INTERIM REVISED STATUTES OF ANGUILLA 2000
COMPANIES ACT

Part 6

ADMINISTRATION AND GENERAL

Division 1

Functions of the Registrar

Responsibility of Registrar

231.    (1) There is established the office of Registrar of Companies as a public office to which appointments are to be made in accordance with section 66 of the Constitution of Anguilla.

(2)  Under the general supervision of the Minister, the Registrar of Companies is responsible for the administration of this Act.

(3)  A seal may be required by the Minister for use by the Registrar in the performance of his duties.

Immunity

232.    No liability attaches to the Registrar or any person acting under the authority of the Registrar for any act done in good faith in the discharge of his functions under this Act.

Register of Companies

233.    (1) The Registrar shall maintain a Register of Companies in which to keep the name of every company—

(a)  that is—

(i) incorporated under this Act,

(ii) continued as a company under this Act, or

(iii) restored to the Register under this Act; and

(b)  that has not been subsequently struck off that Register.

(2)  The Registrar shall maintain a Register of Foreign Companies in which to keep the name of every body corporate registered as a foreign company under Division 3 of Part 4.

(3)  Duplicates of the Register of Companies and the Register of Foreign Companies may be kept in any place outside Anguilla.

Sending notices, etc. to directors or shareholders

234.    (1) A notice or document required or permitted by this Act, the regulations, articles or the bylaws to be sent to a shareholder or director of a company may be sent by telex, telefax, by prepaid post or cable or by electronic means addressed to, or may be delivered personally to—

(a)  the shareholder at his latest address as shown in the records of the company or its transfer agent; and

(b)  the director at his latest address as shown in the records of the company or in the articles of incorporation or the latest notice filed under section 76 as appropriate.

(2) Each of the following is, for the purposes of this Act, a director of a company—

(a)  a person named in the articles as a person who has consented to be a first director of a company, unless notice has been given in a notice accepted for filing under section 76 that the person has ceased to be a director of the company; and

(b)  a person whose appointment as a director has been notified to the Registrar in a notice filed under section 76, unless notice has been given in a subsequent notice accepted for filing under section 76 that the person has ceased to be a director of the company.

Presumption of receipt

235.    A notice or document sent in accordance with section 234 to a shareholder or director of a company is, for the purpose of this Act, presumed to be received by him at the time, having regard to the mode of dispatch, that it would in its ordinary course be delivered.

Undelivered documents

236.    If a company sends a notice or document to a shareholder in accordance with section 234 and the notice or document is returned on 3 consecutive occasions because the shareholder cannot be found, the company need not send any further notices or documents to the shareholder until he informs the company in writing of his new address.

Waiver of notice

237.    Where a notice or document is required to be sent pursuant to this Act, the sending of the notice or document may be waived, or the time for the notice or document may be waived or abridged at any time with the consent in writing of the person entitled to the notice or document.

Certificate by company

238.    A certificate issued on behalf of a company stating any fact that is set out in the articles, the by-laws, any unanimous shareholder agreement, the minutes of the meetings of the directors, a committee of directors or the shareholders, or in a trust deed or other contract to which the company is a party, may be signed by a director, an officer or a transfer agent of the company.

Evidentiary value

239.    When introduced as evidence in any civil, criminal, or administrative action or proceeding—

(a)  a fact stated in a certificate referred to in section 238;

(b)  a certified extract from a register of members or debenture holders of a company; or

(c)  a certified copy of minutes or extracts from minutes of a meeting of shareholders, directors or a committee of directors of a company;

is, in the absence of evidence to the contrary, proof of the fact so certified without proof of the signature or official character of the person appearing to have signed the certificate.

Registrar’s certificate as to certain facts

240.    The Registrar may furnish any person with a certificate stating—

(a)  that a company has or has not sent to the Registrar a document required to be filed with him under this Act;

(b)  that a name, whether that of a company or not, is or is not on the Register; or

(c)  that a name, whether that of a company or not, was or was not on the Register on a stated date.

Striking off Register

241.    (1) The Registrar may strike a company off the Register if—

(a)  the company fails to send any return, notice, document or prescribed fee to the Registrar as required under this Act;

(b)  the company has not commenced business within 3 years after the date of its certificate of incorporation; or

(c)  the Registrar is satisfied that the company has ceased to carry on business or is not in operation.

(2)  Before striking a company off the Register under subsection (1), the Registrar shall send it a notice in prescribed form stating—

(a)  the grounds on which it is intended to strike the company off the Register; and

(b)  that, unless the company shows cause to the contrary and remedies the defaults set out in the notice, if any, within 90 days after the date of the notice, it will be struck off the Register.

