Event Driven Filings - Company. Guidance Notes

Transcription

1 Event Driven Filings - Company Guidance Notes

2 Contents Introduction... 3 Registration Authority Office... 3 The Registrar s main functions under Companies and Commercial Licensing Regulations... 3 Opening Hours... 3 Amendment to the Articles of Association... 4 Amendment by Special Resolution... 4 Statement of Company s Objects... 4 Amendment by Court Order... 4 Change of Company s Name... 5 By Special Resolution... 5 By Means provided in the Company s Articles... 5 By Directors Resolution... 5 By Satisfaction of Conditional Event... 6 Change of Company s Registered Office Address... 6 Appointment and Cessation of Directors... 7 Appointment and Cessation... 7 Change in Particulars... 7 Appointment and Cessation of Secretaries... 8 Appointment and Cessation... 8 Change in Particulars... 8 Appointment and Cessation of Authorised Signatories... 8 Appointment and Cessation... 8 Change in Particulars... 9 Disclaimer Guidance Note Event Driven Filings - Company Page 2 of 10

3 Introduction Abu Dhabi Global Market ( ADGM ) was established pursuant to Abu Dhabi Law No. 4 of 2013 as a financial free zone in the Emirate of Abu Dhabi, with its own civil and commercial laws. ADGM will offer market participants a world-class legal system and regulatory regime. This Guidance Note has been written to guide registered entities in ADGM in relation to their filing obligations as required by the ADGM Companies Regulations and ADGM Commercial Licensing Regulations. This Guidance Note also explains: 1. The ways in which the company can amend its Articles of Association. 2. The ways in which the company can change its names. 3. How to change the company s registered office address. 4. How to notify the Registrar of an appointment, cessation or change in particulars of Directors 5. How to notify the Registrar of an appointment, cessation or change in particulars of Secretaries. Please note that all section references to this note are to the Companies Regulations 2015 and ADGM Commercial Licensing Regulations Registration Authority Office The Registration Authority (the Registrar ) is one of the core pillars of ADGM. The Registrar is an independent body which has the powers to license and register the ADGM establishments. The Registrar s office is located at 3rd floor, ADGM Building, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates. The Registrar s main functions under Companies and Commercial Licensing Regulations Registration of ADGM establishments Registration of business names and maintenance of register Registration of post-incorporation documentation and event-driven filings Registration of changes in business name particulars Registration of changes in directors, officers, shareholders and share capital Enforcement, strike off, dissolution or restoration of ADGM establishments Cancellation of Commercial Licenses, amendment, suspension, etc. Opening Hours The Registrar s office is open from Sunday to Thursday, 9:00am to 3:00pm and may be contacted during normal working hours at or by at ra@adgm.com Guidance Note Event Driven Filings - Company Page 3 of 10

4 Amendment to the Articles of Association A company must have articles of association (s. 16). The articles are the main element of the written constitution of a company, by which its structure is determined, the powers of the company and of the directors are defined, and the procedure for issue and transfer of shares, conduct of meetings, appointment of directors and payment of dividends (among other things) laid down. The company may amend its articles of association in the following manners: Amendment by Special Resolution A company has general power to alter its articles, by passing a special resolution in general meeting (s. 19). Where a company amends its articles, it must sent a copy of the amended articles to the Registrar not later than 14 days after the amendment takes effect. Failure to comply will result in imposition of a fine. A copy of resolutions and agreements affecting the company s constitutions or a written memorandum setting out its terms, must also be forwarded to the Registrar within 14 days after it is passed or made. Failure to comply will result in imposition of a fine. Statement of Company s Objects Unless a company s articles specifically restrict the objects of the company, its objects are unrestricted. A notice must be given to the Registrar when a company amends its articles so as to add, remove or alter a statement of company s objects. Any such amendment does not affect any rights or obligations of the company or render defective any legal proceedings by or against it. Where a company amends its objects, it must sent a copy of the amended articles to the Registrar not later than 14 days after the amendment takes effect. Failure to comply will result to a fine. Amendment by Court Order Where a company s articles is altered by an order of a Court or other authority, the company must give notice to the Registrar of the alteration not later than 14 days after the alteration takes effect (s. 31(1)). Such notice must be accompanied by a copy of the order and a copy of the company s amended articles, or the resolution or agreement affecting the company s constitution. Failure to comply will result in imposition of a fine. Notification to the Registrar of such changes to the company s articles can done by using an online form (Maintain Articles of Association) or a paper form (Notice of Amendment of Articles). EDF-AA01 Notice of Amendment of Articles Guidance Note Event Driven Filings - Company Page 4 of 10

