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PART VII

MERGER, CONSOLIDATION, SALE OF ASSETS,

FORCED REDEMPTIONS, ARRANGEMENTS AND DISSENTERS.

Interpretation 75 for purposes of Part VII. .In this Part,

"consolidated company" means the new company that results from the consolidation of 2 or more constituent companies;

"consolidation" means the uniting of 2 or more constituent companies into a new company;

"constituent company" means an existing company that is participating in a merger or consolidation with one or more other existing companies;

"merger" means the merging of 2 or more constituent companies into one of the constituent companies;

"parent company" means a company that owns at least 90 per cent of the outstanding shares of each class and series of shares in another company;

"subsidiary company" means a company at least 90 per cent of whose outstanding shares of each class and series of shares are owned by another company;

"surviving company" means the constituent company into which one or more other constituent companies are merged.

Merger and colsolidation. 76.(1)Two or more companies incorporated under this Ordinance may merge or consolidate in accordance with subsections (3) to (5).

CAP 243 (2)One or more companies incorporated under this Ordinance may merge or consolidate with one or more companies incorporated under the Companies Act in accordance with subsections (3) to (5), if the surviving company or the consolidated company will satisfy the requirements prescribed for an International Business Company under section 5.

(3)The directors of each constituent company that proposes to participate in a merger or consolidation must approve a written plan of merger or consolidation containing, as the case requires,

(a)the name of each constituent company and the name of the surviving company or the consolidated company;

(b)in respect to each constituent company,

(i)the designation and number of outstanding shares of each class and series of shares, specifying each such class and series entitled to vote on the merger or consolidation, and

(ii)a specification of each such class and series, if any, entitled to vote as a class or series;

(c)the terms and conditions of the proposed merger or consolidation, including the manner and basis of converting shares in each constituent company into shares, debt obligations or other securities in the surviving company or consolidated company, or money or other property, or a combination thereof;

(d)in respect of a merger, a statement of any amendment to the Memorandum or Articles of the surviving company to be brought about by the merger; and

(e)in respect of a consolidation, everything required to be included in the Memorandum and Articles for a company incorporated under this Ordinance, except statements as to facts not available at the time the plan of consolidation is approved by the directors.

(4)Some or all shares of the same class or series of shares in each constituent company may be converted into a particular or mixed kind of property and other shares of the class or series, or all shares of other classes or series of shares, may be converted into other property.

(5)The following apply in respect of a merger or consolidation under this section:

(a)the plan of merger or consolidation must be authorized by a resolution of members and the outstanding shares of a class or series of shares are entitled to vote on the merger or consolidation as a class or series if the Memorandum or Articles so provide or if the plan of merger or consolidation contains any provisions that, if contained in a proposed amendment to the Memorandum or Articles, would entitle the class or series to vote on the proposed amendment as a class or series;

(b)if a meeting of members is to be held, notice of the meeting, accompanied by a copy of the plan of merger or consolidation, must be given to each member, whether or not entitled to vote on the merger or consolidation;

(c)if it is proposed to obtain the written consent of members, a copy of the plan of merger or consolidation must be given to each member, whether or not entitled to consent to the plan of merger or consolidation;

(d)after approval of the plan of merger or consolidation by the directors and members of each constituent company, articles of merger or consolidation must be executed by each company and must contain

(i)the plan of merger or consolidation and, in the case of a consolidation, any statement required to be included in the Memorandum and Articles for a company incorporated under this Ordinance;

(ii)the date on which the Memorandum and Articles of each constituent company were registered by the Registrar;

(iii)the manner in which the merger or consolidation was authorized with respect to each constituent company;

(e)the articles of merger or consolidation must be submitted to the Registrar who must retain and register them in the Register; and

(f)upon the registration of the articles of merger or consolidation, the Registrar shall issue a certificate under his hand and seal certifying that the articles of merger or consolidation have been registered.

(6)A certificate of merger or consolidation issued by the Registrar is prima facie evidence of compliance with all requirements of this Ordinance in respect of the merger or consolidation.

Merger with subsidiary. CAP 243 77.(1)A parent company incorporated under this Ordinance may merge with one or more subsidiary companies incorporated under this Ordinance or under the Companies Act, without the authorization of the members of any company, in accordance with subsections (2) to (6), if the surviving company is a company incorporated under this Ordinance and will satisfy the requirements prescribed for an International Business Company under section 5.

(2)The directors of the parent company must approve a written plan of merger containing

(a)the name of each constituent company and the name of the surviving company;

(b)in respect to each constituent company,

(i)the designation and number of outstanding shares of each class and series of shares, and

(ii)the number of shares of each class and series of shares in each subsidiary company owned by the parent company; and

(c)the terms and conditions of the proposed merger, including the manner and basis of converting shares in each company to be merged into shares, debt obligations or other securities in the surviving company, or money or other property, or a combination thereof.

(3)Some or all shares of the same class or series of shares in each company to be merged may be converted into property of a particular or mixed kind and other shares of the class or series, or all shares of other classes or series of shares, may be converted into other property; but, if the parent company is not the surviving company, shares of each class and series of shares in the parent company may only be converted into similar shares of the surviving company.

(4)A copy of the plan of merger or an outline thereof must be given to every member of each subsidiary company to be merged unless the giving of that copy or outline has been waived by that member.

(5)Articles of merger must be executed by the parent company and must contain

(a)the plan of merger;

(b)the date on which the Memorandum and Articles of each constituent company were registered by the Registrar; and

(c)if the parent company does not own all shares in each subsidiary company to be merged, the date on which a copy of the plan of merger or an outline thereof was made available to the members of each subsidiary company.

(6)The articles of merger must be submitted to the Registrar who must retain and register them in the Register.

(7)Upon the registration of the articles of merger, the Registrar shall issue a certificate under his hand and seal certifying that the articles of merger have been registered.

(8)A certificate of merger issued by the Registrar is prima facie evidence of compliance with all requirements of this Ordinance in respect of the merger.

Effect of merger or consolidation. 78.(1)A merger or consolidation is effective on the date the articles of merger or consolidation are registered by the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of merger or consolidation.

(2)As soon as a merger or consolidation becomes effective

(a)the surviving company or the consolidated company in so far as is consistent with its Memorandum and Articles, as amended or established by the articles of merger or consolidation, has all rights, privileges, immunities, powers, objects and purposes of each of the constituent companies;

(b)in the case of a merger, the Memorandum and Articles of the surviving company are automatically amended to the extent, if any, that changes in its Memorandum and Articles are contained in the articles of merger;

(c)in the case of a consolidation, the statements contained in the articles of consolidation that are required or authorized to be contained in the Memorandum and Articles of a company incorporated under this Ordinance, are the Memorandum and Articles of the consolidated company;

(d)property of every description, including choses in action and the business of each of the constituent companies, immediately

vests in the surviving company or the consolidated company; and

(e)the surviving company or the consolidated company is liable for all claims, debts,

liabilities and obligations of each of the constituent companies.

(3)Where a merger or consolidation occurs

(a)no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against a constituent company or against any member, director, officer or agent thereof, is released or impaired by the merger or consolidation; and

(b)no proceedings, whether civil or criminal, pending at the time of a merger or consolidation by or against a constituent company, or against any member, director, officer or agent thereof, are abated or discontinued by the merger or consolidation, but

(i)the proceedings may be enforced, prosecuted, settled or compromised by or against the surviving company or the consolidated company or against the member, director, officer or agent thereof, as the case may be, or

(ii)the surviving company or the consolidated company may be substituted in the proceedings for a constituent company.

