INTERIM REVISED STATUTES OF ANGUILLA 2000
COMPANIES ACT

Part 4

OTHER TYPES OF COMPANIES, FOREIGN COMPANIES

AND CORPORATE MOBILITY

Division 1

Companies Not for Profit

Companies not for profit

186.    (1) Where the Registrar is satisfied that a company to be incorporated qualifies as a non-profit company under subsection (2), he may register the company as a non-profit company.

(2)  In order to qualify as a non-profit company, the company must restrict its undertaking to one that is of a patriotic, religious, philanthropic, charitable, educational, scientific, sporting, or athletic nature or the like or the promotion of some other useful object.

(3)  The Registrar may attach any other conditions that he thinks fit to impose, and the conditions are binding on the company and shall be endorsed on the articles of incorporation.

(4)  The provisions of this Act apply mutatis mutandis to non-profit companies.

Division 2

Companies Limited by Guarantee and Hybrid Companies

Other companies permitted

187.    (1) Subject to subsections (2) and (3), a company—

(a) limited by guarantee; or

(b) limited by both shares and guarantee; may be incorporated.

(2)  Each member of a company referred to in subsection (1) must undertake to contribute to the assets of the company in the event of its winding up while he is a member or within the period after he ceases to be a member that is specified in the by-laws.

(3)  The member is also liable after he ceases to be a member for liabilities of the company incurred before he ceased to be a member and the costs, charges and expenses of winding up and for the adjusting of the rights and contributions amongst themselves in an amount to be specified.

(4)  Except as provided by this section, a member of a company limited by guarantee or limited by shares and guarantee is not, as a member, liable for any act or default of the company.

(5)  This Act applies mutatis mutandis to a company referred to in this Division.

Division 3

Foreign Companies

Registration of foreign company

188.    (1) A foreign company must not carry on business in Anguilla unless it is registered under this Division.

(2)  An application by a foreign company for registration under this Division shall be made to the Registrar in prescribed form and shall be accompanied by—

(a)  a copy, certified under the public seal of the country, city, place or registrar under the laws of which the foreign company has been incorporated, of its charter, statutes or articles of association or other instrument constituting or defining its constitution and if the instrument is not written in the English language a certified translation of it;

(b)  a list of its directors containing the particulars with respect to the directors that are required by this Act to be contained with respect to directors in the register of the directors of a company; and

(c)  a notice specifying the name and address of its registered agent in Anguilla.

(3)  A foreign company that contravenes subsection (1) commits an offence.

Certificate of registration

189.    (1) If he is satisfied that the requirements of this Division in respect of registration as a foreign company have been complied with, the Registrar shall, upon receipt of an application under section 188(2), register the body corporate as a foreign company and issue a certificate of registration.

(2) A certificate of registration of a foreign company issued under this section is conclusive evidence that the foreign company has complied with all the requirements of this Act.

Alteration of constituting instrument

190.    (1) If in the case of a foreign company registered under this Division any alteration is made in its charter, statutes, memorandum and articles of association or other constituting instrument, the foreign company must, within 21 days of the date upon which the alteration is made, file with the Registrar a return in the prescribed form.

(2) A foreign company that contravenes subsection (1) commits an offence.

Annual return

191.    (1) A foreign company registered under this Division shall, on or before the last day of the calendar quarter in which the anniversary of its registration falls, file with the Registrar an annual return made up to the first day of the same quarter.

(2)  The annual return shall—

(a)  contain the prescribed information and be in prescribed form; and

(b)  be certified as correct by a director or officer of the foreign company or by its registered agent.

(3)  A foreign company that contravenes subsection (1) commits an offence.

Requirements of prospectus

192.    (1) A foreign company that carries on business in Anguilla shall state the country in which the foreign company is incorporated in every prospectus inviting subscriptions for its shares or debentures in Anguilla.

(2)  A foreign company that carries on business in Anguilla shall—

(i) conspicuously exhibit on every place where it carries on business in Anguilla the name of the foreign company and the country in which it is incorporated,

(ii) cause the name of the foreign company and of the country in which it is incorporated to be stated in legible characters on all its bill heads, letter paper, notices, advertisements and other official publications, and

(iii) if the liability of the members of the foreign company is limited, cause notice of that fact to be stated in legible characters in every prospectus and on all its bill heads, letter paper, notices, advertisements and other official publications in Anguilla, and to be affixed on every place where it or its agents carries on its business in Anguilla.

(3)  A foreign company that contravenes subsection (1) or (2) commits an offence.

Removal from Register

193.    (1) If a foreign company registered under this Division ceases to carry on business in Anguilla, it shall forthwith file a notice with the Registrar and the Registrar shall remove the name of the company from the Register of Foreign Companies, whereupon the obligations of the company to file any documents with the Registrar ceases.

(2) Where the Registrar is satisfied by any other means that a foreign company registered under this Division has ceased to carry on business in Anguilla, he may remove the name of the company from the Register of Foreign Companies whereupon the obligations of the company to file any document with the Registrar shall cease.

Division 4

Private Companies

Private companies

194.    (1) A company, other than a public company, that by its articles—

(a)  restricts the right to transfer its shares;

(b)  limits the number of its shareholders (exclusive of persons who are employees or former employees of the company) to 11; and

(c)  prohibits any invitation to the public to subscribe for any shares or debentures of the company;

may, in its articles, elect to be registered as a private company.

(2)  The Registrar shall register as a private company any company that is qualified to make and has made an election under subsection (1).

(3)  A private company may, by special resolution passed in accordance with section 162, amend its articles to cease to be a private company.

