in possession of a ship subject to a
registered mortgage in his favour; or
(b) the holder of a possessory lien in terms of the Act,
or to do any other act which will in any manner hinder or obstruct
the exercise of rights of the holder of the registered mortgage
including the right to take possession of the ship in accordance with
the Act.
(1) The liquidator in a winding up by the court shall have
the power, with the sanction either of the court or of any liquidation
committee -
(a) to bring or to defend any action or other legal
proceeding in the name and on behalf of the company;
(b) to carry on the business of the company so far as may
be necessary for the beneficial winding up thereof;
(c) to pay creditors according to their ranking at law;
(d) to make any compromise or arrangement with
creditors or persons claiming to be creditors, or having
or alleging themselves to have any claim, present or
future, certain or contingent, ascertained or which may
be due in damages against the company or whereby the
company may be rendered liable, and to refer any such
matter to arbitration;
(e) to represent the company in all matters and to do all
such things as may be necessary for winding up the
affairs of the company and distributing its assets.
(2) The liquidator in a winding up by the court shall, in
particular, have the power -
(a) unless the company is prohibited from selling any ship
under the terms of any registered mortgage or any
court order, to sell the movable and immovable
property, including any right, of the company by
public auction or private agreement with power to
transfer the whole or any part thereof;
(b) to do all acts and to execute, in the name and on behalf
of the company, all deeds, receipts and other
documents;
(c) to raise on the security of the assets of the company
any money requisite;
(d) to appoint a mandatory to act for him in his capacity as
liquidator for particular purposes;
(e) to do all such acts as may have been undertaken by the
company towards any holder of a registered mortgage,
and to consult with such mortgagee as may be
necessary, in relation to any ship owned by the
company and subject to a mortgage
Provided that nothing in this regulation shall permit the
liquidator to impede or obstruct the exercise of rights by the
mortgagee in terms of the Act or the terms of the mortgage.
(3) The exercise by the liquidator in a winding up by the court
of the powers conferred by this regulation shall be subject to the
control of the court, and any interested person may apply to the
court with respect to any exercise or proposed exercise of any of
those powers.
(1) Subject to the provisions of these regulations, the
liquidator of a company which is being wound up by the court
shall, in the administration of the assets of the company and in the
distribution thereof among its creditors, have regard to any
directives that might be given by resolution of the creditors at any
general meeting of the creditors as well as to directives given by
the general meeting of the shareholders but in case of conflict
precedence shall be given to the directives of the creditors and in
case of disagreement among the creditors precedence shall be given
to the directives of the holders of a registered mortgage.
(2) The liquidator may summon general meetings of the
creditors or the officers and the members of the company for the
purpose of ascertaining their wishes, and it shall be his duty to
summon meetings at such times as the creditors or the officers or
the members of the company, by resolution, either at the meeting
appointing the liquidator or otherwise, may direct, or whenever
requested in writing to do so by one-tenth in value of the creditors.
(3) The liquidator may apply to the court for directions in
relation to any particular matter arising under the winding up.
(4) Should the liquidator, after investigating the affairs and
situation of the company establish that the company is the owner of
a sole ship which ship has either been sold, by a mortgagee
privately or through a judicial sale, or is in the process of being
sold through enforcement proceedings by a holder of a registered
mortgage or a privileged creditor and that it is unlikely that there
will be excess of funds for distribution to other creditors or the
shareholders, the liquidator shall inform the court of the situation
and provide the court with his opinion as to whether continuation of
the liquidation will serve any purpose and the provisions of
regulations 101 and 125 shall apply.
(5) Subject to the provisions of these regulations, the liquidator
shall use his own discretion in the management of the assets of the
company.
(6) If any person is aggrieved by any act or decision of the
liquidator, that person may apply to the court and the court may
confirm, reverse or modify the act or decision complained of, and
make such order on the matter as it thinks just.
(7) A liquidator who has acted in accordance with the direction
of the court or in accordance with specialist advice shall not be
liable for any effects of his actions. Nor shall a liquidator be liable
for any loss or expense incurred by him in carrying out his duties
except where he has acted fraudulently or negligently or in breach
of law or of the directions of the court.
Every liquidator of a company which is being wound up by
the court shall keep proper books in which he shall cause to be
made entries or minutes of proceedings at meetings, and of such
other matters as may be prescribed.
(1) Upon his appointment the liquidator shall notify the
Registrar of any bank account which the liquidator shall use for the
purposes of receiving and making payments on behalf of the
company. The liquidator shall not be entitled to receive and make
payments until he has made such notification.
(2) A liquidator of a company which is being wound up by the
court shall not pay any sums received by him as liquidator into an
account or accounts other than an account or accounts which have
been notified to the Registrar.
(3) In the event that any proceeds from the sale of a ship are
received by the liquidator, the rights of preference of a holder of a
registered mortgage and of a privileged creditor shall continue to
a p p l y o v e r t h e s a l e p r o c e e d s i n su b s t i t u t i o n o f t h e s h i p i n
accordance with the Act.
(4) It shall not be lawful to issue precautionary or executive
warrants over any accounts opened by the liquidator in accordance
with this regulation.
(1) Every liquidator of a company which is being wound
up by the court shall, at such times as may be prescribed but not
less than twice in each year during his tenure of office, send to the
Registrar, and to such other place as the Registrar may direct, an
account of his receipts and payments as liquidator.
(2) The account shall be in a proper form, shall be made in
duplicate, and shall be duly certified by the liquidator.
(3) The Registrar may, at the company’s expense, cause the
accou nt t o be aud ited, and for t he purpose of the aud it t he
liquidator shall furnish the auditor appointed by the Registrar with
such vouchers and information as the auditor may require and the
auditor may at any time require the production of and inspect any
books or accounts kept by the liquidator.
(4) When the account has been audited, one copy thereof shall
be delivered to the Registrar for registration and the other copy
shall be delivered to the court for filing, and each copy shall be
open to inspection of any person on payment of the prescribed fee.
(1) If an application is made to the court by any creditor
complaining on the conduct of a liquidator of a company the court
shall inquire into the matter and take such action thereon as it may
think expedient.
(2) The Registrar may at any time require any liquidator of a
company which is being wound up by the court to answer any
inquiry in relation to any winding up in which he is engaged, and
the Registrar may, if he thinks fit, apply to the court to examine the
liquidator or any other person on oath concerning the winding up.
(3) The Registrar may also direct an investigation to be made
of the books and vouchers of the liquidator.
(1) When the liquidator of a company which is being
wound up by the court has realised all the property of the company,
or so much thereof as can, in his opinion, be realised without
needlessly protracting the liquidation, and has distributed a final
dividend, if any, to the creditors, or has resigned, or has been
removed from office, the Registrar shall, on the liquidator ’s
application to be released, cause a report to be prepared on the
liquidator’s accounts at the company’s expense. On being satisfied
that the liquidator has complied with all the requirements laid down
by the Registrar and, after taking into consideration the report and
any objection which may be raised by any creditor or person
interested against the release of the liquidator, the Registrar shall
e i t h e r g r a n t o r w i t h h o l d t h e r e l e a s e a c c o r d i n g l y, s u b j e c t
nevertheless to an appeal to the court made by the liquidator.
(2) Where the release of a liquidator is withheld, the court may,
on the application of any creditor or person interested, make such
order as it thinks fit, holding the liquidator responsible for the
consequences of any act or default which he may have made
contrary to his duty.
(3) An order of the Registrar releasing the liquidator shall
discharge him from all liability in respect of anything which he did
or which he failed to do in the administration of the affairs of the
company or otherwise in relation to his conduct as liquidator, but
the court may, on the application of any creditor or person
interested, revoke such order on proof that it was obtained by fraud
or by suppression or concealment of any material fact.
(4) Where a liquidator has not previously resigned or been
removed, the release shall operate as a termination of his
appointment.
(5) The Registrar shall, upon granting or withholding the
release referred to in this regulation, register it accordingly.