(4)The Registrar shall strike off the Register

(a)a constituent company that is not the surviving company in a merger; or

(b)a constituent company that participates in a consolidation.

Merger or consolidation with foreign company. 79.(1)One or more companies incorporated under this Ordinance may merge or consolidate with one or more companies incorporated under the laws of jurisdictions outside the British Virgin Islands in accordance with subsections (2) to (4), including where one of the constituent companies is a parent company and the other constituent companies are subsidiary companies, if the merger or consolidation is permitted by the laws of the jurisdictions in which the companies incorporated outside the British Virgin Islands are incorporated.

(2)The following apply in respect of a merger or consolidation under this section:

(a)a company incorporated under this Ordinance shall comply with the provisions of this Ordinance with respect to the merger or consolidation, as the case may be, of companies incorporated under this Ordinance and a company incorporated under the laws of a jurisdiction outside the British Virgin Islands shall comply with the laws of that jurisdiction; and

(b)if the surviving company or the consolidated company is to be incorporated under the laws of a jurisdiction outside the British Virgin Islands, it must submit to the Registrar

(i)an agreement that a service of process may be effected on it in the British Virgin Islands in respect of proceedings for the enforcement of any claim, debt, liability or obligation of a constituent company incorporated under this Ordinance or in respect of proceedings for the enforcement of the rights of a dissenting member of a constituent company incorporated under this Ordinance against the surviving company or the consolidated company;

(ii)an irrevocable appointment of the Registrar as its agent to accept service of process in proceedings referred to in subparagraph (i);

(iii)an agreement that it will promptly pay to the dissenting members of a constituent company incorporated under this Ordinance the amount, if any, to which they are entitled under this Ordinance with respect to the rights of dissenting members; and

Ord. 3/1988 (iv)a certificate of merger or consolidation issued by the appropriate authority of the foreign jurisdiction where it is incorporated; or, if no certificate of merger is issued by the appropriate authority of the foreign jurisdiction, then, such evidence of the merger or consolidation as the Registrar considers acceptable.

(3)The effect under this section of a merger or consolidation is the same as in the case of a merger or consolidation under Section 76 if the surviving company or the consolidated company is incorporated under this Ordinance, but if the surviving company or the consolidated company is incorporated under the laws of a jurisdiction outside the British Virgin Islands, the effect of the merger or consolidation is the same as in the case of a merger or consolidation under section 76 except in so far as the laws of the other jurisdiction otherwise provide.

(4)If the surviving company or the consolidated company is incorporated under this Ordinance, the merger or consolidation is effective on the date the articles of merger or consolidation are registered by the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of merger or consolidation; but if the surviving company or the consolidated company is incorporated under the laws of a jurisdiction outside the British Virgin Islands, the merger or consolidation is effective as provided by the laws of that other jurisdiction.

Disposition of assets. Ord. 10/1990 80.Subject to any limitations or provisions to the contrary in its Memorandum or Articles, any sale, transfer, lease, exchange or other disposition other than a mortgage, charge or other encumbrance or the enforcement thereof of more than 50 per cent of the assets of a company incorporated under this Ordinance, other than a transfer pursuant to the power described in subsection (2) of section 9, if not made in the usual or regular course of the business carried on by the company, shall be made as follows:

(a)the proposed sale, transfer, lease, exchange or other disposition must be approved by the directors;

(b)upon approval of the proposed sale, transfer, lease, exchange or other disposition, the directors must submit the proposal to the members for it to be authorized by a resolution of members;

(c)if a meeting of members is to be held, notice of the meeting, accompanied by an outline of the proposal, must be given to each member, whether or not he is entitled to vote on the sale, transfer, lease, exchange or other disposition; and

(d)if it is proposed to obtain the written consent of members, an outline of the proposal must be given to each member, whether or not he is entitled to consent to the sale, transfer, lease, exchange or other disposition.

Redemption of minority shares. 81.(1)Subject to any limitations or provisions to the contrary in the Memorandum or Articles,

(a)members holding 90 per cent of the votes of the outstanding shares entitled to vote; and

(b)members holding 90 per cent of the votes of the outstanding shares of each class and series of shares entitled to vote as a class or series,

on a merger or consolidation under section 76, may give a written instruction to a company incorporated under this Ordinance directing the

company to redeem the shares held by the remaining members.

(2)Upon receipt of the written instruction referred to in subsection (1), the company shall redeem the shares specified in the written instruction irrespective of whether or not the shares are by their terms redeemable.

(3)The company must give written notice to each member whose shares are to be redeemed stating the redemption price and the manner in which the redemption is to be effected.

Arrangements. 82.(1)In this section, "arrangement" means

(a)an amendment to the Memorandum or Articles;

(b)a reorganization or reconstruction of a company incorporated under this Ordinance;

(c)a merger or consolidation of one or more companies incorporated under this Ordinance with one or more other companies, if the surviving company or the consolidated company is a company incorporated under this Ordinance;

(d)a separation of two or more businesses carried on by a company incorporated under this Ordinance;

(e)any sale, transfer, exchange or other disposition of any part of the property, assets or business of a company incorporated under this Ordinance to any person in exchange for shares, debt obligations or other securities of that other person, or money or other property, or a combination thereof;

(f)any sale, transfer, exchange or other disposition of shares, debt obligations or other securities in a company incorporated under this Ordinance held by the holders thereof for shares, debt obligations or other securities in the company or money or other property, or a combination thereof;

(g)a winding-up and dissolution of a company incorporated under this Ordinance; and

(h)any combination of any of the things specified in paragraphs (a) to (g).

(2)If the directors of a company incorporated under this Ordinance determine that it is in the best interests of the company or the creditors or members thereof, the directors of the company may, by a resolution of directors, approve a plan of arrangement that contains the details of the proposed arrangement, even though the proposed arrangement may be authorized or permitted by any other provision of this Ordinance or otherwise permitted.

(3)Upon approval of the plan of arrangement by the directors, the company must make application to the court for approval of the proposed arrangement.

(4)The court may, upon an application made to it under subsection (3), make an interim or final order that is not subject to an appeal unless a question of law is involved and in which case notice of appeal must be given within the period of 20 days immediately following the date of the order, and in making the order the court may

(a)determine what notice, if any, of the proposed arrangement is to be given to any person;

(b)determine whether approval of the proposed arrangement by any person should be obtained and the manner of obtaining the approval;

(c)determine whether any holder of shares, debt obligations or other securities in the company may dissent from the proposed arrangement and receive payment of the fair value of his shares, debt obligations or other securities under section 83;

(d)conduct a hearing and permit any interested person to appear; and

(e)approve or reject the plan of arrangement as proposed or with such amendments as it may direct.

(5)Where the court makes an order approving a plan of arrangement, the directors of the company, if they are still desirous of executing the plan, shall confirm the plan of arrangement as approved by the court whether or not the court has directed any amendments to be made thereto.

(6)The directors of the company, upon confirming the plan of arrangement, shall

(a)give notice to the persons to whom the order of the court requires notice to be given; and

(b)submit the plan of arrangement to those persons for such approval, if any, as the order of the court requires.

(7)After the plan of arrangement has been approved by those persons by whom the order of the court may require approval, articles of arrangement must be executed by the company and must contain

(a)the plan of arrangement;

(b)the order of the court approving the plan of arrangement; and

(c)the manner in which the plan of arrangement was approved, if approval was required by the order of the court.

(8)The articles of arrangement must be submitted to the Registrar who must retain and register them in the Register.

(9)Upon the registration of the articles of arrangement, the Registrar shall issue a certificate under his hand and seal certifying that the articles of arrangement have been registered.

(10)A certificate of arrangement issued by the Registrar is prima facie evidence of compliance with all requirements of this Ordinance in respect of the arrangement.

