Companies (Jersey)
Law 1991[1]
A LAW to provide for the
incorporation, regulation and winding up of companies, and for connected
purposes[2]
Commencement [see endnotes]
PART 1
PRELIMINARY
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“allotment”, in relation to shares, means a transaction
by which a person acquires the unconditional right to be included in a
company’s register of members in respect of the shares;
“arrangement”, in Articles 125 and 126, includes a
reorganisation of a company’s share capital by the consolidation of
shares of different classes or by the division of shares into shares of
different classes, or by both of those methods;
“articles”, in relation to a company, means its articles
of association as originally framed or as altered;
“capital accounts” means –
(a) in
relation to a par value company, its share capital accounts and any share
premium accounts and capital redemption reserves; and
(b) in
relation to a no par value company, its stated capital accounts;
“cause” has the meaning assigned to it by the customary
law of Jersey;
“cell” means a cell of a cell company;
“cell company” means a company that is an incorporated
cell company or a protected cell company;
“certificate of continuance” means a certificate of continuance
issued by the registrar under Article 127O;
“class of members”, in respect of a protected cell
company, includes –
(a) the
members of a cell of the company; and
(b) any
class of members of a cell of the company;
“Commission” means the Jersey Financial Services
Commission established by the Financial Services Commission
(Jersey) Law 1998;
“company” means a company registered under this Law, or
an existing company;
“contributory” means a person liable to contribute to
the assets of a company pursuant to Article 192;
“court” means the Royal Court;
“currency” includes foreign currency and any other means
of exchange that may be prescribed;
“delivered”, in Articles 200 and 201, includes
(in the case of a document which is a notice) given;
“Désastre Law” means the Bankruptcy (Désastre)
(Jersey) Law 1990;
“director” means a person occupying the position of
director, by whatever name called;
“dissolved”, in relation to a company, means dissolved
under this Law or any other law of Jersey;
“document” includes summons, notice, statement, return,
account, order, and other legal process, and registers;
“existing company” means a company registered under the
Laws repealed by Article 223;
“external company” means a body corporate which is
incorporated outside Jersey and which carries on business in Jersey or which
has an address in Jersey which is used regularly for the purposes of its
business;
“financial period” means a period for which a profit and
loss account of a company is made up in accordance with this Law;
“fixed period of time”, in Articles 3H, 144 and
144A, means a period of time which is ascertainable without reference to any
event which is –
(a) contingent;
or
(b) otherwise
uncertain;
“former forenames or surname” does not
include –
(a) in
the case of a peer or a person usually known by a British title which differs
from his or her surname, the name by which he or she was known before the
adoption of the title or his or her succession to it; or
(b) in
the case of any person, a former forename or surname which was changed or
disused before the person attained the age of 20, or which has been
changed or disused for a period of not less than 20 years;
“guarantee company” means a guarantee company as defined
in Article 3G;
“guarantor member” means a member of a company (whether
or not it is a guarantee company) whose liability in his or her capacity as
such a member is limited by guarantee, that is to say limited by the memorandum
to the amount which the member thereby undertakes (by way of guarantee and not
by reason of holding any share) to contribute to the assets of the company in
the event of its being wound up;
“incorporated cell company” means a company to which
Article 3I(1) applies;
“incorporated limited partnership” means an incorporated
limited partnership as defined in Article 1 of the Incorporated Limited
Partnerships (Jersey) Law 2011;
“insolvent” means unable to pay debts as they fall due;
“liabilities” includes any amount reasonably necessary
to be retained for the purpose of providing for any liability or loss which is
either likely to be incurred or certain to be incurred but uncertain as to
amount or as to the date on which it will arise;
“limited company” means a limited company as defined in
Article 3C;
“limited life company” means a limited life company as
defined in Article 3H;
“limited share” means a share in respect of which
liability is limited to the amount unpaid on it;
“memorandum”, in relation to a company, means its
memorandum of association as originally framed or as altered;
“Minister” means the Minister for External Relations;
“net asset value”, in relation to the shares of an
open-ended investment company, means net asset value as defined in the
company’s articles;
“nominal capital account”, in relation to a company,
means a share capital account of the company to which are credited amounts up
to the nominal value of the shares issued by the company;
“no par value company” means a no par value company as
defined in Article 3F;
“no par value share” means a share which is not
expressed as having nominal value;
“number”, in relation to shares, includes amount, where
the context admits of the reference to shares being construed to include stock;
“officer”, in relation to a body corporate, means a
director or liquidator;
“open-ended investment company” means a
company –
(a) the
sole business of which is to invest in securities or other property of any
description; and
(b) the
articles of which provide that its shares, or substantially all its shares, are
to be redeemed or purchased at the request of the holders at a price or prices
not exceeding the net asset value of those shares;
“paid up” includes credited as paid up;
“par value company” means a par value company as defined
in Article 3E;
“par value share” means a share which is expressed as
having nominal value;
“personal representative” means the executor or
administrator for the time being of a deceased person;
“prescribed” means prescribed by Order made by the
Minister;
“printed” includes typewritten and a photocopy of a
printed or typewritten document;
“private company” means a private company as defined in
Article 3B;
“prospectus” means an invitation to the public to become
a member of a company or to acquire or apply for any securities, for which
purposes an invitation will not be considered to be made to the public
where –
(a) the
invitation is addressed to either or both –
(i) qualified
investors as defined in Regulation (EU) 2017/1129 of the European
Parliament and of the Council of 14 June 2017 on the prospectus to be published
when securities are offered to the public or admitted to trading on a regulated
market (OJ L 168, 30.6.2017, p. 12), as amended from time to time, or
(ii) professional
investors as defined in the Financial Services
(Investment Business (Special Purpose Investment Business – Exemption))
(Jersey) Order 2001;
(b) the
number of persons (other than qualified investors and professional investors)
to whom the invitation is addressed does not exceed 50 in Jersey and 150 elsewhere;
(c) the
minimum consideration which may be paid or given by a person for securities to
be acquired by that person is at least EUR 100,000 (or an equivalent
amount in another currency);
(d) the
securities to be acquired or applied for are denominated in amounts of at least
EUR 100,000 (or an equivalent amount in another currency);
(e) the
invitation relates to the issue of shares or other securities by a company to
its members in satisfaction, in whole or in part, of a distribution to be made
by that company;
(f) the
invitation relates to a scheme specified in Article 3(2)(c) of the Companies (General
Provisions) (Jersey) Order 2002; or
(g) any combination of sub-paragraphs (a)
to (f) applies.
“protected cell company” means a company to which
Article 3I(2) applies;
“public company” means a public company as defined in
Article 3A;
“published” means –
(a) in
respect of a fee payable by virtue of this Law, published by the Commission in
accordance with Article 15(5)[3] of the Financial Services Commission
(Jersey) Law 1998; and
(b) in
any other case, published by the Commission in a manner likely to bring it to
the attention of those affected,
and “publish” shall be interpreted accordingly;
“records” means documents and other records however
stored;
“registrar” means the registrar of companies appointed
pursuant to Article 196 and “registrar’s seal”, in
relation to the registrar, means a seal prepared under Article 197;
“securities” –
(a) in
Article 51A, has the meaning assigned to it by paragraph (4) of that
Article; and
(b) except
as provided in sub-paragraph (a) of this definition, means –
(i) shares in or
debentures of a body corporate,
(ii) interests
in any such shares or debentures, or
(iii) rights
to acquire any of the foregoing;
“separate limited partnership” means a separate limited
partnership as defined in Article 1 of the Separate Limited Partnerships
(Jersey) Law 2011;
“share” –
(a) means
a share in a body corporate or a cell and, unless a distinction between shares
and stock is expressed or implied, also means stock; and
(b) in
Article 36, also has the meaning assigned to it by paragraph (2A) of
that Article,
except that in Article 116(1), it means a share, as defined in
sub-paragraph (a) of this definition, to which Article 116(2) refers;
“special resolution” has the meaning given to that
expression by Article 90;
“surname”, in the case of a peer or a person usually
known by a title which differs from his or her surname, means that title;
“treasury share” means a share held as a treasury share
under Article 58A(1);
“unlimited share” means a share in respect of which
liability is not limited to the amount unpaid on it;
“variation”, in Articles 52 and 53, includes
abrogation;
“year” means a calendar year.[4]
(2) References in this Law
to a body corporate –
(a) include
a body corporate incorporated outside Jersey but do not include a corporation
sole;
(b) except
in Articles 2 and 2A, do not include an association incorporated under the
Loi (1862) sur les teneures
en fidéicommis et l’incorporation d’associations;
(c) do
not include a Scottish firm;
(d) do
not include a limited liability partnership registered under the Limited Liability Partnerships (Jersey) Law 2017;
(e) do
not include an incorporated limited partnership;
(f) do
not include a limited liability company registered as a body corporate under
the Limited Liability Companies
(Jersey) Law 2018.[5]
(3) The Minister may by
Order amend the definition of “prospectus” in paragraph (1).[6]
2 Meanings
of “subsidiary”, “wholly-owned subsidiary” and
“holding body”[7]
(1) A
body corporate is a subsidiary of another body corporate if the second
body –
(a) holds
a majority of the voting rights in the first body;
(b) is a
member of the first body and has the right to appoint or remove a majority of
the board of directors of the first body; or
(c) is a
member of the first body and controls alone, pursuant to an agreement with
other shareholders or members, a majority of the voting rights in the first
body,
or if the first body is a
subsidiary of a body corporate which is itself a subsidiary of the second body.
(2) A
body corporate is a wholly-owned subsidiary of another body corporate if the
first body has no members except –
(a) the
second body; and
(b) wholly-owned
subsidiaries of or persons acting on behalf of the second body or the second
body’s wholly-owned subsidiaries.
(3) A
body corporate is the holding body of another body corporate if the second body
is a subsidiary of the first body.
(4) A
holding company is a body corporate that is a holding body.[8]
(5) [9]
2A Further
provisions relating to subsidiaries and holding bodies[10]
(1) The
provisions of this Article explain expressions used in Article 2 and
otherwise supplement that Article.
(2) In
Article 2(1)(a) and (c), the references to the voting rights in a body
corporate are to the rights conferred on shareholders in respect of their
shares, or (in the case of a body not having a share capital) on members, to
vote at general meetings of the body on all or substantially all matters.
(3) In
Article 2(1)(b), the reference to the right to appoint or remove a
majority of a board of directors is to the right to appoint or remove directors
holding a majority of the voting rights at meetings of the board on all or
substantially all matters; and for the purposes of that provision –
(a) a
body corporate shall be treated as having the right to appoint to a
directorship if –
(i) a person’s
appointment to it follows necessarily from the person’s appointment as
director of the body, or
(ii) the
directorship is held by the body itself; and
(b) a
right to appoint or remove which is exercisable only with the consent or
concurrence of another person shall be left out of account unless no other
person has a right to appoint or, as the case may be, remove in relation to
that directorship.
(4) Rights
which are exercisable only in certain circumstances shall be taken into account
only –
(a) when
the circumstances have arisen, and for so long as they continue to obtain; or
(b) when
the circumstances are within the control of the person having the rights,
and rights which are
normally exercisable but are temporarily incapable of exercise shall continue
to be taken into account.
(5) Rights
held by a person in a fiduciary capacity shall be treated as not held by the
person.
(6) Rights
held by a person as nominee for another shall be treated as held by the other;
and rights shall be regarded as held as nominee for another if they are
exercisable only on his or her instructions or with his or her consent or
concurrence.
(7) Rights
attached to shares held by way of security shall be treated as held by the
person providing the security –
(a) where,
apart from the right to exercise them for the purpose of preserving the value
of the security, or of realising it, the rights are exercisable only in
accordance with the person’s instructions; and
(b) where
the shares are held in connection with the granting of loans as part of normal
business activities and apart from the right to exercise them for the purpose
of preserving the value of the security, or of realising it, the rights are
exercisable only in the person’s interests.
(8) Rights
shall be treated as held by a body corporate if they are held by any of its
subsidiaries; and nothing in paragraph (6) or (7) shall be construed as
requiring rights held by a body corporate to be treated as held by any of its
subsidiaries.
(9) For
the purposes of paragraph (7), rights shall be treated as being
exercisable in accordance with the instructions or in the interests of a body
corporate if they are exercisable in accordance with the instructions of or, as
the case may be, in the interests of –
(a) any
subsidiary or holding body of the first body; or
(b) any
subsidiary of a holding body of the first body.
(10) The
voting rights in a body corporate shall be reduced by any rights held by the
body itself.
(11) References
in any of paragraphs (5) to (10) to rights held by a person include rights
falling to be treated as held by the person by virtue of any other provision of
those paragraphs, but do not include rights which by virtue of any such
provision are to be treated as not held by the person.
2B Power
of States to amend Part 1[11]
The States may amend this
Part by Regulations.
PART 2
COMPANY FORMATION AND
REGISTRATION
3 Method
of formation of a company[12]
(1) Any
2 or more persons associated for a lawful purpose may apply for the formation
of an incorporated public company, with or without limited liability, by
signing and delivering to the registrar a memorandum of association that states
that the company is to be a public company.
(2) Any
person or 2 or more persons associated for a lawful purpose may apply for the
formation of an incorporated private company, with or without limited
liability, by signing and delivering to the registrar a memorandum of
association that states that the company is to be a private company.
(3) The
registrar shall not grant an application made under paragraph (2) by more
than 30 persons unless the Commission notifies the registrar that, on
application made to it and on payment of any published fee, it has satisfied
itself that by reason of the nature of the company’s intended activities
its affairs may properly be regarded as the domestic concern of its members.[13]
(4) The
Commission may give its notification under paragraph (3) subject to such
conditions as shall be specified in the approval.
(5) Where
it does so, paragraphs (3), (4), (5) and (6) of Article 16 shall
apply to the notification, with the necessary amendments, as if the approval
were a written notice given under Article 16(2).
(6) A
person mentioned in paragraph (1) or paragraph (2) must not
be –
(a) a
minor;
(b) a
person lacking capacity, for and on behalf of whom another person is acting by
authority of a lasting power of attorney conferred under Part 2 of the Capacity and Self-Determination (Jersey) Law 2016;
(c) a
person in respect of whom a delegate is appointed under Part 4 of the Capacity and Self-Determination (Jersey) Law 2016.[14]
(7) A
public or private company may be formed –
(a) having
the liability of all or any of its members limited by shares, that is to say
limited by its memorandum to the amounts (if any) unpaid on the shares
respectively held by them;
(b) having
the liability of all or any of its members limited by guarantee, that is to say
limited by its memorandum to such amounts as those members by the memorandum
respectively undertake, by way of guarantee and not by reason of holding any
share, to contribute to the assets of the company if it is wound up; or
(c) having,
in respect of the liability of all or any of its members, no limit.
(8) A
public or private company may be formed as –
(a) a par
value company;
(b) a no
par value company; or
(c) a
guarantee company.
(9) A
company shall not have a share capital the shares of which include par value
shares and no par value shares.
(10) Paragraph (9)
is without prejudice to Article 127YA(4) (which relates to the types of
cells a cell company may create).
3A Public
companies[15]
A company is a public
company if –
(a) its
memorandum states that it is a public company; or
(b) it
is an existing company which became a public company on 30th March 1992 by
the operation of Article 16(2) (as then in force), and it has not subsequently
become a private company.
3B Private
companies[16]
A company is a private
company if –
(a) its
memorandum states that it is a private company; or
(b) it
is a company which immediately before the commencement of this Article was a
private company, and it has not subsequently become a public company.
3C Limited
companies[17]
(1) A
par value company or a no par value company is a limited company
if –
(a) any
person is a member of the company by reason of holding a limited share; or
(b) any
person is a guarantor member of the company,
whether or not it also has
members whose liability is unlimited.
(2) A
guarantee company is a limited company.
3D Unlimited
companies[18]
(1) A
company is an unlimited company if –
(a) it is
a par value company or a no par value company;
(b) no
person is a member of the company by reason of holding a limited share; and
(c) no
person is a guarantor member of the company.
(2) Nothing
in this Law shall be taken as prohibiting a company –
(a) from
changing any unlimited shares in the company to limited shares in the company;
or
(b) from
changing any limited shares in the company to unlimited shares in the company.
3E Par
value companies[19]
A company is a par value
company if –
(a) it
is registered with share capital;
(b) its
shares are expressed as having nominal value; and
(c) either –
(i) its
memorandum states that it is a par value company, or
(ii) it is
a company which was registered under this Law before the commencement of this
Article,
whether or not it also has
guarantor members.
3F No
par value companies[20]
A company is a no par value
company if –
(a) it
is registered with shares which are not expressed as having nominal value; and
(b) its
memorandum states that it is a no par value company,
whether or not it also has
guarantor members.
3G Guarantee
companies[21]
A company is a guarantee
company if –
(a) it
consists only of guarantor members; and
(b) its
memorandum states that it is a guarantee company.
3H Limited
life companies[22]
(1) A
company (whether it is a par value company, a no par value company or a
guarantee company) is a limited life company if its memorandum includes or its
articles include a provision that the company shall be wound up and dissolved
upon –
(a) the
bankruptcy, death, expulsion, mental disorder, resignation or retirement of any
member of the company; or
(b) the
happening of some other event which is not the expiration of a fixed period of
time.[23]
(2) A
limited life company may include in its memorandum or articles a provision for
its winding up and dissolution on the expiration of a fixed period of time.
3I Cell
companies[24]
(1) A
company is an incorporated cell company if its memorandum provides that it is
an incorporated cell company.
(2) A
company is a protected cell company if its memorandum provides that it is a protected
cell company.
(3) A
cell company may be –
(a) a
public or a private company;
(b) a par
value company, a no par value company or a guarantee company; and
(c) a
limited company or an unlimited company.
