INTERNATIONAL BUSINESS COMPANIES ACT, 1994
PART II

CONSTITUTION OF COMPANIES

3.    Subject to the requirements of this Act, one or more persons may, by subscribing to a Memorandum incorporate a company under this Act.

4.    A company shall  not be incorporated under this Act unless immediately upon its incorporation the company is an International Business Company.

5.     (1)  For the purposes of this Act, an International Business Company is a company that does not -

(a)    carry on business  in Seychelles;

(b)    own an interest in immovable property situate in Seychelles, or a lease of immovable property situate in Seychelles otherwise than as referred to in subsection (2)(e);

(c)      carry on banking as defined in the Financial Institutions Act, 1984 or a trust business;

(d)    carry on business as an insurance or a reinsurance company; or

(e)    carry on the business of providing the registered office for companies.

(2)    For the purposes of subsection (1)(a), an International Business Company shall not be treated as carrying on business in Seychelles by reason only that -

(a)    it makes or maintains deposits with a person carrying on business within Seychelles;

(b)    it makes or maintains professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or other similar persons carrying on business within Seychelles;

(c)    it prepares or maintains books and records within Seychelles;

(d)    it holds, within Seychelles, meetings of its directors or members;

(e)    it holds a lease of property for use as an office from which to communicate with members or where books and records of the company are prepared or maintained;

(f)    it holds shares, debt obligations or other securities in a company incorprated under this Act or under the Companies Act;

(g)    it holds bonds, treasury bills and other securities issued by the Government of Seychelles or the Central  Bank of Seychelles;

(h)    shares, debt obligations or other securities in the company are owned by any person resident in Seychelles or by any company incorporated under this Act or under the Companies Act; or

(i)    it owns or manages a vessel registered in the Republic under the Merchant Shipping Act, or an aircraft, so registered under the Civil Aviation Act, 1949 (Overseas Territories) Order 1969.

6.    (1) Without prejudice to section 97, if a company is incorporated under this Act without having satisfied the requirements prescribed for an International Business Company by section 5, the company shall, or if having satisfied the requirements it subsequently ceases to satisfy those requirements for a continuous period of more than 30 days, upon the expiration of that period, notify the Registrar of that fact.

(2)  A company that contravenes subsection (1) shall be liable to a penalty of $100 for each day or part thereof during which the contravention continues.

(3)  A director who knowingly permits the contravention of subsection (1) shall be liable to a penalty of $100 for each day or part thereof during which the contravention continues.

7.    A member, director, officer, agent or liquidator of a company incorporated under this Act shall not be liable for any debt, obligation or default of the company unless it is proved that he did not act in good faith or unless it is specifically provided in this Act or in any other law for the time being in force in Seychelles and except in so far as he may be liable for his own conduct or acts.

8.    A company may be incorporated under this Act for any object or purpose not prohibited by   this Act or by any other law for the time being in force in Seychelles.

9.     (1)Subject to any limitations in its Memorandum or Articles, this Act or any other law for the time being in force in Seychelles, a company incorporated under this Act has the power, irrespective of corporate benefit, to perform all acts and engage in all activities necessary or conducive to the conduct, promotion or attainment of the objects or purposes of the company, including the power to do the following -

(a)    issue registered shares or shares issued to bearer or both;

(b)    issue the following -

(i)    voting shares;

(ii)    non-voting shares;

(iii)    shares that may have more or less than one vote per share;

(iv)    shares that may be voted only on certain matters or only upon the occurrence of certain events;

(v)    shares that may be voted only when held by persons who meet specified requirements;

(vi)    no par value shares;

(vii)    unnumbered shares;

(c)    issue common shares, preferred shares, or redeemable shares;

(d)    issue shares that entitle participation only in certain assets;

(e)    issue options, warrants or rights, or instruments of a similar nature, to acquire any securities of the company;

(f)    issue securities that, at the option of the holder thereof or of the company or upon the happening of a specified event, are convertible into, or exchangeable for, other securities in the company or any property then owned or to be owned by the company;

(g)    purchase, redeem or otherwise acquire and hold its own shares;

(h)    guarantee a liability or obligation of any person and to secure any of its obligations by mortgage, pledge or other charge, of any of its assets for that purpose; and

(i)    protect the assets of the company for the benefit of the company, its creditors and its members, and at the discretion of the directors, for any person having a direct or indirect interest in the company.

(2)    For the purpose of subsection (1)(i), notwithstanding any other provision of this Act or of any other law for the time being in force in Seychelles to the contrary save the law as to fraudulent preference and the law as to dispositions made with intent to defraud creditors, the directors may cause the company to transfer any of its assets in trust to one or more trustees and, with  respect to such transfer, the directors may provide that the company, its creditors, its members or any person having a direct or indirect interest in the company, or any of them, may be the beneficiaries, creditors, members, certificate holders, partners or holders of any other similar interest.

