Adgm Companies Regulations Part 12

Part 12 - Company Secretaries and Company Service Providers

Chapter 1 - Company Secretaries

Article 287 - Private company not required to have secretary

A private company is not required to have a secretary.
References in these Regulations to a private company “without a secretary” are to a private company that for the time being is taking advantage of the exemption in subsection (1), and references to a private company “with a secretary” shall be construed accordingly.
In the case of a private company without a secretary–

(a) anything authorised or required to be given or sent to, or served on, the company by being sent to its secretary–
- (i) may be given or sent to, or served on, the company itself, and
- (ii) if addressed to the secretary shall be treated as addressed to the company, and
(b) anything else required or authorised to be done by or to the secretary of the company may be done by or to–
- (i) a director, or
- (ii) a person authorised generally or specifically in that behalf by the directors.

Article 288 - Public company required to have secretary

A public company must have a secretary.

Article 289 - Direction requiring public company to appoint secretary

If it appears to the Registrar that a public company is in breach of section 288 (public company required to have secretary), the Registrar may give the company a direction under this section.
The direction must state that the company appears to be in breach of that section and specify–

(a) what the company must do in order to comply with the direction, and

(b) the period within which it must do so.

That period must be not less than one month or more than three months after the date on which the direction is given.
The direction must also inform the company of the consequences of failing to comply.
Where the company is in breach of section 288 (public company required to have secretary) it must comply with the direction by–

(a) making the necessary appointment, and

(b) giving notice of it under section 293 (duty to notify Registrar of changes),

before the end of the period specified in the direction.
If the company has already made the necessary appointment, it must comply with the direction by giving notice of it under section 293 (duty to notify Registrar of changes) before the end of the period specified in the direction.
If a company fails to comply with a direction under this section, a contravention of these Regulations is committed by–

(a) the company, and

(b) every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the company.
A person who commits the contravention referred to in subsection (6) shall be liable to a level 3 fine.

Article 290 - Qualifications of secretaries of public companies

It is the duty of the directors of a public company to take all reasonable steps to secure that the secretary (or each joint secretary) of the company is a person who appears to them to have the requisite knowledge and experience to discharge the functions of secretary of the company.

Article 291 - Discharge of functions where office vacant or secretary unable to act

Where in the case of any company the office of secretary is vacant, or there is for any other reason no secretary capable of acting, anything required or authorised to be done by or to the secretary may be done–

(a) by or to an assistant or deputy secretary (if any), or

(b) if there is no assistant or deputy secretary or none capable of acting, by or to any person authorised generally or specifically in that behalf by the directors.

Article 292 - Duty to keep register of secretaries

A company must keep a register of its secretaries.
The register must contain the required particulars (see section 294 (particulars of secretaries to be registered: individuals)) of the person who is, or persons who are, the secretary or joint secretaries of the company.
The register must be kept available for inspection–

(a) at the company’s registered office, or

(b) at a place specified in rules made by the Board under section 996 (rules about where certain company records to be kept available for inspection).
The company must give notice to the Registrar–

(a) of the place at which the register is kept available for inspection, and

(b) of any change in that place,

unless it has at all times been kept at the company’s registered office.
The register must be open to the inspection–

(a) of any member of the company without charge, and

(b) of any other person on payment of such fee as may be prescribed.
If default is made in complying with subsection (1) a contravention of these Regulations is committed by–

(a) the company, and

(b) every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the company.
A person who commits the contravention referred to in subsection (6) shall be liable to a level 2 fine.
If default is made in complying with subsection (3), or if default is made for 14 days in complying with subsection (4), a contravention of these Regulations is committed by–

(a) the company, and

(b) every officer of the company who is in default.

For this purpose a shadow director is treated as an officer of the company.
A person who commits the contravention referred to in subsection (8) shall be liable to a level 1 fine.
In the case of a refusal of inspection of the register, the Court may by order compel an immediate inspection of it.

Article 293 - Duty to notify Registrar of changes

A company must, within the period of 14 days from–

(a) a person becoming or ceasing to be its secretary or one of its joint secretaries, or

(b) the occurrence of any change in the particulars contained in its register of secretaries,

give notice to the Registrar of the change and of the date on which it occurred.
Notice of a person having become secretary, or one of joint secretaries, of the company must be accompanied by a consent by that person to act in the relevant capacity.
If default is made in complying with subsection (1)(a), a contravention of these Regulations is committed by every officer of the company who is in default. For this purpose a shadow director is treated as an officer of the company.
A person who commits the contravention referred to in subsection (3) shall be liable to a level 2 fine.
If default is made in complying with subsection (1)(b), a contravention of these Regulations is committed by every officer of the company who is in default. For this purpose a shadow director is treated as an officer of the company.
A person who commits the contravention referred to in subsection (5) shall be liable to a level 1 fine.