(3)  After the expiration of the time mentioned in the notice, the Registrar may, unless the company has shown cause to the contrary and, if appropriate, remedied the defaults set out in the notice, issue a certificate of dissolution and strike the company off the Register.

(4)  The company is dissolved on the date shown in its certificate of dissolution.

(5)  The Registrar shall publish a notice of the striking off and dissolution of the company in the Gazette.

Liability to continue

242.    Where a company is struck off the Register, the liability of the company and of every director, officer or shareholder of the company continues and may be enforced as if it has not been struck off the Register.

Service on company

243.    A notice or document may be served on a company—

(a)  by leaving it at, or sending it by telex or telefax or by prepaid post or cable addressed to, the registered office of the company; or

(b)  by personally serving any director, officer, receiver, receiver-manager or liquidator of the company.

Reservation of name

244.    The Registrar may in prescribed form, on request, reserve for 90 days a name for an intended company or for a company about to change its name.

Prohibited names

245.    The name of a company—

(a)  shall not be the same as, or similar to, the name or business name of any other person if the use of that name would be likely to confuse or mislead unless the other person consents in writing to the use of that name in whole or in part, and if required by the Registrar, provides an undertaking acceptable to the Registrar to cease carrying on business under that name within 6 months of the date of the undertaking;

(b)  shall not be identical to the name of a body corporate incorporated under the laws of Anguilla before 1st January, 1995;

(c)  shall not suggest or imply the patronage of Her Majesty or any member of the Royal Family or connection with Her Majesty’s Government or any department thereof in the United Kingdom or elsewhere;

(d)  shall not suggest or imply a connection with a political party or a leader of a political party;

(e)  shall not suggest or imply a connection with a university or a professional association recognised by the laws of Anguilla unless the university or professional association concerned consents in writing to the use of the proposed name; and

(f)   shall not be a name that is prohibited by the regulations.

Refusal of articles

246. The Registrar may refuse to accept articles of incorporation or continuance for a company or to register articles amending the name of a company if—

(a)  the name is not distinctive because—

(i) it is too general,

(ii) it is descriptive only of the quality, function or other characteristic of the goods or services in which the company deals or intends to deal, or

(iii) primarily it is only a geographic name used alone,

unless the applicant establishes that the name has through use acquired, and continues to have, a secondary meaning;

(b)  the name is defectively inaccurate in describing—

(i) the business, goods or services in association with which it is proposed to be used,

(ii) the conditions under which the goods or services will be produced or supplied, or

(iii) the persons to be employed in the production or supply of those goods and services;

(c)  it is likely to be confused with that of a company that was dissolved;

(d)  it contains the word or words “credit union”, “co-operative”, or “co-op” when it connotes a cooperative venture; or

(e)  it is, in the opinion of the Registrar, for any reason objectionable.

Use of names of dissolved companies

247.    Notwithstanding the provisions of sections 245 and 246, the Registrar may accept articles of incorporation or continuance for a company or register articles amending the name of a company if the name is identical or similar to the name of a company that has been and remains struck off the Register and dissolved under the former Act or this Act if—

(a)  the company has been struck off the Register and dissolved for a continuous period of more than 3 years;

(b)  no application made to revive the company under section 204 or 205 remains undetermined; and

(c)  no appeal against a decision of the Registrar under section 204 is pending.

Name of amalgamated company

248.    If 2 or more companies amalgamate, the amalgamated company may have—

(a)  the name of 1 of the amalgamating companies;

(b)  a distinctive combination that is not confusing of the names of the amalgamating companies; or

(c)  a distinctive new name that is not confusing.

Division 2

Investigation of Companies

Definition

249.    In this Division, “inspector” means an inspector appointed by an order made under section 250(2).

Investigation order

250.    (1) A shareholder or debenture holder of a company, or the Registrar, may apply to the Court, ex parte or upon such notice as the Court may require, for an order directing that an investigation be made of a company and any of its affiliated companies.

(2) If, upon an application under subsection (1) in respect of a company, it appears to the Court that—

(a) the business of the company or any of its affiliates is or has been carried on with intent to defraud any person;

(b)  the company or any of its affiliates was formed for a fraudulent or unlawful purpose, or is to be dissolved for a fraudulent or unlawful purpose;

(c)  persons concerned with the incorporation, business or affairs of the company or any of its affiliates have in connection therewith acted fraudulently or dishonestly; or

(d)  it is in the public interest that an investigation of the company be made;

the Court may make any order it thinks fit with respect to an investigation of the company and any of its affiliated companies by an inspector.