Chapter III - General powers of the court in a winding up
by the court
(1) The court may at any time after a winding up order,
on the application either of the liquidator or any creditor, and on
proof to the satisfaction of the court that all proceedings in relation
to the winding up ought to be stayed, make an order staying the
proceedings, either altogether or for a limited time, on such terms
and conditions as the court thinks fit.
(2) On an application under this regulation the court may,
before making an order, require the liquidator to furnish to the
court a report with respect to any facts or matters which are in its
opinion relevant to the application.
(3) A copy of every order made under this regulation shall
forthwith be forwarded by the Registrar of Courts to the Registrar
for registration.
The court may, at any time after making a winding up
order, require any person who holds any money, property or books
and papers in his hands to which the company is prima facie
entitled, to pay, deliver, convey, transfer or otherwise hand over
such money, property, books or papers to the liquidator forthwith or
within such time as the court directs
Provided that no such order may be issued in relation to any
property under the control of a holder of a registered mortgage or a
pledge.
(1) The liquidator may, if satisfied that the business of
the company, or the interests of the creditors generally, require the
appointment of a special manager of the estate or business of the
company or any ship belonging to the company other than himself,
apply to the court, and the court may, on such application, appoint a
special manager of the said estate or business or ship to act during
such time as the court may direct, with such powers as may be
entrusted to him by the court.
(2) The special manager shall give such security and account in
such manner as the court directs.
(3) The special manager shall receive such remuneration as
may be fixed by the court.
The court may fix a time or times within which creditors
are to prove their debts or claims or are to be excluded from the
benefit of any distribution made before those debts are proved.
The court may, at any time after making a winding up
order, make such order for inspection of books and papers of the
company by creditors as the court thinks fit, and any books and
papers in the possession of the company may be inspected by
creditors in accordance with that order.
(1) The court may, subject to and without prejudice to the
rights of priority of all maritime privileges and mortgages and
without prejudice to any rights of possession over a ship or any
proceeds of sale, insurance or otherwise as stated in the Act, in the
event of the assets being insufficient to satisfy the liabilities, make
an order as to the payment out of the assets of the costs, charges
and expenses incurred in the dissolution and winding up in such
order of priority as the court thinks fit.
(2) In so doing the court shall have regard to the following
general order of priority
(a) expenses properly chargeable or incurred by the
liquidator in preserving, realising or collecting any of
the assets of the company;
(b) the cost of any security provided by a provisional
administrator, liquidator or special manager;
(c) the costs of the applicant, and of any person appearing
on the application whose costs are allowed by the
court;
(d) the remuneration of the provisional administrator or the
special manager, if any;
(e) any amount payable to a person employed or
authorised to assist in the preparation of a statement of
affairs or of account;
(f)
any allowance made by order of the court, towards
costs on an application for release from the obligation
to submit a statement of affairs, or for an extension of
time for submitting such a statement;
(g) any necessary disbursements by the liquidator in the
course of his administration;
(h) the remuneration of any person employed by the
liquidator to perform any services for the company, as
required or authorised by the provisions of these
regulations;
(i)
the remuneration of the liquidator;
(j)
the amount of any income tax on chargeable gains
accruing on realisation of any asset of the company.
(1) The court may, at any time after the making of any
order under Part V, summon before it any officer of the company or
person known or suspected to have in his possession any property
of the company or supposed to be indebted to the company, and any
person whom the court deems capable of giving information
concerning the promotion, formation, trade, dealings, affairs or
property of the company.
(2) The court may examine any person referred to in
subregulation (1) on oath concerning the matters aforesaid, either
by word of mouth or on written interrogatories, and may reduce his
answers to writing and require him to sign them.
(3) The court may require such person to produce any books
and papers in his custody or power relating to the company, but
when he claims any right over books or papers produced by him,
the production shall be without prejudice to the right claimed by
him, and the court shall have jurisdiction in the winding up to
determine all questions relating to that right.
(4) If any person so summoned refuses to come before the court
at the time appointed, not having a lawful impediment which is
made known to the court at or before the time of the sitting and
allowed by it, the court may order his arrest in order to be brought
before the court for examination.
(5) These provisions shall not apply to the holders of a
registered mortgage of a ship who may be in possession of property
of a company in terms of such mortgage and related agreements.
The powers conferred and the duties imposed on the court
by these regulations in respect of the following matters
(a) the holding and conduct of meetings to ascertain the
wishes of creditors;
(b) the payment, delivery, conveyance, surrender or
transfer of money, property books or papers to the
liquidator;
(c) the making of calls;
(d) the fixing of a time within which debts and claims
must be proved;
may, subject to the provisions of this regulation or any other
provision of these regulations, be exercised or performed by the
liquidator, subject to the control of the court.
(1) When the affairs of the company have been
completely wound up, or the circumstances specified in regulation
111(4) the court, if the liquidator makes an application in that
behalf, shall make an order that the name of the company be struck
o ff t h e r e g i s t e r u n d e r s u c h c o n d i t i o n s a s t o p u b l i c i t y a n d
notifications as it deems fit.
(2) A copy of the order shall within fourteen days from the date
thereof be forwarded by the Registrar of the Courts to the Registrar
who shall comply therewith.
SUB-PART II - VOLUNTARY WINDING UP
Chapter I - General provisions
(1) A person shall not be qualified to act as liquidator
unless he is an advocate or is an individual who is a certified public
accountant or cer tified public accountant an d au dito r or is
registered with the Registrar as fit and proper to exercise the
function of liquidator.
(2) A person who is qualified to act as liquidator in virtue of
sub-regulation (1), may not act as liquidator if he has held the
office of director or has held any other appointment with or in
connection with that company, at any time during the four years
prior to the date of dissolution of the company as determined in
accordance with the provisions of these regulations
Provided for the purposes of this sub-regulation, director
includes a person in accordance with whose directions or instructions
the directors of the company are or have been accustomed to act.
(3) The liquidators shall be appointed, and may be removed
from office, by an extraordinary resolution taken at a general
meeting or where so provided by the memorandum or articles of the
company, at a meeting by the board of directors of the company
Provided that if a resolution submitted for the appointment
of a person as a liquidator fails to obtain the required majority at a
general meeting of the company or the general meeting cannot take
place due to lack of a quorum, the directors may appoint a
liquidator themselves
Provided further that a liquidator, appointed by the
directors, may be removed from office by order of the court on
demand by application made by members of the company holding
in the aggregate not less than one tenth of the paid up share capital
of the company, if the court is satisfied that there exist sufficient
grounds to warrant his removal. In such an event, the court shall
itself appoint a liquidator.
(4) The remuneration of the liquidator shall be fixed by the
company in general meeting or where appropriate in a meeting of
the board of directors, subject nevertheless to the right of the
liquidator to demand that it be fixed or varied by the court.
(5) All costs, charges and expenses properly incurred in the
winding up, including the remuneration of the liquidator, shall be
payable out of the assets of the company in priority to all claims
other than those with preference over a ship in terms of the Act
unless with the prior written consent of the relevant creditor.
The liquidator shall, within fourteen days after his
appointment, deliver to the Registrar for registration and
publication a notice of his appointment.
If default is made in complying with any of the
requirements of regulations 126, 127 and 152, every director or
liquidator, as the case may be, who is in default shall be liable to a
penalty, and for every day during which the default continues, to a
further penalty.
(1) When a company has been dissolved, until such time
as a liquidator is appointed, the directors shall have the power to
perform such acts only as are of ordinary administration.
(2) On the appointment of a liquidator all the powers of the
directors shall cease without prejudice to the right of the directors
to act in accordance with the provisions of this Sub-Part in so far as
authorised by the memorandum and articles.
(3) After the appointment of a liquidator a general meeting or a
m ee t i n g o f t h e b o a r d o f d i r e c t o r s m a y b e c o n v e n e d b y t h e
liquidator or liquidators in office, or, if the office is vacant, by any
member of the company or any director of the company, in the
manner provided by these regulations or by the articles.
