The “prescribed” officer

Clarifying some uncertainty…..

Regulation 38(1) of the Companies Act 2008 as amended states:

• Despite not being a director of a particular company, a person is a prescribed officer of the company for all purposes of the Act if that person:
• exercises general executive control over and management of the whole, or a significant portion, of the business and activities of the company; or
• regularly participates to a material degree in the exercise of general executive control over and management of the whole, or a significant portion, of the business and activities of the company.

Regulation 38(1) applies irrespective of any particular title given by the company to an office held by the person in the company or a function performed by the person for the company [Regulation 38(2)].

Prescribed officers are thus generally limited to a company’s chief executive officer or the chief executive officer of a division of the company’s business which comprises a significant portion of all the company’s businesses. It does not include CIO’s or CFO or Exco members.

Prescribed officers are subject to the same codified duties and liabilities of directors, as well as to numerous others.