(11)An arrangement is effective on the date the articles of arrangement are registered by the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of arrangement.

Rights of dissenters 83.(1)A member of a company incorporated under this Ordinance is entitled to payment of the fair value of his shares upon dissenting from

(a)a merger, if the company is a constituent company, unless the company is the surviving company and the member

continues to hold the same or similar shares;

(b)a consolidation, if the company is a constituent company;

(c)any sale, transfer, lease, exchange or other disposition of more than 50 per cent of the assets or business of the company, if not made in the usual or regular course of the business carried on by the company, but not including

(i)a disposition pursuant to an order of the court having jurisdiction in the matter;

(ii)a disposition for money on terms requiring all or substantially all net proceeds to be distributed to the members in accordance with their respective interests

within one year after the date of disposition; or

(iii)a transfer pursuant to the power described in subsection (2) of section 9;

(d)a redemption of his shares by the company pursuant to section 81; and

(e)an arrangement, if permitted by the court.

(2)A member who desires to exercise his entitlement under subsection (1) must give to the company, before the meeting of members at which the action is submitted to a vote, or at the meeting but before the vote, written objection to the action; but an objection is not required from a member to whom the company did not give notice of

the meeting in accordance with this Ordinance or where the proposed action is authorized by written consent of members without a meeting.

(3)An objection under subsection (2) must include a statement that the member proposes to demand payment for his shares if the action is taken.

(4)Within 20 days immediately following the date on which the vote of members authorizing the action is taken, or the date on which written consent of members without a meeting is obtained, the company must give written notice of the authorization or consent to each member who gave written objection or from whom written objection was not required, except those members who voted for, or consented to in writing, the proposed action.

(5)A member to whom the company was required to give notice who elects to dissent must, within 20 days immediately following the date on which the notice referred to in subsection (4) is given, give to the company a written notice of his decision to elect to dissent, stating

(a)his name and address;

(b)the number and classes or series of shares in respect of which he dissents; and

(c)a demand for payment of the fair value of his shares;

and a member who elects to dissent from a merger under section 77 must give to the company a written notice of his decision to elect to dissent within 20 days immediately following the date on which the copy of the plan of merger or an outline thereof is given to him in accordance with section 77.

(6)A member who dissents must do so in respect of all shares that he holds in the company.

(7)Upon the giving of a notice of election to dissent, the member to whom the notice relates

ceases to have any of the rights of a member except the right to be paid the fair value of his shares.

(8)Within 7 days immediately following the date of the expiration of the period within which members may give their notices of election to dissent, or within 7 days immediately following the date on which the proposed action is put into effect, whichever is later, the company or, in the case of a merger or consolidation, the surviving company or the consolidated company, must make a written offer to each dissenting member to purchase his shares at a specified price that the company determines to be their fair value; and if, within 30 days immediately following the date on which the offer is made, the company making the offer and the dissenting member agree upon the price to be paid for his shares, the company shall pay to the member the amount in money upon the surrender of the certificates representing his shares.

(9)If the company and a dissenting member fail, within the period of 30 days referred to in subsection (8), to agree on the price to be paid for the shares owned by the member, within 20 days immediately following the date on which the period of 30 days expires, the following shall apply:

(a)the company and the dissenting member shall each designate an appraiser;

(b)the 2 designated appraisers together shall designate a third appraiser;

(c)the 3 appraisers shall fix the fair value of the shares owned by the dissenting member as of the close of business on the day prior to the date on which the vote of members authorizing the action was taken or the date on which written consent of members without a meeting was obtained, excluding any appreciation or depreciation directly or indirectly induced by the action or its proposal, and that value is binding on the company and the dissenting member for all purposes; and

(d)the company shall pay to the member the amount in money upon the surrender by him of the certificates representing his shares.

(10)Shares acquired by the company pursuant to subsection (8) or (9) shall be cancelled but if the shares are shares of a surviving company, they shall be available for reissue.

(11)The enforcement by a member of his entitlement under this section excludes the enforcement by the member of a right to which he might otherwise be entitled by virtue of his holding shares, except that this section does not exclude the right of the member to institute proceedings to obtain relief on the ground that the action is illegal.

Ord. 10/1990 (12)Only subsections (1) and (8) to (11) shall apply in the case of a redemption of shares by a company pursuant to the provisions of section 81 and in such case the written offer to be made to the dissenting member pursuant to subsection (8) shall be made within 7 days immediately following the direction given to a company pursuant to section 81 to redeem its shares.

PART VIII

CONTINUATION

Continuation. CAP 243 84.(1)A company incorporated under the Companies Act or incorporated under the laws of a jurisdiction outside the British Virgin Islands may, if it will satisfy the requirements prescribed for an International Business Company under section 5, continue as a company incorporated under this Ordinance as follows:

(a)articles of continuation, written in the English language or if written in a language other than the English language, accompanied by a certified translation into the English language, must be approved

(i)by a majority of the directors or the other persons who are charged with exercising the powers of the company, or

(ii)in such other manner as may be established by the company for exercising the powers of the company;

(b)the articles of continuation must contain

(i)the name of the company and the name under which it is being continued,

(ii)the jurisdiction under which it is incorporated,

(iii)the date on which it was incorporated,

(iv)the information required to be included in a Memorandum under subsection (1) of section 12, and

(v)the amendments to its Memorandum and Articles, or their equivalent, that are to be effective upon the registration of the articles of continuation;

Ord. 3/1988 (c)the articles of continuation, accompanied by a copy of the Memorandum and Articles of the company, or their equivalent, written in the English language or if written in a language other than the English language, accompanied by a certified translation into the English language, and, in the case of a foreign company, evidence satisfactory to the Registrar that the company is in good standing, must be submitted to the Registrar who must retain and register them in the Register; and

(d)upon the registration of the articles of continuation, the Registrar shall issue a certificate of continuation under his hand and seal certifying that the company is incorporated under this Ordinance.

(2)A company incorporated under the laws of a jurisdiction outside the British Virgin Islands is entitled to continue as a company incorporated under this Ordinance notwithstanding any provision to the contrary in the laws of the jurisdiction under which it is incorporated.

CAP 243 Ord. 3/1988 (3)Notwithstanding any provisions of the Companies Act, a company incorporated under that Act may, by resoldution of the directors, continue the incorporation of the company under this Act.

CAP 243 Ord. 10/1990 (4)Where a company incorporated under the Companies Act has continued its incorporation under this Act, the Registrar shall strike the name of the company off the Register maintained under that Act and publish notice of the striking-off in the Gazette.

Provisional registration. 85.(1)A company incorporated under the laws of a jurisdiction outside the British Virgin Islands that is permitted under section 84 to continue as a company incorporated under this Ordinance, may, after complying with paragraphs (a) and (b) of subsection (1) of section 84, submit to the Registrar the following documents:

(a)articles of continuation, accompanied by a copy of its Memorandum and Articles, or their equivalent, written in the English language, or if written in a language other than the English language accompanied by a certified translation into the English language; and

(b)a written authorization designating one or more persons who may give notice to the Registrar, by telex, telegram, cable

or by registered mail, that the articles of continuation should become effective.

(2)The Registrar shall not, prior to the receipt of the notice referred to in subsection (1), permit any person to inspect the documents referred to in subsection (1) and shall not divulge any information in respect thereof.

(3)Upon receipt of the notice referred to in subsection (1), the Registrar shall

(a)register the documents referred to in subsection (1) in the Register; and

(b)issue a certificate of continuation under his hand and seal certifying that the company is incorporated under this Ordinance.

