Companies (General
Provisions) (Jersey) Order 2002
THE ECONOMIC DEVELOPMENT COMMITTEE, in
pursuance of Articles 7, 29, 71, 188 and 219 of the Companies
(Jersey) Law 1991, and having consulted the Jersey Financial
Services Commission, orders as follows –
Commencement [see endnotes]
PART 1
PRELIMINARY
1 Interpretation
In this Order, “Law”
means the Companies
(Jersey) Law 1991.
PART 2
COMPANY FORMATION AND
REGISTRATION
2 Statement to be delivered to registrar
In addition to complying
with the requirements specified in Article 7 of the Law, the statement to
be delivered to the registrar along with the memorandum of association shall
contain the following particulars –
(a) the
name of the company;
(b) whether
the company is a public company or a private company; and
(c) in
the case of a public company, particulars of the period to which the first
accounts of the company required by Article 104(1) of the Law will relate.
PART 3
PROSPECTUSES
3 Application[1]
(1) Except
as provided by paragraph (2), this Part applies to a prospectus relating
to securities in or membership of a company.
(2) It
does not apply –
(a) if
the company holds a permit as a functionary specified in Group 1 of Part 2
of the Schedule to the Collective
Investment Funds (Jersey) Law 1988;
(aa) if the
company is a certificate holder, within the meaning of the Collective
Investment Funds (Jersey) Law 1988;
(b) if the company is an unregulated fund within
the meaning of the Collective
Investment Funds (Unregulated Funds) (Jersey) Order 2008; or
(c) to the issue of a document relating to a
scheme intended to facilitate or to encourage the holding of shares or
debentures in a company by or for the benefit of –
(i) directors or
former directors (which shall be taken to include people performing or who have
performed the functions of directors by whatever name called) of the company,
the company’s subsidiary or holding company or a subsidiary of the
company’s holding company;
(ii) the
bona fide employees or former employees of the company, the company’s
subsidiary or holding company or a subsidiary of the company’s holding
company; or
(iii) the
wives, husbands, widows, widowers or minor children or minor step-children of
such directors or employees or former directors or employees.[2]
4 Control of borrowing
The provisions of this Part
are in addition to and do not derogate from the requirements of the Control of
Borrowing (Jersey) Order 1958.
5 Circulation of prospectus
(1) Subject
to paragraph (3) –
(a) no person
shall circulate a prospectus in Jersey;
(b) no
company shall circulate a prospectus outside Jersey; and
(c) no
company shall procure the circulation of a prospectus outside Jersey,
unless the conditions in paragraph (2)
are complied with.
(2) The
conditions to which paragraph (1) refers are that –
(a) the
prospectus contains the information specified in Part 1 of the Schedule;
(b) the
prospectus includes the statements specified in Part 2 of the Schedule;
(c) there
has been delivered to the registrar –
(i) a copy of the
prospectus, signed by or on behalf of all of the directors of the company,
(ii) a
signed copy of any report included in or attached to the prospectus, and
(iii) such other
particulars as the registrar may require; and
(d) the
registrar has given consent to the circulation of the prospectus.
(3) The
registrar may give consent to the circulation of a prospectus that does not
comply in every respect with the conditions in paragraph (2) if the
registrar is satisfied that the deviation from those requirements does not
affect the substance of the prospectus and is not calculated to mislead.[3]
PART 4
ADMINISTRATION
6 [4]
PART 5
WINDING UP OF COMPANIES
7 Qualifications of liquidator
(1) This
Article applies to –
(a) a
public company; and
(b) a
company that is being wound up in accordance with the provisions of Chapter 4
of Part 21 of the Law.