4 Memorandum
of association[25]
(1) The
memorandum of a company shall be in the English or French language, and shall
be printed.
(2) The
memorandum shall state –
(a) the
name of the company;
(b) whether
it is a public company or a private company;
(c) whether
it is a par value company, a no par value company or a guarantee company;
(d) the
full name and the address of each subscriber who is a natural person; and
(e) the
name and address of the registered office or principal office of each
subscriber which is a person other than a natural person.[26]
(3) The
memorandum shall be signed by or on behalf of each subscriber, in the presence
of at least one witness who shall attest the signature and insert his or her
own name and address.
(4) If
a memorandum is permitted under the Electronic Communications (Jersey) Law 2000 to be delivered under paragraph (1) by way of electronic
communication, any memorandum so delivered is not required to be printed nor to
be signed in the presence of a witness.[27]
4A Memorandum
of company with shares[28]
(1) Where
a company is to be registered with shares –
(a) if it
is a par value company, the memorandum shall state the amount of share capital
with which it is to be registered, and the amounts (being fixed amounts) into
which the shares of each class are divided;
(b) if it
is a no par value company, the memorandum shall state the limit (if any) on the
number of shares of each class which the company is to be authorized to issue;
(c) if
the company is to be registered with any limited share, the memorandum shall
state that the liability of a member arising from the member’s holding of
such a share is limited to the amount (if any) unpaid on it;
(d) if
the company is to be registered with any unlimited share, the memorandum shall
state that the liability of a member arising from the member’s holding of
such a share is unlimited; and
(e) in
every case, against the name of each person who subscribes for shares, the
memorandum shall state separately –
(i) the number of limited
shares (if any) of each class which the person takes, and
(ii) the
number of unlimited shares (if any) of each class which the person takes.
(2) The
amount of a par value share may be stated in any unit or part of a unit of any
currency.[29]
(3) If
a company is to be registered with shares, no person may subscribe for less
than one share.
4B Memorandum
of company with guarantor members[30]
(1) Where
a company is to be registered with a memorandum which provides for guarantor
members, the memorandum shall state that each guarantor member undertakes to
contribute to the assets of the company, if it should be wound up while he or
she is a member or within 12 months after he or she ceases to be a member,
such amount as may be required for the purposes specified in paragraph (2)
but does not exceed a maximum amount to be specified in the memorandum in
relation to that member.
(2) The
purposes to which paragraph (1) refers are –
(a) payment
of the debts and liabilities of the company contracted before he or she ceases
to be a member;
(b) payment
of the costs, charges and expenses of winding up; and
(c) adjustment
of the rights of the contributories among themselves.
(3) Where
a company is to be registered with a memorandum which provides for guarantor
members the memorandum shall also state, against the name of each person who
subscribes as a guarantor member –
(a) that
he or she does so as such a member; and
(b) the
maximum amount so specified in relation to him or her.
4C Memorandum
or articles of company of limited duration[31]
Where a company is to be
wound up and dissolved upon –
(a) the
expiration of a period of time; or
(b) the
happening of some other event,
that period or event shall
be specified in the memorandum or articles of the company.
5 Articles
of association[32]
(1) There
shall be delivered to the registrar, with the memorandum for a company which is
to be formed, articles specifying regulations for the company.
(2) The
articles shall be in the English or French language, and shall –
(a) be
printed;
(b) be
divided into paragraphs numbered consecutively.
(3) The
articles shall be signed by or on behalf of each subscriber of the memorandum,
in the presence of at least one witness who shall attest the signature and
insert his or her own name and address.
(4) This
Article is subject to Article 6.
(5) If
articles are permitted under the Electronic Communications (Jersey) Law 2000 to be delivered under paragraph (1) by way of electronic communication,
any articles so delivered are not required to be printed nor to be signed in
the presence of a witness.[33]
6 Standard
Table[34]
(1) The
Minister may prescribe a set of model articles, to be known as the Standard
Table, which is appropriate for a par value company which –
(a) does
not have unlimited shares; and
(b) has a
memorandum which does not provide for guarantor members.
(1A) Any
company (whether or not it is one to which paragraph (1) refers) may adopt
the whole or any part of the Standard Table for its articles to the extent that
it is appropriate to do so.
(2) Where
a company to which paragraph (1) refers is registered after the Standard
Table has been prescribed, the Table (so far as it is applicable, and in force
at the date of the company’s registration) shall –
(a) if
articles have not been registered; or
(b) if
articles have been registered, to the extent that they do not modify or exclude
the Table,
constitute the
company’s articles as if articles in the form of the Table had been duly
registered.
(3) If
the Standard Table is altered in consequence of an Order under this Article,
the alteration shall not –
(a) affect
a company registered before the alteration takes effect; or
(b) have
the effect of altering, as respects that company, any portion of the Table.
7 Documents
to be delivered to registrar
(1) With the memorandum
there shall be delivered to the registrar a statement containing the intended
address of the company’s registered office on incorporation and any other
published particulars; and the statement shall be signed by or on behalf of the
subscribers of the memorandum.[35]
(2) Where a memorandum is
delivered by a person as agent for the subscribers, the statement shall specify
that fact and the person’s name and address.
(3) Where the company is a
public company, the statement shall specify the following particulars with
respect to each director who is a natural person –
(a) the
director’s present forenames and surname;
(b) any
former forenames or surname;
(c) the
director’s business or usual residential address;
(d) the
director’s nationality;
(e) the
director’s business occupation (if any); and
(f) the
director’s date of birth.[36]
(3A) Where the company is a public
company, the statement shall specify the following particulars with respect to
each of its directors which is a corporate director –
(a) the
name under which the corporate director is registered;
(b) the
address of the corporate director’s registered office;
(c) where
the corporate director is not a company registered in Jersey, the country or
territory in which the corporate director is registered; and
(d) the
registered number (if any) of the corporate director.[37]
(3B) In paragraph (3A) –
(a) “corporate
director” means a body corporate fulfilling the requirements of Article 73(4);
and
(b) with
respect to a corporate director which is not a company registered in Jersey,
“registered” shall be construed as reference to registration, or an
equivalent procedure, under the laws governing incorporation in the
jurisdiction in which the corporate director is incorporated.[38]
(4) If the Standard Table
has been prescribed under Article 6, the statement shall specify the
extent (if any) to which the company adopts the Table.[39]
8 Registration[40]
(1) If, on an application
for the formation of a company, the registrar is of the opinion that the
formation of the company would not be in the public interest, the registrar
must refer the application to the court.
(2) If
an application is referred to the court in accordance with paragraph (1) or
if the court calls for an application to be referred to it, the court
may –
(a) authorize
the registration of the memorandum and any articles of the company; or
(b) if it
considers that the formation of the company would not be in the public
interest, refuse to authorize the registration of its memorandum and any
articles.
(3) Where –
(a) the
registrar is satisfied that all the requirements of this Law in respect of the
registration of a company have been complied with; and
(b) if
the application for the formation of the company has been considered by the
court, the registrar has received an Act of the court authorizing the
registration,
the registrar shall register
the memorandum and any articles of the company delivered to the registrar under
Article 5.
9 Effect
of registration
(1) On the registration of
a company’s memorandum the registrar shall issue a certificate that the
company is incorporated.[41]
(2) The certificate shall
be signed by the registrar and sealed with the registrar’s seal.
(3) From the date of
incorporation mentioned in the certificate the subscribers of the memorandum,
together with such other persons who may from time to time become members of
the company, shall be a body corporate having the name contained in the
memorandum capable forthwith of exercising all the functions of an incorporated
company, but with such liability on the part of its members to contribute to
its assets as is provided by this Law or any other enactment in the event of
its being wound up.
(4) If the memorandum states
that the company is a public company or a private company the certificate shall
so state and if the memorandum also states that the company is an incorporated
cell company or a protected cell company the certificate shall also so state.[42]
(5) A certificate of
incorporation issued under this Law is conclusive evidence of the following
matters –
(a) that
the company is incorporated under this Law;
(b) that
the requirements of this Law have been complied with in respect of –
(i) the registration
of the company,
(ii) all
matters precedent to its registration, and
(iii) all
matters incidental to its registration; and
(c) if
the certificate states that it is a public company or a private company, or
that it is an incorporated cell company or a protected cell company, that it is
such a company.[43]
(6) The Act of
Incorporation of an existing company, issued by the Court and ordering the
registration of its memorandum and articles of association in accordance with
the Laws repealed by Article 223, is conclusive evidence of the following
matters –
(a) that
the company is incorporated; and
(b) that
the requirements of those Laws have been complied with in respect
of –
(i) the registration
of the company,
(ii) all
matters precedent to its registration, and
(iii) all
matters incidental to its registration.[44]
10 Effect
of memorandum and articles
(1) Subject to the
provisions of this Law, the memorandum and articles, when registered, bind the
company and its members to the same extent as if they respectively had been signed
and sealed by the company and by each member, and contained covenants on the
part of the company and each member to observe all the provisions of the
memorandum and articles.
(2) Money payable by a
member to the company under the memorandum or articles is a debt due from the
member to the company.
11 Alteration
of memorandum and articles[45]
(1) Subject to the
provisions of this Law, a company may by special resolution alter its
memorandum or articles.
(2) An alteration in the
memorandum or articles of a company –
(a) may
provide that upon –
(i) the expiration of
a period of time, or
(ii) the
happening of some other event,
the company is to be wound up and dissolved; or
(b) may
amend or delete any such provision.
(3) Notwithstanding
anything in the memorandum or articles, a member of a company is not bound by
an alteration made in the memorandum or articles after the date on which the
member became a member, if and so far as the alteration –
(a) requires
the member to
take or subscribe for more shares than the number held by the member at the date on which the
alteration is made; or
(b) in
any way increases the member’s liability as at that date to contribute to the company’s
share capital or otherwise to pay money to the company,
unless the member agrees in writing, either before or after the
alteration is made, to be bound by it.
(4) The power conferred by
this Article to alter the memorandum or articles shall not be exercisable by an
existing company –
(a) so
as to shorten a period of time by which the company’s existence is
limited, or to provide for its winding up and dissolution on the happening of
an event other than the expiration of a period of time; or
(b) so
as to alter rights attached to a class of shares which could
not have been altered under the Laws
repealed by Article 223,
unless the alteration is agreed to by all of the members or approved
by the court.[46]
12 Copies
of memorandum and articles for members
(1) A company shall, on
being so required by a member, send to the member a copy of the memorandum and
of the articles subject to payment of such sum (if any), not exceeding the
published maximum, as the company may require.[47]
(2) If a company fails to
comply with this Article, it is guilty of an offence.
PART 3
NAMES
13 Requirements
as to names
(1) The registrar may
refuse to register –
(a) the
memorandum; or
(b) a
special resolution changing the name of a company,
where the name to be registered is in the registrar’s opinion
in any way misleading or otherwise undesirable.
(2) The name of a limited
company shall end –
(a) with
the word “Limited” or the abbreviation “Ltd”; or
(b) with
the words “avec responsabilité limitée” or the
abbreviation “a.r.l”.[48]
(3) A company which is
registered with a name ending –
(a) with
the word “Limited” or the abbreviation “Ltd”; or
(b) with
the words “avec responsabilité limitée” or the
abbreviation “a.r.l”,
may, in setting out or using its name for any purpose under this
Law, do so in full or in the abbreviated form, as it prefers.[49]
(3A) Despite paragraph (2), the
name of a public company that is a limited company may end with the words
“public limited company” or the abbreviation “PLC” or
“plc”.[50]
(3B) A company which is registered with
a name ending with the words “public limited company” or the
abbreviation “PLC” or “plc” may, in setting out or
using its name for any purpose under this Law, do so –
(a) in
full or in the abbreviated form; and
(b) in
any combination of capital or lower case characters,
as it prefers.[51]
(4) Where the registrar
considers that it would be convenient to do so and not misleading, the
registrar may in any reference to a company in a document issued under this Law
use an abbreviation permitted by this Article or Article 127YS.[52]
14 Change
of name
(1) Subject to Article 13,
a company may, by special resolution, change its name.
(2) Where a company changes
its name under this Article, the registrar shall enter the new name on the
register in place of the former name, and shall issue under Article 9 a
certificate of incorporation altered to meet the circumstances of the case; and
the change of name has effect from the date on which the altered certificate is
issued.[53]
(3) Where, at the time of
the passing of the special resolution enabling a company to change its name,
the company has its name inscribed in the Public Registry as being the holder
of, or having an interest in, immovable property in Jersey, the company shall
deliver to the Judicial Greffier a copy of the altered certificate of
incorporation within 14 days after it is issued and the Judicial Greffier shall
cause the new name to be registered in the Public Registry.
(4) A company which fails
to comply with paragraph (3) is guilty of an offence.
(5) A change of name by a
company under this Law does not affect any rights or obligations of the company
or render defective any legal proceedings by or against it; and any legal
proceedings that might have been continued or commenced against it by its
former name may be continued or commenced against it by its new name.
15 Power
to require change of name
(1) If, in the opinion of
the registrar, the name by which a company is registered is misleading or
otherwise undesirable, the registrar may direct the company to change it.
(2) The direction, if not
made the subject of an application to the court under paragraph (3), shall
be complied with within 3 months from the date of the direction or such longer
period as the registrar may allow.
(3) The company may within
21 days from the date of the direction apply to the court to set it aside; and
the court may set the direction aside or confirm it.
(4) If the court confirms
the direction, it shall specify a period not being less than 28 days within
which it shall be complied with and may order the registrar to pay the company
such sum (if any) as it thinks fit in respect of the expense to be incurred by
the company in complying with the direction.
(5) A company which fails
to comply with a direction under this Article is guilty of an offence.
(6) Expenses to be defrayed
by the registrar under this Article shall be paid out of money provided by the
States.
PART 4
PUBLIC COMPANIES AND
PRIVATE COMPANIES[54]
16 Change
of status of public company[55]
(1) A
public company which has not more than 30 members may become a private
company by altering its memorandum to state that it is a private company.
(2) If,
on the application of a public company which has more than 30 members, the
Commission is satisfied that by reason of the nature of the company’s
activities its affairs may properly be regarded as the domestic concern of its
members, the Commission may in its discretion by written notice to the company
direct that notwithstanding that it has more than 30 members it may,
subject to such conditions as may be specified in the direction, become a
private company by altering its memorandum to state that it is a private
company.
(3) The
Commission may at any time by written notice withdraw or amend the terms of any
such condition.
(4) If –
(a) a
company which is a private company in consequence of a direction under paragraph (2)
fails to comply with a condition of the direction; or
(b) at
any time while such a company continues to have more than 30 members, the
Commission ceases to be satisfied that its affairs may properly be regarded as
the domestic concern of its members,
the Commission may in its
discretion, by written notice to the company, direct that as from a date
specified in the notice (being not sooner than 28 days after the company
is served with the notice) the company shall as long as it has more than 30 members
be subject to this Law as though it were a public company.
(5) The
company shall within 14 days after the receipt of a notice under any of
paragraphs (2), (3) and (4) deliver a copy of the notice to the registrar.
(6) If
there is a failure to comply –
(a) with
a condition of a direction under paragraph (2); or
(b) paragraph (5),
the company is guilty of an
offence.
(7) Within
28 days after a company receives a notice of a direction made by the
Commission under paragraph (2) in relation to the company –
(a) a
member of the company may appeal to the court on the ground that the direction
was unreasonable having regard to all the circumstances of the case; and
(b) the
company, or a member of the company, may appeal to the court on the ground that
a condition imposed by the direction was unreasonable having regard to all the
circumstances of the case.[56]
(8) Within
28 days after a company receives a notice of a direction made by the
Commission under paragraph (4) in relation to the company, the company, or
a member of the company, may appeal to the court on the ground that the
direction was unreasonable having regard to all the circumstances of the case.[57]
(9) On
hearing an appeal under this Article –
(a) if
the appeal is against a direction imposed by the Commission, the court may
confirm or reverse the direction made by the Commission; or
(b) if
the appeal is against a condition specified in a direction made by the
Commission, the court may confirm, vary or revoke the condition and, in any
case, add a new condition to the conditions specified in the direction.[58]
(10) On
hearing an appeal under this Article the court may make such order as to the
costs of the appeal as it thinks fit.[59]
17 Change
of status of private company[60]
(1) A
private company which has at least 2 members may become a public company by
altering its memorandum to state that it is a public company.
(2) A
private company shall be subject to this Law as though it were a public company
if –
(a) otherwise
than in accordance with a direction under Article 16(2), it enters the
name of a person in its register of members so as to increase the number of its
members beyond 30, and their number for the time being remains above 30;
(b) it
circulates a prospectus relating to its securities; or
(c) it is
a market traded company within the meaning of Part 16.[61]
(3) If
a private company enters the name of any person in its register of members so
as to increase the number of its members beyond 30, it shall within
14 days give written notice of that fact to the registrar.
(4) [62]
(5) If
there is a contravention of paragraph (3) then, without derogation from
the consequences under that paragraph, the company is guilty of an offence.
(6) If
the court, on the application of a company which has increased the number of
its members in the manner described in paragraph (2)(a), or of any other
person interested, is satisfied that it is just to relieve the company from all
or any of the consequences of the action, it may grant relief on such terms as
seem to it expedient.[63]
(7) If,
on the application of a private company, the Commission is satisfied that by
reason of the nature of the company’s activities its affairs may properly
be regarded as the domestic concern of its members, the Commission may in its
discretion by written notice to the company direct that paragraph (2)
shall apply to the company with such modifications as are specified in the
direction, and the Commission may at any time withdraw or amend the terms of
any such direction.