(4)For purposes of subsection (3), the Registrar may rely on a notice referred to in subsection (1) sent, or purported to be sent, by a person named in the written authorization.

(5)Prior to the registration of the documents referred to in subsection (1), a company may rescind the written authorization referred to in subsection (1) by delivering to the Registrar a written notice of rescission.

(6)If the Registrar does not receive a notice referred to in subsection (1) from a person named in the written authorization within one year immediately following the date on which the documents referred to in subsection (1) were submitted to the Registrar, the articles of continuation are rescinded.

(7)A company entitled to submit to the Registrar the documents referred to in subsection (1) may authorize the Registrar to accept as resubmitted the documents referred to in that subsection, before or after the documents previously submitted referred to in subsection (1) have been rescinded.

Certificate of continuation. 86.A certificate of continuation issued by the Registrar under paragraph (d) of subsection (1) of section 84 or under subsection (3) of section 85 is prima facie evidence of compliance with all requirements of this Ordinance in respect of continuation.

Effect of continuation. 87.(1)From the time of the issue by the Registrar of a certificate of continuation under paragraph (d) of subsection (1) of section 84 or under subsection (3) of section 85

(a)the company to which the certificate relates

(i)continues to be a body corporate, incorporated under this Ordinance, under the name designated in the Articles of continuation,

(ii)is capable of exercising all powers of a company incorporated under this Ordinance, and

CAP 243 (iii)is no longer to be treated as a company incorporated under the Companies Act or a company incorporated under the laws of a jurisdiction outside the British Virgin Islands;

(b)the Memorandum and Articles of the company, or their equivalent, as amended

by the articles of continuation, are the Memorandum and Articles of the company;

(c)property of every description, including choses in action and the business of the company, continue to be vested in the company; and

(d)the company continues to be liable for all of its claims, debts, liabilities and obligations.

(2)Where a company is continued under this Ordinance

(a)no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against any member, director, officer or agent thereof, is released or impaired by its continuation as a company under this Ordinance; and

(b)no proceedings, whether civil or criminal, pending at the time of the issue by the Registrar of a certificate of continuation under paragraph (d) of subsection (1) of section 84 or under subsection (3) of section 85 by or against the company, or against any member, director, officer or agent thereof, are abated or discontinued by its continuation as a company under this Ordinance, but the proceedings may be enforced, prosecuted, settled or compromised by or against the company or against the member, director, officer or agent thereof, as the case may be.

(3)All shares in the company that were outstanding prior to the issue by the Registrar of a certificate of continuation under paragraph (d) of subsection (1) of section 84 or under subsection (3) of section 85 in respect to the company shall be deemed to have been issued in conformity with this Ordinance, but a share that at the time of the issue of the certificate of continuation was not fully paid shall be paid up no later than one yearimmediately following the date of the issue of the certificate of continuation and until the share is paid up, the member holding the share remains liable for the amount unpaid on the share.

(4)If at the time of the issue by the Registrar of a certificate of continuation under paragraph (d) of subsection (1) of section 84 or under subsection (3) of section 85 in respect to the company any provisions of the Memorandum and Articles of the company do not in any respect accord with this Ordinance

(a)the provisions of the Memorandum and Articles continue to govern the company until the provisions are amended to accord with this Ordinance or for a period of 2 years immediately following the date of the issue of the certificate of continuation, whichever is the sooner;

(b)any provisions of the Memorandum and Articles of the company that are in any respect in conflict with this Ordinance cease to govern the company when the provisions are amended to accord with this Ordinance or after the expiration of a period of 2 years after the date of the issue of the certificate of continuation, whichever is the sooner; and

(c)the company shall make such amendments to its Memorandum and Articles as may be necessary to accord with this Ordinance within a period that is not later than 2 years immediately following the date of the issue of the certificate of continuation.

Continuation under foreign law. Ord. 10/1990 88.(1)Subject to any limitations or provisions to the contrary in its Memorandum or Articles, a company incorporated under this Ordinance and for which the Registrar would issue a certificate ofgood standing pursuant to subsection (1) of section 114, may, by a resolution of directors or by a resolution of members, continue as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands in the manner provided under those laws.

(2)A company incorporated under this Ordinance that continues as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands does not cease to be a company incorporated under this Ordinance unless the laws of the jurisdiction outside the British Virgin Islands permit the continuation and the company has complied with those laws.

Ord. 10/1990 (2A)The registered agent of a company incorporated under this Act that continues as a company incorporated under the laws of a jurisdiction outside the British Virgin Islands may within 30 days of the continuation of the company under the laws of the foreign jurisdiction submit to the Registrar an affidavit to the effect that the company has continued its incorporation under the laws of the named foreign jurisdiction and the Registrar shall retain and register the affidavit.

Ord. 10/1990 (2B)Upon registration of the affidavit referred to in subsection (2A) the Registrar shall

(a)strike the name of the company off the Register;

(b)issue a certificate of discontinuance; and

(c)publish the striking off in the Gazette.

(3)Where a company incorporated under this Ordinance is continued under the laws of a jurisdiction outside the British Virgin Islands

(a)the company continues to be liable for all of its claims, debts, liabilities and obligations that existed prior to its continuation as a company under the laws of the jurisdiction outside the British Virgin Islands;

(b)no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against any member, director, officer or agent thereof, is released or impaired by its continuation as a company under the laws of the jurisdiction outside the British Virgin Islands;

(c)no proceedings, whether civil or criminal, pending by or against the company, or against any member, director, officer or agent thereof, are abated or discontinued by its continuation as a company under the laws of the jurisdiction outside the British Virgin Islands, but the proceedings may be enforced, prosecuted, settled or compromised by or against the company or against the member, director, officer or agent thereof, as the case may be; and

Ord. 10/1990 (d)service of process may continue to be effected on the registered agent of the company in the British Virgin Islands in respect of any claim, debt, liability or obligation of the company during its existence as a company incorporated under this Act.

PART IX

WINDING-UP, DISSOLUTION AND STRIKING-OFF

Compulsory winding up and dissolution. Ord. 10/1990 89. A company incorporated under this Ordinance shall commence to wind up and dissolve by a resolution of directors upon expiration of such time as may be prescribed by its Memorandum or Articles for its existence or upon the happening of an event which has been specified in the Memorandum or Articles as an event that shall terminate the existence of the company.

Voluntary winding up and dissolution. 90.(1)A company incorporated under this Ordinance that has never issued shares may voluntarily commence to wind up and dissolve by a resolution of directors.

Ord. 10/1990 (2)Subject to any limitations or provisions to the contrary in its Memorandum or Articles, a company incorporated under this Ordinance that has previously issued shares may voluntarily commence to wind up and dissolve by a resolution of members or by a resolution of directors.

Powers of directors in a winding up and dissolution. 91.Upon the commencement of a winding-up and dissolution required under section 89 or permitted under section 90, the directors may only

(a)authorize a liquidator, by a resolution of directors, to carry on the business of the company if the liquidator determines that to do so would be necessary or in the best interests of the creditors or members of the company; and

Ord. 10/1990 (b)determine to rescind the articles of dissolution as permitted under paragraph (a) of subsection (1) of section 95.

Duties of liquidator 92.(1)A liquidator shall, upon his appointment in accordance with this Part, and upon the commencement of a winding-up and dissolution, proceed

(a)to identify all assets of the company;

(b)to identify all creditors of and claimants against the company;

(c)to pay or provide for the payment of, or to discharge, all claims, debts, liabilities and obligations of the company;

(d)to distribute any surplus assets of the company to the members in accordance with the Memorandum and Articles;

(e)to prepare or cause to be prepared a statement of account in respect of the actions and transactions of the liquidator; and

(f)to send a copy of the statement of account to all members if so required by the plan of dissolution required by section 94.