(2) Subject
to paragraph (3), a person is only eligible for appointment as a
liquidator of a company to which this Article applies if the person is
registered as an approved liquidator and entered on the Register of Approved
Liquidators under paragraph (2C).[5]
(2A) A
person is not qualified to be registered as an approved liquidator and entered
on the Register of Approved Liquidators under paragraph (2C) unless the
person –
(a) is ordinarily
resident in Jersey;
(b) is an
individual who has the level of experience determined by the Viscount in
writing and –
(i) is licensed in
the United Kingdom to act as insolvency practitioner by one of the recognised
professional bodies as defined under section 391(8) of the Insolvency
Act 1986 c. 45, or
(ii) is
a member of –
(A) the
Association of Chartered Certified Accountants,
(B) the
Chartered Accountants of Ireland,
(C) the
Institute of Chartered Accountants in England and Wales, or
(D) the
Institute of Chartered Accountants in Scotland; and
(c) has
in place a general bond of £250,000 plus a specific bond of between
£5000 and £5,000,000 for each appointment.[6]
(2B) An
individual who is not ordinarily resident in Jersey but is otherwise qualified
in accordance with paragraph (2A)(b) and (c) may, together with an
individual who is registered as an approved liquidator and entered in the
Register of Approved Liquidators under paragraph (2C), be appointed as a
liquidator of a company, and the Viscount may, in accordance with this Article,
register the individual as a non-Jersey liquidator in the Register of Approved
Liquidators.[7]
(2C) An
individual who is qualified under paragraph (2A) to be registered as an
approved liquidator or as a non-Jersey liquidator under paragraph (2B) may
apply to the Viscount, in the form approved by the Viscount, to be registered
or re-registered as an approved liquidator or a non-Jersey liquidator, as the
case may be, and entered in the Register of Approved Liquidators.[8]
(2D) The
Viscount must keep and maintain a Register of Approved Liquidators and may upon –
(a) application
under paragraph (2C) by an individual who is qualified to be registered as
an approved liquidator under paragraph (2A) or as a non-Jersey liquidator
under paragraph (2B); and
(b) payment
to the Viscount by the individual of the registration or re-registration fee of
£800,
register the individual as
an approved liquidator or non-Jersey liquidator and enter the name of the
individual in the Register of Approved Liquidators.[9]
(2E) The
registration of an individual as an approved liquidator or a non-Jersey
liquidator under this Article expires after one year and an individual may
apply to the Viscount under paragraph (2C) to re-register.[10]
(2F) A
person registered as an approved liquidator or a non-Jersey liquidator under
this Article must within 21 days of any change of circumstances which
disqualifies the person from meeting the requirements under paragraph (2A)
notify the Viscount of the change and the Viscount must cancel the
person’s registration as an approved liquidator or non-Jersey liquidator
and remove the name of the person from the Register of Approved Liquidators.[11]
(2G) The
Viscount must publish the Register of Approved Liquidators kept and maintained
under paragraph (2D) online and make the register available for inspection
to the public.[12]
(3) The
Viscount is by virtue of the Viscount’s office qualified for appointment
as a liquidator of a company to which this Article applies.
(4) A
person is disqualified for appointment as a liquidator of a company to which
this Article applies if the person is –
(a) a
secretary or an officer or servant of the company, or a partner or employee of
such a person; or
(b) a person
against whom an order under Article 78 of the Law is in force.
(5) A
person is disqualified for appointment as a liquidator of a company to which
this Article applies if –
(a) the person
is disqualified under paragraph (4) for appointment as a liquidator of any
other body corporate that either is that company’s subsidiary or holding
company or is a subsidiary of that company’s holding company; or
(b) the person
would be disqualified under paragraph (4) if that body corporate were a
company.
8 Investigation into conduct of liquidators[13]
(1) The
Viscount may investigate the conduct of a liquidator where –
(a) the
Viscount receives representations (including, but not limited to, complaints)
about the exercise of powers, or a failure to exercise powers, by a liquidator
and the Viscount is of the opinion that the matter relating to the
representations has not been satisfactorily dealt with by the liquidator or
within a reasonable timeframe; or
(b) it
otherwise appears to the Viscount that there are circumstances justifying
investigation including circumstances which –
(i) give rise to
concerns on the part of the Viscount about the conduct of the liquidator
(including, but not limited to, the level of fees charged or proposed to be
charged by a liquidator),
(ii) suggest
that a liquidator has failed to comply with an order made or directions given
by the Court, or
(iii) otherwise
constitute good reason, in the view of the Viscount, to seek further
information about a liquidator’s discharge of his or her functions.
(2) The
Viscount may by notice in writing –
(a) except
where the Viscount finds that there is good reason not to do so, inform the
liquidator of the representations made under paragraph (1), if any; and
(b) require
the liquidator to provide such information (including accounts) or documents as
may be specified, or as are of such description as may be specified, and such
reports as the Viscount may require, from the liquidator as to the exercise of
his or her functions, and in either case, may require the liquidator to do so
in such a manner and before the end of such reasonable period and at such place
as may be specified.