(1) Where the assets of a company are insufficient to
meet its liabilities the liquidator may make calls on all or any of the
members for payment of any unpaid share capital of the company
which he considers necessary to satisfy the debts and liabilities of
the company, and the costs and the charges and expenses of
winding up, and for the adjustment of the rights of the members
among themselves; and in making a call the liquidator may take
into consideration that some of the members may partly or wholly
fail to pay the call.
(2) The liquidator may, on production of a list identified by him
of the names of the members liable in payment of any calls and of
the amounts due by each of them, apply to the court for the
enforcement of any such calls by any of the means mentioned in
article 273(a), (b), and (d) of the Code of Organization and Civil
Procedure.
(3) Where a call is made under the provisions of this
regulation, the person from whom a sum is due shall pay interest
thereon from the day appointed for payment to the sum of actual
payment at the rate of six per cent per annum.
(1) In the event of the winding up continuing for more
than twelve months, the liquidator shall unless the previous general
meeting has resolved otherwise, summon a general meeting of the
company at the end of the first period of twelve months from the
commencement of the winding up, and of each succeeding period
of twelve months, or at the first convenient date within three
months from the end of the period of twelve months, or within a
longer term as the Registrar may allow, and shall lay before the
meeting an account of his acts and dealings and of the conduct of
the winding up during the preceding twelve months, including a
summary of receipts and expenditure.
(2) If the liquidator fails to comply with the provisions of
subregulation (1) he shall be liable to a penalty and, for every day
during which the default continues, to a further penalty.
(1) As soon as the affairs of the company are wound up
the liquidator shall make an account of the winding up and of the
receipts and payments and shall draw up a scheme of distribution
indicating the amount due in respect of each share from the assets
of the company.
(2) Unless otherwise provided in the memorandum or articles
of association or as otherwise resolved by the members, the
liquidator shall cause the account to be audited by one or more
auditors appointed by the company in general meeting, and shall as
soon as the account is audited, call a general meeting of the
company for the purpose of laying before it the account, the scheme
of the distribution and the auditors report and giving any
explanation thereof
Provided that the provisions of regulation 85 shall apply to an
auditor appointed in terms of this sub-regulation. Such auditor shall
not be a person who has held the office of auditor of the company at
any time during the last three years immediately preceding the date of
dissolution.
(3) Within one week after approval by members, the liquidator
shall send to the Registrar for registration a notice of completion of
liquidation in terms of the Seventh Schedule.
(4) If the liquidator fails to comply with the requirements of
subregulation (3), he shall be liable to a penalty, and for every day
for which the default continues, to a further penalty.
Any member not agreeing to the scheme of distribution
may contest the same by application within one month of the
approval thereof by the general meeting.
The liquidator shall keep the books and other documents of
the company for a period of ten years from the date on which the name
of the company was struck off the register.
When a company is dissolved in accordance with the
provisions of regulation 99(1)(b), the date of dissolution shall be
the date of the passing of the resolution for the dissolution or the
date of the court order for dissolution and consequential winding up
or such later date as may be specified in the said resolution or court
order
Provided that where the court has ordered that the company
be wound up voluntarily by virtue of the provisions of regulation
99(1)(b), the company shall be deemed to have been dissolved at
the time of the filing of the winding up application.
Chapter II - Provisions applicable to a members’ voluntary
winding up
The provisions contained in the following regulations shall
apply in relation to a members’ voluntary winding up.
(1) If a vacancy occurs by death, resignation or otherwise
in the office of liquidator appointed by the company, the company
shall by extraordinary resolution fill the vacancy or if such power
has been vested in the directors by the directors.
(2) For the purposes of subregulation (1), a general meeting
shall be convened by any member, or, if there were more than one
liquidator, by the continuing liquidator or liquidators and notice of
the meeting shall be given within fourteen days of the occurrence
of the vacancy referred to in subregulation (1).
(3) The general meeting shall be held in the manner provided
by these regulations or by the memorandum and articles, or in such
manner as may, on the application of any member or by the
continuing liquidator, be determined by the court.
(4) If for any cause whatsoever a liquidator is not appointed in
the manner specified by subregulation (1) or if a vacancy occurs in
the office of liquidator appointed by the court, any member or the
continuing liquidator or liquidators may, at any time thereafter,
apply to the court for the appointment of a liquidator, and the
appointment shall be made by the court.
(5) The above shall not apply where the liquidator establishes
that there are no assets for distribution due to the sale of the
company’s ship by judicial sale or the ranking of creditors by a
court pursuant thereto. In such a case the liquidator shall notify the
members of the facts and file a notice of dissolution and winding up
without procedures in terms of the Seventh Schedule and on receipt
thereof the Registrar shall proceed with subregulation (3).
(1) As soon as the affairs of the company are fully wound
up, the liquidator shall make an account of the winding up, showing
how the winding up has been conducted and how the property of
the company has been disposed of, and thereupon shall call a
general meeting of the company for the purpose of laying before it
the account, and giving any explanation thereof.
(2) Within seven days after the meeting, the liquidator shall
send to the Registrar a copy of the account together with the notice
of the holding of the meeting and of its date, failing which the
liquidator shall be liable to a penalty, and, for every day during
which the default continues, to a further penalty
Provided that, if a quorum is not present at the meeting, the
liquidator shall in the notice mentioned above state that the meeting
was duly summoned and that no quorum was present thereat.
(3) On receiving the account together with the auditor’s report,
if any, the notice of completion of liquidation and of the holding of
the meeting, the Registrar shall forthwith register them and on the
expiration of three months from a notice published in the Gazette or
on a website maintained by the Registrar proceed to strike the name
of the company off the register
Provided that the court may, on an application filed within the
said period of three months by the liquidator or by any other person
who appears to the court to have an interest, make an order deferring
the date at which the name of the company shall be struck off the
register for such time and subject to such conditions as the court may
provide.
(4) If the liquidator fails to call a general meeting of the
company as required by this regulation, he shall be liable to a
penalty.
In the case that the company is insolvent the liquidator may
make a request and the court may, if at least 75% of the creditors
agree, order that the winding up continues under the control of the
creditors and the general direction of the court.
Chapter III - Provisions applicable to a creditors’ voluntary
winding up
(1) The following provisions shall apply in relation to a
creditors’ voluntary winding up, which shall take place when -
(a) it does not reasonably appear to the directors of the
company that there exist sufficient assets of the
company to pay all its liabilities;
(b) the company has assets which may be usefully
liquidated and proceeds distributed for the benefit of
the creditors; and
(c) the majority of creditors appear willing to pursue a
creditors’ voluntary winding up procedure.
(2) This procedure shall not apply when the sole asset of the
company is a ship which has been arrested by creditors or is subject
to judicial sale proceedings in relation to debts which appear to the
directors to exceed the value of the ship. In such an event the
obligation of the directors shall be limited to sending a notice in
writing as specified in the Seventh Schedule to the Registrar of the
state of affairs relating to the ship for public notice, a copy of
which shall be sent to the creditors.
(1) Except in the case stated in regulation 140, the
directors of the company shall cause a meeting of the creditors of
the company to be summoned for the day, or the day next following
the day, on which there is to be held the general meeting of the
company at which the resolution for dissolution and consequential
voluntary winding up is to be proposed and shall cause the notice of
the said meeting of the creditors to be sent by post to the creditors
simultaneously with the sending of the notices of the said meeting
of the company.
(2)
The directors of the company shall -
(a) cause a full statement of the position of the company’s
affairs, together with a list of the creditors of the
company and the estimated amount of their claims to
be laid before the meeting of the creditors to be held as
aforesaid; and
(b) appoint one of their number to preside at the said
meeting.
(3) It shall be the duty of the director appointed to preside at
the meeting of creditors to attend the meeting and preside thereat.