Article 294 - Particulars of secretaries to be registered: individuals

A company’s register of secretaries must contain the following particulars in the case of an individual–

(a) name and any former name,

(b) address.
For the purposes of this section “name” means a person’s forename and family name.
For the purposes of this section a “former name” means a name by which the individual was formerly known for business purposes.

Where a person is or was formerly known by more than one such name, each of them must be stated.
It is not necessary for the register to contain particulars of a former name in the following cases where the former name–

(a) was changed or disused before the person attained the age of 18 years, or

(b) has been changed or disused for 20 years or more.
The address required to be stated in the register is a service address.

This may be stated to be “The company’s registered office”.

Article 295 - Particulars of secretaries to be registered: corporate secretaries and firms

A company’s register of secretaries must contain the following particulars in the case of a body corporate, or a firm that is a legal person under the law by which it is governed–

(a) corporate or firm name,

(b) registered or principal office,

(c) in any other case, particulars of–
- (i) the legal form of the company or firm and the law by which it is governed, and
- (ii) if applicable, the register in which it is entered (including details of the state) and its registration number in that register.
If all the partners in a firm are joint secretaries it is sufficient to state the particulars that would be required if the firm were a legal person and the firm had been appointed secretary.

Chapter 2 - Company Service Providers

Article 296A - Non-Exempt Companies to have a company service provider

(1) A company conducting a business activity of being a special purpose company or vehicle must at all times have a company service provider, subject to subsections (3), (4), (5) and (6).

(2) In this Chapter -

(a) a company that is obliged to have a company service provider is referred to as a ‘non-exempt company’,
(b) a ‘company service provider’ is a person licensed pursuant to the Commercial Licensing Regulations 2015 to carry out the controlled activity of providing company services, as defined in Rule 7 of the Commercial Licensing Regulations 2015 (Controlled Activities) Rules 2021,
(c) ‘business activity’ has the meaning given to it in the Commercial Licensing Regulations 2015 (Controlled Activities) Rules 2021,
(d) ‘effective date’, for the purposes of subsections (5) and (6), means the date commencing 3 months from the date on which the Companies Regulations (Amendment No. 1) 2021 come into force, and
(e) ‘registered office provider’ has the meaning given to it in the Commercial Licensing Regulations 2015 (Controlled Activities) Rules 2021.

(3) Notwithstanding subsection (1), a body corporate that is a parent undertaking or subsidiary undertaking of any of the following need not have a company service provider–

(a) persons exempt under the Commercial Licensing Regulations 2015 (Exemptions) Order 2020,
(b) an authorised person within the meaning given to it in the Financial Services and Markets Regulations 2015,
(c) persons licensed or regulated by the Central Bank of the United Arab Emirates,
(d) a company whose shares are admitted to trading on a regulated market in the United Arab Emirates, including in Abu Dhabi Global Market, or
(e) a company that has demonstrated to the satisfaction of the Registrar to have adequate presence in the United Arab Emirates.

(4) For the purposes of assessing whether a company has demonstrated adequate presence in the United Arab Emirates under paragraph (3)(e), the Registrar –

(a) shall have regard to, among other things,
- (i) the company’s assets, turnover and employees in the United Arab Emirates,
- (ii) the company’s governance, policies and procedures, and
- (iii) any rules made by the Board or guidance issued by the Registrar in this regard, and
(b) may require such further information and supporting documentation as it considers appropriate.

(5) The requirement for a non-exempt company incorporated in ADGM to appoint a company service provider takes effect from the effective date.

(6) Any non-exempt company incorporated in ADGM –

(a) prior to or on the date on which the Companies Regulations (Amendment No.
1) 2021 come into force, must have a company service provider in accordance with subsection (1) at the earlier of its next Commercial Licence renewal date or the end of 12 months from the effective date,
(b) after the date on which the Companies Regulations (Amendment No. 1) 2021 came into force and before the effective date, must have a company service provider in accordance with subsection (1) at, or by no later than, its first Commercial Licence renewal date, and
(c) after the effective date, must have a company service provider in accordance with subsection (1) from the date of incorporation.

(7) If the company fails to comply with subsection (1), a contravention of these Regulations is committed by–

(a) the company, and
(b) every officer of the company who is in default.

(8) A person who commits the contravention referred to in subsection (7) is liable to a fine not exceeding level 7.