(3) Where
any information or document is provided to the Viscount under paragraph (2)(a),
the Viscount may further require such information to be verified, or such
document to be authenticated, in such reasonable manner as the Viscount may see
fit.
(4) Nothing
in this Order requires the Viscount to investigate, consider or determine any
complaint if, in the Viscount’s opinion –
(a) the
subject matter of the complaint is trivial; or
(b) the
complaint is frivolous or vexatious or is not made in good faith.
(5) A
person required under paragraph (2)(b) to submit a report may make an
application to the Viscount to request more time for doing so.
(6) An
application under paragraph (5) must –
(a) state
the grounds for requesting more time; and
(b) contain,
or be accompanied by, such information as the Viscount may reasonably require
to determine the application.
(7) The
Viscount may, in response to an application under paragraph (5), grant
such extension of time as the Viscount may consider reasonable.
(8) The
Viscount may, at all reasonable times, examine and take copies of any record
kept in relation to the liquidator’s functions by persons or bodies
carrying on the business of providing financial services within the meaning
given to that expression by Article 1(1) of the Financial
Services Commission (Jersey) Law 1998.
(9) For
the purposes of an investigation into a complaint received by the Viscount, the
Viscount may consult such persons, who have expertise in the matter in respect
of which the complaint is made, as the Viscount may see fit.
(10) Where, following an investigation
under this Article the Viscount considers it necessary or appropriate to do so,
the Viscount may make an application to the Court requesting the exercise, in
relation to a liquidator of any of the Court’s powers under the Law.
(11) In
considering whether it is necessary or appropriate to make an application under
paragraph (10), the Viscount must have regard to –
(a) the
terms of the appointment of the liquidator; and
(b) orders
or directions given by the Court.
(12) A
liquidator may require the Viscount to reconsider any decision made by the
Viscount under this Article in relation to that liquidator.
(13) The
right conferred by paragraph (12) is exercisable by the liquidator giving
notice in writing to the Viscount within the period of 21 days beginning
with the date on which notice of the decision was given to the liquidator.
(14) Notice
given in accordance with paragraph (13) must –
(a) state
the grounds for the request for reconsideration; and
(b) contain,
or be accompanied by, any relevant information or documents.
(15) At
any time after receiving the notice and before reconsidering the decision to
which it relates, the Viscount may require the liquidator to provide such
further information, or to produce such documents, as the Viscount reasonably considers
necessary to enable reconsideration of the decision.
(16) Following
reconsideration, the Viscount must give to the liquidator –
(a) notice
in writing of the decision on reconsideration; and
(b) if
the previous decision is upheld, a statement in writing of the reasons for
upholding it.
(17) The Viscount, or any member
of the Viscount’s Department is not liable in damages for anything done
or omitted in the discharge of or purported discharge of any function under
this Order.
(18) Paragraph (17)
does not apply –
(a) if it
is shown that the act was done, or the omission made, in bad faith; or
(b) so as
to prevent an award of damages made in respect of an act on the ground that the
act was unlawful as a result of Article 7(1) of the Human Rights
(Jersey) Law 2000.
9 Prescribed minimum liquidated sum[14]
The prescribed minimum
liquidated sum under Article 157A of the Law is £3,000.
9A Statutory demand[15]
A statutory demand under
Article 157A(2) of the Law must be in the form set out in Part 3 of the Schedule.
PART
6
GENERAL
10 Citation
This Order may be cited
as the Companies (General Provisions) (Jersey) Order 2002.
SCHEDULE
(Article 5(2))
PART 1
INFORMATION TO BE SPECIFIED
IN PROSPECTUS
1 Details relating to the
offer
There shall be stated –
(a) the
names, occupations and addresses of –
(i) the
offerors or vendors, and
(ii) any
promoter,
of the securities or
membership of the company;
(b) the
terms applicable to the acquiring of the securities or membership of the
company, and (if those terms include a price that is payable) the method, time
and place of payment;
(c) the
opening and closing dates and times of the offer;
(d) the
minimum amount required to be raised by the offer;
(e) when
and how moneys will be returned in the event of the offer not being completed
or any securities applied for not being allotted;
(f) the
anticipated date and forecast amount of the first dividend or interest payment
on the securities that are the subject of the offer;
(g) general
particulars of any property that is to be acquired with the proceeds of the
offer; and
(h) in
the case of any business that is to be acquired with the proceeds of the offer,
the length of time during which that business has been carried on (if more
than 2 years from the date of issue of the prospectus).