5 Change of Company s Name A change of company s name might be compulsory, directed by the registrar, or voluntary. By Special Resolution A company may, on its own initiative change its name, by passing a special resolutions and obtaining reregistration with the new name. It takes effect only when the certificate of incorporation on change of name, with the altered name, is issued. Where a change of name has been agreed by a company by special resolution, the company must give notice to the Registrar (s. 66(1)) and forward a copy of the resolution. This can be done by selecting By Special Resolution in an online form (Change of Company Name) or in the paper form (Notice of Change of Company Name). By Means provided in the Company s Articles A company can also change its name by any other means provided for in the articles. The articles must contain a provision specifying the way a company can change its name. Where a change of a company s name has been made, the company must give notice to the Registrar and the notice must be accompanied by a statement that the change of name has been made by means provided by the company s articles and the Registrar may rely on the statement as sufficient evidence of the matters stated in it (s. 67). This can be done by selecting By Means provided in the Company s Articles` in an online form (Change of Company Name) or in the paper form (Notice of Change of Company Name). By Directors Resolution The registrar may require a company to change the name by which it has been registered in the following cases. 1. Name that is the same as or, in the opinion of the Registrar, too like that of another company (s. 56). The time limit for giving a direction on this ground is 12 months from the date on which the name, which is now to be altered, was registered. 2. An objection may be made to a company s registered name by application to a company names adjudicator, on the ground that the name is the same as a name associated with the applicant in which he has goodwill or that it is sufficiently similar to such a name that its use in the Abu Dhabi Global Market would be likely to mislead by suggesting a connection between the company and the applicant. (s. 58). 3. If the name was registered on the basis of information or assurances which were misleading or have not been observed. 4. If the name is considered to be so misleading about the company's activities as to be likely to cause harm to the public. 5. On restoration of a company, where the name it had before it was dissolved or struck off the register is no longer available. Guidance Note Event Driven Filings - Company Page 5 of 10

6 The company must give notice to the Registrar of such change to the company name and must be accompanied by director s resolution and a copy of direction of the Registrar or Court Order. This can be done by selecting By Directors Resolution` in an online form (Change of Company Name) or in the paper form (Notice of Change of Company Name). Failure to comply will result to a fine. By Satisfaction of Conditional Event Where a change of name by special resolution is conditional on the occurrence of an event, the company must give notice to the Registrar of the change of name and must specify that the change is conditional (s. 66(2)). This can be done by filing an online form (Lodging a Conditional Resolution for Change of Name) or by selecting By Conditional Resolution in the paper form (Notice of Change of Company Name). If the event has not occurred yet, the Registrar is not required to register the new name and issue new certificate. When the event occurred, the company must give notice to the Registrar stating that it has occurred and the Registrar may rely on the statement as sufficient evidence of the matters stated in it (s. 66(3)). This can be done by selecting By Satisfaction of Conditional Resolution in an online form (Change of Company Name) or in the paper form (Notice of Change of Company Name). EDF-N01 Notice of Change of Company Name Change of Company s Registered Office Address A company must at all times have a registered office in the Abu Dhabi Global Market to which all communications and notices may be addressed (s. 74). After registration, the directors may at any time resolve to alter the address of the registered office. Such registered office must be located within Al Maryah Island. Notification of such change of address must be given to the Registrar. That change takes effect upon the notice being registered by the Registrar. However, there is a period of 14 days from the time of registration of change of address during which a person may validly serve any document on the company at its previous registered office. Notification to the Registrar of such change to the company s registered office address can done be using an online form (Maintain Registered Office Address) or in the paper form (Notice of Change of Registered Office Address). This must be accompanied by a valid signed lease agreement or memorandum of lease. EDF-RO01 Notice of Change of Registered Office Address Guidance Note Event Driven Filings - Company Page 6 of 10