Article 296B - Obligations of company service provider and non-exempt company

(1) The company service provider of a non-exempt company must maintain the records that the non-exempt company is required to keep under–

(a) the following provisions of these Regulations–
- (i) section 118 (register of members),
- (ii) section 120 (list of members),
- (iii) section 153 (register of directors),
- (iv) section 156 (register of directors’ residential addresses),
- (v) section 215 (directors’ service contracts),
- (vi) section 223 (directors’ indemnities),
- (vii) section 292 (register of secretaries),
- (viii) section 360 (records of resolutions etc),
- (ix) section 642 (contracts relating to purchase of own shares),
- (x) section 660 (documents relating to redemption or purchase of own shares out of capital by private company),
- (xi) section 682 (register of debenture holders),
- (xii) section 737 (report to members of outcome of investigation by public company into interests in its shares),
- (xiii) section 740 (register of interests in shares disclosed to public company), (xiv) section 798 (instruments creating charges),
(b) the Commercial Licensing Regulations 2015 (Conditions of Licence and Branch Registration) Rules 2021 and any licence granted thereunder, and
(c) the Beneficial Ownership and Control Regulations 2018.

(2) A company service provider of a non-exempt company –

(a) must act as a registered office provider to that company, unless a different registered office is otherwise expressly permitted by the Registrar, and
(b) is authorised to represent the non-exempt company in its dealings with the Registrar.

(2A) With the exception of sections 867 and 867A of these Regulations whereby either the non-exempt company or the company service provider may make the filing, a company service provider of a non-exempt company shall give all notices and make all filings that the non-exempt company is obliged to make to the Registrar under these Regulations, the Commercial Licensing Regulations 2015 and the Beneficial Ownership and Control Regulations 2018.

(3) A non-exempt company must make available to its company service provider such documents and information as is required to enable the company service provider to comply with its obligations under this section.

(4) If a non-exempt company fails to comply with subsection (3), a contravention of these Regulations is committed by–

(a) the non-exempt company, and
(b) every officer of the non-exempt company who is in default.

(5) A person who commits the contravention referred to in subsection (7) is liable to a fine not exceeding level 6.

Article 296C - Duty to notify Registrar of appointment and cessation of company service provider

(1) A non-exempt company must, within the period of 14 days from a person becoming or ceasing to be a company service provider of the non-exempt company, give notice to the Registrar of the change and of the date on which it occurred. A notice of a person ceasing to be a company service provider must either include details of the company’s new company service provider or a statement that the company is no longer a non-exempt company.

(2) Notice of a person having become a company service provider of the non-exempt company must be accompanied by that person’s consent in the prescribed form to act in that capacity.

(3) If the non-exempt company fails to comply with this section, a contravention of these Regulations is committed by–

(a) the non-exempt company, and
(b) every officer of the non-exempt company who is in default.

(4) A person who commits the contravention referred to in subsection (3) is liable to a level 2 fine.

Article 296D - Registrar’s powers

(1) The Registrar may issue guidance about the operation of this Chapter.”

(8) In paragraph 423(1)(a), insert the word “and” at the end of the paragraph.

(9) In paragraph 423(1)(b), delete the word “and” at the end of the paragraph.

(10) In section 423(1), paragraph (c) shall be deleted in its entirety.

(11) In paragraph 425(2)(a), delete “and its registered number”.

(12) In section 425(2), insert new paragraphs (b) and (c) immediately after paragraph (a) as follows:

“(b) if the parent undertaking is incorporated in the Abu Dhabi Global Market, its registered number (if any),
(c) if the parent undertaking is incorporated outside the Abu Dhabi Global Market and registered in the country in which it is incorporated, the identity of the register on which it is registered and the number with which it is so registered,”

(13) In section 425(2), paragraphs (b), (c) and (d) shall be renumbered to paragraphs (d), (e) and (f) accordingly.

(14) In the heading of section 864, delete the words “not carrying on business or in operation”.

(15) After section 864(1), insert a new subsection (1A) as follows:

“(1A) If the Registrar has reasonable cause to believe that a company has failed to appoint a company service provider in accordance with section 296A of these Regulations, the Registrar may send to the company a communication inquiring whether:
- (a) the company is a ‘non-exempt company’ for the purpose of section 296A of these Regulations, and
- (b) the company has appointed a company service provider.”

(16) In section 864(2), insert the words “under sections (1) or (1A) above,” immediately after the words “If the Registrar does not, within one month of sending the communication”.

(17) In section 864(3), paragraph (a) shall be deleted in its entirety and replaced by the following:

“(a) receives an answer to the effect that -
- (i) the company is not carrying on business or is in operation, or
- (ii) a ‘non-exempt company’ has failed to appoint a company service provider in accordance with section 296A of these Regulations; or”.

(18) In section 999(1) insert the words “or the office of its company service provider appointed in accordance with Chapter 2 of Part 12 of these Regulations.” at the end of the subsection, after the words “the company’s registered office”.