The roles and duties of the company secretary in Malaysia have evolved over the years and with the change secretaries named in the registers of companies find themselves now fitting the role of advisors to a company.
They are constantly relied upon by the members of the board for guidance and advise on matters that may relate to the company or to their position as members of the Board.
Company secretaries in guiding their members have to be familiar with the many legislatures and regulations that govern a particular company.
These guidance notes serve as a guide for company secretaries to follow in the discharge of their duties to the board members, shareholders and stakeholders and should be applied as good practices, where applicable. These guides are not exhaustive and may be varied or change with the different circumstances under which the companies operate.
1. Roles and Duties
The company secretary should be aware of the following:
The company secretary should familiarize himself with the provisions of the Memorandum and Articles of Association of the company.
The company secretary should be well versed with securities laws and regulations.
The company secretary must ensure correct procedures are followed and adhere to it in accordance with the Company’s Memorandum and Articles of Association and the Companies Act, 1965.
It is a duty of the company secretary to ensure that any documents authenticated by him represent the exact copies found in the statutory books, registers and secretarial file.
The company secretary should adhere to “The Company Secretary’s Code of Ethics” developed by the Companies Commission of Malaysia (formerly known as the Registrar of Companies) and lays down clearly the duties and responsibilities and ethical practices of the company secretary.
2. Statutory and Compliance Matters
The company secretary must ensure that any change in the company’s statutory information should be duly completed in the relevant prescribed forms and lodged with the registrar of Companies within the required period of time.
A company secretary should advise the board of directors of the relevant dates for holding the company’s annual general meeting.
A company secretary handling public listed company secretarial work should be aware of the disclosure requirements of the Kuala Lumpur Stock Exchange and Securities Commission and advise on the following matters:
The board should be properly and adequately advised of the necessity to make the relevant disclosures.
The company secretary should prepare the necessary disclosure forms and assist the board in completing these forms.
The company secretary should advise the directors whenever a situation warrants a disclosure by a director.
The company secretary should advise the director of his obligation to disclose his interest in contracts or holds any office or property that might create a conflict of interest.
Every declaration made by a director should be recorded under the section in the minutes of the board meeting at which it was made.
The company secretary should advise the director to give notice in writing of the following information to the company:
Such particulars relating to shares, debentures, participatory interests, rights, options and contracts as a re necessary for the purpose of compliance with the requirements of the Act;
Particulars of any change in respect of the particulars referred to above;
Such events and matters affecting or relating to himself as are necessary for the purposes of compliance by the company with the Act;
The date on which the director of a company or of a subsidiary of a public company attains or will attain the age of seventy.
The company secretary should be well versed with securities laws and regulations to advise directors of public companies on disclosure requirements which fall under the following categories:
Substantial shareholdings disclosure
Directors’ share dealing rules
Announcements and reporting rules
The company secretary should be familiar with the continuing disclosure policies of the Kuala Lumpur Stock Exchange in order to give prompt advice to the board
3. Company Meetings
The company secretary is expected to know the basic principles of the law of meetings.
The company secretary is to advise the board of directors to convene its annual general meeting at least once every calendar year regardless of whether the company is dormant or active.
The role of the company secretary in handling company meetings is purely administrative and includes the following:
Arrange and liaise with the chairman and/or managing director for agenda papers and items for the agenda
Book and prepare the meeting room
Attend and take down minutes of the meeting
Follow up on decisions made
Play an advisory role to the chairman and the board of directors
Lodge statutory returns as appropriate
The minutes and resolutions of meetings should reflect the proceedings thereof and be written accurately, concisely and in simple language.
All extracts of minutes and resolutions should be prepared in the company’s letterhead and certified by the chairman of the board and/or the company secretary.
A company secretary should table all directors’ circular resolutions passed since the previous board meeting at the next board meeting for notation.
4. Continuing Professional Development
All company secretaries should develop a sense of continuous professional development by actively seeking to improve their performance, knowledge and skills in the profession.
With continuous upheavals in the corporate markets, company secretaries need to be constantly updated. Training should play an important part in the company secretary’s professional career path.
Company secretaries should take it upon themselves to be constantly updated and attend briefings given by regulators wherever possible.
5. Appointment of company secretaries
The appointment of a company secretary is subject to the companies Act 1965 and the person to be named as the secretary of a company has to execute a Form 48F (Declaration by a Person Before Appointment as Secretary) before he is appointed.
The approval of the board must be obtained before appointing a secretary.
A Form 49 (Return Giving particulars in register of Directors, Managers and Secretaries and Changes and Particulars) has to be lodged with CCM notifying of the appointment of the company secretary within one month from the date of the appointment.
The Register of Secretaries must be updated.
Where there are joint secretaries to be appointed, these can be done in a single resolution.
The procedure for the appointment of joint secretaries is similar to the appointment of a secretary.
Where there is new incorporation and the company secretary is the first named secretary in the Memorandum and Articles of Association of the company, the secretary has to execute a Form 48F (Declaration by a Person Before Appointment as Secretary). A copy of this form will be kept with the statutory records of the company.
All the incorporation documents will then have to be prepared and lodged with CCM.
Once the Form 9 (Certificate of Incorporation) is issued, to confirm the appointment of the first secretary at the first board meeting which is to be held within the first month from the date of incorporation of the company. The appointment will be retrospectively from the date of incorporation of the company.
The Form 49 (Return Giving particulars in register of Directors, Managers and Secretaries and Changes and Particulars) will then be lodged with CCM notifying of his appointment.
6. Resignation of company secretary
Before processing the resignation of a company secretary, a duly signed letter of resignation must first be obtained from the resigning secretary.
The resignation letter should be kept in the minutes books of the company (Art. 95 of Table A)
To obtain a notation from the board of the resignation of the secretary.
To lodge a Form 49 (Return Giving particulars in register of Directors, Managers and Secretaries and Changes and Particulars) with CCM notifying the resignation within one month from the date of letter.
To update the Register of Secretaries.
To fill the vacated position within one month from the date of the change.
7. Vacation of office by company secretary
The office of secretary may be vacated voluntarily or involuntarily.
Voluntary vacation is through resignation or cessation of contract.
Involuntary vacation of office may be through death, removal or dismissal.
The office of the company secretary cannot be left vacant for more than one month at any one time.
Where a company secretary is unable to locate the directors of the company at their last known residential address, the secretary may lodge with CCM a notice on a prescribed form notifying of his intention to vacate the office of secretary.
The secretary shall cease to be the secretary of the company on the expiry of one month from the date of notice.
The vacation of office by the secretary will not relieve the secretary from liability for any act or omission done before the secretary vacated that office.
The Form 48E must be lodged with CCM when the secretary decides to vacate office.
Reference:
1. Good Governance Guides: No 2.1. By MAICSA