(8) The
company shall within 14 days after the making of an order under paragraph (6)
or the receipt of a direction under paragraph (7) deliver the relevant Act
of the court or a copy of the direction, as the case may be, to the registrar,
and if there is failure to comply with this paragraph the company is guilty of
an offence.
(9) Within
28 days after a company receives a notice of a direction, or an amendment
of the terms of a direction, made by the Commission under paragraph (7) in
relation to the company –
(a) a
member of the company may appeal to the court on the ground that the direction
was unreasonable having regard to all the circumstances of the case; and
(b) the
company, or a member of the company, may appeal to the court on the ground that
a term imposed by the direction, or an amendment to a term of the direction,
was unreasonable having regard to all the circumstances of the case.[64]
(10) On
hearing an appeal under this Article –
(a) if
the appeal is against a direction imposed by the Commission, the court may
confirm or reverse the direction made by the Commission; or
(b) if
the appeal is against a term imposed by a direction made by the Commission, the
court may confirm, vary or revoke the term and, in any case, add a new term to
the terms imposed by the direction.[65]
(11) On
hearing an appeal under this Article the Court may make such order as to the
costs of the appeal as it thinks fit.[66]
17A Calculation of
number of members[67]
(1) In
determining for the purposes of Article 16 and Article 17(2) the
number of members of a company, no account shall be taken of a
member –
(a) who
is a director or is in the employment of the company, a subsidiary of the
company, the holding company of the company or a subsidiary of the holding
company; or
(b) who,
having been a director or in the employment of the company or any other body
corporate within sub-paragraph (a) –
(i) was at the same
time a member of the company or of any other such body corporate, and
(ii) has
continued to be such a member since ceasing to be a director or in its
employment.[68]
(2) Where
2 or more persons hold one or more shares in a company jointly, they shall be
treated as a single member for the purposes of this Part.
17B Effective date of
change of status[69]
Where a company alters its
memorandum as mentioned in Article 16 or 17(1) the registrar shall,
upon delivery to him or her of a copy of the special resolution altering the
memorandum, issue under Article 9 a certificate of incorporation which is
appropriate to the altered status; and the altered status has effect from the
date on which the certificate of incorporation which is appropriate to the
altered status is issued.[70]
17C Alteration
of numbers[71]
The Minister may by Order
amend Article 3(3), Article 16 and Article 17 so as to increase
or reduce –
(a) the
number of 30 persons to which those provisions refer; or
(b) any
other number which the Minister may have substituted by an Order under this
Article.[72]
17D Power to abolish
30-member limit[73]
The States may by
Regulations amend any provision of Articles 3(3) and 16 to 17C
that limits the number of persons who may apply to form a private company or
the number of members that a private company may have or treats a company as a
public company if the number of its members exceeds a particular number.
PART 5
CORPORATE CAPACITY AND
TRANSACTIONS
18 Capacity
of company
(1) The doctrine of ultra vires in its application to companies is
abolished and accordingly the capacity of a company is not limited by anything
in its memorandum or articles or by any act of its members.
(2) This Article does not
affect the capacity of an existing company in relation to anything done by it
before this Article comes into force.
(3) Unless and until
otherwise resolved by special resolution the authority of the directors of an
existing company shall not include the exercise of any power which the company
did not have when this Article came into force.
19 No
implied notice of public records
No person is deemed to have notice of any records by reason only
that they are made available by the registrar, or by a company, for inspection.
20 Form
of contracts
(1) A person acting under
the express or implied authority of a company may make, vary or discharge a
contract or sign an instrument on behalf of the company in the same manner as
if the contract were made, varied or discharged or the instrument signed by a
natural person.
(2) Nothing in this Article
shall affect any requirement of law that a contract be passed before the court.
21 Transactions
entered into prior to corporate existence
(1) Where a transaction
purports to be entered into by a company, or by a person as agent for a
company, at a time when the company has not been formed, then, unless otherwise
agreed by the parties to the transaction, the transaction has effect as one
entered into by the person purporting to act for the company or as agent for
it, and the person is personally bound by the transaction and entitled to its
benefits.
(2) A company may, within
such period as may be specified in the terms of the transaction or if no period
is specified, within a reasonable time after it is formed, by act or conduct
signifying its intention to be bound thereby, adopt any such transaction and it
shall thenceforth be bound by it and entitled to its benefits and the person
who entered into the transaction shall cease to be so bound and entitled.
22 Company
seals[74]
(1) A
company which has a common seal shall have its name engraved in legible
characters on that seal.
(1A) A
company having a common seal which does not comply with paragraph (1) is
guilty of an offence.
(1B) A
company which has a common seal may have duplicate common seals.
(2) If
an officer of a company or a person on its behalf uses or authorizes the use of
any seal –
(a) which
purports to be a seal of the company; and
(b) on
which its name is not engraved in legible characters,
he or she is guilty of an
offence.
23 Official
seal for use abroad[75]
(1) A
company which has a common seal and engages in business outside Jersey may, if
authorized by its articles, have for use in any country, territory or place outside
Jersey an official seal, which shall be a facsimile of the common seal of the
company with the addition on its face either of the words “Branch
Seal” or the name of the country, territory or place where it is to be
used.
(1A) A
company which has an official seal for use outside Jersey may have duplicates
of that seal.
(2) A
document to which an official seal for use outside Jersey is duly affixed binds
the company as if it had been sealed with the company’s common seal.
(3) A
company may, in writing under its common seal, authorize an agent appointed for
the purpose to affix an official seal for use outside Jersey to a document to
which the company is party.
(4) As
between the company and the person dealing with the agent, the agent’s
authority continues until that person has actual notice of the termination of
the authority.
24 Official
seal for securities[76]
A company which has a common
seal may have –
(a) an
official seal which is a facsimile of its common seal, with the additional word
“Securities” on its face; and
(b) duplicates
of such a seal,
for use for sealing
securities issued by the company, and for sealing documents creating or
evidencing securities so issued.
PART 6
MEMBERSHIP AND SHARES
25 Definition
of “member”
(1) The subscribers of a
company’s memorandum are deemed to have agreed to become members of the
company, and on its registration shall be entered as such in its register of
members.
(2) Except as provided by
Article 127YQ (which relates to the members of protected cell companies),
every other person who agrees to become a member of a company, and whose name
is entered in its register of members, is a member of the company.[77]
26 Membership
of holding company
(1) Except in the cases
mentioned in this Article –
(a) a
body corporate cannot be a member of a company which is its holding company;
and
(b) an
allotment or transfer of shares in a company to its subsidiary is void.[78]
(2) Paragraph (1) does
not prevent a subsidiary which was, on 30th March 1992 or when it became a
subsidiary, a member of its holding company from continuing to be a member, but
as long as it is a subsidiary –
(a) it
has no right to vote at a meeting of the holding company or of a class of its
members; and
(b) it
shall not acquire further shares in the holding company, except as provided in
paragraph (3A).[79]
(3) Paragraphs (1) and
(2) apply in relation to a nominee for a body corporate which is a subsidiary
as if references to the body corporate included a nominee for it.[80]
(3A) If a body corporate is permitted by
virtue of paragraph (2) to continue as a member of its holding company, an
allotment to it of fully paid shares in its holding company may be made by way
of a capitalization of reserves of the holding company.[81]
(4) Nothing in this Article
applies where the subsidiary is concerned as personal representative, or where
it is concerned as trustee, unless in the latter case the holding company or a
subsidiary of it is beneficially interested under the trust and is not so
interested only by way of security.
27 Minimum
membership for carrying on business
(1) If a public company
carries on business without having at least 2 members and does so for more than
6 consecutive months (whether or not those 6 months began before this Article
came into force) a person who, for the whole or any part of the period that it
so carries on business after those 6 months –
(a) is a
member of the company; and
(b) knows
that it is carrying on business with only one member,
is liable (jointly and severally with the company) for the payment of
the company’s debts contracted during the period or that part of it.[82]
(2) Paragraph (1) does
not apply to a public company of which all of the issued shares are held by or
by a nominee for a holding body.[83]
28 Prohibition
of minors etc.
A person mentioned in Article 3(6)(a) to (c) may not become a
member of a company unless his or her rights of membership were transmitted to
the person on the death of the holder thereof.[84]
PART 7
PROSPECTUSES
29 Prospectuses
(1) The Minister may by
Order prohibit all or any of the following things, namely –
(a) the
circulation by any person of a prospectus in Jersey;
(b) the
circulation by a company of a prospectus outside Jersey; and
(c) the
procuring (whether in or outside Jersey) by a company of the circulation of a
prospectus outside Jersey,
except in such circumstances and subject to such conditions as may
be specified in the Order.[85]
(2) Such an Order may
provide for the payment of fees for the purposes of the Order.[86]
(3) Any person who fails to
comply with any provision of any such Order and, where the offence is committed
by a body corporate, every officer of the body corporate which is in default is
guilty of an offence.
(6) An invitation to the
public to acquire or apply for securities in a company shall, if the securities
are not fully paid or if the invitation is first circulated within 6 months
after the securities were allotted, be deemed to be a prospectus circulated by
the company unless it is shown that the securities were not allotted with a
view to their being the subject of such an invitation.
30 Compensation
for misleading statements in prospectus
(1) A person who acquires
or agrees to acquire a security to which a prospectus relates and suffers a
loss in respect of the security as a result of the inclusion in the prospectus
of a statement of a material fact which is untrue or misleading, or the
omission from it of the statement of a material fact, shall, subject to Article 31,
be entitled to compensation –
(a) in
the case of securities offered for subscription, from the body corporate
issuing the securities and from each person who was a director of it when the
prospectus was circulated;
(b) in
the case of securities offered otherwise than for subscription, from the person
making the offer and, where that person is a body corporate, from each person
who was a director of it when the prospectus was circulated;
(c) from
each person who is stated in the prospectus as accepting responsibility for the
prospectus, or any part of it, but, in that case, only in respect of a
statement made in or omitted from that part; and
(d) from
each person who has authorized the contents of, or any part of, the prospectus.
(2) Nothing in this Article
shall make a person responsible by reason only of giving advice as to the contents
of a prospectus in a professional capacity.
(3) This Article does not
affect any liability which any person may incur apart from this Article.
(4) This Article applies
only to a prospectus first circulated after the Article comes into force.
31 Exemption
from liability to pay compensation
A person shall not be liable under Article 30 if the person
satisfies the court –
(a) that the prospectus was
circulated without the person’s consent;
(b) that, having made such
enquiries (if any) as were reasonable, from the circulation of the prospectus
until the securities were acquired, the person reasonably believed that the
statement was true and not misleading or that the matter omitted was properly
omitted;
(c) that, after the
circulation of the prospectus and before the securities were acquired the
person, on becoming aware of the untrue or misleading statement or of the
omission of the statement of a material fact, took reasonable steps to secure
that a correction was brought to the notice of persons likely to acquire the
securities;
(d) in the case of a loss
caused by a statement purporting to be made by a person whose qualifications
give authority to a statement made by the person which was included in the
prospectus with the person’s consent, that when the prospectus was
circulated the person reasonably believed that the person purporting to make
the statement was competent to do so and had consented to its inclusion in the
prospectus; or
(e) that the person
suffering the loss acquired or agreed to acquire the securities knowing that
the statement was untrue or misleading or that the matter in question was
omitted.
32 Recovery
of compensation
(1) A person is not
debarred from obtaining compensation from a company by reason only of the
person holding or having held shares in the company or any right to apply or
subscribe for shares in the company or to be included in the company’s
register of members in respect of shares.
(2) A sum due from a
company to a person who has acquired or agreed to acquire shares in the company
being a sum due as compensation for loss suffered by the person in respect of
the shares, shall (whether or not the company is being wound up and whether the
sum is due under Article 30 or otherwise) be treated as a sum due to the
person otherwise than in the person’s character of a member.
33 Criminal
liability in relation to prospectuses
If a prospectus is circulated with a material statement in it which
is untrue or misleading or with the omission from it of the statement of a
material fact, any person who authorized the circulation of the prospectus is
guilty of an offence unless he or she satisfies the court that he or she
reasonably believed, when the prospectus was circulated, that the statement was
true and not misleading or that the matter omitted was properly omitted.
PART 8
SHARE CAPITAL
34 Nature
and numbering of shares
(1) The shares or other
interests of a member of a company are, subject to Article 42,
transferable in the manner provided by the company’s articles.
(2) Each share in a company
shall be distinguished by its appropriate number, except that, if and so long
as all the issued shares in a company or all the issued shares in it of a
particular class –
(a) are
fully paid and carry the same rights in all respects; or
(b) are evidenced
by certificates issued in accordance with Article 50, each certificate
being distinguished by a number recorded in the register of members,
none of those shares need have a distinguishing number.
(3) A company must not
issue bearer shares.[87]
35 Rule
of law relating to issue of shares at discount etc. abolished[88]
(1) This Article applies to
the issue of shares at a discount and the application of shares or capital
money in payment of a commission, discount or allowance.
(2) The
repeal of the former Articles 35 and 36 by Article 7(1) of the
Companies (Amendment No. 11) (Jersey) Law 2014 shall not cause
anything to which this Article applies to be rendered unlawful by reason of any
rule of law which had ceased to have effect by virtue of, or had been modified
by, the former Articles 35 and 36.
(3) In this Article, “the
former Articles 35 and 36” means Articles 35 and 36 of
this Law, as those Articles were in force immediately before they were repealed
by Article 7(1) of the Companies (Amendment No. 11) (Jersey)
Law 2014.
36 [89]
37 Provision
for different amounts to be paid on shares
A company, if so authorized by its articles, may –
(a) make arrangements on
the allotment of shares for a difference between the shareholders in the
amounts and times of payments of calls or instalments payable on their shares;
(b) accept from a member
the whole or a part of the amount remaining unpaid on shares held by the
member, although no part of that amount has been called up or become payable;
and
(c) pay dividends in
proportion to the amount paid up on each share where a larger amount is paid up
on some shares than on others.[90]
38 Alteration
of capital of par value companies[91]
(1) A par value company
may, by altering its memorandum –
(a) increase
its share capital by creating new shares of such amount and in such currency or
currencies as it thinks expedient;
(b) consolidate
and divide all or any of its shares (whether issued or not) into shares of
larger amount than its existing shares;
(c) convert
all or any of its fully paid shares into stock, and reconvert that stock into
fully paid shares of any denomination;
(d) subject
to paragraph (2), subdivide its shares, or any of them, into shares of
smaller amount than is fixed by the memorandum;
(e) subject
to Article 38B, convert any of its fully paid shares the nominal value of
which is expressed in one currency into fully paid shares of a nominal value of
another currency;
(ea) in the case to
which paragraph (1A) refers, denominate the nominal value of its issued or
unissued shares in units of the currency into which they have been converted;
and
(f) cancel
shares which, at the date of the passing of the resolution to cancel them, have
not been taken or agreed to be taken by any person, and diminish the amount of
the company’s share capital by the amount of the shares so cancelled.[92]
(1A) Paragraph (1)(ea) refers to
the case in which –
(a) the
nominal value of the shares concerned is expressed in one currency;
(b) those
shares are then converted (whether under subparagraph (e) of that
paragraph or otherwise) into shares of a nominal value of another currency; and
(c) they
nevertheless remain denominated in the former currency.[93]
(2) In a sub-division under
paragraph (1)(d) the proportion between the amount paid and the amount, if
any, unpaid on each reduced share shall be the same as it was in the case of
the share from which the reduced share is derived.
(4) The powers conferred by
this Article shall be exercised by the company by special resolution.
(5) A cancellation of shares
under this Article does not for the purposes of this Law constitute a reduction
of share capital.
38A Alteration of
capital of no par value companies[94]
A no par value company may,
by special resolution, alter its memorandum –
(a) to
increase or reduce the number of shares that it is authorized to issue;
(b) to
consolidate all or any of its shares (whether issued or not) into fewer shares;
or
(c) to
divide all or any of its shares (whether issued or not) into more shares.
38B Rate of exchange
for currency conversions[95]
A conversion under Article 38(1)(e)
shall be effected at the rate of exchange current at a time to be specified in
the resolution, being a time within 40 days before the conversion takes
effect.
39 Share
premium accounts for par value companies[96]
(1) If
a par value company allots shares at a premium (whether for cash or
otherwise) –
(a) where
the premiums arise as a result of the issue of a class of limited shares, a sum
equal to the aggregate amount or value of those premiums shall be transferred,
as and when the premiums are paid up, to a share premium account for that
class; and
(b) where
the premiums arise as a result of the issue of a class of unlimited shares, a
sum equal to the aggregate amount or value of those premiums shall be transferred,
as and when those premiums are paid up, to a separate share premium account for
that class.
(1A) An
amount may be transferred by the company to a share premium account from any
other account of the company other than the capital redemption reserve or the
nominal capital account.[97]
(2) A
share premium account may be expressed in any currency.
(3) A
share premium account may be applied by the company for any of the following
purposes –
(a) in
paying up unissued shares to be allotted to members as fully paid bonus shares;
(b) in
writing off the company’s preliminary expenses;
(c) in
writing off the expenses of and any commission paid on any issue of shares of
the company;
(d) in
the redemption or purchase of shares under Part 11; and
(e) in
the making of a distribution in accordance with Part 17.[98]
(4) Subject
to this Article, the provisions of this Law relating to the reduction of a par
value company’s share capital apply as if each of its share premium
accounts were part of its paid up share capital.
39A Stated capital
accounts for no par value companies[99]
(1) Every
no par value company shall maintain a separate account, to be called a stated
capital account, for each class of issued share.
(2) A
stated capital account may be expressed in any currency.