2 Capital
There shall be stated –
(a) in
the case of a par value company, particulars of the nominal, issued and paid up
share capital of the company;
(b) in
the case of a no par value company, particulars of the stated capital;
(c) in
the case of an offer of securities, particulars of the securities that are the
subject of the offer; and
(d) in
the case of an invitation to become a guarantor member, particulars of the
amount of the guarantee,
together with details of
any existing issued securities that are not part of the offer.
3 Goodwill, preliminary
expenses and benefits
There shall be stated
particulars of any amounts to be written off or provided for in respect of goodwill
or preliminary expenses, or of any benefit given to a promoter.
4 Contracts
There shall be stated the
dates of, parties to and general nature of every
material contract, not being –
(a) a
contract entered into in the ordinary course of the business carried on or
intended to be carried on by the company; or
(b) a
contract entered into more than 2 years before the date of issue of the
prospectus.
5 Interest of directors
There shall be stated –
(a) full
particulars of the nature and extent of the direct or indirect interest in the
offer (if any) of every director of the company;
(b) where
the interest of a partner mentioned in sub-paragraph (a) consists of being
a partner in a firm, full particulars of the nature and extent of the interest
of the firm; and;
(c) details
of all sums paid or agreed to be paid to any such director or firm in cash or
shares or otherwise by any person to induce that director to become or to
qualify as a director, or otherwise for services rendered by the director or by
the firm in connection with the promotion or formation of the company.[16]
6 Debentures and loans
There shall be stated
details of any subscriptions, allotments or options to be given, or already
existing, in respect of any other securities of the company, including any that
have a prior right over the securities covered by the offer to a distribution
of the company’s profits.
7 Accounts and reports
The following shall be
included in the prospectus –
(a) a
copy of the company’s latest accounts accompanied by a report thereon by
the company’s auditors; and
(b) any
other reports of a specialist nature by any person who could be described as an
expert on any aspect of the company’s business, identifying any unusual
element of risk to the investor.
8 Registered office and
register of members
There shall be stated the
address of the company’s registered office and (if different) the address
at which its register of members is kept.
9 Principal establishments
The location and nature
of the company’s principal operating establishments shall be stated.
10 Directors and secretary
The following shall be
stated –
(a) the
names, business occupations (if any) and addresses of the directors or proposed
directors of the company; and
(b) the
name, qualifications (if any) and address of the secretary of the company.
11 Advisers
The following shall be
stated –
(a) the
name and address of the company’s auditors;
(b) the
name and address of the company’s legal advisers; and
(c) the
name and address of the company’s principal bankers.
12 Additional information
There shall be included
any other material information that an investor (including a person who cannot
be expected to have any special knowledge of investments of the nature being
offered) would reasonably require to enable the person to make an informed
judgment about the merits of investing in the securities offered in the
prospectus.
13 Date of issue
The date of issue of the
prospectus shall be stated.
PART 2
STATEMENTS TO BE INCLUDED
IN PROSPECTUS
1 The
following statements shall be included –
(a) “A
copy of this document has been delivered to the registrar of companies in
accordance with Article 5 of the Companies (General Provisions) (Jersey)
Order 2002, and the registrar has given, and has not withdrawn, consent to
its circulation.”;
(b) “The
Jersey Financial Services Commission has given, and has not withdrawn, its
consent under Article 2 of the Control
of Borrowing (Jersey) Order 1958 to the issue of securities in the company.”;
(c) “It
must be distinctly understood that, in giving these consents, neither the
registrar of companies nor the Jersey Financial Services Commission takes any
responsibility for the financial soundness of the company or for the
correctness of any statements made, or opinions expressed, with regard to
it.”;
(d) “If
you are in any doubt about the contents of this document you should consult
your stockbroker, bank manager, solicitor, accountant or other financial
adviser.”; and
(e) “The
directors of the company have taken all reasonable care to ensure that the
facts stated in this document are true and accurate in all material respects,
and that there are no other facts the omission of which would make misleading
any statement in the document, whether of facts or of opinion. All the
directors accept responsibility accordingly.”.[17]
2 If
the prospectus is in respect of the issue of securities, the following
statement shall also be included –
“It should be remembered that the price of securities and the
income from them can go down as well as up.”.