(2)A transfer, including a prior transfer, described in subsection (2) of section 9 of all or substantially all of the assets of a company incorporated under this Ordinance for the benefit of the creditors and members of the company, is sufficient to satisfy the requirements of paragraphs (c) and (d) of subsection (1).

Powers of liquidator. 93.In order to perform the duties imposed on him under section 92, a liquidator has all powers of the company that are not reserved to the members under this Ordinance or in the Memorandum or Articles, including, but not limited to, the power

(a)to take custody of the assets of the company and, in connection therewith, to register any property of the company in the name of the liquidator or that of his nominee;

(b)to sell any assets of the company at public auction or by private sale without any notice;

(c)to collect the debts and assets due or belonging to the company;

(d)to borrow money from any person for any purpose that will facilitate the winding-up and dissolution of the company and to pledge or mortgage any property of the company as security for any such borrowing;

(e)to negotiate, compromise and settle any claim, debt, liability or obligation of the company;

(f)to prosecute and defend, in the name of the company or in the name of the liquidator or otherwise, any action or other legal proceedings;

(g)to retain solicitors, accountants and other advisers and appoint agents;

(h)to carry on the business of the company, if the liquidator has received authorization to do so in the plan of liquidation or by a resolution of directors permitted under section 91, as the liquidator may determine to be necessary or to be in the best interests of the creditors or members of the company;

(i)to execute any contract, agreement or other instrument in the name of the company or in the name of the liquidator; and

(j)to make any distribution in money or in other property or partly in each, and if in other property, to allot the property, or an undivided interest therein, in equal or unequal proportions.

(2)Notwithstanding paragraph (h) of subsection (1), a liquidator shall not, without the permission of the court, carry on for a period in excess of 2 years the business of a company that is being wound up and dissolved under this Ordinance.

Procedure on winding up and dissolution. 94.(1)The directors of a company required under 89 or proposing under section 90 to wind up and dissolve the company must approve a plan of dissolution containing

(a)a statement of the reason for the winding-up and dissolving;

(b)a statement that the company is, and will continue to be, able to discharge or pay or provide for the payment of all claims, debts, liabilities and obligations in full;

(c)a statement that the winding-up will commence on the date when articles of dissolution are submitted to the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of dissolution;

(d)a statement of the estimated time required to wind up and dissolve the company;

(e)a statement as to whether the liquidator is authorized to carry on the business of the company if the liquidator determines that to do so would be necessary or in the best interests of the creditors or members of the company;

(f)a statement of the name and address of each person to be appointed a liquidator and the remuneration proposed to be paid to each liquidator; and

(g)a statement as to whether the liquidator is required to send to all members a statement of account prepared or caused to be prepared by the liquidator in respect of his actions or transactions.

(2)If a winding-up and dissolution is being effected in a case where subsection (2) of section 90 is applicable,

(a)the plan of dissolution must be authorized by a resolution of members, and the holders of the outstanding shares of a class or series of shares are entitled to vote on the plan of dissolution as a class or series only if the Memorandum or Articles so provide;

(b)if a meeting of members is to be held, notice of the meeting, accompanied by a copy of the plan of dissolution, must be given to each member, whether or not entitled to vote on the plan of dissolution; and

(c)if it is proposed to obtain the written consent of members, a copy of the plan of dissolution must be given to each member, whether or not entitled to consent to the plan of dissolution.

(3)After approval of the plan of dissolution by the directors, and if required, by the members in accordance with subsection (2), articles of dissolution must be executed by the company and must contain

(a)the plan of dissolution; and

(b)the manner in which the plan of dissolution was authorized.

(4)Articles of dissolution must be submitted to the Registrar who must retain and register them in the Register and within 30 days immediately following the date on which the articles of dissolution are submitted to the Registrar, the company must cause to be published, in the Gazette, in a publication of general circulation in the British Virgin Islands and in a publication of general circulation in the country or place where the company has its principal office, a notice stating

(a)that the company is in dissolution;

(b)the date of commencement of the dissolution; and

(c)the names and addresses of the liquidators.

(5)A winding-up and dissolution commences on the date the articles of dissolution are registered by the Registrar or on such date subsequent thereto, not exceeding 30 days, as is stated in the articles of dissolution.

(6)A liquidator shall, upon completion of a winding-up and dissolution, submit to the Registrar a statement that the winding-up and dissolution has been completed and upon receiving the notice, the Registrar shall

(a)strike the company off the Register; and

(b)issue a certificate of dissolution under his hand and seal certifying that the company has been dissolved.

(7)Where the Registrar issues a certificate of dissolution under his hand and seal certifying that the company has been dissolved

(a)the certificate is prima facie evidence of compliance with all requirements of this Ordinance in respect of dissolution; and

(b)the dissolution of the company is effective from the date of the issue of the certificate.

Ord. 3/1988 Ord. 10/1990 (8)Immediately following the issue by the Registrar of a certificate of dissolution under subsection (6), the liquidator shall cause to be published in the Gazette, a notice that the company has been dissolved and has been struck off the Register.

(9)A company that wilfully contravenes subsection (4) is liable to a penalty of $50.00 for every day or part thereof during which the contravention continues, and a director or liquidator who knowingly permits the contravention is liable to a like penalty.

Rescission of winding-up and dissolution. 95.(1)In the case of a winding-up and dissolution permitted under section 90, a company may, prior to submitting to the Registrar a notice specified in subsection (4) of section 94, rescind the articles of dissolution by

(a)a resolution of directors in the case of a winding-up and dissolution under subsection (1) of section 90; or

(b)a resolution of members in the case of a winding-up and dissolution under subsection (2) of section 90.

(2)A copy of a resolution referred to in subsection (1) must be submitted to the Registrar who must retain and register it in the Register.

(3)Within 30 days immediately following the date on which the resolution referred to in subsection (1) has been submitted to the Registrar, the company must cause a notice stating that the company has rescinded its intention to wind up and dissolve to be published in the Gazette, in a publication of general circulation in the British Virgin Islands and in a publication of general circulation in the country or place where the company has its principal office.

Winding-up and dissolution of company unable to pay its' claims, etc. 96.(1) Where

(a)the directors or, as the case may be, the members of a company that is required under section 89 or permitted under section 90 to wind up and dissolve, at the time of the passing of the resolution to wind up and dissolve the company, have reason to believe that the company will not be able to pay or provide for the payment of or discharge all claims, debts, liabilities and obligations of the company in full; or

(b)the liquidator after his appointment has reason so to believe,

then, the directors, the members or the liquidator, as the case may be, shall immediately give notice of the fact to the Registrar.

CAP 243 (2)Where a notice has been given to the Registrar under subsection (1), all winding-up and dissolution proceedings after the notice has been given shall be in accordance with the provisions of the Companies Act relating to winding up and dissolution and those provisions shall apply mutatis mutandis to the winding-up and dissolution of the company.

Winding-up and dissolution by the court. CAP 243 97.(1)Notwithstanding the provisions of this Ordinance relating to winding-up and dissolution, a company incorporated under this Ordinance may be wound up by the court under any of the circumstances, in so far as they are applicable to a company incorporated under this Ordinance, in which a company incorporated under the Companies Act may be wound up by the court and, in that case,

the provisions of the Companies Act relating to winding-up and dissolution apply mutatis mutandis to the winding-up and dissolution of the company.

Ord. 10/1990 (2)Any person who, pursuant to the provisions of subsection (1), files, or causes to be filed, a petition for the winding up of a company incorporated under this Act, shall forthwith serve on the Registrar a notice that the petition has been filed, and the Registrar must retain and register the notice.