(3) There
shall be transferred to the stated capital account for the class of share
concerned –
(a) the
amount of cash received by the company for the issue of shares of that class; and
(b) the
value, as determined by the directors, of the “cause” received by
the company, otherwise than in cash, for the issue of shares of that class.[100]
(3A) An
amount may be transferred by the company to a stated capital account from any
other account of the company.[101]
(4) A
stated capital account may be applied by the company for any purpose for which
a share premium account may be applied by a par value company.[102]
39B Relief from
requirements to make transfers to share premium accounts and stated capital
accounts[103]
(1) This
Article applies where a company (the “issuing company”) is a
wholly-owned subsidiary of any body corporate and allots shares –
(a) to
that holding body; or
(b) to
any other body corporate which is a wholly-owned subsidiary of that holding
body,
in return for the transfer
to the issuing company of assets, other than cash, of any body corporate (the
“transferor”) which is either the holding body itself or a
subsidiary of the holding body.
(2) Notwithstanding
Article 39(1), if the issuing company is a par value company, it need not
transfer to a share premium account any amount in excess of the minimum premium
value.
(3) Notwithstanding
Article 39A(3)(a) and (b), if the issuing company is a no par value
company, it need not transfer to a stated capital account any amount in excess
of the base value of that for which the shares are allotted.
(4) For
the purpose of paragraph (2), “minimum premium value” means
the amount (if any) by which the base value of that for which the shares are
allotted exceeds the aggregate nominal value of those shares.
(5) For
the purposes of paragraphs (3) and (4) –
(a) “the
base value of that for which the shares are allotted” means the amount by
which the base value of the assets transferred exceeds the base value of the
liabilities (if any) of the transferor assumed by the issuing company as part
of the terms of transfer of the assets;
(b) “the
base value of the assets transferred” means –
(i) the cost of those
assets to the transferor, or
(ii) the
amount at which those assets are stated in the transferor’s accounting
records immediately before the transfer,
whichever is less; and
(c) the
base value of the liabilities assumed is the amount at which they are stated in
the transferor’s accounting records immediately before the transfer.
(6) The
Minister may by Order make additional provision for relieving companies from
the provisions of Articles 39 and 39A.
40 Power
to issue fractions of shares[104]
(1) Despite Article 4A(3)
(which provides that a person may not subscribe for less than one share), a
company registered with shares may issue a fraction of a share if it is
authorized to do so by its articles.
(2) If the holder of a
fraction of a share acquires a further fraction of a share of the same class,
the fractions shall be treated as consolidated.
(3) The rights of a member
in respect of the holding of a fraction of a share in a company shall be as
provided in the articles of the company.
(4) Except as otherwise
provided by this Article and the articles of the company, this Law applies to a
fraction of a share in the company as it applies to a whole share in the
company.
40A Conversion of
shares in par value companies[105]
(1) A par value company may
convert its shares into no par value shares by altering its memorandum in
accordance with this Article.
(2) The power conferred by
paragraph (1) –
(a) may
only be exercised by converting all of the company’s shares into no par
value shares;
(b) may
only be exercised by a special resolution of the company and, if there is more
than one class of issued shares, with the approval of a special resolution
passed at a separate meeting of the holders of each class of shares; and
(c) may
be exercised whether or not the issued shares of the company are fully paid.
(3) The special resolution
of the company –
(a) shall
specify the number of no par value shares into which each class of issued
shares is to be divided;
(b) may
specify any number of additional no par value shares which the company may
issue; and
(c) shall
make such other alterations to the memorandum and articles as may be requisite
in the circumstances.
(4) Upon converting its
shares under this Article, the company –
(a) shall
transfer, from the share capital account for each class of shares to the stated
capital account for that class, the total amount that has been paid up on the
shares of that class; and
(b) shall
transfer any amount standing to the credit of a share premium account or
capital redemption reserve to the stated capital account for the class of share
which would have fallen to be issued if that amount had been applied in paying
up unissued shares allotted to members as fully paid bonus shares.
(5) On the conversion of a
company’s shares under this Article, any amount which is unpaid on any
share immediately before the conversion remains payable when called or due.
40B Conversion of
shares in no par value companies[106]
(1) A no par value company
may convert its shares into par value shares by altering its memorandum in
accordance with this Article.
(2) The power conferred by
paragraph (1) –
(a) may
only be exercised by converting all of the company’s shares into par
value shares;
(b) may
only be exercised by a special resolution of the company and, if there is more
than one class of issued shares, with the approval of a special resolution
passed at a separate meeting of the holders of each class of shares; and
(c) may
be exercised whether or not the issued shares of the company are fully paid.
(3) For the purpose of a
conversion of shares under this Article, each share of a class shall be
converted into a share which –
(a) confers
upon the holder, as nearly as possible, the same rights as were conferred by it
before the conversion; and
(b) has a
nominal value specified in the special resolution of the company, being a value
not exceeding the amount standing to the credit of the stated capital account
for that class divided by the number of shares of that class in issue.
(4) The special resolution
of the company shall make such alterations to the memorandum and articles as
may be requisite in the circumstances.
(5) Upon converting its
shares under this Article, the company –
(a) shall,
to the extent that the amount standing to the credit of the stated capital
account for each class of shares equals the total nominal amount of the shares
of the class into which those shares are converted, transfer the amount to the
share capital account; and
(b) shall,
to the extent (if any) that the amount exceeds that total nominal amount,
transfer it to the share premium account for that class.
(6) On the conversion of a
company’s shares under this Article, any amount which is unpaid on any
share immediately before the conversion remains payable when called or due.
40C Power of
States to amend Part 8[107]
The States may amend this Part by Regulations.
PART 9
Register of Members and
Certificates
41 Register
of members
(1) Every company shall
keep a register of its members, and enter in it the following
information –
(a) the
name and address of every member;
(b) where
he or she is a member because he or she holds shares in the
company –
(i) the number of shares
held by the member,
(ii) if
the shares are numbered, their numbers,
(iii) if
the company has more than one class of shares, the class or classes held by the
member, and
(iv) in
the case of shares which are not fully paid, the amount remaining unpaid on
each share;
(c) where
he or she is a guarantor member –
(i) the fact that he
or she is a member in that capacity,
(ii) the
amount which the guarantor member has undertaken by reason of his or her
membership in that capacity to contribute to the assets of the company if it is
wound up, and
(iii) if
the company has more than one class of guarantor members, the class to which he
or she belongs;
(d) in
every case, the date on which he or she was registered as a member; and
(e) in
every case where a person ceases to be a member, the date on which that event
occurs.[108]
(2) Where the company has
converted any of its shares into stock, the register shall show the amount and
class of stock held by each member instead of the amount of shares and the
particulars relating to shares specified in paragraph (1).[109]
(3) If a company fails to
comply with this Article, the company and every officer of it who is in default
is guilty of an offence.
(4) An entry relating to a
former member of the company may be removed from the register after 10 years
from the date on which the member ceased to be a member.
(5) Without prejudice to
any lesser period of limitation or prescription, liability incurred by a
company from the making or deletion of an entry in its register of members, or
from failure to make or delete any such entry, is not enforceable more than 10
years after the date on which the entry was made or deleted or the failure
first occurred.
42 Transfer
and registration
(1) Notwithstanding
anything in its articles, a company shall not register a transfer of shares in
the company unless –
(a) an
instrument of transfer in writing has been delivered to it;
(b) the
transfer is exempted from the provisions of this paragraph pursuant to
paragraph (6); or
(c) the
transfer is made in accordance with an Order made under Article 51A.[110]
(1A) Notwithstanding anything in its
articles, a company shall not register an instrument of transfer of shares
which is a transaction to which the Taxation (Land Transactions)
(Jersey) Law 2009 applies unless there is produced to the company the LTT receipt
issued under Article 9 of that Law in respect of the transaction, or a
copy of that receipt, certified in the manner prescribed under that Law.[111]
(1B) If a company fails to comply with
paragraph (1A), the company and every officer of it who is in default is
guilty of an offence.[112]
(2) Paragraphs (1) and
(1A) do not prejudice a power of the company to register as a shareholder a
person to whom the right to shares in the company has been transmitted by
operation of law.[113]
(3) A transfer of the share
or other interest of a deceased member of a company made by the deceased
member’s personal representative, although the personal representative is
not a member of the company, is as valid as if the personal representative had
been a member at the time of the execution of the instrument of transfer.
(4) On the application of
the transferor of a share or interest in a company, the company shall enter in
its register of members the name of the transferee in the same manner and
subject to the same conditions as if the application for the entry were made by
the transferee.
(5) If a company refuses to
register a transfer of shares the company shall, within 2 months after the date
on which the transfer was lodged with it, give to the transferor and transferee
notice of the refusal.
(6) The Minister may by
Order provide for exemptions from the provisions of paragraph (1), either
as regards specified companies or classes of companies or as regards specified
shares or classes of shares.[114]
43 Certification
of transfers
(1) For the purpose of this
Article –
(a) an
instrument of transfer shall be deemed to be certificated if it bears the words
“certificate lodged” or words to the like effect;
(b) the
certification shall be deemed to be made by a company if –
(i) the person
issuing the instrument is a person authorized to issue certificated instruments
of transfer on the company’s behalf, and
(ii) the
certification is signed by a person authorized to certificate transfers on
behalf of the company or by an officer or servant of the company or of a body
corporate so authorized;
(c) a
certification is deemed to be signed by a person if –
(i) it purports to be
authenticated by the person’s signature or initials (whether handwritten
or not), and
(ii) it
is not shown that the signature or initials was not or were not placed there by
the person or by any other person authorized to use the signature or initials
for the purpose of certificating instruments of transfer on behalf of the
company.
(2) The certification by a
company of an instrument of transfer of any shares or debentures in a company
shall be taken as a representation by the company to any person acting on the
faith of the certification that there have been produced to the company such
documents as on their face show a prima facie
title to the shares or debentures in the transferor named in the instrument of
transfer but not as a representation that the transferor has any title to the
shares or debentures.
(3) Where a person acts on
the faith of a false certification by a company made negligently the company is
under the same liability to the person as if the certification had been made
fraudulently.
(4) Where a certification
is expressed to be limited to 42 days or any longer period from the date of
certification, the company is not, in the absence of fraud, liable in respect
of the registration of any transfer of shares or debentures comprised in the
certification after the expiration of the period so limited if the instrument
of transfer has not, within that period, been lodged with the company for
registration.
44 Location
of register of members
(1) A company’s
register of members shall be kept at its registered office or, if it is made up
at another place in Jersey, at that place.
(2) A company shall give
notice to the registrar of the place where its register of members is kept, and
of any change of that place.
(3) The notice need not be
given if the register has at all times since it came into existence (or, in the
case of a register in existence when this Article comes into force, at all
times since then) been kept at the company’s registered office.
(4) If a company fails for
14 days to comply with paragraph (2), the company is guilty of an offence.
45 Inspection of register
(1) The register of members
shall during business hours be open to the inspection of a member of the
company without charge, and of any other person on payment of such sum (if
any), not exceeding the published maximum, as the company may require.[115]
(2) A person
may –
(a) in
the case of any company, on payment of such sum (if any), not exceeding the
published maximum, as the company may require; and
(b) in
the case of a public company, on submission to the company of a declaration
under Article 46,
require a copy of the register and the company shall, within 10 days
after the receipt of the payment and (in the case of a public company) the
declaration, cause the copy so required to be available at the place where the
register is kept, for collection by that person during business hours.[116]
(3) If inspection under this
Article is refused, or if a copy so required is not made available within the
proper period, the company is guilty of an offence.
(4) In the case of refusal
or default, the court may by order compel an immediate inspection of the
register, or direct that the copies required be made available to the person
requiring them.
46 Declaration
(1) The declaration
required under Article 45(2) shall be made in writing under oath and shall
state the name and address of the applicant and contain an undertaking by the
applicant that no information contained in the copy of the register made
available to the applicant will be used by the applicant, or by any person who
acquires any such information on behalf of the applicant, or directly or
indirectly from the applicant or any such person, save for the following
purposes –
(a) to
call a meeting of members;
(b) to
influence the voting by members of the company at any such meeting;
(c) an
offer to acquire all the shares, or all the shares of any class in the company other
than shares in which the applicant has directly or indirectly a beneficial
interest; or
(d) any
other purpose which may be prescribed.[117]
(2) Where the applicant is
a body corporate the declaration shall be made by a director of the body
corporate and the address given shall be its address for service and where the
applicant is an individual the declaration shall state the applicant’s
residential address.
(3) If any such information
is used in a manner inconsistent with the terms of a declaration under paragraph (1)
the person who made the declaration is guilty of an offence.
47 Rectification of share register
(1) If –
(a) the
name of a person, the number of shares held, the class of shares held, or the
amount paid up on the shares, or the class of members to which the person
belongs is, without sufficient reason, entered in or omitted from a
company’s register of members; or
(b) there
is a failure or unnecessary delay in entering on the register the fact of a
person having ceased to be a member,
the person aggrieved, or a member of the company, or the company,
may apply to the court for rectification of the register.[118]
(2) The court may refuse
the application or may order rectification of the register and payment by the
company of any damages sustained by a party aggrieved.
(3) On an application under
paragraph (1) the court may decide any question necessary or expedient to
be decided with respect to the rectification of the register.
(4) Where an order is made
under this Article, the company in relation to which the order is made shall
cause the relevant Act of the court to be delivered to the registrar for
registration within 14 days after the making of the order; and in the event of
failure to comply with this paragraph the company is guilty of an offence.
48 Trusts not to be entered on register
(1) No notice of a trust,
express, implied or constructive, shall be receivable by the registrar or
entered on the register of members.
(2) The register of members
is prima facie evidence of any matters which
are by this Law directed or authorized to be inserted in it.
49 Overseas
branch registers[119]
(1) A
public company which transacts business in any country, territory or place
outside Jersey may cause to be kept there a register of –
(a) members
who are resident in that country, territory or place; and
(b) all
or any of its other members.[120]
(2) A
register to which paragraph (1) refers shall be known as an overseas
branch register.
(3) A
company shall give notice to the registrar, in such form as he or she may
require and within 14 days after the event –
(a) of
the situation of the office at which the company begins to keep an overseas
branch register;
(b) of
any change in its situation; and
(c) if
the keeping of the register is discontinued, of its discontinuance.
(4) A
company which keeps an overseas branch register –
(a) shall
cause to be kept, at the place where its register of members is kept, a
duplicate of the overseas branch register;
(b) shall
cause to be transmitted to its registered office a copy of every entry in the
overseas branch register, as soon as may be after it is made; and
(c) shall
cause every entry in the overseas branch register to be duly entered in the
duplicate, as soon as may be after it is made in the overseas branch register.
(5) An
overseas branch register and its duplicate shall be parts of the
company’s register of members for the purposes of this Law, and shall be
kept in the same manner as the register of members is to be kept under this
Law.
(6) The
shares to which an overseas branch register relates shall be distinguished from
those to which the register of members relates and, while an overseas branch
register is kept, no transaction in respect of any shares to which it relates
shall be registered or otherwise entered in any other register except its
duplicate.
(7) If
a company discontinues the keeping of an overseas branch register, it shall
thereupon cause all entries in it to be transferred –
(a) to
any other overseas branch register which is kept by it in the same country,
territory or place; or
(b) to
its register of members.
(8) Subject
to the provisions of this Law, a company may by its articles provide as it
thinks fit for the keeping of an overseas branch register.
(9) The
Minister may by Order –
(a) extend
the provisions of this Article to private companies, with such modifications
(if any) as he or she may specify in the Order;
(b) modify
the provisions of this Article in respect of any kind of company; or
(c) prescribe
other conditions relating to the keeping of overseas branch registers.
(10) In
the event of a failure to comply with any of paragraphs (3), (4), (5), (6)
and (7), or with any Order made under paragraph (9), the company is guilty
of an offence.
50 Share certificates[121]
(1) Subject to this Article
and Article 51A, every company shall –
(a) within
2 months after the allotment of any of its shares; and
(b) within
2 months after the date on which a transfer of any of its shares is lodged with
the company,
complete and have ready for delivery the certificates of all shares
allotted or transferred unless the conditions of allotment of the shares
otherwise provide.[122]
(2) Paragraph (1) does
not apply –
(a) to an
allotment or transfer of shares to a nominee of a stock exchange on which those
shares are or are to be listed;
(b) to a
transfer of shares which the company is for any reason entitled to refuse to
register and does not register; or
(c) to an
open-ended investment company whose articles do not require a certificate to be
delivered on every occasion when shares of the company are allotted or
transferred.[123]
(3) The Minister may by
Order do all or any of the following things –
(a) provide
for exemptions from the provisions of paragraph (1);
(b) provide
that Article 51 shall not apply, or shall only apply subject to
modifications specified in the Order, to certificates relating to shares to
which any such exemptions apply; and
(c) prohibit
the issue of certificates in respect of any such shares.[124]
(5) In the event of failure
to comply with paragraph (1), the company and every officer of it who is
in default is guilty of an offence.
(6) If a company to which a
notice has been given by a person entitled to have the certificates delivered
to the person requiring it to make good a failure to comply with paragraph (1)
fails to make good the failure within 10 days after the service of the notice,
the court may, on the application of that person, make an order directing the
company and any officer of it to make good the failure within a time specified
in the order; and the order may provide that all costs of and incidental to the
application shall be borne by the company or by an officer of it responsible
for the failure.
51 Certificate to be evidence of title
(1) A certificate sealed by
the company, or signed either by two of its directors or by one of its
directors and its secretary, specifying any shares held by a member is prima facie evidence of the member’s title to
the shares.[125]
(2) Paragraph (1)
applies notwithstanding any subsequent change of the currency in which the
nominal amount of the shares to which the certificate relates is expressed.[126]
51A Uncertificated securities[127]
(1) Notwithstanding any
other provision in this Law, the Minister may by Order provide in accordance
with this Article for title to securities or to any specified class or
description of securities to be evidenced and transferred without a written
instrument.