PART 3[18]
(Article 9A)
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Section
1 – DEMAND
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To [Insert
details of Debtor Company]
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Name: (The
Company)
[If registered, insert its registered name]
Registered No. :
Address:
[insert its registered office]
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This
demand is made under Article 157A of the Companies
(Jersey) Law 1991
and
is served on you by the Creditor [insert
details of Creditor below]
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Name:
[If a registered company, insert its
registered name; if unregistered, its name; if an individual, their full name]
Registered No. (if any):
[If an entity registered in Jersey with the
Jersey Financial Services Commission, insert its registered number]
Address:
[If registered, insert the registered
address; if unregistered, the postal address of any principal residence or
principal place of business;]
The creditor claims that the Company owes the
sum of
£ ,
full details of which are set out in section 2
of this Demand.
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Notes for Creditor on Section 1
• The
person making this demand must complete the whole of sections 1, 2 (including
Part B if applicable) and 3 and the authentication (including the date) at
the end.
• The
Details of Debt (Section 2) must include all the relevant matters listed in
the margin notes at Section 2. These should be set out in the order given
unless the person completing the demand considers that a different order
would be more convenient for the recipient.
• The
creditor must give details of an individual with whom the Company can
communicate about the Demand in Section 3.
• If the
signatory of the demand is an Advocate/Solicitor or other agent of the
creditor the name of their firm should be given.
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Section
2
Part
A: Details of Debt
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Notes for Creditor on Section 2 Part A
These details must include the following
information:
• The
amount of the debt as at the date of this demand.
• How the
debt arose – such as any cause or consideration given for the debt; the
date on which the debt arose should also be included.
• If the
demand is based on a judgment or order of a court, details of the judgment or
order.
• If the
creditor is entitled to the debt by way of assignment, a statement to that effect
and that the details of the relevant assignment(s) are given in Part B below
(which must then also be filled in).
• If the
sums demanded include:
a. Any charge by way of
interest not previously notified to the company as included in its liability
and/or
b. Any other charge
accruing due from time to time,
each such charge must be separately identified
(if claimed) with the amount or rate of the charge and the grounds upon which
payment is claimed and the amount claimed for such charges must be limited to
that which has accrued due at the date of the demand.
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Part B: [for completion if the creditor is entitled to the debt by way of assignment]
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Name
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Date(s)
of Assignment
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Original Creditor
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Assignees
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Section
3
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The
Company must pay the above debt within 21 days of service of this demand on
the Company after which the creditor may make an application to the Royal
Court of Jersey to wind up the Company unless the Company offers security for
the debt and the creditor agrees to accept security or the Company compounds
the debt with the creditor’s agreement.
The
individual(s) acting for the Creditor to whom any communication regarding
this demand may be addressed is/are:
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Name
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Address
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Electronic address
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Telephone number
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Reference
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How to comply with a statutory demand
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If
the Company wishes to avoid an application for winding up being made against
it, it must pay the debt shown in Section 1 above, details of which are set
out in Section 2 of this notice, within the period of 21 days after its
service upon the Company. Alternatively, the Company can attempt to come to a
settlement with the creditor. To do this an officer or representative of the
Company should:
• Inform the individual(s)
named in Part A above immediately that it is willing and able to offer
security for the debt to the creditor’s satisfaction; or
• Inform the individual(s)
named in Part A immediately that it is willing and able to compound for the
debt to the creditor’s satisfaction.
If the
Company disputes the demand in whole or in part, it should contact the
individual(s) named in Part A immediately.
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REMEMBER
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The Company only has 21 days after the date of
service on it of this document before the creditor may apply to the Royal
Court of Jersey to wind up the Company.
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NOTE:
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The Company has the right to make an
application to the Royal Court of Jersey for an injunction restraining the
creditor from presenting an application to wind it up.
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Authentication:
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Signature of Individual:
Name (block letters):
Date:
Address:
Telephone No:
Ref:
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[I, the
above-signed, not being the creditor herein, state as follows:
I am
authorised to make this demand on the creditor’s behalf.
My position in/relationship to the creditor is
[insert].........................................
[ [If
the creditor is a body corporate of which the signatory is the sole member] I am
the sole member of the creditor.]
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Note: The demand must be dated, and
authenticated either by the creditor, or a person authorised to make the demand
on the creditor’s behalf. A demand which is authenticated by a person
other than by the creditor must state that the person is authorised to make
this demand on the creditor’s behalf and state the person’s
relationship to the creditor.
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