(3)  If a shareholder or debenture holder makes an application under subsection (1), he shall give the Registrar reasonable notice of it, and the Registrar is entitled to appear and be heard at the hearing of the application.

(4)  An ex parte application under this section shall be heard in camera.

(5)  No person shall publish anything relating to an ex parte proceeding except with the authorisation of the Court or the written consent of the company that is being, or to be, investigated.

Contents of order and copies of reports

251. (1) An order under section 250(2) shall include an order to investigate and an order appointing an inspector, who may be the Registrar, and fixing his remuneration and may include—

(a) an order replacing the inspector;

(b)  an order determining the notice to be given to any interested person, or dispensing with notice to any person;

(c)  an order authorising an inspector to enter any premises in which the Court is satisfied there might be relevant information, and to examine anything, and to make copies of any documents or records, found on the premises;

(d)  an order requiring any person to produce documents or records to the inspector;

(e)  an order authorising an inspector to conduct a hearing, administer oaths or affirmation and examine any person upon oath or affirmation, and establishing rules for the conduct of the hearing;

(f)   an order requiring any person to attend a hearing conducted by an inspector and to give evidence upon oath or affirmation;

(g)  an order giving directions to an inspector or any interested person on any matter arising in the investigation;

(h) an order requiring an inspector to make an interim or final report to the Court;

(i) an order determining whether a report of an inspector should be published, and, if so, ordering the Registrar to publish the report in whole or in part, or to send copies to any person the Court designates; and

(j) an order requiring an inspector to discontinue an investigation.

(2)  An inspector shall file with the Registrar a copy of every report made by the inspector pursuant to an order under this section.

(3)  A report received by the Registrar under subsection (2) must not be disclosed to any person other than in accordance with an order of the Court made under paragraph (1)(i).

Inspector’s powers

252.    An inspector under this Division—

(a)  has the powers set out in the order appointing him; and

(b)  shall upon request produce to an interested person a copy of the order.

Hearing in camera

253.    (1) An interested person may apply to the Court for—

(a)  an order that a hearing conducted by an inspector be heard in camera; and

(b)  directions on any matter arising in the investigation.

(2) A person whose conduct is being investigated or who is being examined at a hearing conducted by an inspector may appear and be heard at the hearing of the application.

Incriminating evidence

254.    No person is excused from attending and giving evidence and producing documents and records to an inspector by reason only that the evidence tends to incriminate that person or subject him to any proceeding or penalty, but the evidence may not be used or received against him in any proceeding thereafter instituted against him, other than a prosecution for perjury in giving the evidence.

Privilege absolute

255.    An oral or written statement or report made by an inspector or any other person in an investigation under this Division has absolute privilege.

Summons regarding ownership interest

256.    (1) If the Registrar is of the opinion that, for the purposes of this Act, there is reason to enquire into the ownership or control of a share or debenture of a company or any of its affiliates, the Registrar may apply to the Court by summons.

(2)  The Registrar shall cause a copy of the summons to be served on the company at its registered office unless the Court, upon sufficient cause shown in that behalf, dispenses with the service of summons on the company.

(3)  The Court may after due enquiry order any person that it considers has or had an interest in the share or debenture, or acts or has acted on behalf of a person with an interest, to furnish to the Court, or to any person the Court appoints—

(a)  information that the person has or can reasonably be expected to obtain as to present and past interests in the share or debenture; and

(b)  the names and addresses of the persons so interested and of any person who acts or has acted in relation to the share or debenture on behalf of the persons so interested.

(4)  For the purposes of subsection (1), a person has an interest in a share or debenture if—

(a)  he has a right to vote or to acquire or dispose of the share or debenture or any interest in it;

(b)  his consent is necessary for the exercise of the rights or privileges of any other person interested in the share or debenture; or

(c)  any other person interested in the share or debenture can be required, or is accustomed, to exercise rights or privileges attached to the share or debenture in accordance with his instructions.

(5)  A person that fails to comply with an order made by the Court under subsection (3) commits an offence.

Attorney-client privilege

257.    Nothing in this Division affects the privilege that exists in respect of an attorney-at-law and his client.

Inquiries by Court

258.    The Court may in relation to any person make any inquiries that relate to compliance with this Act by any person.

Division 3

Enforcement

Definition

259.    In this Division “member”, in relation to a company, means—

(a)  a shareholder or a personal representative of a shareholder; and

(b)  a member of a company limited by guarantee or limited by shares and guarantee.