(2) An Order under this
Article may provide for any of the following matters –
(a) procedures
for recording and transferring title to securities, and with respect to the
keeping of the register of members in relation to such securities;
(b) the
regulation of those procedures and the persons responsible for or involved in
their operation;
(c) provision
with respect to the rights and obligations of persons in relation to securities
dealt with under such procedures;
(d) the
giving of effect to –
(i) the transmission
of title to securities by operation of law,
(ii) any
restriction on the transfer of title to securities arising by virtue of the
provisions of any enactment, instrument, court order or agreement, and
(iii) any
power conferred on a person, by any provision to which clause (ii) refers,
to deal with securities on behalf of the person entitled;
(e) in
relation to the persons responsible for or involved in the operation of the
procedures to which sub-paragraph (a) refers, provision as to –
(i) the consequences
of their insolvency, bankruptcy or incapacity, and
(ii) the
transfer by or from them to other persons of their functions in relation to
those procedures, and
(f) for
any of the purposes in sub-paragraphs (a) to (e) –
(i) the modification
or exclusion of any provisions of any enactment or rule of law,
(ii) the
application (with such modifications, if any, as the Minister may think
appropriate) of any provisions of this Law creating criminal offences,
(iii) the
application (with such modifications, if any, as the Minister may think
appropriate) of any other provisions of any enactment (not being provisions
creating criminal offences),
(iv) the
requiring of the payment of fees of such amounts as are specified in the Order
or are determined in accordance with the Order, or the enabling of persons
specified in the Order to require payment of such fees, and
(v) the empowering of the
Minister to delegate to any person willing to discharge them any of the
Minister’s functions under the Order.
(3) An Order made under
this Article shall contain such safeguards as appear to the Minister to be
appropriate for the protection of investors.
(4) In this
Article –
(a) “securities”
means –
(i) shares, stock,
debentures, debenture stock, loan stock and bonds,
(ii) warrants
entitling the holders to subscribe for any securities specified in clause (i),
(iii) units
in a collective investment fund within the meaning of the Collective Investment Funds
(Jersey) Law 1988, and
(iv) other
securities of any description;
(b) references
to title to securities include any legal, equitable or other interest in
securities; and
(c) references
to a transfer of title include a transfer by way of security.
PART 10
CLASS RIGHTS
52 Variation
of class rights[128]
(1) The
provisions of this Article –
(a) are
concerned with the variation of the rights of any class of members of a
company;
(b) are
subject to the provisions of Article 11(3); and
(c) do
not apply in respect of a conversion of shares in accordance with Article 40A
or 40B.
(2) If
provision for the variation of the rights of any class of members is made in
the memorandum or articles, or by the terms of admission to membership, those
rights may only be varied in accordance with those provisions.
(3) If
no such provision is made, the rights may be varied if but only if the
following persons consent in writing, namely –
(a) in
the case of any class of par value shares, the holders of not less than 2/3rds
in nominal value of the issued shares of that class;
(b) in
the case of any class of no par shares, the holders of not less than 2/3rds in
number of the issued shares of that class; or
(c) in
the case of any class of guarantor members, those whose liability as such
members is in the aggregate not less than 2/3rds of the total liability of all
the members of that class,
or (in any case) the
variation is sanctioned by a special resolution passed at a separate meeting of
the class of members concerned.
(4) A
variation which –
(a) reduces
the liability of any class of members to contribute to the share capital of a
company;
(b) reduces
the liability of any class of members otherwise to pay money to a company; or
(c) increases
the benefits to which any class of members is or may become entitled,
is for the purposes of this
Article a variation of the rights of each other class of members of the
company.
(5) No
member –
(a) whose
liability is to be so reduced or whose entitlement to benefits is to be so
increased; and
(b) who
is also a member of any other class,
shall for the purposes of
paragraph (3) be treated as a member of that other class.
(6) An
alteration of a provision in either the memorandum or articles for the
variation of the rights of any class of members of a company, or the insertion
of such a provision in the memorandum or articles, is itself a variation of
those rights.
(7) Unless
the context otherwise requires, in any provision contained –
(a) in
the memorandum or articles; or
(b) in
the terms of admission to membership,
for the variation of the
rights of any class of members, references to the variation of those rights
include references to their abrogation.
53 Members’ right to
object to variation[129]
(1) If the rights of any
class of member of a company are varied in accordance with the memorandum or
articles, or otherwise in accordance with Article 52, any members of that
class who did not consent to or vote in favour of the resolution for variation,
being –
(a) in
the case of any class of par value shares, the holders of not less than 1/10th
in nominal value of the issued shares of that class;
(b) in
the case of any class of no par value shares, the holders of not less than
1/10th in number of the issued shares of that class; or
(c) in
the case of any class of guarantor members, those whose liability as such
members is in the aggregate not less than 1/10th of the total liability of all
the members of that class,
may apply to the court to have the variation cancelled.[130]
(2) If an application is
made under paragraph (1), the variation to which it relates shall not have
effect unless and until it is confirmed by the court.[131]
(2A) The application –
(a) must
be made within 28 days after the date on which the consent was given or
the resolution was passed; and
(b) may
be made, on behalf of the members who are entitled to make it, by one or more
of them as they appoint in writing.[132]
(3) Notice signed by or on
behalf of the applicants that an application to the court has been made under
this Article shall be given by or on behalf of the applicants to the registrar
within 7 days after it is made.
(4) The court after being
satisfied that paragraph (3) has been complied with, and after hearing the
applicant and any other persons who appear to the court to be interested in the
application, may, if satisfied having regard to all the circumstances, that the
variation would unfairly prejudice the members of the class, disallow the
variation and shall, if not so satisfied, confirm it.[133]
(5) The company shall,
within 14 days after the making of an order by the court under this Article
deliver the relevant Act of the court to the registrar; and if default is made
in complying with this provision, the company is guilty of an offence.
54 Registration of particulars of special rights
(1) If a public company
admits a member or allots shares with rights which are not stated in its
memorandum or articles, or in a resolution or agreement of which a copy is
required by Article 100 to be delivered to the registrar, the company
shall deliver to the registrar within one month after admitting the member or
allotting those shares a statement containing particulars of those rights.[134]
(2) Paragraph (1) does
not apply if the rights are in all respects uniform with the rights of existing
members, and for that purpose they are not different by reason only that during
the period of 12 months immediately following the admission of the member
or the allotment of the shares, he or she does not have the same rights to
dividends as members previously admitted.[135]
(3) Where the rights of
members of a public company are varied otherwise than by an amendment of the
company’s memorandum or articles or by a resolution or agreement subject
to Article 100, the company shall within one month from the date on which
the variation is made deliver to the registrar a statement containing
particulars of the variation.[136]
(4) Where a public company,
otherwise than by an amendment, resolution or agreement mentioned in paragraph (3),
assigns a name or other designation, or a new name or other designation, to a
class of rights of membership, it shall within one month from doing so deliver
to the registrar a notice giving particulars of the name or designation so
assigned.[137]
(5) If a company fails to
comply with this Article, the company and every officer of it who is in default
is guilty of an offence.
PART 11
REDEMPTION AND PURCHASE OF
SHARES
T55 [138]
55 Power
to issue redeemable shares[139]
(1) Except as otherwise
provided by this Article, a company may, if authorized to do so by its
articles –
(a) issue;
or
(b) convert
existing non-redeemable limited shares, whether issued or not, into,
limited shares that are to
be redeemed, or are liable to be redeemed, either in accordance with their
terms or at the option of the company or of the shareholder.
(2) A
company shall not issue redeemable limited shares at a time when there are no
issued shares of the company that are not redeemable.
(3) A
company shall not convert existing issued non-redeemable limited shares into
redeemable shares if as a result there are no issued shares of the company that
are not redeemable.
(4) The
redeemable limited shares of a par value company that is not an open-ended
investment company shall be capable of being redeemed from any source, but only
if they are fully paid up.[140]
(5) The
redeemable limited shares of a no par value company that is not an open-ended
investment company shall be capable of being redeemed from any source, but only
if they are fully paid up.[141]
(6) [142]
(7) [143]
(8) The
redeemable limited shares of a par value company or a no par value company (not
being in either case an open-ended investment company) are not capable of being
redeemed unless all the directors of the company who authorize the redemption
make a statement in the form specified by paragraph (9).
(9) The
statement shall state that the directors of the company authorizing the redemption
have formed the opinion –
(a) that,
immediately following the date on which the payment is proposed to be made, the
company will be able to discharge its liabilities as they fall due; and
(b) that,
having regard to –
(i) the prospects of
the company and to the intentions of the directors with respect to the
management of the company’s business, and
(ii) the
amount and character of the financial resources that will in their view be
available to the company,
the company will be able
to –
(A) continue to carry on
business, and
(B) discharge its
liabilities as they fall due,
until the expiry of the
period of 12 months immediately following the date on which the payment is
proposed to be made or until the company is dissolved under Article 150,
whichever first occurs.[144]
(10) A
director who makes a statement under paragraph (8) without having
reasonable grounds for the opinion expressed in the statement is guilty of an
offence.
(11) The
redeemable limited shares of an open-ended investment company (whether it is a
par value company or a no par value company) may be redeemed from any source.
(12) The
redeemable limited shares of an open-ended investment company (whether it is a
par value company or a no par value company) shall not be capable of being
redeemed unless –
(a) they
are fully paid up;
(b) they
are redeemed at a price not exceeding their net asset value; and
(c) the
directors of the company authorizing the redemption have reasonable grounds for
believing that, immediately following the date on which the payment is proposed
to be made, the company will be able to discharge its liabilities as they fall
due.[145]
(12A) A
payment for the redemption of shares in accordance with this Article may be
made in cash or otherwise than in cash (or partly in cash and partly otherwise
than in cash).[146]
(13) [147]
(14) [148]
(15) [149]
(16) A
company may, by special resolution, apply a capital redemption reserve in
issuing shares to be allotted as fully paid bonus shares.[150]
(17) Upon
the redemption of limited shares of a par value company under this Article, the
amount of the company’s issued share capital shall be diminished by the
nominal value of those shares but the redemption shall not be taken as reducing
the authorized share capital of the company.
(18) Where
pursuant to this Article a par value company is about to redeem limited shares
(other than shares it intends to hold as treasury shares under Article 58A(2)(d)),
it may issue shares up to the nominal amount of the shares to be redeemed as if
those shares had never been issued.[151]
(19) Limited
preference shares issued by a company before Article 223 came into force
that could but for the repeal of Article 5 of the Companies (Supplementary
Provisions) (Jersey) Law 1968 have been redeemed under that Article shall be
subject to redemption either in accordance with that Article or in accordance
with this Law.
(20) Any
capital redemption reserve fund established by a company before Article 223
came into force for the purposes of Article 5 of the Companies
(Supplementary Provisions) (Jersey) Law 1968 shall be treated as if it had
been established as a capital redemption reserve for the purposes of this
Article, and any reference in any existing enactment or in the articles of any
company or in any other instrument to a company’s capital redemption
reserve fund shall be construed as a reference to a capital redemption reserve
for the purposes of this Article.
(21) Any
shares redeemed under this Article (other than shares that are, immediately
after being purchased or redeemed, held as treasury shares) are treated as
cancelled on redemption.[152]
57 Power
of company to purchase its own limited shares[153]
(1) A company may purchase
its own limited shares (including any redeemable shares) including by the
purchase of depositary certificates in respect of such shares.[154]
(2) A
purchase under this Article, other than a purchase by a company which is a
wholly-owned subsidiary of another company, shall be sanctioned by a special
resolution of the company.[155]
(3) However,
if the shares or depositary certificates in respect of shares are to be
purchased otherwise than on a stock exchange –
(a) they
may only be purchased in pursuance of a contract approved in advance by a
resolution of the company; and
(b) the
shares shall not carry the right to vote on the resolution sanctioning the
purchase or approving that contract.[156]
(4) If shares are to be
purchased on a stock exchange, the resolution authorizing the purchase shall
specify –
(a) the
maximum number of shares to be purchased;
(b) the
maximum and minimum prices which may be paid; and
(c) a
date, not being later than 5 years after the passing of the resolution, on
which the authority to purchase is to expire.[157]
(4ZA) If
depositary certificates in respect of shares are to be purchased, the
resolution authorizing the purchase shall specify –
(a) the
maximum number of depositary certificates to be purchased;
(b) the
maximum and minimum prices which may be paid; and
(c) a
date, not being later than 5 years after the passing of the resolution, on
which the authority to purchase is to expire.[158]
(4A) For
the purposes of paragraphs (4)(b) and (4ZA)(b), maximum and minimum prices
shall be determined –
(a) by
specifying particular sums; or
(b) by
specifying a basis or formula by which those amounts can be calculated without
reference to any person’s discretion or opinion.[159]
(5) Paragraphs (2),
(3), (4) and (4ZA) do not apply to an open-ended investment company.[160]
(5A) If
depositary certificates in respect of shares are purchased under this Article
the shares shall (unless they are, immediately after the purchase of the
depositary certificates, held as treasury shares) be treated as cancelled on
purchase.[161]
(6) Article 55
applies to the purchase by a company under this Article of its own shares
(including by the purchase of depositary certificates) as it applies to the
redemption of redeemable shares.[162]
(7) A
company may not make a purchase under this Article if as a result of the
purchase there would no longer be a member of the company holding shares other
than redeemable shares or treasury shares.[163]
(8) In
this Article and Article 58A “depositary certificate” means an
instrument (whatever it is called and whether it is held in paper or electronic
form) which confers on a person a right or rights (other than an option or a
security interest) in respect of a share or shares held by another person.[164]
58 Rule of law relating to financial assistance abolished[165]
(1) This Article applies to
any thing which would have been unlawful by reason of any rule of law, if that
rule had not ceased to have effect by virtue of, or had not been modified by,
the former Article 58.
(2) The repeal of the
former Article 58 by Regulation 5 of the Companies (Amendment
No. 2) (Jersey) Regulations 2008 shall not cause anything to which this
Article applies to be rendered unlawful by reason of any rule of law which had
ceased to have effect by virtue of, or had been modified by, the former Article 58.
(3) A transaction that
was –
(a) authorized
by a company before the repeal of the former Article 58 by
Regulation 5 of the Companies (Amendment No. 2) (Jersey) Regulations
2008;
(b) a
transaction of the kind to which paragraph (1) of the former Article 58
applied;
(c) lawful
under paragraph (2) or (3) of the former Article 58; and
(d) taken
under the Law, as in force immediately before the repeal, to not be a
distribution for the purposes of Part 17,
shall not be a distribution for the purposes of Part 17.
(4) [166]
(5) [167]
(6) In this Article,
“the former Article 58” means Article 58 of this Law, as
that Article was in force immediately before it was repealed by
Regulation 5 of the Companies (Amendment No. 2) (Jersey) Regulations
2008.
58A Treasury shares[168]
(1) A
company may hold as treasury shares any of the limited shares that it has
redeemed or purchased under this Part (including by the purchase of depositary
certificates), to the extent that –
(a) it is
not prohibited, by its memorandum or articles of association, from holding
shares as treasury shares; and
(b) it is
authorized by a resolution of the company to hold the shares as treasury
shares.[169]
(2) A
company that holds shares as treasury shares may –
(a) cancel
the shares;
(b) sell
the shares;
(c) transfer
the shares for the purposes of or under an employees’ share scheme; or
(d) hold
the shares without cancelling, selling or transferring them.
(3) While
shares are held by a company as treasury shares –
(a) the
company shall not, for the purposes of Articles 71, 89 and 92(2) be
treated as being a member or as holding shares in the company;
(b) the
company shall not exercise any voting rights attaching to the shares;
(c) if a
provision of this Law (other than Article 58B) requires –
(i) a proportion of
votes attaching to shares held in the company to be obtained, or
(ii) a
proportion of the holders of shares of the company, (which may include persons
representing by proxy other holders of shares of the company) to consent or not
to consent,
in order for a resolution to
be passed or an action or decision to be taken or not to be taken by any
person, the shares held as treasury shares shall not for the purposes of that
provision be taken into account in determining –
(A) the total number of shares
held in the company, or
(B) whether such a
proportion has been attained;
(d) the
company shall not make or receive any dividend, or any other distribution
(whether in cash or otherwise) of the company’s assets (including any
distribution of assets to members on a winding up), in respect of those shares;
(e) the
rights in respect of the shares shall not be exercised by or against the
company;
(f) the
obligations in respect of the shares shall not be enforceable by or against the
company; and
(g) any
purported exercise or enforcement of a right, obligation or requirement
referred to in sub-paragraph (b) to (f) is void.
(4) Nothing
in paragraph (3) shall prevent –
(a) an
allotment of shares as fully paid bonus shares in respect of treasury shares;
or
(b) the
payment of any amount payable on the redemption of redeemable shares that are
held as treasury shares.
(5) Article 55(17)
(including that Article as applied by Article 57(6)) –
(a) shall
not apply in relation to any shares that are, immediately after being purchased
or redeemed, held as treasury shares;
(b) shall,
on and from the day on which any shares held as treasury shares are cancelled
under paragraph (2)(a), apply to such shares as if references in Article 55(14),
(15) and (17) to a redemption of shares were references to the
cancellation of the shares under this Article.[170]
(6) If
under paragraph (2)(a) a par value company is about to cancel limited
shares, it may issue shares up to the nominal amount of the shares to be
cancelled as if those shares had never been issued.
(7) Any
shares allotted as fully paid bonus shares in respect of shares held as
treasury shares by a company shall be treated for the purposes of this Law as
if they were purchased by the company at the time they were allotted.