7 Appointment and Cessation of Directors Appointment and Cessation A company, as an abstract 'entity', cannot manage itself. Accordingly it is a basic requirement of Companies Regulations that a private company shall have at least one director and a public company is required to have a minimum of at least two directors; one must be individual. To serve as a director, an individual must be at least 18 years of age. On formation of a company it must give particulars of the first directors by stating their details in the form INC-02, signed by them to signify their consent for the appointment. Those persons become the first directors. Once a company has been formed, any appointment of directors in addition to, or in replacement of, previous directors is made as the articles provide. Any appointment made must be notified to the Registrar within 14 days from the appointment date and entered in the company s register of directors. A director may always vacate his office by resignation (articles usually require notice of resignation to be given in writing to the company), or by not offering himself for re-election when his previous term of office ends under any article provisions on retirement. In addition, there are statutory provisions for removal from office and for disqualification. Whenever a director vacates office, no matter whether he retires, resigns, is removed from office or is disqualified, the company must notify the Registrar within 14 days from the removal or resignation date and entry should be made in the register of directors. Notification to the Registrar of such appointment or cessation of directors can done be using an online form (Appointment or Cessation of Directors) or paper form (Notice of Appointment or Cessation of Directors). This must be accompanied by evidence of appointment or cessation. EDF-DS01 Notice of Appointment or Cessation of Director Change in Particulars A company must give notice to the Registrar within the period of 14 days from the occurrence of any change in the particulars contained in its register of directors or its register of director s residential address. Such notice can be done by using an online form (Maintain Director s details) or paper form (Notice of Change in Particulars of Directors). EDF-DS02 Notice of Change of Particulars of Director Guidance Note Event Driven Filings - Company Page 7 of 10

8 Appointment and Cessation of Secretaries Appointment and Cessation Every public company must have a secretary. If a public company does not have a secretary, the Registrar may issue a direction to the company requiring the public company to appoint a secretary within a specified period. A private company is not required to have a secretary. Such appointment is however still desirable for most companies as the work of Companies Regulations compliance still must be carried out and allocation of such responsibilities is administratively convenient if secretary is appointed. When the company is formed, particulars of the first secretary must (unless the company is a private company which does not wish to have a secretary) be given in an application to incorporate a company. Once a company has been formed, any appointment or termination of secretary made must be notified to the Registrar within 14 days from the appointment or termination date and entered in the company s register of secretary. Notification to the Registrar of such appointment or cessation of directors can be done be using an online form (Appointment or Cessation of Secretaries) or paper form (Notice of Appointment or Cessation of Secretaries). This must be accompanied by evidence of appointment or cessation. EDF-DS03 Notice of Appointment or Cessation of Secretaries Change in Particulars A company must give notice to the Registrar within the period of 14 days from the occurrence of any change in the particulars contained in its register of secretaries. Such notice can be done be using an online form (Maintain Secretary s details) or in the paper form (Notice of Change in Particulars of Secretary). EDF-DS04 Notice of Change of Particulars of Secretary Appointment and Cessation of Authorised Signatories Appointment and Cessation Guidance Note Event Driven Filings - Company Page 8 of 10

9 All companies registered in ADGM must appoint an authorised signatory. Such names will be reflected in the particulars of the company s Commercial License. Once a company has been formed, any appointment or cessation of authorised signatories made must be notified to the Registrar. Notification to the Registrar of such appointment or cessation of authorized signatories can done be using an online form (Appointment or Cessation of Authorised Signatories) or paper form (Notice of Appointment or Cessation of Authorised Signatories). This must be accompanied by evidence of appointment or cessation. Upon Registrar s approval, an updated Commercial Licence will be issued to the company. EDF-DS05 Notice of Appointment or Cessation of Authorised Signatories Change in Particulars A company must give notice to the Registrar of any change in the particulars of Authorised signatories. Such notice can be done be using an online form (Maintain Authorised Signatories details) or paper form (Notice of Change in Particulars of Authorised Signatories). EDF-DS06 Notice of Change of Particulars of Authorised Signatories Guidance Note Event Driven Filings - Company Page 9 of 10

10 Disclaimer This Guidance Note (the Note ) provides answers to many frequently asked questions and provides information on company s filing obligations as required by the Companies Regulations. This is only a guide and should be read together with the relevant legislation, in particular, ADGM Companies Regulations 2015, ADGM Commercial Licensing Regulations 2015 and any other relevant regulations and enabling rules. The Note only refers to the procedures that need to be completed in relation to the Registrar. It does not cover other requirements as set out in the relevant legislation (which includes contact with the court and other internal obligations that a company will need to carry out). Further advice from a specialist professional may be required. For more information, you may contact the Registrar: Telephone No.: ra@adgm.com Address: 3rd floor, ADGM Building, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates. Guidance Note Event Driven Filings - Company Page 10 of 10