(4)  Where a company that is registered as a private company—

(a)  becomes a public company; or

(b)  files articles of amendment— (i) whereby it ceases to be a private company, or

(ii) that result in the company ceasing to be qualified to be a private company; the Registrar shall revoke the registration of the company as a private company.

Exemptions

195.    A company registered as a private company is exempt from sections 91 to 94, 110, 130, 141 to 147, 154 and 178 to 185.

Division 5

Corporate Mobility

Continuance under this Act

196.    (1) An application to the Registrar for a certificate of continuance under this Act may be made by—

(a)  an Anguilla company, other than a company incorporated or continued under this Act; and

(b)  a company incorporated in a jurisdiction other than Anguilla, if not expressly prohibited from making such an application by the laws of that other jurisdiction.

(2)  An application under subsection (1) must be made by filing with the Registrar articles of continuance in prescribed form.

(3)  Articles of continuance may, without so stating in the articles, effect any amendment to the corporate instruments of the body corporate that applies for continuance under this section, if the amendment—

(a)  is authorised in accordance with the law applicable to the body corporate before continuance under this Act; and

(b)  is an amendment that a company incorporated under this Act is entitled to make to its articles.

Certificate of continuance

197.    (1) Upon receipt of articles of continuance, the Registrar may issue a certificate of continuance.

(2) On the date shown in the certificate of continuance—

(a)  the body corporate becomes a company to which this Act applies as if the company had been incorporated under this Act;

(b)  the articles of continuance become the articles of incorporation of the continued company; and

(c)  except for the purpose of section 64, the certificate of continuance is the certificate of incorporation of the continued company.

Preservation of company

198.    (1) When a body corporate is continued as a company under this Act—

(a)  the property of the body corporate continues to be the property of the company;

(b)  the company continues to be liable for the obligations of the body corporate;

(c)  an existing cause of action, claim or liability to prosecute is unaffected;

(d)  a civil, criminal or administrative action or proceeding pending by or against the body corporate may be continued by or against the company; and

(e)  a conviction against, or ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the company.

(2)  When the Registrar determines, on the application for continuance of a body corporate, that it is not practicable to change a reference to the nominal or par value of shares of a class or series that the body corporate was authorised to issue before it was continued as a company under this Act, the Registrar may, notwithstanding section 28(1) to (4), permit the company to continue to refer in its articles to those shares, whether issued or non-issued as shares having a nominal or par value.

(3)  A company shall set out in its articles the maximum number of shares of a class or series referred to in subsection (2), and it may not amend its articles to increase that maximum number of shares or to change the nominal or par value of the shares.

Shares of continued company

199.    (1) A share of a body corporate issued before the company was continued under this Act is presumed to have been issued in compliance with this Act and with the provisions of the articles of continuance, irrespective of whether the share is fully paid and irrespective of any designation, rights, privileges, restrictions or conditions attached to the share, or set out on, or referred to in, the certificate representing the share, and continuance under this Act does not deprive a shareholder of any right or privilege that he claims under an issued share of the company, nor does it relieve him of any liability in respect of an issued share of the company.

(2) For the purposes of this section, “share” includes an instrument issued pursuant to section 37(1).

Continuance in foreign jurisdiction

200.    (1) A company proposing to continue under the laws of a jurisdiction other than Anguilla shall file a certificate of departure with the Registrar in prescribed form.

(2) The certificate of departure must specify—

(a)  the names and addresses of the company’s creditors, the total amount of the indebtedness and the names and addresses of all persons who have notified the company of a claim in excess of $1,000 and the total amount of the claims;

(b)  that the intended continuance in a foreign jurisdiction is unlikely to be detrimental to the rights or property interests of any creditor of or claimant against the company;

(c)  that the company at the time of the application is not in breach of any duty or obligation imposed upon it by this Act;

(d)  that the continuance in the foreign jurisdiction is made in good faith and will not serve to hinder, delay or defraud existing shareholders or other interested parties;

(e)  that the company consents to being served with process in Anguilla in any proceeding arising out of actions occurring prior to its departure, and that it appoints the Minister as agent of the company to accept service of process; and

(f)   its address for service in the foreign jurisdiction.

Certificate of discontinuance

201.    (1) A company that—

(a)  has filed a certificate of departure under section 200; and

(b)  has been continued under the law of a foreign jurisdiction; may apply to the Registrar for a certificate of discontinuance.

(2)  An application under subsection (1) shall be in the form required by the Registrar and shall be accompanied by evidence acceptable to the Registrar that the company has been continued under the laws of a foreign jurisdiction.

(3)  If he is satisfied that—

(a)  all fees payable under this Act have been paid;

(b)  all returns and notices required to be filed under this Act have been filed; and

(c)  the requirements of this section and section 200 have been complied with;

the Registrar shall issue a certificate of discontinuance to the company in prescribed form and strike it off the Register.

(4)  The Registrar shall publish a notice of the discontinuance and striking off in the Gazette.

(5)  From the date of the certificate of discontinuance, the company ceases to be a company domiciled in Anguilla.

Company may continue as an international business company

202.    (1) A company may continue as an international business company in accordance with the provisions of the International Business Companies Act.

(2) Upon the continuance of a company under the International Business Companies Act, the Registrar shall strike the name of the company off the Register and, with effect from the date of the company’s continuance, it shall cease to be a company registered under this Act.

Jurisdiction of Court

203.    Nothing in this Division affects the jurisdiction of the Court to hear and determine any proceeding commenced by or against the company arising out of actions or omissions occurring before the date of its continuance.

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