Receivers and managers. CAP 243 98.(1)The provisions of the Companies Act regarding receivers and managers govern mutatis mutandis the appointment, duties and powers and liabilities of receivers and managers of the assets of any company incorporated under this Ordinance.

(2)This section comes into operation on such date as the Governor may appoint by proclamation published in the Gazette.

Striking-off. 99.(1)Notwithstanding section 6, where the Registrar has reasonable cause to believe that a company incorporated under this Ordinance no longer satisfies the requirements prescribed for an International Business Company under section 5, the Registrar must serve on the company a notice that the name of the company may be struck off the Register if the company no longer satisfies those requirements.

(2)If the Registrar does not receive a reply within 30 days immediately following the date of the service of the notice referred to in subsection (1), he must serve on the company another notice that the name of the company may be struck off the Register if a reply to the notice is not received within 30 days immediately following the date thereof and that a notice of the contemplated striking-off will be published in the Gazette.

(3)If the Registrar

(a)receives from the company a notice stating that the company no longer satisfies the requirements prescribed for an International Business Company under section 5, in reply to a notice served on the company under subsection (1) or (2); or

(b)does not receive a reply to a notice served on the company under subsection (2) as required by that subsection,

he must publish a notice in the Gazette that the name of the company will be struck off the Register unless the company or another person satisfies the Registrar that the name of the company should not be struck off.

(4)At the expiration of a period of 90 days immediately following the date of the publication of the notice under subsection (3), the Registrar shall strike the name of the company off the Register, unless the company or any other person satisfies the Registrar that the name of the company should not be struck-off, and the Registrar must publish notice of the striking-off in the Gazette.

Ord. 6/1991 (5)If a company fails to pay the increased licence fee due under subsection (3) of section 105 on or before the expiration period of a period of 2 months from the time specified in subsection (1) or (2), as the case may be, of section 105, the Registrar shall within 2 months from the expiration of the said period of 2 months send to the registered agent of the copmany a written notice that the name of the company will be struck off the Register if the licence fee specified in subsection (4) of section 105 is not paid on or before the next licence fee final payment date.

Ord. 6/1991 (6)If a company fails to pay the increased fee stated in the notice referred to in subsection (5) at or before the next licence fee final payment date, the Registrar shall strike the name of the company off the Register on the date immediately following the next licence fee final payment date.

Ord. 6/1991 (7)Within one month following each licence fee final payment date, the Registrar shall send to the registered agent of each company the name of which has been struck off the Register notice of striking off.

Ord. 6/1991 (8)Within two months following each licence fee final payment date the Registraar shall publish in the Gazette the names of all companies struck off the Register on the date immediately following the licence fee final payment date.

Ord. 6/1991 (9)A company the name of which has been struck off the Register under this section remains liable for all claims, debts, liabilities and obligations of the company, and the striking-off does not affect the liability of any of its members, directors, officers or agents.

Ord. 6/1991 (10)The striking off of a company shall not be affected by any failure on the part of the Registrar to serve a notice on the registered agent or to publish a notice in the Gazette .

Ord. 6/1991 (11)Subsections (5) to (8) do not apply to a company in the process of being wound up and dissolved.

Restoration to Register. 100.(1)If the name of a company has been struck to Register. off the Register under subsection (4) of section 99, the company, or a creditor, member or liquidator thereof, may apply to the court to have the name of the company restored to the Register.

(2)If upon an application under subsection (1) the court is satisfied that

(a)at the time the name of the company was struck off the Register, the company did satisfy the requirements prescribed for an International Business Company under section 5, and

(b)it would be fair and reasonable for the name of the company to be restored to the Register,

the court may order the name of the company to be restored to the Register upon payment to the Registrar of all fees due under Section 104 and all licence fees due under section 105 without any increase for late payment, and upon restoration of the name of the company to the Register, the name of the company is deemed never to have been struck off the Register.

Ord. 10/1990 Ord. 6/1991 (3)If the name of a company has been struck off the Register under subsection (6) of section 99, the company, or a creditor, member or liquidator thereof, may, within 10 years immediately following the date of the striking off, apply to the Registrar to have the name of the company restored to the Register, and upon payment of

(a)all fees due under section 104;

(b)the increased licence fee due under subsection (3) of section 105; and

(c)the increased licence fee due under subsection (3) of section 105 for each year during which the name of the company remains struck off the Register,

the Registrar shall restore the name of the company to the Register and upon restoration of the name of the company to the Register, the name of the company is deemed never to have been struck off the Register.

Ord. 10/1990 (3A)If the name of a company has been struck off the Register under subsection (5) or subsection (6) of section 40A, the company, or a creditor, member or liquidator thereof, may apply to the Registrar to have the name of the company restored to the Register.

Ord. 10/1990 (3B)If upon an application under subsection (3A) the Registrar is satisfied that

(a)a licensed person has agreed to act as registered agent of the company; and

(b)it would be fair and reasonable for the name of the company to be restored to the Register,

the Registrar may restore the name of the company to the Register upon satisfaction of the conditions set forth in subsection (3C) and upon restoration of the name of the company to the Register, the name of the company is deemed never to have been struck off the Register.

Ord. 10/1990 (3C)The conditions referred to in subsection (3B) are as follows:

(a)the submission to the Registrar by the applicant for the restoration of a copy of the resolution amending the Memorandum of the company to change the registered agent; and

(b)payment to the Registrar by the applicant for the restoration of:

(i)all fees due under section 104, and

(ii)all licence fees due under section 105 without increase for late payment.

(4)For purposes of this Part, the appointment of an official receiver under section 102 operates as an order to restore the name of the company to the Register.

Effect of striking off. 101.(1)Where the name of a company has been struck off the Register, the company, and the directors, members, liquidators and receivers thereof, may not legally

(a)commence legal proceedings, carry on any business or in any way deal with the assets of the company;

(b)defend any legal proceedings, make any claim or claim any right for, or in the name of, the company; or

(c)act in any way with respect to the affairs of the company.

(2)Notwithstanding subsection (1), where the name of the company has been struck off the Register, the company, or a director, member, liquidator or receiver thereof, may

(a)make application for restoration of the name of the company to the Register;

(b)continue to defend proceedings that were commenced against the company prior to the date of the striking-off; and

(c)continue to carry on legal proceedings that were instituted on behalf of the company prior to the date of striking-off.

(3)The fact that the name of a company is struck off the Register does not prevent

(a)the company from incurring liabilities;

(b)any creditor from making a claim against the company and pursuing the claim through to judgment or execution; or

(c)the appointment by the court of an official liquidator for the company under section 102.

Appointment of official liquidator. 102.The court may appoint a person to be the official liquidator in respect of a company the name of which has been struck off the Register.

Dissolution of company struck off. Ord. 10/1990 103.(1)If the name of a company has been struck off the Register under section 99 and remains struck off continuously for a period of 10 years, the company shall be deemed to have been dissolved, but the Registrar may, if he determines that it is in the best interests of the Crown to do so, apply to the court on or before the expiration of the period of 10 years to have the company put into liquidation and a person appointed by the court shall be the official liquidator thereof.

(2)The duties of an official liquidator in respect of a company in liquidation pursuant to subsection (1) are limited to

(a)identifying and taking possession of all assets of the company;

(b)calling for claims by advertisement in the Gazette and in such other manner as he deems appropriate, requiring all claims to be submitted to him within a period of not less than 90 days immediately following the date of the advertisement; and

(c)applying those assets that he recovers in the following order of priority:

(i)in satisfaction of all outstanding fees, licence fees and penalties due to the Registrar, and

(ii)in satisfaction pari passu of all other claims admitted by the official liquidator.