Restraining or compliance order

260.    (1) If a company or a director of a company engages, or proposes to engage, in conduct that contravenes this Act, the articles or by-laws of the company or any unanimous shareholder agreement, the Court may, on the application of a member or a director of the company, make an order directing the company or director to comply with, or restraining the company or director from engaging in conduct that contravenes, this Act, the articles or by-laws or any unanimous shareholder agreement.

(2)  If the Court makes an order under subsection (1), it may also grant such consequential relief as it thinks fit.

(3)  The Court may, at any time before the final determination of an application under subsection (1), make, as an interim order, any order that it could make as a final order under that subsection.

Derivative actions

261. (1) Subject to subsection (3), the Court may, on the application of a member of a company, grant leave to that member to—

(a)  bring proceedings in the name and on behalf of that company; or

(b)  intervene in proceedings to which the company is a party for the purpose of continuing, defending or discontinuing the proceedings on behalf of the company.

(2)  Without limiting subsection (1), in determining whether to grant leave under that subsection, the Court must take the following matters into account—

(a)  whether the member is acting in good faith;

(b)  whether the derivative action is in the interests of the company taking account of the views of the company’s directors on commercial matters;

(c)  whether the proceedings are likely to succeed;

(d)  the costs of the proceedings in relation to the relief likely to be obtained;

(e)  whether an alternative remedy to the derivative claim is available.

(3)  Leave to bring or intervene in proceedings may be granted under subsection (1) only if the Court is satisfied that—

(a)  the company does not intend to bring, diligently continue or defend, or discontinue the proceedings, as the case may be; or

(b)  it is in the interests of the company that the conduct of the proceedings should not be left to the directors or to the determination of the shareholders or members as a whole.

(4)  Unless the Court otherwise orders, not less than 28 days notice of an application for leave under subsection (1) must be served on the company that is entitled to appear and be heard at the hearing of the application.

(5)  The Court may grant such interim relief as it considers appropriate pending the determination of an application under subsection (1).

(6)  Except as provided in this section, a member is not entitled to bring or intervene in any proceedings in the name of or on behalf of a company.

Costs of derivative action

262.    (1) If the Court grants leave to a member to bring or intervene in proceedings under section 261, it shall, on the application of the member, order that the whole of the reasonable costs of bringing or intervening in the proceedings must be met by the company unless the Court considers that it would be unjust or inequitable for the company to bear those costs.

(2) If the Court, on an application made by a member under subsection (1), considers that it would be unjust or inequitable for the company to bear the whole of the reasonable costs of bringing or intervening in the proceedings, it may order—

(a)  that the company bear such proportion of the costs as it considers to be reasonable; or

(b)  that the company shall not bear any of the costs.

Powers of Court when leave granted under section 261

263.    The Court may, at any time after granting a member leave under section 261, make any order it considers appropriate in relation to proceedings brought by the member or in which the member intervenes, including—

(a)  an order authorising the member or any other person to control the proceedings;

(b)  an order giving directions for the conduct of the proceedings;

(c)  an order that the company or its directors provide information or assistance in relation to the proceedings; and

(d)  an order directing that any amount ordered to be paid by a defendant in the proceedings must be paid in whole or in part to former and present shareholders of the company instead of to the company.

Compromise, settlement or withdrawal of derivative action

264.    No proceedings brought by a member or in which a member intervenes with the leave of the Court under section 261 may be settled or compromised or discontinued without the approval of the Court.

Personal actions by members

265.    A member of a company may bring an action against the company for breach of a duty owed by the company to him as a member.

Prejudiced members

266.    (1) A member of a company who considers that the affairs of the company have been, are being or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, likely to be oppressive, unfairly discriminatory, or unfairly prejudicial to him in that capacity, may apply to the Court for an order under this section.

(2) If, on an application under this section, the Court considers that it is just and equitable to do so, it may make such order as it thinks fit, including, without limiting the generality of this subsection, one or more of the following orders—

(a)  requiring the company or any other person to acquire the shareholder’s shares;

(b)  requiring the company or any other person to pay compensation to the applicant;

(c)  regulating the future conduct of the company’s affairs;

(d)  amending the articles or by-laws of the company;

(e)  appointing a receiver of the company;

(f)   liquidating the company under the supervision of the Court;

(g)  directing the rectification of the records of the company;

(h) setting aside any decision made or action taken by the company or its directors in breach of this Act or the articles or by-laws of the company.

(3) No order may be made against the company or any other person under this section unless the company or that person is a party to the proceedings in which the application is made.

Representative actions

267.    Where a member of a company brings proceedings against the company and other members have the same or substantially the same interest in relation to the proceedings, the Court may appoint that member to represent all or some of the members having the same interest and may, for that purpose, make such order as it thinks fit, including an order—

(a)  as to the control and conduct of the proceedings;

(b)  as to the costs of the proceedings; and

(c)  directing the distribution of any amount ordered to be paid by a defendant in the proceedings among the members represented.