(4) If the meeting of the company at which the resolution for
dissolution and consequential voluntary winding up is to be
proposed is adjourned and the resolution is passed at an adjourned
meeting, any resolution passed at a meeting of the creditors held in
pursuance of subregulation (1) shall have effect as if it had been
passed immediately after the passing of the resolution for
dissolution and consequential winding up.
(5) If default is made by the directors, or the director, as the
case may be, in complying with any of the provisions of this
regulation, every director who is in default shall be liable to a
penalty.
(1) The creditors and the company at their respective
meetings may nominate a person to be liquidator for the purpose of
winding up the affairs and distributing the assets of the company.
The nomination by the company of a person to be liquidator shall
be made by an extraordinary resolution. If the creditors and the
company nominate different persons, the person nominated by the
creditors shall be liquidator, and if no person is nominated by the
creditors the person, if any, nominated by the company shall be
liquidator.
(2) Where no person is nominated to act as liquidator by either
the creditors or the company, an application to the court for the
appointment of a liquidator shall be made by any director of the
company within fourteen days from the date for which the meeting
of the creditors referred to in regulation 141 was summoned or at
which the resolution passed at such meeting shall have come into
effect in accordance with subregulation (4) of the said regulation
141, according to the case.
(3) The provisions of regulation 127 shall apply to the
appointment of a liquidator under this regulation.
(4) If default is made by the directors in complying with the
provisions of subregulation (2), every director who is in default
shall be liable to a penalty, and, for every day during which the
default continues, to a further penalty.
(1) The creditors at the meeting to be held in pursuance
of regulation 136, or at any subsequent meeting may, if they think
fit, appoint not more than five representatives of the creditors to a
liquidation committee
Provided that the creditors may, if they think fit, resolve
that all or any of the persons so appointed by the company ought
not to be members of the liquidation committee, and, if the
creditors so resolve, the persons mentioned in the resolution shall
not, unless the court otherwise directs, be qualified to act as
members of the committee, and on any application to the court
under the provisions of this subregulation the court may, if it thinks
fit, appoint other persons to act as such members in place of the
persons mentioned in the resolution.
(2) Subject to the provisions of subregulation (1) or as may be
otherwise prescribed, the regulation on the constitution and
proceedings of the liquidation committee other than subregulations
(1) to (4) thereof, shall apply with respect to a liquidation
committee appointed under this regulation as they apply with
respect to a liquidation committee appointed in a winding up by the
court.
The liquidation committee or, if there is no such
committee, the creditors, shall fix the basis of remuneration to be
paid to the liquidator or liquidators.
If a vacancy occurs, by death, resignation or removal in the
office of a liquidator who was not appointed by the court, a new
liquidator shall be appointed in accordance with the provisions of
regulation 137(1)
Provided that if a liquidator is not appointed in accordance
with the provisions of the said subregulation, any member or
creditor of the company may apply to the court for the appointment
of a liquidator and the appointment shall be made by the court.
(1) In the event of the winding up continuing for more
than twelve months, the liquidator shall summon a general meeting
of the company and a meeting of the creditors at the end of the first
period of twelve months from the commencement of the winding
up, and of each succeeding period of twelve months, or at the first
convenient date within three months from the end of the period of
twelve months, or within a longer term as the Registrar may allow,
and shall lay before the meetings an account of his acts and
dealings and of the conduct of the winding up during the preceding
twelve months, including a summary of receipts and expenditure.
(2) In the event that the conditions stated in regulation 140(2)
intervene, the liquidator shall bring such events to the knowledge
of the committees and the committees shall resolve to terminate the
liquidation, failing which the liquidator may apply to the court for
such an order.
(3) If the liquidator fails to comply with the provisions of
subregulation (1), he shall be liable to a penalty and, for every day
during which the default continues, to a further penalty.
(1) As soon as the affairs of the company are fully wound
up, the liquidator shall make an account of the winding up, showing
how the winding up has been conducted and how the property of
the company has been disposed of, and thereupon shall call a
general meeting of the company and a meeting of the creditors for
the purpose of laying the account before the meetings and giving
any explanations thereof.
(2) Within seven days after the date of the meetings or, if the
meetings are not held on the same date, after the date of the later
meeting, the liquidator shall send to the Registrar a copy of the
account, and shall make a return to him of the holding of the
meetings and of their dates; and if the copy is not sent or the return
is not made in accordance with this paragraph the liquidator shall
be liable to a penalty, and, for every day during which the default
continues, to a further penalty
Provided that, if a quorum is not present at either such
meeting, the liquidator shall, in lieu of the return mentioned in this
subregulation, make a return that the meeting was duly summoned
and that no quorum was present thereat and upon such a return
being made the provisions of this subregulation as to the making of
the return shall, in respect of that meeting, be deemed to have been
complied with.
(3) If the liquidator fails to call a general meeting of the
company or a meeting of the creditors as required by this
regulation, he shall be liable to a penalty.
(1) The Registrar shall, on receiving the account and, in
respect of each such meeting as is referred to in regulation 147, the
return or returns as mentioned in that regulation, forthwith register
them, and on the expiration of three months from the publication of
a notice in the Gazette, or on a website maintained by the Registrar
the Registrar shall strike the name of the company off the register
Provided that the court may, on an application filed within
the said period of three months by the liquidator or by any other
person who appears to the court to have an interest, make an order
deferring the date at which the name of the company shall be struck
off the register for such time and subject to such conditions as the
court may provide.
(2) When an order by the court is made under subregulation
(1), the Registrar of Courts shall forthwith forward a copy of it to
the Registrar for registration and the Registrar shall defer applying
the provisions of subregulation (1) in accordance with the order
given by the court referred to in that subregulation.
Chapter IV - Provisions applicable to every voluntary winding up.
Distribution and Payment of Debts and
other Administrative Matters
(1) Subject to the provisions of these regulations and of
any other law as to preferential debts or payments, and to the
provisions of the Act, the property of a company shall, on its
winding up, be applied in satisfaction of its liabilities in accordance
with the preferences available to them by law and pari passu within
the same rank of creditors, and, subject to such application, shall,
unless the articles otherwise provide, be distributed among the
members according to their rights and interests in the company.
(2)
The liquidator may -
(a) in the case of a members’ voluntary winding up, with
the sanction of an extraordinary resolution of the
company, and, in the case of a creditors’ voluntary
winding up, with the sanction of the court or of the
liquidation committee or, if there is no such
committee, of a meeting of the creditors, exercise any
of the powers given by regulation 110(1)(c), (d) and
(e) to a liquidator in a winding up by the court;
(b) without sanction, exercise any of the other powers
given by these regulations to a liquidator in a winding
up by the court;
(c) exercise the power of the court of making calls; and
(d) summon general meetings of the company for the
purpose of obtaining the sanction of the company by
extraordinary resolution or for any other purpose he
may think fit.
(3)
The liquidator shall pay the debts of the company.
(4) When several liquidators are appointed, any power given by
these regulations may be exercised by such one or more of them as
may be determined at the time of their appointment or, in default of
such determination, by any number being not less than two.
(1) Any arrangement entered into between a company in
the course of being wound up, and its creditors shall, subject to the
right of appeal under this regulation, be binding on the company if
sanctioned by an extraordinary resolution, and on the creditors if
acceded to by two-thirds in value.
(2) Any creditor may, within fourteen days from the
completion of the arrangement, apply to the court contesting the
arrangement, and the court may thereupon, as it thinks fit, amend,
vary or confirm the arrangement.
(1) The liquidator or any member, or creditor may apply
to the court to determine any question arising in the course of
w i n d i n g u p o f a c o m p a n y, o r t o e x e r c i s e , a s r e s p e c t s t h e
enforcement of calls or any other matter, all or any of the powers
which the court might exercise if the company were being wound
up by the court.
(2) The liquidator may apply to the court to fix a time or times
within which creditors are to prove their debts or claims or to be
excluded from the benefit of any distribution made before those
debts are proved.
