§ 146 — Restrictions on appointment or advertisement of director

146.—(1) A person must not be named as a director or proposed director in —(a)

any document filed or lodged with or submitted to the Registrar for the purposes of the incorporation of a company; or

(b)

the register of directors, chief executive officers and secretaries of a company,

unless, before —

(c)

the incorporation of the company; or

(d)

the filing of any return in the prescribed form containing the particulars required to be specified in the register of directors, chief executive officers and secretaries,

as the case may be, the person has complied with the conditions set out in subsection (1A).

[36/2014]

(1A) The conditions to be complied with by a person referred to in subsection (1) are the following:(a)

the person has, by himself or herself or through a registered qualified individual authorised by him or her, filed with the Registrar —(i)

a declaration that he or she has consented to act as a director;

(ii)

a statement in the prescribed form that he or she is not disqualified from acting as a director under this Act; and

(iii)

a statement in the prescribed form that he or she is not debarred under section 155B from acting as director of the company;

(b)

the person has, by himself or herself or through a registered qualified individual authorised by him or her —(i)

filed with the Registrar a declaration that the person has agreed to take a number of shares of the company that is not less than the person’s qualification, if any;

(ii)

filed with the Registrar an undertaking that the person will take from the company and pay for his or her qualification shares, if any;

(iii)

filed with the Registrar a declaration that a specified number of shares, not less than the person’s qualification (if any), has been registered in the person’s name; or

(iv)

in the case of a company formed or intended to be formed by way of reconstruction of another corporation or group of corporations or to acquire the shares in another corporation or group of corporations, filed with the Registrar a declaration that —(A)

the person was a shareholder in that other corporation or in one or more of the corporations of that group; and

(B)

as a shareholder the person will be entitled to receive and have registered in his or her name a number of shares not less than his or her qualification, by virtue of the terms of an agreement relating to the reconstruction.[36/2014]

(2) Where a person has undertaken to the Registrar under subsection (1A)(b)(ii) to take and pay for the person’s qualification shares, the person is, as regards those shares, in the same position as if the person had signed the constitution for that number of shares.[36/2014]

(3) Subsections (1) and (2) (other than the provisions relating to the signing of a consent to act as director) do not apply to —(a)

a company not having a share capital;

(b)

a private company; or

(c)

a prospectus or a statement in lieu of prospectus issued or lodged with the Registrar by or on behalf of a company or to a constitution adopted by a company after the expiration of one year from the date on which the company was entitled to commence business.[36/2014]

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and also to a default penalty.

(5) The restrictions in this section on a director or proposed director of a company incorporated under this Act in relation to a prospectus apply in the same manner and extent to a director or proposed director of a foreign company as if the references in subsections (1) and (4) to a company included references to a foreign company.

—(1) A person must not be named as a director or proposed director in —(a)

any document filed or lodged with or submitted to the Registrar for the purposes of the incorporation of a company; or

(b)

the register of directors, chief executive officers and secretaries of a company,

unless, before —

(c)

the incorporation of the company; or

(d)

the filing of any return in the prescribed form containing the particulars required to be specified in the register of directors, chief executive officers and secretaries,

as the case may be, the person has complied with the conditions set out in subsection (1A).

[36/2014]

(1A) The conditions to be complied with by a person referred to in subsection (1) are the following:(a)

the person has, by himself or herself or through a registered qualified individual authorised by him or her, filed with the Registrar —(i)

a declaration that he or she has consented to act as a director;

(ii)

a statement in the prescribed form that he or she is not disqualified from acting as a director under this Act; and

(iii)

a statement in the prescribed form that he or she is not debarred under section 155B from acting as director of the company;

(b)

the person has, by himself or herself or through a registered qualified individual authorised by him or her —(i)

filed with the Registrar a declaration that the person has agreed to take a number of shares of the company that is not less than the person’s qualification, if any;

(ii)

filed with the Registrar an undertaking that the person will take from the company and pay for his or her qualification shares, if any;

(iii)

filed with the Registrar a declaration that a specified number of shares, not less than the person’s qualification (if any), has been registered in the person’s name; or

(iv)

in the case of a company formed or intended to be formed by way of reconstruction of another corporation or group of corporations or to acquire the shares in another corporation or group of corporations, filed with the Registrar a declaration that —(A)

the person was a shareholder in that other corporation or in one or more of the corporations of that group; and

(B)

as a shareholder the person will be entitled to receive and have registered in his or her name a number of shares not less than his or her qualification, by virtue of the terms of an agreement relating to the reconstruction.[36/2014]

(2) Where a person has undertaken to the Registrar under subsection (1A)(b)(ii) to take and pay for the person’s qualification shares, the person is, as regards those shares, in the same position as if the person had signed the constitution for that number of shares.[36/2014]

(3) Subsections (1) and (2) (other than the provisions relating to the signing of a consent to act as director) do not apply to —(a)

a company not having a share capital;

(b)

a private company; or

(c)

a prospectus or a statement in lieu of prospectus issued or lodged with the Registrar by or on behalf of a company or to a constitution adopted by a company after the expiration of one year from the date on which the company was entitled to commence business.[36/2014]

(4) If default is made in complying with this section, the company and every officer of the company who is in default shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 and also to a default penalty.

(5) The restrictions in this section on a director or proposed director of a company incorporated under this Act in relation to a prospectus apply in the same manner and extent to a director or proposed director of a foreign company as if the references in subsections (1) and (4) to a company included references to a foreign company.