INTERNATIONAL BUSINESS COMPANIES ACT, 1994

PART IX

WINDING-UP, DISSOLUTION AND STRIKING-OFF

87. A company incorporated under this Act shall commence to wind up and dissolve by a resolution of directors upon the expiration of such time as may be prescribed in its Memorandum or Articles for its existence.

88.(1) A company incorporated under this Act that has never issued shares may voluntarily commence to wind up and dissolve by a resolution of directors.

(2) Subject to any limitations in its Memorandum or Articles, a company incorporated under this Act that has previously issued shares may voluntarily commence to wind up and dissolve by a resolution of members.

89. Upon the commencement of a winding-up and dissolution required under section 87 or permitted under section 88 the directors may-

(a) authorize a liquidator, by a resolution of directors, to carry on the business of the company only 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

(b) determine to rescind the articles of dissolution only as permitted under section 93.

90. (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 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 members if so required by the plan of dissolution required by section 92.

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

91.(1) In order to perform the duties imposed on him under section 90, a liquidator has all powers of the company that are not reserved to the members under this Act 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 counsel and attorneys, 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 89, as the liquidator may determine to be necessary or to be in the best interest 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 subsection (1)(h), a liquidator shall not, without the permission of the court, carry on for a period in excess of two years the business of a company that is being wound up and dissolved under this Act.

92.(1) The directors of a company required under section 87 or proposing under section 88 to wind up and dissolve the company shall approve a plan of dissolution containing-

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

(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 authorised to carry on the business of the company if the liquidator determines that to do so would be necessary or in the best interest of the creditors of members of the company;

(f) a statement of the name and address of each person to be appointed a 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 section 88(2) is applicable-

(a) the plan of dissolution shall be authorised 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 shall 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 shall 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 shall be executed by the company and shall contain-

(a) the plan of dissolution; and

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

(4) The company shall submit the articles of dissolution  to the Registrar who shall 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 shall cause to be published in the Gazette, a newspaper circulating in Seychelles, a newspaper circulating in a place where the company has its principal office and where a company is registered in a branch office, a newspaper circulating in the country or jurisdiction where the branch office is situated, 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 certifying that the company has been dissolved.

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

(a) the certificate shall be prima facie evidence of compliance with all requirements of this Act in respect of dissolution; and

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

(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 manner provided in subsection (4), a notice that the company has been dissolved and has been struck off the Register.

(9) A company that contravenes subsection (4) shall be liable to a penalty of $50 for every day or part thereof during which the contravention continues.

(10) A director of a company who knowingly permits the contravention of subsection (4) by the company or a director or liquidator of a company who contravenes this section shall be liable to a penalty of $50 for every day or part thereof during which the contravention continues.

93.(1) In the case of a winding-up and dissolution permitted under section 88, a company may, prior to submitting to the Registrar a notice specified in section 92(4), rescind the articles of dissolution by-

(a) a resolution of directors in the case of a winding-up and dissolution under section 88(1); or

(b) a resolution of members in the case of a winding-up and dissolution under section 88(2).

(2) A company shall submit a copy of a resolution referred to in subsection (1)  to the Registrar who shall 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 shall cause a notice stating that the company has rescinded its intention to wind up and dissolve to be published in the Gazette, in a newspaper  circulating in Seychelles, in a newspaper circulating in the country or place where the company has its principal office and when the company is registered in a  branch office, in a newspaper circulating in the country or jurisdiction  where the branch office is situated.

(4) A company  that contravenes this section shall be liable to a penalty of  $50  for every day or part thereof during which the contravention contiues.

(5) A director of a company who knowingly permits the company to contravene this section shall be liable to a penalty of $50  for every day or part thereof during which the contravention continues.

94.(1) Where -

(a) the directors or, as the case  may be, the members of a  company that is required under section 87 or permitted   under section 88 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.

(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 a creditors'  voluntary winding-up and dissolution and those provisions shall apply mutatis mutandis to the winding-up and dissolution of the company.

95. Notwithstanding the provisions of this Act relating to winding-up and dissolution, a company incorporated under this Act may be wound up by the court under any of the circumstances, insofar as they are applicable to a company incorporated under this Act, 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 by the court and dissolution apply mutatis mutandis to the winding-up and dissolution of the company.

96. The provisions of the Companies Act regarding receivers and managers govern mutatis mutandis the appointment, duties, powers and liabilities of receivers and managers of the assets of any company incorporated under this Act.

97.(1) Notwithstanding section 6, where the Registrar has reasonable cause to believe that a company incorporated under this Act

no longer satisfies the requirements prescribed for an International Business Company by section 5,or

conducts business affairs which are, or are likely to be, contrary to the laws of Seychelles or detrimental to the reputation  of Seychelles.

the Registrar shall serve on the company a notice that the name of the company may be struck off the Register if the company no longer satisfies the requirements referred to in paragraph (a) or conducts such business affairs as are referred to in paragraph (b)”,.

(2) If the Registrar does not receive a reply within 30 days immediately following the date of service of the notice referred to in subsection (1), he shall 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 by section 5, or that the company conducts such business affairs as are referred to in subsection (1) (b),”;

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

he shall 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 shall publish notice of the striking-off in the Gazette.

(5) If a company has failed to pay the increased licence fee payable under paragraph 3 of Part II of the Schedule, the Registrar shall, within 30 days immediately following the date specified in section 103, publish in the Gazette and serve on the company a notice stating the amount of the licence fee payable and stating that the name of the Company will be struck off the register if the company fails to pay the licence fee on or before the 31st December next ensuing following a period of ninety days from the date on which the licence fee increases by 50 percent under paragraph 4 of part II of the Schedule”

(6) If a company fails to pay the increased licence fee stated in the notice referred to in subsection (5) by the 31st December referred to in that subsection, the Registrar shall strike the name of the company off the Register from the 1st January next ensuing.

(7) A company that 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.

98.(1)  If the name of a company has been struck off the Register under section 97(4) the company, or a creditor, member or liquidator thereof or any person having an interest in the company may within 3 years  immediately following the date of striking off, 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 by 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 payable by virtue of section 102 and all licence fees payable by virtue of section 103 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.

(3) If the name of a company has been struck off the Register under section 97(6) the company, or a creditor, member or liquidator thereof, may within 3 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 to the Registrar of-

(a) all fees due under section 102;

(b) the licence fee stated in the notice referred to in section 97(5); and

(c) a licence fee in the amount stated in the notice referred to in paragraph (b) for each year or part thereof during which the name of the company remained 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 shall be deemed never to have been   struck off the Register.

(4) For purposes of this Part, the appointment of an official liquidator under section 100 operates as an order to restore the name of the company to the Register.

99.(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) that company from incurring liabilities;

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

(c) the appointment by the court of an official liquidator for that company under section 100.

100. 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.

101.(1) If the name of a company has been struck off in the Register under section 97 and remains struck off continuously for a period of 3 years, the company shall be deemed to have been dissolved, but the Registrar may, if he determines that it is in the best interest of the Republic to do so, apply to the court to have the company put into liquidation and a person shall be appointed as 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, notwithsanding any other written law, in the following order of priority-

(i) in satisfaction of all 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 consider reasonable to 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, notwithstanding any other law, in the Republic 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.

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