(3) The court, if satisfied that the determination of the question
or the required exercise of power referred to in subregulation (1)
will be just and beneficial, may, but subject to the limitations under
article 37C of the Act, accede wholly or partially to the application
on such terms and conditions as it thinks fit or may make such other
order on the application as it so determines.
(4) A copy of any order made by virtue of this regulation
staying the proceedings in the winding up shall forthwith be
forwarded by the Registrar of Courts to the Registrar who shall
make a minute of the order in the register relating to the company.
SUB-PART III - PROVISIONS APPLICABLE TO EVERY MODE
OF WINDING UP
Chapter I - General Provisions
On the dissolution of a company, and in no case later than
fourteen days after dissolution, the company shall deliver to the
Registrar for registration and publication a notice of dissolution
and consequential winding up in the form specified in the Seventh
Schedule
Provided that where a company is dissolved by order of the
court, notice of the dissolution shall be given as aforesaid by the
Registrar of Courts.
Chapter II - Effect of appointment of liquidator
and convening of meetings
On the appointment of a liquidator, all the powers of the
directors shall cease except as may be otherwise provided in this
Part.
(1) The liquidator shall summon all meetings of creditors
by giving not less than fourteen days’ notice of the time and place
thereof in the Gazette or on a website maintained by the Registrar and
in at least one local daily newspaper; and shall, not less than
fourteen days before the day appointed for the meeting, send by
post to every person appearing in the company’s books to be a
creditor of the company, notice of the meeting of creditors.
(2) The notice to each creditor shall be sent to the address
given in the creditor’s proof of his debt, or, if he has not proved his
debt, to the address given in the statement of affairs of the
company, if any, or to such other address as may be known to the
person summoning the meeting.
(3) Where there is no continuing liquidator, any creditor may
apply to the court for directions as to the summoning and holding
of a meeting.
(4) The provisions of this regulation shall not apply to
meetings held under regulation 141 or regulation 147.
(1) At a meeting of creditors a resolution shall be deemed
to be passed when a majority in value of the creditors present
personally or by proxy and voting on the resolution have voted in
favour of the resolution.
(2) The provisions of these regulations and of the memorandum
or articles of the company with respect to proxies at general
meetings of the company shall apply to proxies at meetings of
creditors, with such modifications and adaptations as may be
required.
(3) A copy of every resolution of a meeting of creditors in a
winding up by the court shall be certified by the liquidator, and
filed in the Registry of the Superior Courts.
(4) Where a resolution is passed at an adjourned meeting of any
creditors of a company, the resolution shall, for all purposes, be
treated as having been passed on the date on which it was in fact
passed, and shall not be deemed to have been passed at any earlier
date.
(1) A meeting of creditors may not act for any purpose,
other than -
(a) the election of a chairman where such election is
necessary; or
(b) the proving of debts; or
(c) the adjournment of the meeting
Provided that where there are present in a creditors’
meeting at least three creditors entitled to vote if the number of
creditors entitled to vote do not exceed three, the limitations laid
down in this subregulation shall not apply.
(2) If within half an hour from the time appointed for the
meeting, a quorum of creditors is not present or represented, the
meeting shall be adjourned to the same day in the following week
at the same time and place or to such other day or time or place as
the chairman may appoint, but so that the day appointed shall be
not less than seven and not more than twenty-one days from the day
from which the meeting was adjourned, and at such adjourned
meeting the number present or represented shall form a quorum and
may act for any purpose.
(3) The chairman may, with the consent of the meeting, adjourn
it from time to time and from place to place, but the adjourned
meeting shall be held at the same place as the original meeting
unless in the resolution for adjournment another place is specified
or unless the court otherwise orders.
(1) The chairman shall cause minutes of the proceedings
of meetings to be drawn up and properly entered in a book kept for
that purpose and the minutes shall be signed by him.
(2) A list of creditors present at every meeting shall be made
and kept in such form as the chairman may deem appropriate or as
may be prescribed.
(1) Upon the resignation of a liquidator from his office,
he shall deliver to the Registrar for registration a notice of his
resignation and the resignation shall only become effective on such
registration.
(2) Where a liquidator is removed from office by the court in
accordance with the provisions of this Part, the Registrar of Courts
shall forthwith deliver a notice of such removal to the Registrar for
registration.
(3) Where a liquidator has been removed by an extraordinary
resolution of the company in a members’ voluntary winding up, a
notice thereof shall be delivered to the Registrar for registration by
any member of the company who has duly been authorised by the
same resolution or by the company in general meeting.
(4) Where a liquidator has been removed by a resolution of the
creditors in terms of regulation 155, in a creditors’ voluntary
winding up, a notice thereof shall be delivered to the Registrar for
registration by any creditor of the company who has been duly
authorised by the same resolution or by the creditors’ meeting.
Chapter III - Proof and ranking of claims
In every winding up of a company all debts payable on a
contingency, and all claims against the company, present or future,
certain or contingent, ascertained or which may be due in damages,
shall be admissible as proof against the company, a just estimate
being made, so far as possible, of the value of such debts or claims
as may be subject to any contingency or which are due in damages
but not ascertained, or which for some other reason do not bear a
certain value.
Such claims shall be made in writing to the liquidator
within the times set by him and shall be accompanied by all
supporting evidence. The acceptance by the liquidator of claims
shall be binding on the company.
In the cases specified in regulation 111, the company shall
be struck off upon the filing of a notice to the Registrar notifying
him of the sale of the ship and the conclusion of the ranking of
creditors procedure and this without the need of any further
proceedings. The notice shall be in the form specified in the
Seventh Schedule.
In the winding up of a company, the assets of which are
insufficient to meet the liabilities, the rights of secured and
unsecured creditors and the priority and ranking of their debts shall
be regulated by the provisions of the Act and all claims against a ship
shall rank in priority to all other claims against the company. The
determination by a liquidator of whether a claim is against a ship or
not shall be binding on all the parties subject to the right of a
creditor of a ship to apply to the court to review such
determination.
The provisions of the Commercial Code on bankruptcy
shall not apply to shipping organisations which are companies.
PART VI
COMPANY RECONSTRUCTIONS, CONVERSIONS,
AMALGAMATIONS AND DIVISION OF COMPANIES
Articles 327 to 329 in Part VI and Part VII to Part IX of the
Companies Act shall apply mutatis mutandis to these Regulations
provided that Article 344 (3) of the Companies Act, shall be construed
to require that the draft terms of merger, duly completed, shall be
signed by at least two directors unless the Board of directors is
composed of one in which case it will be signed by that director.
PART VI A
CONTINUATION OF COMPANIES
SUB-PART I - Continuation in Malta of a Foreign Company
A body corporate formed and incorporated or registered
under the laws of an approved country or jurisdiction other than
Malta which is similar in nature to a company as known under the
Laws of Malta and whose objects must be such that the company
will, once registered in Malta, qualify as a shipping organisation
pursuant to article 84Z of the Act, hereinafter referred to as a
"foreign company" may, provided that there is a provision in the
law of that country or jurisdiction authorizing it to do so, and
provided it is also authorized to do so by its charter, statutes or
memorandum and articles or other instrument constituting or
defining the company, hereinafter referred to as "the constitutive
document", r equest the Registrar to be r egistered a s b eing
continued in Malta .