(8) If
shares are held by a company as treasury shares –
(a) the
register kept under Article 41 shall include an entry relating to the
number of shares held as treasury shares.
(b) [171]
(9) For
the purposes of this Article, an employees’ share scheme is a scheme for
encouraging or facilitating the holding of shares or debentures in a company by
or for the benefit of –
(a) 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
(b) the
wives, husbands, widows, widowers, civil partners or surviving civil partners
or minor children or minor step-children of such employees or former employees.[172]
58B Limits on number
and nominal value of shares to be held as treasury shares[173]
(1) A
company may hold as treasury shares so many shares in the company that it has
redeemed or purchased under this Part as it thinks fit –
(a) if
another person holds at least one non-redeemable share in the company; or
(b) where
the articles of the company specify that –
(i) more than one
non-redeemable share in the company, or
(ii) a
specified proportion of non-redeemable shares in the company,
is required to be held by
one or more persons other than the company if the company is to hold shares as
treasury shares, if that number or proportion of shares in the company are held
by one or more other persons.
(2) If –
(a) a
company holds shares as treasury shares;
(b) the
articles of the company do not specify that –
(i) more than one
non-redeemable share in the company, or
(ii) a
specified proportion of non-redeemable shares in the company,
is required to be held by
one or more persons other than the company if the company is to hold shares as
treasury shares; and
(c) on
any day there ceases to be any person who holds at least one non-redeemable
share in the company,
the company shall, within
12 months after the day, dispose of to another person or persons at least
one non-redeemable share in the company.
(3) If –
(a) a
company holds shares as treasury shares;
(b) the
articles of the company specify that –
(i) more than one
non-redeemable share in the company, or
(ii) a
specified proportion of non-redeemable shares in the company,
is required to be held by
one or more persons other than the company if the company is to hold shares as
treasury shares; and
(c) on
any day there ceases to be any person who holds at least that number, or
proportion, of non-redeemable shares in the company,
the company shall, within
12 months after the day, dispose of to another person or persons that
number, or proportion, of non-redeemable shares in the company.
(4) If
a company fails to comply with paragraph (2) or (3) it is guilty of an
offence.
58C Redemption,
purchase or cancellation under Part 11 not a reduction of capital[174]
The redemption, purchase or
cancellation by a company under this Part of its shares is not for the purposes
of Part 12 a reduction of capital.
59 Power
of States to amend Part 11[175]
The States may amend this
Part by Regulations.
PART 12
REDUCTION OF CAPITAL
60 Forfeiture
of shares[176]
If it is authorized by its
articles, a company may –
(a) cause
any of its shares which have been issued otherwise than as fully paid to be
forfeited for failure to pay any sum due and payable on them; or
(b) accept
their surrender instead of causing them to be so forfeited.
61 Reduction
of capital accounts[177]
(1) A
company may reduce its capital accounts in any way.[178]
(1A) A
reduction of capital shall be sanctioned by a special resolution of the
company.[179]
(2) In
particular, and without prejudice to the generality of paragraph (1), the
company –
(a) may
extinguish or reduce the liability on any of its shares in respect of share
capital not paid up; and
(b) may,
with or without extinguishing or reducing liability on any of its
shares –
(i) reduce any
capital account by an amount which is lost or is unrepresented by available
assets, or
(ii) pay
off any amount standing to the credit of a capital account which is in excess
of the company’s wants.
(3) Subject to paragraphs (4)
and (5), every reduction of capital shall either –
(a) be
supported by a solvency statement (see Articles 61A and 61B); or
(b) be
subject to confirmation by the court (see Articles 62 to 64).[180]
(4) Paragraph (3)
does not apply to a reduction of capital by extinguishing or reducing a capital
account maintained in respect of unlimited shares.[181]
(5) Paragraph (3)
does not apply to a reduction of capital by reducing a share capital account or
stated capital account that is, in either case, maintained in respect of
limited shares if –
(a) the
reduction does not extinguish or reduce the liability on any share in respect
of capital that is not paid up; and
(b) the
reduction does not reduce the net assets of the company,
and the amount of the
reduction is credited to a capital redemption reserve that may be applied only
in paying up unissued shares that are to be allotted to members as fully paid
bonus shares.[182]
(6) A
reduction of capital supported by a solvency statement shall be treated for all
purposes in the same way as one that has been confirmed by an order of the
court.[183]
61A Solvency statement[184]
(1) A
reduction of capital is supported by a solvency statement if the directors of
the company authorizing the reduction make a solvency statement not more than
15 days before the special resolution sanctioning the reduction is passed.
(2) A
“solvency statement” is a statement that the directors making it
have formed the opinion –
(a) that,
as at the date of the statement, the company is able to discharge its
liabilities as they fall due; and
(b) that,
having regard to –
(i) the prospects of
the company and the intentions of the directors with respect to the management
of the company’s business, and
(ii) the
amount and character of the financial resources that will in their view be
available to the company,
the company will be able
to –
(A) continue to carry on
business, and
(B) discharge its
liabilities as they fall due,
until the expiry of the
period of 12 months immediately following the date of the statement or
until the company is dissolved under Article 150, whichever first occurs.
(3) A
director who makes a solvency statement without having reasonable grounds for
the opinion expressed in it is guilty of an offence.
61B Registration of
solvency statement and minute of reduction[185]
(1) Where
a reduction of capital is supported by a solvency statement, the company shall,
within 15 days after the special resolution is passed, deliver to the
registrar –
(a) a
copy of the solvency statement; and
(b) a
minute showing in respect of the company the information specified in paragraph (2).
(2) The
information to which paragraph (1) refers is –
(a) the
amounts of the capital accounts;
(b) the
number of shares into which the share capital is to be divided and, in the case
of a par value company, the amount of each share;
(c) in
the case of a par value company the amount (if any), at the date of the registration
of the solvency statement and minute under paragraph (3), which will
remain paid up on each share which has been issued; and
(d) in
the case of a no par value company, the amount (if any) remaining unpaid on
issued shares.
(3) The
registrar shall register the solvency statement and minute, and thereupon the
resolution for reducing the capital shall take effect.
(4) The
registrar shall certify the registration of the solvency statement and minute
and the certificate –
(a) shall
be signed by the registrar and sealed with the registrar’s seal; and
(b) is
conclusive evidence that all the requirements of this Law with respect to the
reduction of share capital have been complied with, and the company’s
share capital is as stated in the minute.
(5) The
minute when registered is deemed to be substituted for the corresponding part
of the company’s memorandum.
62 Application to Court for order of confirmation
(1) Where a company has
passed a resolution for reducing a capital account, it may apply to the court
for an order confirming the reduction.[186]
(2) If the proposed
reduction of share capital involves either –
(a) a
diminution of liability in respect of any amount unpaid on a share; or
(b) the
payment (whether in cash or otherwise) to a shareholder of any paid up capital,
and in any other case if the court so directs, paragraphs (3),
(4), and (5) have effect, but subject throughout to paragraph (6).[187]
(3) Every creditor of the
company who at the date fixed by the court is entitled to a debt or claim which
if that date were the commencement of the winding up of the company, would be
admissible in proof against the company is entitled to object to the reduction
of capital.
(4) The court shall settle
a list of creditors entitled to object, and for that purpose –
(a) shall
ascertain, as far as possible, without requiring an application from any
creditor, the names of those creditors and the nature and amount of their debts
or claims; and
(b) may
publish notices fixing a day or days within which creditors not entered on the
list are to claim to be so entered or are to be excluded from the right of
objecting to the reduction of capital.
(5) If a creditor entered
on the list whose debt or claim is not discharged or has not determined does
not consent to the reduction, the court may dispense with the consent of that
creditor, on the company securing payment of the creditor’s debt or claim
by appropriating (as the court may direct) the following amount –
(a) if
the company admits the full amount of the debt or claim or, though not
admitting it, is willing to provide for it, then the full amount of the debt or
claim;
(b) if
the company does not admit, and is not willing to provide for, the full amount
of the debt or claim, or if the amount is contingent or not ascertained, then
an amount fixed by the court after an enquiry and adjudication.
(6) If a proposed reduction
of capital involves either the diminution of a liability in respect of unpaid
capital or the payment (whether in cash or otherwise) to a shareholder of paid
up capital, the court may, if having regard to any special circumstances of the
case it thinks proper to do so, direct that paragraphs (3) to (5) shall
not apply as regards any class or any classes of creditors.[188]
63 Court order confirming reduction
(1) The court, if satisfied
with respect to every creditor of the company who under Article 62 is
entitled to object to the reduction of capital that either –
(a) the
creditor’s consent to the reduction has been obtained; or
(b) the
creditor’s debt or claim has been discharged or has determined, or has
been secured,
may make an order confirming the reduction on such terms and
conditions as it thinks fit.
(2) Where the court so
orders, it may also make an order requiring the company to publish (as the
court directs) the reasons for reduction of capital or such other information
in regard to it as the court thinks expedient with a view to giving proper
information to the public and (if the court thinks fit) the causes which led to
the reduction.
64 Registration of Act and minute of reduction
(1) Where the court
confirms the reduction of a company’s capital account, the company shall
deliver to the registrar –
(a) the
Act of the court confirming the reduction; and
(b) a
minute, approved by the court, showing in respect of the company the
information specified in paragraph (2).[189]
(2) The information to
which paragraph (1) refers is –
(a) the
amounts of the capital accounts;
(b) the
number of shares into which the share capital is to be divided, and, in the
case of a par value company, the amount of each share;
(c) in
the case of a par value company the amount (if any), at the date of the
registration of the Act and minute under paragraph (2A), which will remain
paid up on each share which has been issued; and
(d) in
the case of a no par value company, the amount (if any) remaining unpaid on
issued shares.[190]
(2A) The registrar shall register the
Act and minute, and thereupon the resolution for reducing the capital as
confirmed by the Act shall take effect. [191]
(3) The registrar shall
certify the registration of the Act and minute and the certificate –
(a) shall
be signed by the registrar and sealed with the registrar’s seal;
(b) is
conclusive evidence that all the requirements of this Law with respect to the
reduction of share capital have been complied with, and the company’s
share capital is as stated in the minute.
(4) The minute when
registered is deemed to be substituted for the corresponding part of the
company’s memorandum.
65 Liability of members on reduced shares
(1) Where a par value
company’s share capital is reduced, a member of the company (past or
present) is not liable in respect of any share to a call or contribution
exceeding in amount the difference (if any) between the amount of the share as
fixed by the minute and the amount paid on the share or the reduced amount (if
any) which is deemed to have been paid on it.[192]
(2) Paragraphs (3) and
(4) apply if –
(a) a
creditor, entitled in respect of a debt or claim to object to the reduction of
share capital, by reason of the creditor’s ignorance of the proceedings
for reduction of share capital, or of their nature and effect with respect to
the creditor’s claim, is not entered on the list of creditors; and
(b) after
the reduction of capital, the company is unable to pay the amount of the
creditor’s debt or claim.
(3) Every person who was a
member of the company at the date of the registration of the Act and minute is
then liable to contribute for the payment of the debt or claim in question an
amount not exceeding that which the person would have been liable to contribute
if the company had commenced to be wound up on the day before that date.
(4) If the company is wound
up under this Law, or a declaration is made under the Désastre Law, the
court, on the application of the creditor in question and proof of ignorance
referred to in paragraph (2)(a) may settle accordingly a list of persons
so liable to contribute, and make and enforce calls and orders on the
contributories settled on the list, as if they were ordinary contributories in
a winding up.
(5) Nothing in this Article
affects the rights of the contributories among themselves.
66 Penalty for concealing name of creditor, etc.
If an officer of the company –
(a) wilfully conceals the
name of a creditor entitled to object to the reduction of capital;
(b) wilfully misrepresents
the nature or amount of the debt or claim of a creditor; or
(c) aids, abets or is privy
to any such concealment or misrepresentation,
the officer is guilty of an offence.
66A Power of States to
amend Part 12[193]
The States may amend this Part by Regulations.
PART 13
ADMINISTRATION
67 Registered office[194]
(1) A company shall at all
times have a registered office in Jersey to which all communications and
notices may be addressed.
(2) A company does not
comply with the requirement in paragraph (1) unless the occupier of the
premises that are the registered office authorizes for the time being their use
for that purpose.
(3) The registrar may, by
notice in writing served on the applicants for the incorporation of a company,
refuse to incorporate it if he or she is not satisfied that the occupier of the
premises that are to be the registered office of the company authorizes their
use for that purpose.
(4) On incorporation, the
company’s registered office shall be that specified in the statement sent
to the registrar under Article 7.
(5) The company may change
its registered office from time to time by giving notice to the registrar.
(6) If the registrar, by
notice in writing served on the company, informs it that the registrar is no
longer satisfied that the occupier of the premises that are the company’s
registered office authorizes their use for that purpose, the company shall
within 14 days change its registered office by giving notice to the
registrar.
(7) Subject to paragraph (8),
a change of registered office under paragraph (5) or (6) shall take effect
upon the notice being registered by the registrar, but until the end of the
period of 14 days beginning with the date on which it is registered a
person may validly serve any document on the company at its previous registered
office.
(8) The registrar may, by
notice in writing served on a company, refuse to register a notice given by the
company under paragraph (5) or (6) if he or she is not satisfied that the
occupier of the premises that are to be the registered office of the company
authorizes their use for that purpose.
(9) If default is made in
compliance with any requirement of or made under this Article, the company and
every officer of it who is in default are each guilty of an offence.
67A Relief from breach
of duty in unavoidable circumstances[195]
Where a company unavoidably ceases to perform any duty to keep at
its registered office or make available for public inspection there any document,
in circumstances in which it was not practicable to give prior notice to the
registrar of a change in its registered office, but –
(a) resumes performance of
that duty at other premises as soon as practicable; and
(b) gives notice under
Article 67(5) to the registrar of the change of its registered office
within 14 days of doing so, and that the change is made for the purposes
of this Article,
and the registrar registers the notice, the company shall not be
treated as having failed to comply with that duty.
67B Review of
registrar’s decision[196]
(1) Within 28 days
after the applicants for the incorporation of a company receive notice under
Article 67(3) that the registrar refuses to incorporate the company, the
applicants may appeal to the court on the ground that the registrar’s
decision was unreasonable having regard to all the circumstances of the case.
(2) Within 28 days
after a company receives notice under Article 67(6) that the registrar is
no longer satisfied that the occupier of the premises that are the
company’s registered office authorizes their use for that purpose, the
company may appeal to the court on the ground that the registrar’s
decision was unreasonable having regard to all the circumstances of the case.
(3) Within 28 days
after a company receives notice under Article 67(8) that the registrar
refuses to register a notice of change of registered office given by the
company under paragraph (5) or (6) of that Article, the company may appeal
to the court on the ground that the registrar’s decision was unreasonable
having regard to all the circumstances of the case.
(4) On hearing the appeal,
the court –
(a) may
confirm or reverse the decision of the registrar; and
(b) may
make such order as to the costs of the appeal as it thinks fit.
67C Evidence of
authorization[197]
The Minister may prescribe information that is to be provided to the
registrar to show that an occupier of premises authorizes the use of the
premises as a company’s registered office.
68 [198]
69 Company’s name to appear in its correspondence, etc.
(1) The name of a company
shall appear in legible characters in all its –
(a) business
letters, statements of account, invoices and order forms;
(b) notices
and other official publications; and
(c) negotiable
instruments and letters of credit purporting to be signed by or on behalf of
the company.
(2) If a company fails to
comply with paragraph (1) it is guilty of an offence.
70 Particulars in correspondence, etc.
(1) The address of the
registered office of a company shall appear in legible characters in all its
business letters and order forms.
(2) If there is on the
stationery used for any such letters, or on the company’s order forms, a
reference to the amount of share capital, the reference shall be to paid up
share capital.
(3) If a company fails to
comply with paragraph (1) or (2) it is guilty of an offence.
71 [199]
72 Service of documents[200]
A document may be served on a company –
(a) by leaving it at, or
sending it by post to, the registered office of the company;
(b) in accordance with Article 67(7);
or
(c) in the case of an
existing company if no office is registered, by sending it by post –
(i) in
the case of a public company which is in compliance with the requirements of
Article 83 to any person who is shown on the register kept in accordance
with that Article as a director or secretary of the company at the address
entered in that register,
(ii) in
any other case, to any person shown as a member of the company in the register
of members or other publicly available document at the person’s address
entered in that register or document, or
(iii) if
there is no such person, to any person identified as a subscriber in the
company’s memorandum at the person’s address shown in the
memorandum.
PART 14
DIRECTORS AND SECRETARY
73 Directors[201]
(1) A private company must
have at least one director.
(2) A
public company must have at least 2 directors.
(3) A
person may not be a director of a company if the person –
(a) has
not attained the age of 18 years;
(b) is
such a person as mentioned in Article 3(6)(b) or (c); or
(c) is
disqualified for being a director under this or any other enactment.[202]
(4) A
body corporate shall not be a director of a company unless –
(a) the
body corporate is a company, wherever incorporated, that is permitted under the
terms of its registration under the Financial Services (Jersey) Law 1998 to act as, or fulfil the requirements of, a director; and
(b) the
body corporate has no director that is a body corporate.[203]
(4A) An
incorporated limited partnership shall not be a director of a company.[204]
(4B) A
separate limited partnership shall not be a director of a company.[205]
(4C) A
limited liability partnership shall not be a director of a company.[206]
(5) A
limited liability company registered under the Limited Liability Companies (Jersey) Law 2018 shall not be a director of a company.[207]
74 Duties of directors
(1) A director, in
exercising the director’s powers and discharging the director’s
duties, shall –
(a) act
honestly and in good faith with a view to the best interests of the company;
and
(b) exercise
the care, diligence and skill that a reasonably prudent person would exercise
in comparable circumstances.