(3)In order to perform the duties with which he is charged under subsection (2), the official liquidator may exercise such powers as the court may as it considers reasonable confer on him.

(4)The official liquidator may require such proof as he considers necessary to substantiate any claim submitted to him and he may admit, reject or settle claims on the basis of the evidence submitted to him.

(5)When the official liquidator has completed his duties, he shall submit a written report of his conduct of the liquidation proceedings to the Registrar and, upon receipt of the report by the Registrar, all assets of the company, wherever situate, that are not disposed of, vest in the Crown and the company is dissolved.

(6)The official liquidator is entitled to such remuneration out of the assets of the company for his services as the court approves, but if the company is unable to discharge all of its claims, debts, liabilities and obligations, payment of the official liquidator's remuneration shall be a charge on the Consolidated Fund.

(7)No liability attaches to an official liquidator.

(a)to account to creditors of the company who have not submitted claims within the time allowed by him; or

(b)for any failure to locate any assets of the company.

PART X

FEES AND PENALTIES

Fees. Ord. 3/1988 104.There shall be paid to the Registrar fees as follows:

(a)$300.00 upon the registration by the Registrar of a company incorporated under this Ordinance the authorized capital of which does not exceed $50,000.00 and all the shares of which have a par value;

(b)$1,000.00 upon the registration by the Registrar of a company incorporated under this Ordinance the authorized capital of which exceeds $50,000.00;

Ord. 3/1988 Ord. 10/1990 (c)upon registration by the Registrar of a copy of a resolution of members or a resolution of directors amending the Memorandum or Articles of a company incorporated under this Act,

(i)$25.00 if the registration is within 30 days immediately following the passing of the resolution authorizing the amendment,

(ii)$50.00 if the registration is within 60 days immediately following the passing of the resolution authorizing the amendment,

(iii)$75.00 if the registration is within 90 days immediately following the passing of the resolution authorizing the amendment, and

(iv)$100.00 if the registration is later than 90 days following the passing of the resolution authorizing the amendment;

(d)$500.00 upon the registration by the Registrar of articles of merger or consolidation, but $700.00 in the case of articles of merger or consolidation that also constitute the Memorandum of a company the authorized capital of which exceed $50,000.00 or that amend the Memorandum of a surviving company to increase the authorized capital from $50,000.00 or less to more than $50,000.00;

(e)$500.00 upon the registration by the Registrar of articles of arrangement, but $700.00 in the case of articles of arrangement that also constitute the Memorandum of a company the authorized capital of which exceeds $50,000.00 or that amend the Memorandum of a company to increase the authorized capital from $50,000.00 or less to more than $50,000.00;

Ord. 3/1988 CAP 243 (f)$250.00 upon the submission to the Registrar of articles of continuation for a company incorporated under the Companies Act the authorized capital of which does not exceed $50,000.00, and, in addition, in the case of a company that continues its incorporation under this

Ordinance before 30th April in any year,

such sum as would have been payable by that company under the Companies Act if that company had not so continued its incorporation under this Ordinance;

CAP 243 (g)$1,000.00 upon the submission to the Registrar of articles of continuation for a company incorporated under the Companies Act the authorized capital of which exceeds $50,000.00, and, in addition, in the case of a company that continues its incorporation under this Ordinance before 30th April in any year, such sum as would have been payable by

that company under the Companies Act if that company had not so continued its incorporation under this Ordinance;

CAP 243 (h)$500.00 upon the submission to the Registrar of articles of continuation for a company not incorporated under the Companies Act the authorized capital of which does not exceed $50,000.00;

(i)$1,000.00 upon the submission to the Registrar of articles of continuation for a company not incorporated under the Companies Act the authorized capital of which exceeds $50,000.00;

(j)$100.00 upon the registration by the Registrar of articles of dissolution;

(k)$100.00 upon the registration by the Registrar of a resolution rescinding articles of dissolution;

Ord. 10/1990 (l)$25.00 upon the issue by the Register of a duplicate, or certified copy of a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution, discontinuance or good standing;

(m)$15.00 upon the issue by the Register of a copy or extract, whether or not certified, of a document or a part of a document, other than a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution or good standing;

(n)$10.00 for an inspection of the documents kept by the Registrar pursuant to this Ordinance;

Ord. 3/1988 (o)Upon restoration by the Registrar to the Register of a company incorporated under this Act, the name of which was struck off the Register,

(i)$300.00 if the restoration is applied for within 6 months immediately following the striking of the name off the Register; or

(ii)$600.00 if the restoration is applied for more than 6 months immediately following the striking of the name off the register;

Ord. 3/1988 (p)$25.00 for the reservation of a name as provided for in subsection (7) of section 11;

Ord. 3/1988 (q)$10.00 for an inspection of each entry in the Register of International Business Companies;

Ord. 3/1988 (r)$500.00 upon submission to the Registrar of documents referred to in subsection (1) of section 85;

Ord. 3/1988 (s)$100.00 upon resubmission to the Registrar of the documents referred to in subsection (7) of section 85;

Ord. 3/1988 (t)$350.00 upon the registration by the Registrar of a company incorporated under this Ordinance

(i)if the authorized capital of the company does not exceed $50,000.00 and some or all of its shares have no par value, or

(ii)the company has no authorized capital and all of its shares have no par value;

Ord. 3/1988 (u)$25.00 upon the registration by the Registrar of a notice of increase or decrease of authorized capital of a company incorporated under this Ordinance, but $700.00 in the case of a notice of increase of authorized capital from $50,000.00 or less to more than $50,000.00;

Ord. 10/1990 (v)$50.00 upon initial registration by the Registrar of a copy of a share register, a register of directors or a register of mortgages;

Ord. 10/1990 (w)$50.00 upon registration by the Registrar of a copy of a share register, a register of directors or a register of mortgages and charges showing changes from the last copy of the particular register a copy of which was last registered by the Registrar;

Ord. 10/1990 (x)$50.00 upon registration by the Registrar of a notice that a company has elected to cease to register a copy of a share register, a register of directors or a register of mortgages and charges showing changes from the copy of the particular register a copy of which was last registered with the Registrar;

Ord. 10/1990 (y)$100.00 upon the registration by the Registrar of an affidavit attesting to a company incorporated under this Act continuing its incorporation under the laws of another jurisdiction; and

Ord. 10/1990 (z)$50.00 upon registration by the Registrar of any documents referred to in section 111B.

Licence fees. Ord. 6/1991 105.(1)A company that is incorporated in the first six months of a year shall on or before 31st May in the following year and in each succeeding year pay to the Registrar a licence fee as follows:

(a)$300.00 if on the licence fee payment date its authorized capital does not exceed $50,000.00 and all its shares have par value;

(b)$1,000.00 if on the licence fee payment date its authorized capital exceeds $50,000.00; and

(c)$350.00 if on the licence fee payment date -

(i)its authorized capital does not exceed $50,000.00 and some or all of its shares have no par value, or

(ii)it has no authorized capital and all its shares have no par value.

(2)A company that is incorporated in the second six months of a year shall on or before 30th November in the following year and in each succeeding year pay to the Registrar a licence fee as follows:

(a)$300.00 if on the licence fee payment date its authorized capital does not exceed $50,000.00 and all its shares have par value;

(b)$1,000.00 if on the licence fee payment date its authorized capital exceeds $50,000.00; and

(c)$350.00 if on the licence fee payment date -

(i)its authorized capital does not exceed $50,000.00 and some or all of its shares have no par value, or

(ii)it has no authorized capital and all its shares have no par value.