A request by a foreign company for registration as being
continued in Malta shall be made to the Registrar in the manner and
form prescribed by him and shall be accompanied by
(a)
the resolution or equivalent document of the
foreign company authorizing it to be registered as being
continued in Malta, and if the instrument is not written in the
English language, a translation thereof in the English language,
certified to be a correct translation in such manner as may be
prescribed; the resolution or equivalent document has as far as
practicably possible, to be in such manner, by such constituted
body and with such majority as would be the equivalent, under
the laws of the country or jurisdiction of formation and
incorporation or registration, and according to its constitutive
document, of an extraordinary resolution under the laws of
Malta;
(b)
a copy of the revised constitutive document
including all the requirements necessary for the registration of a
company in Malta in accordance with the provisions of these
regulations;
(c)
a certificate of good standing or equivalent
document in respect of the foreign company issued by the
competent authority in which the foreign company was formed
and incorporated or registered or other evidence to the
satisfaction of the Registrar that the foreign company is in
compliance with the registration requirements of that authority,
and, if the instrument is not written in the English language, a
translation thereof in the English language, certified to be a
correct translation in such manner as may be prescribed;
(d)
a declaration signed by at least two directors of
the foreign company, unless the Board of Directors is composed
of one, or, where that foreign company does not have directors,
MERCHANT SHIPPING
(SHIPPING ORGANISATIONS - PRIVATE COMPANIES)
by at least two persons vested with the administration or the
representation of the foreign company to be registered as
continued in Malta, confirming
(i)
the name of the foreign company and the
name under which it is being continued;
(ii)
the jurisdiction under which it is
incorporated;
(iii)
the date of incorporation;
(iv) the decision to have the foreign company
registered as continuing in Malta;
(v)
that the foreign company has given formal
notice to the relevant authority of the country or
jurisdiction where the foreign company was formed,
incorporated or registered as continuing in Malta in
accordance with the procedure laid down by law; and,
together with the declaration, there shall be annexed
evidence of such notification;
(vi) that no proceedings for breach of the laws
of the country or jurisdiction of incorporation have been
commenced against such foreign company, unless such
proceedings arise out of an event which on the date of the
occurrence thereof did not constitute such a breach; and
(vii) the solvency of the foreign company and
that they are not aware of any circumstances which could
negatively affect in a material manner, the solvency
position of the company within a period of twelve
months
Provided that any director of the foreign
company, or the persons vested with the administration
or representation of the foreign company, making a
declaration of solvency under sub-paragraph (vii)
without having reasonable grounds on which to make
this declaration shall be guilty of an offence and liable on
conviction to a fine (multa) of not more than fifty
thousand euro.
(e)
a list of directors of the foreign company as well
as of the company secretary, if any, or of the persons vested
with the administration or the representation of the foreign
company, where that foreign company does not have directors
or a company secretary;
(f)
such material as the Registrar may require to
satisfy himself that -
(i)
such request is permitted by the laws of the
country or jurisdiction in which the foreign company has
been formed and incorporated or registered; and
(ii)
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
the country or jurisdiction of formation and incorporation
or registration to such request has been obtained;
(g)
the registration fees set out in the Companies Act
(Fees) Regulations, relating to the registration of commercial
partnerships, which fees shall apply mutatis mutandis to foreign
companies requesting to be registered as being continued in
Malta.
The documents referred to in regulation 164B shall be
delivered for registration to the Registrar who, being satisfied that
th ey co m pl y w it h th e pro vi sio ns o f t hese r eg ul at io ns sh all
provisionally register them and certify under his hand that the
company is provisionally registered as continuing in Malta as from
the date of registration, which date shall be indicated in the
Provisional Certificate of Continuation. Upon the issue of such
Provisional Certificate of Continuation the company shall be
deemed thereafter to be a company provisionally registered.
With effect from the date of the Provisional Certificate of
Continuation issued by the Registrar in accordance with regulation
164C
(a) the company to which the provisional certificate of
continuation relates -
(i)
shall continue to be a body corporate
incorporated under the regulations under the name
designated in the declaration referred to in paragraph (d)
of regulation 164B, and shall be deemed as provisionally
registered in Malta for all purposes of law; and
(ii)
is subject to all the obligations and capable
of exercising all the powers of a company registered
under these regulations.
(b) the constitutive document as revised in accordance
with paragraph (b) of regulation 164B is considered as
the Memorandum and Articles of Association of the
company;
(c) the registration of a foreign company under Sub-Part I
shall not operate -
(i)
to create a new legal entity;
(ii)
to prejudice or affect the continuity of the
company;
(iii) to affect the property of the company and
such company shall retain all its assets, rights, liabilities
and obligations;
(iv) to render defective any legal or other
proceedings instituted or to be instituted, by or against
the company;
(v)
to release or impair any conviction,
judgment, ruling, order, debt, liability or obligation due
or to become due or any cause existing against the
company or against any member, director, officer or
persons vested with the administration or the
representation of the company.
(1)Where shares in a foreign company which is to be
continued in Malta are subject to a pledge, charge, assignment by
way of security or other similar security, hereinafter referred to as
"pledge", in the country or jurisdiction where the foreign company
was formed and incorporated or registered, such pledge shall
continue to be valid and effective under the laws of Malta, and
following the registration of the company as continued in Malta
shall be fully enforceable as a pledge of shares in terms of
regulation 37 subject to the following conditions
(a)
that the pledge has been validly created in writing as a
right of security and preference over shares under the
law of the country or jurisdiction where the foreign
company was formed and incorporated or registered;
(b) that the pledge is valid and effective as of the date of
issue of the provisional certificate of registration in
Malta;
(c) that a notice of pledge be delivered to the Registrar for
registration in terms of sub-regulation (2) of regulation
37 within fourteen days of the date of issue of the
provisional certificate of registration in Malta
Provided that failure to deliver notice of the pledge to
the Registrar or the company within the time stated in
this paragraph shall not render invalid the pledge
entered into between the parties; however the pledge
of securities shall be effective in relation to a third
party only after the registration by the Registrar of the
notice.
(2) A pledge of shares as mentioned in sub-regulation (1)
(a) shall continue to be regulated by the law chosen by the
parties and such law shall apply to all the rights,
including rights of enforcement thereof, and
obligations of the parties thereto, except to the extent
the pledge is enforced in Malta in which case the
relevant provisions of regulation 37 shall apply;
(b) shall continue to be subject to any submission made by
the parties to the jurisdiction of any foreign court or
arbitration which submission shall be valid and
effective and shall remain fully in force.
(3)
The party delivering the notice of pledge to the Registrar
in Malta in terms of this regulation shall also notify the other party to
the pledge agreement by serving him with a true copy of the said
notice within fourteen days of notification to the Registrar.
(4)
On termination of the pledge, a notice of termination of
the pledge shall be delivered to the Registrar for registration in
accordance with the provisions of sub-regulation (13) of regulation 37.
Within a period of six months from the date of the issue by
the Registrar of the Provisional Certificate of Continuation, the
company shall submit documentary evidence to the Registrar that it
has ceased to be a company registered in the country or jurisdiction
where it had been previously formed and incorporated or
registered. Failure by the foreign company to provide such
documentary evidence shall grant the Registrar discretion to
(a) either strike the name of the company off the register
and inform the relevant authority of the country or
jurisdiction concerned that the company is not
registered in Malta; or
(b) upon reasonable cause being shown allow a further
period of three months prior to striking the name of the
company off the register.
Upon presentation to the Registrar of proof of the
company having ceased to be a company registered in the country
or jurisdiction where it had been previously formed and
incorporated or registered and upon the surrender to the Registrar
of the Provisional Certificate of Continuation, the Registrar shall
issue a Certificate of Continuation confirming that the company has
been registered as continuing in Malta.
No request for the registration of a foreign company as
being continued in Malta may be granted if -
(a)
the dissolution or winding up of the foreign
company has commenced or insolvency proceedings,
arrangements, compositions, recovery proceedings or any other
analogous proceedings have been commenced by or against the
foreign company;
(b)
a liquidator or special administrator of the foreign
company or a receiver of its property has been appointed;
(c)
there is any scheme or order in relation thereto
whereby the rights of creditors are suspended or restricted;
(d)
any proceedings for breach of laws of the country
or jurisdiction of incorporation have been commenced against
such foreign company, not being proceedings arising out of an
event which on the date of the occurrence thereof did not
constitute such a breach.