(2) Without prejudice to
the operation of any rule of law empowering the members, or any of them, to
authorize or ratify a breach of this Article, no act or omission of a director
shall be treated as a breach of paragraph (1) if –
(a) all of
the members of the company authorize or ratify the act or omission; and
(b) after
the act or omission the company will be able to discharge its liabilities as
they fall due.[208]
(3) Furthermore, no act or
omission of a director shall be treated as a breach of paragraph (1)
if –
(a) a
resolution, or (if the articles so require) special resolution, authorizing or
ratifying the act or omission is passed otherwise than by all of the members of
the company and in accordance with paragraphs (4) and (5); and
(b) after
the act or omission the company will be able to discharge its liabilities as
they fall due.[209]
(4) Where the resolution
authorizing or ratifying the act or omission is proposed as a written
resolution, neither the director (if a member of the company) nor any member
connected with the director shall be treated for the purposes of Article 95(1B)
and (1C) as a member entitled to vote on the resolution.[210]
(5) Where the resolution
authorizing or ratifying the act or omission is proposed at a meeting, it is passed
only if the necessary majority is obtained disregarding votes in favour of the
resolution by the director (if a member of the company) and any member
connected with him; but this does not prevent the director or any such member
from attending, being counted towards the quorum or taking part in the
proceedings at any meeting at which the decision is considered.[211]
(6) The Minister may by
Order disapply paragraphs (3) to (5) in relation to any class of company.[212]
74ZA Persons connected with
director for purposes of Article 74[213]
(1) The following persons
(and only those persons) are connected with the director for the purposes of
Article 74(4) and (5) –
(a) members
of the director’s family (see paragraph (2));
(b) a
foundation incorporated under the Foundations (Jersey)
Law 2009 under which the director or a person who, by virtue of
sub-paragraph (a), is connected with the director is a beneficiary;
(c) any
other body corporate with which the director is connected (as defined in
paragraph (3));
(d) a
person acting in his capacity as trustee of a trust –
(i) the beneficiaries
of which include the director or a person who by virtue of sub-paragraph (a),
(b) or (c) is connected with him, or
(ii) the
terms of which confer a power on the trustees that may be exercised for the
benefit of the director or any such person,
other than a trust for the purposes of an employees’ share
scheme or a pension scheme;
(e) a
person acting in the capacity of a partner –
(i) of the director,
or
(ii) of
a person who, by virtue of sub-paragraph (a), (b), (c) or (d), is
connected with the director;
(f) a
firm that is a legal person under the law by which it is governed (including a
limited liability partnership, a separate limited partnership and an
incorporated limited partnership) and in which –
(i) the director is a
partner,
(ii) a
partner is a person who, by virtue of sub-paragraph (a), (b), (c) or (d)
is connected with the director, or
(iii) a
partner is a firm in which the director is a partner or in which there is a
partner who, by virtue of sub-paragraph (a), (b), (c) or (d), is connected
with the director; and
(g) where
the company is a fund –
(i) a person
connected with the establishment or promotion of the fund, and
(ii) any
person who is accustomed to acting in accordance with the directions of a
person referred to in clause (i), whether given directly or indirectly
(but disregarding advice given in a professional capacity).[214]
(2) The members of the
director’s family are –
(a) the
director’s spouse or civil partner;
(b) any
other person (whether of a different sex or the same sex) with whom the
director lives as partner in an enduring family relationship, other than a
grandparent or grandchild, sister, brother, aunt or uncle, or nephew or niece;
(c) the
director’s children or step-children;
(d) any
children or step-children of a person within paragraph (b) (and who are
not children or step-children of the director) who live with the director and
have not attained the age of 18; and
(e) the
director’s parents.
(3) A director is connected
with a body corporate (other than a foundation incorporated under the Foundations (Jersey)
Law 2009 or an incorporated limited partnership) if, but only if, the
director and the persons connected with the director together –
(a) have
an interest in shares comprised in the equity share capital of that body
corporate of a nominal value equal to at least 20% of that share capital;
or
(b) are
entitled to exercise or control the exercise of more than 20% of the
voting power at any general meeting of that body.
(4) For the purposes of
paragraph (3)(a) –
(a) the
reference to an interest in shares includes any interest of any kind whatsoever
in shares;
(b) any
restraints or restrictions to which the exercise of any right attached to the
interest is or may be subject shall be disregarded;
(c) it is
immaterial that the shares in which there is an interest are not identifiable;
(d) persons
having a joint interest in shares are deemed each to have that interest;
(e) a
person is taken to have an interest in shares if the person enters into a
contract to acquire them;
(f) a
person is taken to have an interest in shares if –
(i) the person has a
right to call for the delivery of the shares to, or to the order of, the
person, or
(ii) the
person has a right to acquire an interest in shares or is under an obligation to
take an interest in shares,
whether the right or obligation is conditional or absolute (but not
if it is a right or obligation to subscribe for shares);
(g) a
person is taken to have an interest in shares if, not being the registered
holder, the person is entitled –
(i) to exercise any
right conferred by the holding of the shares, or
(ii) to
control the exercise of any such right;
(h) a
person is taken to have an interest in shares if a body corporate is interested
in them and –
(i) the body
corporate or its directors are accustomed to act in accordance with the
person’s directions or instructions, or
(ii) the
person is entitled to exercise or control the exercise of more than one-half of
the voting power at general meetings of the body corporate;
(i) a
person is taken to have an interest in shares if the person is a beneficiary
under a foundation incorporated under the Foundations (Jersey)
Law 2009 which is interested in them; and
(j) where
an interest in shares is comprised in property held on trust, every beneficiary
of the trust is taken to have an interest in the shares unless –
(i) it is an interest
in reversion or remainder and a person is entitled to receive income from the trust
property comprising shares for that person’s or another’s life, or
(ii) the
person holds the shares as a bare trustee or as a custodian trustee.
(5) A person ceases to have
an interest in shares by virtue of paragraph (4)(e) or (f) –
(a) on
the shares being delivered on the person’s order to another
person –
(i) in fulfilment of
a contract for their acquisition by the other person, or
(ii) in
satisfaction of a right of the other person to call for their delivery;
(b) on a
failure to deliver the shares in accordance with the terms of such a contract
or the terms on which such a right falls to be satisfied; or
(c) on
the lapse of the person’s right to call for delivery of the shares or to
acquire an interest in the shares or of the person’s obligation to take
an interest in the shares.
(6) For the purposes of
paragraph (4)(g) a person is taken to be entitled to exercise or control
the exercise of a right conferred by the holding of shares if the
person –
(a) has a
right (whether subject to conditions or not) the exercise of which would make
the person so entitled; or
(b) is
under an obligation (whether or not so subject) the fulfilment of which would
make the person so entitled.
(7) A person is not by
virtue of paragraph (4)(g) taken to be interested in shares by reason only
that the person –
(a) has
been appointed a proxy to exercise any of the rights attached to the shares; or
(b) has
been appointed by a body corporate to act as its representative at any meeting
of the company or of any class of its members.
(8) For the purposes of
paragraph (4)(h), where –
(a) a
person is entitled to exercise, or control the exercise, of more than one-half
of the voting power at general meetings of a body corporate; and
(b) the
body corporate is entitled to exercise, or control the exercise, of any of the
voting power at general meetings of another body corporate,
the voting power mentioned in sub-paragraph (b) is taken to be
exercisable by the person.
(9) The reference in
paragraph (3)(b) to voting power the exercise of which is controlled by
the director or a person connected with the director includes voting power the
exercise of which is controlled by a body corporate controlled by the director
or person.
(10) Shares in a company held as
treasury shares, and any voting rights attached to such shares, are disregarded
for the purposes of paragraph (3).
(10A) In paragraph (1)(g) “fund” means –
(a) a
scheme or arrangement which would be a collective investment fund under Article 3
of the Collective Investment Funds
(Jersey) Law 1988 but for the fact that it does not acquire capital by means of an
offer to the public of units for subscription, sale or exchange as described in
that Law;
(b) a
certified fund within the meaning of the Collective Investment Funds
(Jersey) Law 1988;
(c) a
recognized fund within the meaning of the Collective Investment Funds
(Jersey) Law 1988; or
(d) an
unregulated fund within the meaning of the Collective Investment Funds
(Unregulated Funds) (Jersey) Order 2008.[215]
(11) The Minister may by Order
amend this Article.
74A Contracts with
sole members who are also directors[216]
(1) If a private company
which –
(a) is a
limited company; and
(b) has
only one member, who is also a director of the company,
enters into a contract with him or her which is not in writing, the
company shall ensure that the terms of the contract are either set out in a
written memorandum or recorded in the minutes of the first meeting of the
directors of the company following the making of the contract.
(2) If a company fails to
comply with paragraph (1), it and every officer of it in default are
guilty of an offence.
(3) Failure to comply with
paragraph (1) shall not affect the validity of the contract.
(4) Subject to paragraph (3),
nothing in paragraph (1) shall be construed as excluding the operation of
any other enactment or rule of law applying to contracts between a company and
a director of that company.
(5) Paragraph (1) of
this Article does not apply to contracts entered into in the ordinary course of
the company’s business.
75 Duty of directors to disclose interests
(1) A director of a company
who has, directly or indirectly, an interest in a transaction entered into or
proposed to be entered into by the company or by a subsidiary of the company
which to a material extent conflicts or may conflict with the interests of the
company and of which the director is aware, shall disclose to the company the
nature and extent of the director’s interest.
(2) The disclosure shall be
made –
(a) at
the first meeting of the directors at which the transaction is considered after
the director concerned becomes aware of the circumstances giving rise to his or
her duty to make it; or
(b) if
for any reason the director fails to comply with sub-paragraph (a), as
soon as practical after that meeting, by notice in writing delivered to the
secretary.[217]
(2A) The secretary, where the disclosure
is made to him or her –
(a) shall
inform the directors that it has been made; and
(b) shall
in any event table the notice of the disclosure at the next meeting of the
directors after it is made.[218]
(2B) Any disclosure at a meeting of the
directors shall be recorded in the minutes of the meeting.[219]
(3) A disclosure to the
company by a director in accordance with paragraph (2) that he or she is
to be regarded as interested in a transaction with a specific person is
sufficient disclosure of his or her interest in any such transaction entered
into after the disclosure is made. [220]
(4) Nothing in this Article
prejudices the operation of any rule of law restricting directors of a company
from having an interest in transactions with a company.
76 Consequences of failure to comply with Article 75
(1) Subject to paragraphs (2)
and (3), where a director fails to disclose an interest of the director under
Article 75 the company or a member of the company may apply to the court
for an order setting aside the transaction concerned and directing that the
director account to the company for any profit or gain realised, and the court
may so order or make such other order as it thinks fit.
(2) A transaction is not
voidable, and a director is not accountable, under paragraph (1) where,
notwithstanding a failure to comply with Article 75 –
(a) the transaction
is confirmed by special resolution; and
(b) the
nature and extent of the director’s interest in the transaction were
disclosed in reasonable detail in the notice calling the meeting at which the
resolution is passed.
(3) Without prejudice to its
power to order that a director account for any profit or gain realised, the
court shall not set aside a transaction unless it is satisfied
that –
(a) the
interests of third parties who have acted in good faith thereunder would not
thereby be unfairly prejudiced; and
(b) the
transaction was not reasonable and fair in the interests of the company at the
time it was entered into.
77 Indemnity of officers and former officers
(1) Subject to paragraphs (2)
and (3), any provision, whether contained in the articles of, or in a contract
with, a company or otherwise, whereby the company or any of its subsidiaries or
any other person, for some benefit conferred or detriment suffered directly or
indirectly by the company, agrees to exempt any person from, or indemnify any
person against, any liability which by law would otherwise attach to the person
by reason of the fact that the person is or was an officer of the company shall
be void.
(2) Paragraph (1) does
not apply to a provision for exempting a person from or indemnifying the person
against –
(a) any
liabilities incurred in defending any proceedings (whether civil or
criminal) –
(i) in which judgment
is given in the person’s favour or the person is acquitted,
(ii) which
are discontinued otherwise than for some benefit conferred by the person or on
the person’s behalf or some detriment suffered by the person, or
(iii) which
are settled on terms which include such benefit or detriment and, in the
opinion of a majority of the directors of the company (excluding any director
who conferred such benefit or on whose behalf such benefit was conferred or who
suffered such detriment), the person was substantially successful on the merits
in the person’s resistance to the proceedings;
(b) any
liability incurred otherwise than to the company if the person acted in good
faith with a view to the best interests of the company;
(c) any
liability incurred in connection with an application made under Article 212
in which relief is granted to the person by the court; or
(d) any
liability against which the company normally maintains insurance for persons
other than directors.
(3) Nothing in this Article
shall deprive a person of any exemption or indemnity to which the person was
lawfully entitled in respect of anything done or omitted by the person before
the coming into force of this Article.
(4) This Article does not
prevent a company from purchasing and maintaining for any such officer
insurance against any such liability.
78 Disqualification
orders[221]
(1) If
it appears to the Minister, the Commission, or the Attorney General, that it is
expedient in the public interest that a person should not without the leave of
the court –
(a) be a
director of or in any way whether directly or indirectly be concerned or take
part in the management of a company;
(b) be a
member of the council of a foundation incorporated under the Foundations (Jersey) Law 2009 or in any other way directly or indirectly be concerned or take
part in the management of such a foundation; or
(c) in
Jersey in any way whether directly or indirectly be concerned or take part in
the management of a body incorporated outside Jersey,
the Minister, the
Commission, or the Attorney General may apply to the court for an order to that
effect against the person.
(2) The
court may, on such an application, make the order applied for if it is
satisfied that the person’s conduct in relation to a body corporate makes
the person unfit to be concerned in the management of a body corporate.
(3) An
order under paragraph (2) shall be for such period, not exceeding
15 years, as the court directs.
(4) A
person who acts in contravention of an order made under this Article is guilty
of an offence.
(5) On
the making of an order against a person under this Article, the registrar may
record the person’s disqualification in a form approved by the
Commission.[222]
79 Personal
responsibility for liabilities where person acts while disqualified[223]
(1) A
person who acts in contravention of an order made under Article 78 is
personally responsible for such liabilities of the company or other body
corporate as are incurred at a time when that person was, in contravention of
the order, involved in its management.
(2) Where
a person is personally responsible under paragraph (1) for liabilities of
a company or other body corporate, the person is jointly and severally liable
in respect of those liabilities with it and with any other person who, whether
under this Article or otherwise, is so liable.
(3) For
the purposes of this Article, a person is involved in the management of a
company or other body corporate if he or she is a director of it, or if he or
she is concerned whether directly or indirectly or takes part in its
management.
80 Validity of acts of director
The acts of a director are valid notwithstanding any defect that may
afterwards be found in the director’s appointment or qualification.
81 Secretary
(1) Every company shall
have a secretary.
(2) A sole director shall
not also be a secretary.
(3) Anything required or
authorized to be done by or to the secretary may, if the office is vacant or
there is for any other reason no secretary capable of acting, be done by or to
an assistant or deputy secretary or, if there is no assistant or deputy secretary
capable of acting, by or to an officer of the company authorized generally or
specially in that behalf by the directors.
(4) No company shall have
as secretary to the company a body corporate the sole director of which is a
sole director of the company.
82 Qualifications of secretary
(1) It is the duty of the
directors of a public company to take all reasonable steps to secure that the
secretary (or each joint secretary) of the company is a person who appears to
them to have the requisite knowledge and experience to discharge the functions
of secretary of the company and who –
(a) on
the coming into force of this Article was the secretary or assistant or deputy
secretary of the company;
(b) is a
member of any of the professional bodies specified in paragraph (2);
(c) is an
advocate or solicitor of the Royal Court; or
(d) is a
person who, by virtue of holding or having held any other position or being a
member of any other body, appears to the directors to be capable of discharging
those functions.
(2) The professional bodies
referred to in paragraph (1)(b) are –
(a) the
Institute of Chartered Accountants in England and Wales;
(b) the
Institute of Chartered Accountants of Scotland;
(c) the
Association of Chartered Certified Accountants;
(d) the
Institute of Chartered Accountants in Ireland;
(e) the
Institute of Chartered Secretaries and Administrators;
(f) the
Chartered Institute of Management Accountants; and
(g) the
Chartered Institute of Public Finance and Accountancy.[224]
(3) The Minister may by
Order amend paragraph (2) by adding, deleting or substituting any body.[225]
83 Register of directors and secretaries
(1) Every company shall
keep at its registered office a register of its directors and secretary; and
the register shall with respect to the particulars to be contained in it comply
with Articles 84, 84A and 85.[226]
(2) The register shall
during business hours (subject to such reasonable restrictions as the company
may by its articles or in general meeting impose, but so that not less than 2
hours in each business day be allowed for inspection) be open to the inspection
of the registrar and of a member or director of the company without charge and,
in the case of a public company or a company which is a subsidiary of a public
company, of any other person on payment of such sum (if any), not exceeding the
published maximum, as the company may require.[227]
(3) The registrar shall not
disclose or make use of any information obtained by him or her as a result of
the exercise of the right conferred upon him or her by paragraph (2)
except –
(a) to
the Commission on being required in writing by it to do so; or
(b) for
the purpose of enabling any provision of this Law or any obligation owed to the
company by an officer or secretary of the company to be enforced.[228]
(4) If an inspection
required under this Article is refused, or if there is a failure to comply with
paragraph (1), the company and every officer of it who is in default is
guilty of an offence.
(5) In the case of a
refusal of inspection of the register, the court may by order compel an
immediate inspection of it.
