By: Fenech & Fenech Advocates | Author: Maria DeBono, Associate within the Commercial & Corporate Law Department
Certain amendments to the Companies Act, introduced by virtue of Act LX of 2021 and of interest and importance to officers of Maltese companies, have recently come into force.
Most notably, in terms of Article 139(1) of the Companies Act (Chapter 386 of the Laws of Malta) as amended, newly appointed directors must now sign the Memorandum and Articles of Association of the company upon which they sit as directors, providing their explicit consent to act as same or may alternatively submit a declaration evidencing such consent. Moreover, in terms of Article 139(5), appointed directors must now also declare whether they are aware of any circumstances which could lead to their disqualification from holding such office of director. This particular provision is quite far-reaching as consideration must be had both to the Companies Act provisions on the disqualification of directors as well as any other disqualification to act as director arising from any other European Member State.
To give practical effect to these amendments, specific declarations have been introduced into the appropriate statutory forms by the Malta Business Registry (the “MBR”). The MBR has advised that the existing Form K (used to designate the appointment and resignation or removal of directors or company secretaries) has been revamped, while a new form, the Form K(1), has also been created.
The amended Form K has now been divided into two sections. Section A reproduces the original Form K whereby the company concerned must input the company name and the details of the new officer being appointed and/or the officer resigning or being removed and must insert the effective date of such change. The new Section B applies only to directors and provides for the director being appointed to (i) consent to the appointment and (ii) declare and confirm that s/he is not aware of any circumstances which could lead to a disqualification from being appointed or to hold the office of director of a company as at that date. At the risk of stating the obvious, while Section A can still be signed by any director, company secretary or manager, Section B can only be signed by newly appointed director.
The new Form K(1) has been created to allow directors to make this same declaration and provide such consent, upon the formation of a company, which is different to the above-mentioned scenario applying to companies already in existence.
These forms will be the only forms accepted as from today (1st February 2022) and therefore, companies and officers alike should become accustomed to the amended statutory forms as soon as possible.