SUB-PART II - Continuation outside Malta of companies incorporated
in Malta
A company registered under these regulations may, where
the laws of an approved country or jurisdiction so allow, upon
obtaining the consent of the Registrar, apply to the proper authority
of such country or jurisdiction selected to have the company
registered as continued as if it had been incorporated under the
laws of that other country or jurisdiction; and on the date of the
instrument of continuation the company shall become a company
under the laws of that other country or jurisdiction and shall be
subject to such laws as permitted or required by that other country
or jurisdiction.
A request by a company for the consent of the Registrar to
be continued as a company outside Malta under the laws of an
approved country or jurisdiction shall be made to the Registrar in
the manner and form prescribed by him and shall be accompanied
by a declaration signed by at least two directors of the company,
unless the Board of Directors is composed of one, containing
(a) the name of the company and the name, if different,
under which registration in the approved country or
jurisdiction is being sought;
(b) the place of proposed registration of the company and
the name and address of the competent authority in
that approved country or jurisdiction;
(c) the date on which it is proposed to establish domicile
in the relevant approved country or jurisdiction.
No company may request the Registrar for his consent
under regulation 164J unless -
(a) an extraordinary resolution of the shareholders of the
company was approved in accordance with the
memorandum or articles of association of the company
authorizing such request. The extraordinary resolution
shall be delivered to the Registrar for registration;
(b) (i) the company has delivered to the Registrar for
registration a declaration signed by at least two
directors of the company, unless the Board of
Directors is composed of one, confirming the solvency
of the company and confirming that the directors are
not aware of any circumstances which could
negatively affect in a material manner the solvency
position of the company within a period of twelve
months;
(ii)
any director of a company making a
declaration of solvency under sub-paragraph (b) (i)
without having any reasonable grounds on which to
make this declaration shall be guilty of an offence and
liable on conviction to a fine (multa) of not more than
fifty thousand euro (€50,000);
(c) payment has been made of all fees and penalties due
under these regulations or any other law or regulations
which may be applicable; and
(d) the prescribed fee has been paid for.
The Registrar shall not give his consent to a company
requesting to be continued in another country or jurisdiction unless
he is satisfied that -
(a)
the requirements of regulation 164J have been
complied with;
(b)
no proceedings for the dissolution of the company,
insolvency proceedings, arrangements, compositions, recovery
proceedings or any other analogous proceedings have been
commenced by or against the company in Malta or elsewhere;
(c)
any pledgee of shares in accordance with the
regulations has given his consent in writing to the intended
continuation of the company in another country or jurisdiction;
and
(d)
the company at the time of such request is not in
breach of any of its duties or obligations under the regulations
Provided that the Registrar may in his discretion give his
consent if payment of any penalty due is made.
(1)In addition to the requirements of regulation 164L, the
Registrar shall not give his consent for the continuation of the
company in another approved country or jurisdiction until the lapse
of three months from the date of the publication, in the Gazette or
on a website maintained by the Registrar and in a daily newspaper
circulating wholly or mainly in Malta, of a notice relating to the
extraordinary resolution referred to in paragraph (a) of regulation
164K. (2)
During the aforesaid period of three months any creditor
of the company whose debt existed prior to the publication of the
notice referred to in sub-regulation (1) may, by sworn application,
object to such continuation and, if he shows good cause why it should
not take effect, the Court shall either uphold the objection or allow the
continuation of the company on sufficient security being given.
Upon an instrument of continuation continuing the
company in another country or jurisdiction being issued by the
relevant authority of the said country or jurisdiction, the company
shall forthwith deliver to the Registrar a copy of the instrument of
continuation and the company shall be deemed to have ceased to be
a company incorporated in Malta from the date when its
continuation in that other country or jurisdiction takes effect, and
the Registrar shall strike the name of the company off the register
Provided that nothing in this regulation shall -
(a)
take away or affect the jurisdiction of any court in
Malta to hear and determine any proceedings commenced
therein by or against the company before it ceased to be a
company registered in Malta;
(b)
affect the property of the company;
(c)
render defective any legal or other proceedings
instituted or to be instituted, by or against the company; or
(d)
release or impair any conviction, judgment,
ruling, order, debt, liability or obligation due or to become due
or any cause existing against the company or any other person.
The Registrar shall keep a register of all companies that
obtained his consent to register as being continued in another
approved country or jurisdiction. The register shall contain a record
of the name in which the company is registered as being continued
as well as all relevant details.
PART VII
GENERAL
(1) All judicial proceedings which are to be served on a
shipping organisation shall be properly served if sent by registered
mail or served by a court marshall at the registered office of the
shipping organisation.
(2)
It shall be the duty of the Registrar,
(a) where under any provision -
(i)
any document is required to be delivered or
given to or served on him for registration; or
(ii) any certificate is issued by him on the
registration or change of name or conversion or
amalgamation or division of a company, or the
name of a company is struck off the register,
(iii) to cause without delay a statement to be
published in the Gazette or on a website
maintained by the Registrar showing the date at
which the registration, delivery or service was
made, or at which the certificate was issued or at
which the name of the company was struck off
the register, and the general nature of the
document or certificate, and giving such
particulars as are necessary to distinguish the
company to which the statement related
Provided that the Registrar shall additionally be
required to publish without delay in a daily
newspaper circulating wholly or mainly in Malta
a notice showing substantially the same
information contained in the statement
published in the Gazette or on the website,
consequent to the registration referred to in the
following provisions of these regulations
Sub-regulation (1) of regulation 106;
Regulation 152;
Regulation 164.
In the event of any reduction referred to in
regulation 24, the Registrar shall proceed with
the publication of a statement in the Gazette or
on the website and in a daily newspaper in
accordance with the requirements of this
regulation.
The publication of the notice referred to in this
proviso shall be subject to the following
provisions
(i)
The publication of the notice shall be made by
the Registrar at the expense of the company
concerned;
(ii)
A company, liable for the expense of the
publication of a notice in accordance with this
proviso, shall effect payment without delay, and
in the event that such company is or has been
dissolved, the Registrar shall, in regard to the
said expense, enjoy the same preferential
ranking as expenses properly incurred by a
liquidator;
(iii) The expense incurred by the Registrar in
publishing a notice pursuant to this proviso shall
be notified in writing to the company or person
liable for the expense in accordance with this
proviso. Such notification shall be deemed
equivalent to a notice given in terms of sub-
regulation (4), and the expense incurred by the
Registrar shall, in so far as applicable, be
considered equivalent to a penalty referred to in
the same sub-regulation. The provision of sub-
regulations (4) to (18) shall mutatis mutandis
apply to such expense;
(b) to supply copies, certified copies or verified and
certified copies of documents registered pursuant to
this regulation against payment of the prescribed fee to
any person who requests them, and such copies may
also be supplied by electronic means;
(c) to deliver to the Director of the Public Registry for
registration at the Public Registry Office a notice
containing the particulars of any conversion,
amalgamation or division which has taken effect in
accordance with Part VI, or the striking off of the
name of a company, under the provisions of regulation
98. Such notice shall show substantially the same
particulars as the statement published in the Gazette or
on the website maintained by the Registrar pursuant to
the proviso to this regulation; and it shall be the duty
of the Director of the Public Registry to register the
notice or a note thereof in like manner as notes of
reference, in so far as applicable, as the Director may
consider appropriate.
(3) Any document, certificate or other particular required to be
delivered, given to or served on the Registrar for registration may
be relied on by the company as against third parties only after it has
been duly published in accordance with sub-regulation (2), unless
the company proves that third parties had knowledge thereof in
which case the company may rely on any such document,
certificate or other particular notwithstanding that it has not yet
been so published. Any transactions taking place before the
sixteenth day following the publication of any such document,
certificate or other particular, shall not be relied on as against third
parties who prove that it was not possible for them to have had
knowledge thereof
Provided that at any time third parties may always rely on
any such document, certificate or other particular, even if the
publication formalities in relation thereto have not at that time been
complied with
Provided further that where these regulations require that
any provision shall not take effect until the lapse of a particular
period, the provisions of this sub-regulation shall only come into
effect on the lapse of the later period.