10.    (1)  An act of a company incorporated under this Act and a transfer of movable or immovable property by or to a company so incorporated is not invalid by reason only of the fact that the company was without capacity or power to perform the act or to transfer or receive the property, but the lack of capacity or power may be pleaded in the following cases -

(a)    in proceedings by a member against the company to prohibit the performance of any act or the transfer of immovable or movable property by or to the company; or

(b)    in proceedings by the company, whether acting directly or through a receiver, trustee or other legal representative or through members in a derivative action, against the incumbent or former directors of the company for loss or damage due to their unauthorised act.

(2)    For the purposes of subsection (1)(a), the court may set aside and prohibit the performance of a contract if -

(a)    the unauthorised act or transfer sought to be set aside or prohibited is being, or is to be, performed or made under any contract to which the company is a party;

(b)    all the parties to the contract are parties to the proceedings; and

(c)    it appears fair and reasonable in the circumstances to set aside or prohibit the performance of the contract, and in so doing the court may, in applying this subsection, award to the company or to the other parties such compensation as may be reasonable except that in determining the amount of compensation the court shall not take into account anticipated profits to be derived from the performance of the contract.

11.    (1)Any word or combination of words set out in the first column of Part III of the Schedule, or the abbreviation of that word or combination of words set out in the secon column of the Part, shall form part of the name of every company incorporated under this Act, provided that a company incorportedunder the laws of a jurisdiction outside Seychelles and continued as a company incorporated under this Act may use the name designated in the articles of continuation.

(2)Subject to subsection (1), the name of a company may be expressed in any language but where the name is not in a national language a translation and transliteration of the name in English or French shall be given.

(3)No company shall be incorporated under this Act under a name that -

(a)    is identical with that of a statutory corporation or that under which a company in existence is already incorporated under this Act or registered under the Companies Act or so nearly resembles the name of another company as to be calculated to deceive, except where the company in existence gives  its consent;

(b) contains the words "Assurance", "Bank", "Building Society", "Chamber of Commerce", "Chartered, "Cooperative", "Imperial". "Insurance", "Municipal", "Trust", "Foundation", or a word conveying a similar meaning, or any other word that, in the opinion of the Registrar, suggests or is calculated to suggest the patronage of or any connection with Seychelles or the Government of Seychelles or with any other country or the Government of that country:Provided however that the Registrar may permit the incorporation of a company under a name that includes the word “Seychelles” if the Registrar thinks fit to do so;”,

(c) is indecent, offensive or, in the opinion of the Registrar is otherwise objectionable or misleading.

(4) A company may amend its Memorandum to    change its name.

(5) Where a company is incorporated under a     name that-

(a) is identical with a name under which a company in existence was incorporated under this Act or registered under the Companies Act; or

(b) so nearly resembles the name of another company in existence which was incorporated under this Act or registered under the Companies Act as to be calculated to deceive or confuse,

the  Registrar may, whether or not the consent of the company in existence has been obtained pursuant to subsection (3)(a), give notice to the last registered company to change its name and if it fails to do so within 60 days from the date of the notice the Registrar shall direct the company to change its name to such name as the Registrar deems appropriate, and the Registrar shall publish a notice of the change in the Gazette.

(6)    Subject to subsections (3) and (5), where a company changes its name, the Registrar shall enter the new name on the Register in place of the former name, and shall issue a new certificate of incorporation indicating the change of name.

(7)    A change of name does not affect any rights or obligations of a company, or render defective any legal proceedings by or against a company, and all legal proceedings that have been commenced against a company by its former name may be continued against it in its new name.

(8)    Subject to subsection (3), the Registrar may, upon a request made by any person and payment of the prescribed fee, reserve for 90 days a name for future adoption by a company under this Act.

12.(1)      The Memorandum shall include the following particulars-

(a)    the name of the company;

(b)    the address within Seychelles of the registered office of the company;

(c)    the name and address within Seychelles of the registered agent of the company;

(d)    subject to subsection (2), the objects or purposes for which the company is to be incorporated;

(e)    the currency in which shares in the company shall be issued;

(f)    a statement of the authorised capital of the company setting forth the aggregate of the par value of the shares that the company is authorised to issue and the amount, if any, to be represented by shares without par value that the company is authorised to issue;

(g)    a statement of the number of classes and series of shares, the number of shares of each such class and series and the par value of shares with par value and that the shares may be without par value if this is the case;

(h)    a statement of the designations, powers, preferences and rights, and the qualifications, limitations or restrictions of each class and series of shares that the company is authorised to issue, unless the directors are to be authorised to fix any such designations, powers, preferences, rights, qualifications, and in that case, an express grant of such authority as may be desired to grant to the directors to fix by resolution any such designations, powers, preferences, rights, qualifications, limitations and restrictions that have not been fixed by the Memorandum;

(i)    a statement of the number of shares to be issued as registered shares and as shares issued to bearer,  unless the directors are authorised to determine at their discretion whether shares are to be issued as registered shares or to bearer and in that case an express grant of such authority as may be desired shall be given to empower the directors to issue shares as registered shares or to bearer   as they may determine by resolution  of  the directors;

(j)      whether registered shares may be exchanged for shares issued to bearer and whether shares issued to bearer may be exchanged for registered shares; and

(k)    if shares issued to bearer are authorised to be issued, the manner in which a required notice to members is to be given to the holders of shares issued to bearer.