(3)If a company fails to pay the amount due as the licence fee under subsection (1) or (2), as the case may be, by the time specified therein, then the licence fee increases by 10 per cent of that amount.

(4)If a company fails to pay the amount due as an increased licence fee under subsection (3) at or before the expiration of a period of 2 months from the time specified in subsection (1) or (2), as the case may be, then the licence fee increases by 50 per cent of that amount.

(5)This section does not apply to a company in the process of being wound up and dissolved.

The new section 105 comes into operation on 1st January, 1992.

Penalties to be paid to Registrar. 106.Any penalty incurred under this Ordinance shall be paid to the Registrar.

Recovery of penalties, etc. 107. Any fee, licence fee or penalty payable under this Ordinance that remains unpaid for 30 days immediately following the date on which demand for payment is made by the Registrar is recoverable at the instance of the Attorney General before a magistrate in civil proceedings as a debt due to the Crown notwithstanding the amount sought to be recovered.

Company struck off liable for fees, etc. 108.A company incorporated under this Ordinance continues to be liable for all fees, licence fees and penalties payable under this Ordinance notwithstanding that the name of the company has been struck off the Register and all those fees, licence fees and penalties have priority to all other claims against the assets of the company.

Fees, etc. to be paid into Consolidted Fund. 109.All fees, licence fees and penalties paid under this Ordinance shall be paid by the Registrar into the Consolidated Fund.

Fees payable to Registrar. 110.(1)The Registrar may refuse to take any action required of him under this Ordinance for which a fee is prescribed until all fees have been paid.

CAP 243. (2)The Registrar may refuse to continue under this Ordinance a company incorporated under the Companies Act until all fees prescribed as payable by the Company under the Companies Act have been paid.

PART XI

Ord. 3/1988INCOME TAXES, STAMP DUTIES AND

REGISTRATION OF DOCUMENTS

Exemptions from tax, etc. CAP 189 111.(1)Notwithstanding any provision of the Income Tax Ordinance,

(a)a company incorporated under this Ordinance;

(b)all dividends, interest, rents, royalties, compensations and other amounts paid by the company to persons who are not persons resident in the British Virgin Islands; and

(c)capital gains realized with respect to any shares, debt obligations or other securities of a company incorporated under this Ordinance by persons who are not persons resident in the British Virgin Islands,

are exempt from all provisions of the Income Tax Ordinance.

(2)No estate, inheritance, succession or gift tax, rate, duty, levy or other charge is payable by persons who are not persons resident in the British Virgin Islands with respect to any shares, debt obligations or other securities of a company incorporated under this Ordinance.

CAP 192 Ord. 3/1988 (3)Notwithstanding any provision of the Stamp Act,

(a)all instruments relating to transfers of property to or by a company incorporated under this Ordinance;

(b)all instruments relating to transactions in respect of the shares, debt obligations or other securities of a company incorporated under this Ordinance; and

(c)all instruments relating to other transactions relating to the business of a company incorporated under this Ordinance,

are exempt from the payment of stamp duty.

Ord. 10/1990 CAP 67. (4)Notwithstanding any provisions of the Registration and Records Act, all deeds and other instruments relating to

(a)transfers of property to or by a company incorporated under this Act;

(b)transactions in respect of the shares, debt obligations or other securities of a company incorporated under this Act; and

(c)other transactions relating to the business of a company incorporated under this Act,

are exempt from the provisions of that Act.

Optional registration of registers. 111A. (1) A company incorporated under this Act may elect to submit for registration by the Registrar any of the following registers:

Ord. 10/1990

(a)its share register;

(b)its register of directors; or

(c)its register of mortgages and charges.

(2)A company that has elected to submit for registration a copy of a register shall, until it otherwise notifies the Registrar pursuant to subsection (3), submit for registration any changes in a register by submitting for registration a copy of the register containing the changes.

(3)A company that submits for registration a copy of a register with the Registrar may elect to cease registration of changes in the register by so informing the Registrar in writing.

(4)If a company elects to submit for registration any register pursuant to subsection (1), then, until such time as the company informs the Registrar pursuant to subsection (3) that it elects to cease to register changes in any register, the company is bound by the contents of each copy register submitted to the Registrar.

Optional registration of mortgages and charges 111B.A company incorporated under this Act may submit to the Registrar for registration of mortgages

d(a)any document or copy of a document creating a mortgage, charge or other encumbrance over some or all its assets;

(b)any document or copy of a document amending any document referred to in paragraph (2); and

(c)any document releasing or discharging a mortgage, charge or other encumbrance over any or all its assets,

and the Registrar must retain and register the document or, as the case may be, the copy thereof.

PART XII

MISCELLANEOUS

Regulations. 112. (1) The Governor in Council may make regulations with respect to the duties to be performed by the Registrar under this Ordinance and in so doing may prescribe the place where the office for the registration of International Business Companies is located.

Ord. 10/1990 (2)Without limiting or affecting subsection (1), the Governor in Council may make regulations with respect to the conduct, duties and responsibilities of registered agents.

Form of certificate 113.Any certificate or other document required to be issued by the Registrar under this Ordinance shall be in such form as the Governor in Council may approve.

Certificate of good standing. 114.(1)The Registrar shall, upon request by any person, issue a certificate of good standing under his hand and seal certifying that a company incorporated under this Ordinance is of good standing if the Registrar is satisfied that

(a)the name of the company is on the Register; and

(b)the company has paid all fees, licence fees and penalties due and payable.

(2)The Certificate of good standing issued under subsection (1) must contain a statement as to whether

(a)the company has submitted to the Registrar articles of merger or consolidation that have not yet become effective;

(b)the company has submitted to the Registrar articles of arrangement that have not yet become effective;

(c)the company is in the process of being wound up and dissolved; or

(d)any proceedings to strike the name of the company off the Register have been instituted.

Inspection of documents. 115.(1)Except as provided in subsection (2) of section 85, a person may

(a)inspect the documents kept by the Registrar pursuant to this Ordinance; and

(b)require a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution or good standing of a company incorporated under this Ordinance, or a copy or an extract of any document or any part of a document of which he has custody, to be certified by the Registrar; and a certificate of incorporation, merger, consolidation, arrangement, continuation, dissolution or good standing or a certified copy or extract is prima facie evidence of the matters contained therein.

(2)A document or a copy or an extract of any document or any part of a document certified by the Registrar under subsection (1) is admissible in evidence in any proceedings as if it were the original document.

Jurisdiction. 116.For purposes of determining matters relating to title and jurisdiction but not for purposes of taxation, the situs of the ownership of shares, debt obligations or other securities of a company incorporated under this Ordinance is in the British Virgin Islands.

Declaration by court. 117.(1)A company incorporated under this Ordinance may, without the necessity of joining any other party, apply to the court, by summons supported by an affidavit, for a declaration on any question of interpretation of this Ordinance or of the Memorandum or Articles of the company.

(2)A person acting on a declaration made by the court as a result of an application under subsection (1) shall be deemed, in so far as regards the discharge of any fiduciary or

professional duty, to have properly discharged his duties in the subject matter of the application.

Judge in Chambers. 118.A judge of the Supreme Court may exercise in Chambers any jurisdiction that is vested in the court by this Ordinance and in exercise of that jurisdiction, the judge may award costs as may be just.

Commencement. 119.This ordinance, except for section 98, comes into operation on such day as the Governor appoints by proclamation published in the Gazette.

Passed by the Legislative Council this 29th day of June, 1984.

(Sgd.)K.L. Flax

Speaker

(Sgd.) M.G. Borde

Clerk of the Legislative Council

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