(4) Where the Registrar gives notice in writing to any person
that such person has become liable to a penalty specifying the
nature of the infringement, and indicating an amount as due by way
of penalty in respect of such infringement, the person to whom the
notice is given shall, without prejudice to the provisions of sub-
regulations (5) to (18), be deemed to have incurred a penalty, and
the amount indicated as aforesaid as due by way of penalty
including any penalty due for each day during which the default
continues shall be deemed to be the penalty due in respect of the
infringement specified in the notice.
(5) A notice as is referred to in sub-regulation (4) shall, upon
the service of a copy thereof by means of a judicial act on the
person indicated in the notice, constitute an executive title for all
effects and purposes of Title VII of Part I of Book Second of the
Code of Organization and Civil Procedure unless such person shall
within thirty days from the date of such service institute
proceedings before the court objecting to the penalty so fixed.
(6) Where any person desires to institute proceedings
objecting to a penalty referred to in sub-regulation (4), such
proceedings shall be instituted by application against the Registrar.
(7)
The application shall, under pain of nullity, state clearly
and concisely the nature of the complaint, the facts out of which the
complaint arises, the reasons why such complaint should be upheld,
and the claim that the penalty is not due at law or is due at law only
in a smaller amount.
(8) The court shall not annul or reduce a penalty as aforesaid
unless such penalty cannot at law be imposed in the circumstances
of the case, or cannot at law be fixed in the amount fixed by the
Registrar.
(9) The applicant shall attach to the application all such
documents in support of his claim as it may be in his power to
produce, and shall indicate in his application the names of all
witnesses he intends to produce stating, in respect of each, the
proof which he intends to make.
(10) The court shall, without delay, set down the application for
hearing at an early date, which date shall in no case be later than
thirty days from the date of the filing of the application.
(11) The application, and the notice of the date fixed for
hearing, shall be served on the Registrar without delay, and the said
Registrar shall file his reply thereto within fourteen days after the
date of the service of the application.
(12) The Registrar shall, in his reply, state clearly and
concisely whether he agrees to the facts set out in the application,
and the reasons why he objects to the claim; he shall moreover state
in his reply the names of the witnesses in support of his reasons and
shall attach thereto all the document in support thereof.
(13) On the day fixed for the hearing of the application, the
court shall consider only the issues of fact and of law as are
ascertainable from the application, reply or documents filed, by
either of the parties, or from the evidence indicated by either of the
parties in the application or reply as the case may be, or from the
oral pleading of either of the parties.
(14) The court shall hear the application to a conclusion within
five working days from the date fixed for the original hearing of the
application, and no adjournment shall be granted except either with
the consent of both parties, or for an exceptional reason to be
recorded by the court, and such adjourned date shall not be later
than that justified by any such reason.
(15) Saving the preceding provisions of this regulation, the
provisions of the Code of Organization and Civil Procedure
relating to proceedings before the First Hall of the Civil Court shall
apply in relation to any such application.
(16) Notwithstanding the provisions of sub-article (2) of article
256 of the Code of Organization and Civil Procedure, the executive
title referred to in sub-regulation (5) shall not be enforceable before
the lapse of thirty days from the service of the judicial act therein
referred to.
(17) The decision of the court upon an application referred to in
sub-regulation (6), confirming the imposition of a penalty fixed by
the Registrar or reducing any such penalty, shall upon becoming res
judicata be deemed to be a judgment of the court ordering the
payment by the applicant of the penalty as confirmed or reduced.
(18) An appeal from a decision of the court upon an application
referred to in sub-regulation (6), shall be made by means of an
application to the Court of Appeal to be filed within six working
days of the date of the decision; the person against whom the
appeal is entered shall within six working days from the service
upon him of the application file a reply to the appeal.
(1) Where any provision provides for the imposition of a
penalty, the amount of such penalty shall be determined by
reference to the Tenth Schedule which specifies the maximum
penalty that may be imposed by the Registrar under any of the
provisions of these regulations.
(2) In the Tenth Schedule, the first column indicates the
regulation and sub-regulation which prescribes that a penalty shall
be imposed, the second column gives a general description of the
infringement, which description shall not be relied on in
interpreting any provision of, the third column prescribes the
maximum penalty and the fourth column prescribes the maximum
daily default penalty, if any. The daily default penalty shall be due
for every day during which the default continues and shall accrue
from the day on which the Registrar gives notice under sub-
regulation (4) of regulation 165 that a penalty is due.
(3) Action by the Registrar for the recovery of a penalty shall
be prescribed by the lapse of five years from the day on which the
default occurs.
(4) A company shall be jointly and severally liable with its
officers for the payment of any administrative penalties imposed.
The Minister responsible for registration of commercial
partnerships may vary the thresholds, including the currency in
these regulations from time to time by means of a notice.
The fees prescribed in the Companies Act (Fees)
Regulations shall apply mutatis mutandis to the companies formed and
registered in terms of these regulations.
PART VIII
TRANSITORY PROVISIONS
(1) As from the date of the coming into force of these
regulations, a shipping organisation shall not be formed and
registered as a private company unless it complies with the
provisions of these regulations.
(2) As from the date of the coming into force of these
regulations all shipping companies formed and registered as private
companies under the Commercial Partnerships Ordinance shall -
(i)
be deemed to be formed and registered under
these regulations and in compliance with the
same, shall retain the same legal personality and
all their rights and obligations shall not be
prejudiced in any manner;
(ii) within a period of five years from such date take
such action as is necessary to align the
memorandum and articles of association of the
company with the requirements of these
regulations and for such purpose a resolution of
the board of directors or the sole director, as the
case may be, shall be sufficient.
(3) The provisions of regulation 37 relating to pledge of
securities issued by a shipping company shall apply to all pledges
done after the coming into force of these regulations.
(4) A pledge in writing executed in relation to securities issued
by shipping companies prior to the entry into force of these
regulations shall be valid and effective as a pledge and shall be
regulated in accordance with the provisions of the Civil Code and
regulation 37
Provided that -
(i)
in addition to the above nothing in regulation 37
shall render invalid anything which was valid
before the date of these regulations;
(ii) it shall not be deemed necessary for there to
exist any authority in the memorandum and
articles of the company for the securities to be
pledged;
(iii) the obligation to file a notice with the Registrar
as required by regulation 37(2) shall be at the
option of the pledgee and any notice of pledge
given to the company, the securities of which
have been pledged, shall be deemed to comply
with the requirements of subregulation (2);
(iv) such pledges shall be effective in relation to
third parties from the date of the notice of the
pledge to the company or from the date of the
presentation of the pledge agreement to the
Registrar, which ever is the earlier and any
notice filed by the pledgee with the Registrar in
terms of the preceding paragraph shall refer to
the date of service of the notice of pledge on the
company or the Registrar as the case may be;
(v) the notice required by regulation 37(13) shall
only be filed with the Registrar in case a notice
had been previously filed by the pledgee in
terms of the preceding sub-paragraph (iii).
(1) The dissolution of a shipping company occurring
before the date of these regulations shall continue to be
administered in accordance with the provisions of the Commercial
Partnerships Ordinance and the consequential winding up of such a
company shall be regulated accordingly unless the liquidator of the
company elects, by notice in writing to the Registrar, that the
dissolution and winding up be governed by these regulations.
(2) In relation to a shipping company, bankruptcy proceedings
commenced before the date of these regulations shall, after the
appointed day, continue to be governed by the provisions of Part III
of the Commercial Code relating to bankruptcy.
A shipping company formed and registered as a public
company in terms of the Commercial Partnerships Ordinance shall
be governed by the Companies Act from the date on which these
regulations come into force and shall comply with the Companies
Act within six months from the date of these regulations.