(l)    in the case of a limited life or duration company, the period, which shall not exceed 50 years, of the duration of the life of the company.

(m)    a statement that the company shall  not carry on any banking, insurance, reinsurance or trust business.

(2) For the purposes of subsection (1)(d), if the Memorandum contains a statement either alone or with other objects or purposes that the object or purpose of the company is to engage in any act or activity that is not prohibited under any law for the time being in force in Seychelles, the effect of that statement is to make all acts and activities, that are not illegal, part of the objects or purposes of the company, subject to any limitations in the Memorandum.

(3) The Memorandum shall be subscribed to by one or more persons in the presence of another person who shall write his full name and address and sign  as a witness.

(4) The Memorandum, when registered, binds the company and its members from time to time to the same extent as if each member had subscribed his name and affixed his seal thereto and as if there  were contained in the Memorandum, on the part of himself, his heirs, executors and administrators, a covenant to observe the provisions of the Memorandum, subject to this Act.

(5) The Memorandum may be written in the English or French language or if written in a language other than English or French shall be accompanied by a  translation  in the English  or French  language certified by the registered agent of the company of the Memorandum.

13. (1)    The Articles, if not submitted for registration with the Memorandum shall be submitted within 30 days following the date of incorporation.

(2)The Articles shall be subscribed to by each subscriber of the Memorandum in the presence of another  person who shall  write his full name and address and sign  as a witness.

(3) The Articles, when registered, bind the company and its members from time to time to the same extent as if each member had subscribed his name and affixed his seal thereto and as if there were contained in the Articles, on the part of himself, his heirs, executors and administrators, a covenant to observe the provisions of the Articles, subject to this Act.

(4) The Articles may be written in the English or French  language or if written in a language other than in English  or  French  shall be accompanied by a translation in the English or French language certified by the registered agent of the company of the Articles.

14.(1)    For the purposes of this Act the Minister shall appoint a Registrar of International Business Companies.

(2)    The Memorandum and Articles shall, on  application made to the Registrar, be registered by the Registrar in a register to be maintained by him and to be known as the Register of International Business Companies.

(3) Upon registration of the Memorandum, the Registrar shall issue a certificate of incorporation under his hand certifying that the company is incorporated.

(4)    The Minister may appoint a diplomatic or consular officer of Seychelles or any other person or body in a country or jurisdiction outside Seychelles to perform in that country or jurisdiction such of the functions of the Registrar as may be delegated to the officer, person or body by the Minister and, subject to subsection (6)  any act or thing done by or before the diplomatic or consular officer or the other person or body appointed by the Minister shall be valid and effectual as if done by or before the Registrar.

(5) The Minister may establish a branch office in a country or jurisdiction referred to in subsection (4) for the performance by or before the diplomatic or consular officer or the other person or body of the functions of the Registrar delegated to the officer or other person or body under that subsection.

(6)    A diplomatic or consular officer or other person or body shall before  performing the functions delegated to the officer or other person or body under subsection (4) consult the Registrar and act in accordance with the  instructions of the Registrar.

(7) A diplomatic or consular officer or other person or body shall,as soon as practicable, forward to the Registrar copies of all applications made to the officer or other person or body and certificates or other documents issued by the officer or other person or body, a record of all fees and any penalty collected by the officer or other person or body under this Act and those fees and the penalty.

(8) Any act done or certificate or document made or issued under this Act by a diplomatic or consular officer or person or body referred to in subsection (4) shall be deemed to be an act done or certificate or document made or issued by the Registrar under this Act.

15. Where the Registrar issues a certificate of incorporation of a company, the company is, from the date shown on the certificate of incorporation, a body corporate under the name contained in the Memorandum subject to any limitations imposed by the Memorandum and to the provisions of this Act.

16. A certificate of incorporation of a company incorporated under this Act issued by the Registrar shall be prima facie evidence of compliance with all requirements of this Act in respect of incorporation.

17.(1)    Subject to any limitation in its Memorandum or Articles, a company incorporated under this Act may amend  its Memorandum  or Articles  by  a  resolution of  members  or, where permitted by its Memorandum or Articles or by this Act, by a resolution of directors.

(2) A  limited life company may by resolution alter its Memorandum to extend the period of the duration of the company to such period or periods not exceeding in aggregate 99 years from the date of its incorporation.

(3)    A company that amends its Memorandum or Articles shall submit a copy of the amendment  certified by a director or officer of the company to the Registrar within 30 days after the resolution is approved or consented  and the Registrar shall retain and register the copy of the amendment.

(4) An amendment to the Memorandum or Articles has effect from the time the amendment is registered by the Registrar.

(5) A company that  contravenes subsection (3) shall be liable to a penalty of $50 for each day or part thereof during which the contravention continues.

(6) A director who knowingly permits the contravention of subsection (3) shall be liable to a penalty of $50 for each day or part thereof during which the contravention continues.

18. A copy of the Memorandum and a copy of the Articles shall be given to any member who requests a copy on payment by the member of such amount as the directors may determine to be reasonably necessary to defray the costs of preparing and furnishing them.

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30/09/2006
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