Division 4

Regulations

Regulations

268.    (1) The Governor may make any regulations that are required for the better administration of this Act and in particular, the Governor may make regulations—

(a)  prescribing any matter required or authorised by this Act to be prescribed;

(b)  requiring the payment of a fee in respect of the filing, examination or copy of any documents or in respect of any action that the Registrar is required or authorised to take under this Act, or the payment of a penalty in respect of the late filing of any document, and prescribing the amount of the fee or penalty;

(c)  prescribing the contents of returns, notices or other documents required to be filed with the Registrar or to be issued by him;

(d)  prescribing the rules with respect to exemptions permitted by this Act;

(e)  respecting the names of companies or classes thereof;

(f)   respecting the authorised capital of companies;

(g)  respecting the transfer of shares and the preferences, rights, conditions, restrictions, limitations or prohibitions attaching to shares or classes or series of shares of companies;

(h) respecting the designation of classes of shares;

(i) prescribing the matters relating to the appointment of proxies;

(j) prescribing that specified companies be exempt from certain provisions of this Act;

(k) respecting the conduct, duties and responsibilities of registered agents;

(l) respecting any other matter required for the efficient administration of this Act.

(2) Regulations made under this section are subject to negative resolution.

Approval of certificates and other documents by the Registrar

269.    (1) The Registrar may approve the content and form of certificates or other documents required or permitted to be issued by him under this Act.

(2)  The Registrar shall publish all certificates or other documents approved by him under subsection (1) in the Gazette.

(3)  The Registrar may not approve forms of certificates or other documents under this section if forms of such documents have been prescribed in regulations made under section 268.

Division 5

Offences and Penalties

False and misleading reports, returns, etc.

270.    (1) A person who makes or assists in making a report, return, notice or other document—

(a)  that is required by this Act or the regulations to be filed with the Registrar or sent to any other person; and

(b)  that— (i) contains an untrue statement of a material fact, or

(ii) omits to state a material fact required in the report, return, notice or other document or necessary to make a statement contained in it not misleading in the light of the circumstances in which it was made;

commits an offence.

(2) A person does not commit an offence under subsection (1) if the making of the untrue statement or the omission of the material fact was unknown to him and with the exercise of reasonable diligence could not have been known to him.

Punishment of offences

271.    (1) A person who commits an offence set out in Column 1 of the Schedule is liable on summary conviction—

(a)  if an individual, to the penalty set out opposite the offence in Column 4 of the Schedule; or

(b)  if not an individual, to the penalty set out opposite the offence in Column 3 of the Schedule;

and, in either case, to the daily default fine (if any) set out opposite the offence in Column 5 of the Schedule for each day during which the default continues.

(2)  Where an offence set out in Column 1 of the Schedule is committed by a body corporate, a director or officer who authorised, permitted or acquiesced in the commission of the offence also commits an offence and is liable on summary conviction—

(a)  if an individual, to the penalty set out opposite the offence in Column 4 of the Schedule; or

(b)  if not an individual, to the penalty set out opposite the offence in Column 3 of the Schedule;

and, in either case, to the daily default fine (if any) set out opposite the offence in Column 5 of the Schedule for each day during which the default continues.

(3)  The Proceeds of Criminal Conduct Act, 2000 applies to an offence that is set out in Column 1 of the Schedule and is indicated in that Column with an asterisk, notwithstanding that the offence is punishable only on summary conviction.

Other offences

272.    Every person who is guilty of an offence under this Act or the regulations for which no punishment is provided elsewhere in this Act is liable on summary conviction to a fine of $10,000.

Order to comply

273.    When a person is convicted of an offence under this Act or the regulations, the Court having jurisdiction to try the offence may, in addition to any punishment it may impose, order that person to comply with the provision of this Act or the regulations for the contravention of which he has been convicted.

Limitation on prosecutions

274.    A prosecution for an offence under this Act or the regulations may be instituted within 2 years from the time when the subject matter of the prosecution arose.

Civil remedies unaffected

275.    No civil remedy for any act or omission is affected by reason that the act or omission is an offence under this Act.

Division 6

Miscellaneous

Security for costs

276.    Where a company is plaintiff in an action or other legal proceeding, the Court having jurisdiction in the matter may, if it appears that there is reason to believe that the company will be unable to pay the defendant’s costs if successful in his defence, require sufficient security to be given for those costs, and may stay all proceedings until the security is given.

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