84 Particulars of directors: natural persons[229]
The register kept by a company under Article 83 shall contain
the following particulars with respect to each director who is a natural person –
(a) the director’s
present forenames and surname;
(b) any former forenames or
surname;
(c) the director’s
business or usual residential address;
(d) the director’s
nationality;
(e) the director’s
business occupation (if any);
(f) the
director’s date of birth; and
(g) the date on which the
person became a director and, where appropriate, the date on which the person
ceased to be a director. [230]
84A Particulars of
directors: corporate directors[231]
(1) The register kept by a
company under Article 83 shall contain the following particulars with
respect to each corporate director –
(a) in
the case of a corporate director which is a company registered in Jersey, the
company’s name and registered number and the address of its registered
office;
(b) in
the case of any other corporate director, its corporate name, the place where
it is incorporated, its registered number (if any) and the address of its
registered office in that place; and
(c) in
either case, the date on which the corporate director became (and, where
appropriate, the date on which it ceased to be) a director.
(2) In paragraph (1) –
(a) “corporate
director” means a body corporate fulfilling the requirements of Article 73(4);
and
(b) with
respect to a corporate director which is not a company registered in Jersey,
‘registered’ shall be construed as reference to registration, or an
equivalent procedure, under the laws governing incorporation in the
jurisdiction in which the corporate director is incorporated.
85 Particulars of secretaries
The register to be kept by a company under Article 83 shall
contain the following particulars with regard to the secretary, or, where there
are joint secretaries, with respect to each of them –
(a) in the case of an
individual, the person’s present forenames and surname, any former
forenames or surname and the person’s usual residential address;
(b) in the case of a body
corporate or a Scottish firm, its corporate or firm name, the place where it is
incorporated and its registered or principal office; and
(c) in either case, the
date on which the person or it became the secretary and, where appropriate, the
date on which the person or it ceased to be the secretary.
85A Power of States to
amend Part 14[232]
The States may amend this Part by Regulations.
PART 15
MEETINGS
86 Participation in meetings
(1) Subject to the articles
of a company, if a member is by any means in communication with one or more
other members so that each member participating in the communication can hear
what is said by any other of them, each member so participating in the
communication is deemed to be present at a meeting with the other members so
participating.
(2) Paragraph (1)
applies to the participation in such communication by directors or by members
of a committee of directors as it applies to the participation of members of a
company.
87 Annual general meeting
(1) Paragraphs (2) and
(3) shall have effect subject to paragraphs (4) to (7).
(2) Every public company
and every relevant private company shall in each year hold a general meeting as
its annual general meeting in addition to any other meetings in that year and
shall specify the meeting as such in the notice calling it; but so long as a
company holds its first annual general meeting within 18 months of its
incorporation, it need not hold it in the year of its incorporation or in the
following year.[233]
(2A) In this Article “relevant
private company” means a private company –
(a) which
is required to hold annual general meetings by provision made in its articles
after the coming into force of the Companies (Amendment No. 11) (Jersey)
Law 2014; or
(b) in
whose case a requirement for the holding of annual general meetings was imposed
by provision made in its articles before the coming into force of that Law and
confirmed by a special resolution passed after the coming into force of that
Law and remaining in effect.[234]
(2B) Any requirement for the holding of
annual general meetings imposed by provision made in the articles of a private
company before the coming into force of the Companies (Amendment No. 11)
(Jersey) Law 2014 is of no effect unless confirmed by special resolution
passed after the coming into force of that Law and remaining in effect.[235]
(3) In the case of a public
company, not more than 18 months, and in the case of a relevant private company,
not more than 22 months shall elapse between the date of one annual general
meeting and the date of the next.[236]
(4) If all members of a public
company or relevant private company agree in writing that an annual general
meeting shall be dispensed with, then so long as the agreement has effect, it
shall not be necessary for that company to hold an annual general meeting.[237]
(5) In any year in which an
annual general meeting would be required to be held but for such an agreement
and in which no such meeting has been held, any member of the company may by
written notice to the company given not later than 3 months before the end of
the year require the holding of an annual general meeting in that year.
(6) Notwithstanding
anything contained in any such agreement, it shall cease to have
effect –
(a) if
any person who becomes a member of the company while the agreement is in force
does not within 2 months of becoming a member accede to the agreement; or
(b) if
any member of the company gives written notice to the company determining the
agreement.[238]
(7) If such an agreement
ceases later than 18 months after the incorporation of the company to
have effect, whether pursuant to paragraph (6) or otherwise, and an annual
general meeting has not previously been held in the year in which the cessation
takes place, the directors shall forthwith call an annual general meeting to be
held within 3 months after the agreement ceases to have effect.[239]
(8) If a public company
fails to comply with paragraph (2) or (3), it and every director of it in
default is guilty of an offence.
88 Commission’s power to call meeting in default
(1) If default is made in
holding a meeting in accordance with Article 87, the Commission may, on
the application of any officer, secretary or member of the company, call, or
direct the calling of, a general meeting of the company and give such ancillary
or consequential directions as the Commission thinks expedient, including
directions modifying or supplementing, in relation to the calling, holding and conduct
of the meeting, the operation of the company’s articles.[240]
(2) The directions that may
be given under paragraph (1) include a direction that one member of the
company present in person or by proxy shall be deemed to constitute a meeting.
(3) If default is made in
complying with directions given under paragraph (1), the company and any
officer or secretary of it who is in default is guilty of an offence.
(4) A general meeting held
under this Article shall, subject to any directions of the Commission, be
deemed to be an annual general meeting of the company; but, where a meeting so
held is not held in the year in which the default in holding the
company’s annual general meeting occurred, the meeting so held shall not
be treated as the annual general meeting for the year in which it is held,
unless at that meeting the company resolves that it shall be so treated.[241]
(5) Where a company so
resolves, a copy of the resolution shall, within 21 days after it is passed, be
forwarded to the registrar and recorded by the registrar; and if default is
made in complying with this paragraph, the company is guilty of an offence.
89 Requisition of meetings
(1) The directors of a
company shall, notwithstanding anything in the company’s articles, on a
members’ requisition forthwith proceed to call a general meeting or, as
the case may be, a meeting of any class of members to be held as soon as
practicable but in any case not later than 2 months after the date of the
deposit of the requisition.[242]
(2) A members’
requisition is a requisition of members of the company holding at the date of
the deposit of the requisition not less than one-tenth of the total voting
rights of the members of the company who have the right to vote at the meeting
requisitioned.[243]
(3) The requisition shall
state the objects of the meeting, and shall be signed by or on behalf of the
requisitionists and deposited at the registered office of the company, and may
consist of several documents in similar form each signed by or on behalf of one
or more requisitionists.
(4) If the directors do not
within 21 days from the date of the deposit of the requisition proceed duly to
call a meeting to be held within 2 months of that date, the requisitionists, or
any of them representing more than one half of the total voting rights of all
of them, may themselves call a meeting, but a meeting so called shall not be
held after 3 months from that date.
(5) A meeting called under
this Article by requisitionists shall be called in the same manner, as nearly
as possible, as that in which meetings are to be called by directors.
(6) Reasonable expenses
incurred by the requisitionists by reason of the failure of the directors to
call a meeting shall be repaid to the requisitionists by the company, and sums
so repaid shall be retained by the company out of sums due or to become due
from the company by way of fees or other remunerations in respect of their
services to the directors who were in default.
(7) In the case of a
meeting at which a resolution is to be proposed as a special resolution the
directors are deemed not to have duly called the meeting if they do not give
the notice required for special resolutions by Article 90.
90 Definition of special resolution
(1) A resolution is a
special resolution when it has been passed by the majority specified in
paragraph (1A) of the members who (being entitled to do so) vote in
person, or by proxy, at a general meeting of the company or at a separate
meeting of a class of members of the company of which in either case not less
than 14 days’ notice, specifying the intention to propose the
resolution as a special resolution, has been duly given.[244]
(1A) The majority to which paragraph (1)
refers is –
(a) two-thirds,
if the articles of the company do not specify a greater majority; or
(b) if
the articles specify a greater majority than two-thirds (or unanimity), that
greater majority (or unanimity).[245]
(1B) Where the articles make different
provision in relation to different descriptions of special resolutions, the
reference in paragraph (1A) to the majority specified by the articles (or
unanimity) is to the majority specified by the articles in relation to special
resolutions of the description of the special resolution concerned (or
unanimity, if that is what is so specified).[246]
(2) If it is so agreed by a
majority in number of the members having the right to attend and vote at such a
meeting upon the resolution, being a majority together holding not less than
95% of the total voting rights of the members who have that right, a resolution
may be proposed and passed as a special resolution at a meeting of which less
than 14 days’ notice has been given.[247]
(3) At a meeting at which a
special resolution is proposed, a declaration by the chairman that the
resolution is carried is, unless a poll is demanded, conclusive evidence of the
fact without proof of the number or proportion of the votes recorded in favour
of or against the resolution.
(4) In computing the
majority on a poll demanded on the question that a special resolution be
passed, reference is to be had to the number of votes cast for and against the
resolution.
(5) For the purposes of
this Article, notice of a meeting shall be deemed to be duly given and the
meeting duly held, when the notice is given and the meeting held in the manner
provided by this Law or the company’s articles.
(6) References in this Law
to a special resolution are, unless otherwise expressly provided, references to
a special resolution passed at a general meeting of the company.
91 Notice of meetings
(1) A provision of a company’s
articles is void insofar as it provides for the calling of a meeting of the
company or of any class of members of the company (other than an adjourned
meeting) by a shorter notice than 14 days’ notice in writing.[248]
(2) Save insofar as the
articles of a company make other provision in that behalf (not being a
provision avoided by paragraph (1)), any such meeting of the company
(other than an adjourned meeting) may be called by 14 days’ notice in
writing.[249]
(3) Notwithstanding that a
meeting is called by shorter notice than that specified in paragraph (2)
or in the company’s articles (as the case may be), it is deemed to have
been duly called if it so agreed –
(a) in
the case of a meeting called as the annual general meeting, by all the members
entitled to attend and vote thereat; and
(b) otherwise,
by a majority in number of the persons who have the right to attend and vote at
the meeting, being a majority together holding not less than 90 per cent
of the total voting rights of the members who have that right, or, if the
articles require a greater majority of such persons (or unanimity), by that
greater majority (or unanimity).[250]
92 General
provisions as to meetings and votes[251]
(1) Notwithstanding
anything to the contrary in the memorandum or articles of a private company
with only one member, or in the terms of admission to membership of such a
company, he or she shall be the quorum at any meeting of the company, or of any
class of member, when he or she is present personally or by his or her proxy.
(2) Subject
to paragraph (1), in so far as the memorandum or articles of a company or
the terms of admission to membership of the company do not make other provision
in that behalf, the following provisions shall apply to any meeting of the
company or of any class of members of the company –
(a) notice
of a meeting shall be given, to every member entitled to receive it, by
delivering or posting it to his or her registered address;
(b) at a
meeting of the company, 2 members present personally shall be a quorum;
(c) at a
meeting (other than an adjourned meeting) of any class of members –
(i) in the case of a
class of par value shares, the quorum shall be persons holding or representing
by proxy not less than 1/3rd in nominal value of the issued shares of that class,
(ii) in
the case of a class of no par value shares, the quorum shall be persons holding
or representing by proxy not less than 1/3rd in number of the issued shares of
that class, and
(iii) in
the case of a class of guarantor members, the quorum shall be persons whose
liability as such members, or representing by proxy persons whose liability as
such members, is in the aggregate not less than 1/3rd of the total liability of
all members of that class,
and where any such meeting
has been adjourned, the quorum on its resumption shall be one person of the
class or his or her proxy;
(d) any
member, or director of the company, elected by the members present at a meeting
may be chairman of that meeting;
(e) on a
show of hands, every member present in person at a meeting has one vote; and
(f) on
a poll –
(i) every member has
one vote for every share held by him or her and, in the case of stock, one vote
for each share from which the holding of stock arose, and
(ii) every
member who does not have a share has one vote.
93 Representation of body corporate at meetings
(1) A body corporate,
whether or not a company within the meaning of this Law, may by resolution of
its directors or other governing body authorize such person or persons as it
thinks fit to act as its representative or representatives at any meeting of a
company, or of any class of members of a company, or of creditors of a company
which it is entitled to attend.[252]
(2) Where the body
corporate authorizes only one person, the person is entitled to exercise the
same powers on behalf of the body corporate which the person represents as that
body corporate could exercise if it were an individual member or creditor of
the company.[253]
(3) Where the body
corporate authorizes more than one person, any one of them is entitled to
exercise the same powers on behalf of the body corporate which they represent
as that body corporate could exercise if it were an individual member or
creditor of the company.[254]
(4) Where the body
corporate authorizes more than one person and more than one of them purport to
exercise a power under paragraph (3) –
(a) if
they purport to exercise the power in the same way, the power is treated as
exercised in that way; and
(b) if
they do not purport to exercise the power in the same way, the power is treated
as not exercised.[255]
94 Power of court to order meetings
(1) If for any reason it is
impracticable to call a meeting of a company, or of any class of members of a
company, in a manner in which those meetings may be called, or to conduct the
meeting in the manner specified in the articles or this Law, the court may,
either of its own motion or on the application –
(a) of a
director of the company; or
(b) of a
member of the company who would be entitled to vote at the meeting,
order a meeting to be called, held and conducted in any manner the
court thinks fit.[256]
(2) Where such an order is
made, the court may give such ancillary or consequential directions as it
thinks expedient; and these may include a direction that one member of the
company present in person or by proxy be deemed to constitute a meeting.
95 Resolutions in writing
(1) This Article does not
apply to a resolution removing an auditor but otherwise applies to any
resolution, including a special resolution.[257]
(1A) This Article does not apply to a
resolution if the memorandum or articles of the company concerned prohibit the
passing of a resolution in writing in the manner permitted by this Article.[258]
(1B) Anything which may be done at a
meeting of a company or at a meeting of any class of its members may be done by
a resolution in writing passed by all the members of the company who, at the
date when the resolution is deemed to be passed, would be entitled to vote on
the resolution if it were proposed at a meeting.[259]
(1C) In the case of a resolution which
is –
(a) proposed
as a written resolution by the directors of a company; or
(b) required
to be circulated by a company by Article 95ZB,
if the company’s articles provide that anything which may be
done at a meeting of the company or at a meeting of any class of its members
may be done by a resolution in writing passed by a specified majority of the
members who, at the date when the resolution is deemed to be passed, would be
entitled to vote on the resolution if it were proposed at a meeting, paragraph (1B)
has effect as if the reference to all the members were to that majority of the
members.[260]
(1D) The majority specified by the
articles of a company in relation to a special resolution may not be less than
two-thirds.[261]
(2) A resolution in writing
may consist of several instruments in the same form each signed by or on behalf
of one or more members.
(3) A resolution under this
Article may be sent or submitted to members in hard copy or electronic form or
in such other manner as the company’s articles may provide.[262]
(3A) A resolution under this Article
shall be deemed to be passed when all the members have, or (where paragraph (1C)
applies) the specified majority of the members has, signified agreement to the
resolution.[263]
(3B) A member signifies agreement to a
resolution under this Article when the company receives from the member (or
from someone acting on the member’s behalf) a document (sent or
submitted in hard copy or electronic form or in such other manner as the
company’s articles may provide) which –
(a) identifies
the resolution to which it relates; and
(b) indicates
agreement to the resolution.[264]
(3C) A member’s agreement to a
written resolution, once signified, may not be revoked.[265]
(4) Any document attached
to a resolution in writing under this Article shall be deemed to have been laid
before a meeting of the members signing the resolution.
(5) Articles 98 and
100 apply to a resolution in writing under this Article as if it had been
passed at a meeting.
(6) Nothing in this Article
or Articles 95ZA to 95ZC affects or limits any provision in the memorandum
or articles of a company or any rule of law relating to the effectiveness of
the assent of members, or any class of members, of a company given to any
document, act or matter otherwise than at a meeting of them.[266]
95ZA Circulation of written
resolutions proposed by directors[267]
(1) This Article applies to
any resolution proposed as a written resolution by the directors of a company,
other than one passed by all the members of the company who, at the date when
the resolution is deemed to be passed, would be entitled to vote on the
resolution if it were proposed at a meeting.
(2) The company must send
or submit a copy of the resolution to every eligible member.
(3) The company must do
so –
(a) by
sending copies at the same time (so far as reasonably practicable) to all
eligible members; or
(b) if it
is possible to do so without undue delay, by submitting the same copy to each
eligible member in turn (or different copies to each of a number of eligible
members in turn),
or by sending copies to some members in accordance with
sub-paragraph (a) and submitting a copy or copies to other members in
accordance with sub-paragraph (b).
(4) The copy of the
resolution must be accompanied by a statement informing the member –
(a) how
to signify agreement to the resolution; and
(b) as to
the date by which the resolution must be passed if it is not to lapse.
(5) If the company fails to
comply with paragraph (2), (3) or (4), the company and every officer of it
in default commits an offence.
(6) A resolution to which
this Article applies lapses if it is not passed before the end of –
(a) the
period specified for this purpose in the articles; or
(b) if
none is specified, the period of 28 days beginning with the circulation
date.
(7) The agreement of a
member to such a resolution is ineffective if signified after the end of that
period.
(8) For the purposes of
this Article an “eligible member” is a member who, at the
circulation date, would be entitled to vote on the resolution if it were
proposed at a meeting.
(9) In this Article the “circulation
date” means the date on which copies of the resolution are sent or
submitted to members in accordance with this Article (or, if copies are sent or
submitted to members on different days, the first of those days).
(10) The validity of a resolution,
if passed, is not affected by a failure to comply with this Article.
95ZB Members’ power to
require circulation of written resolution[268]
(1) The members of a
company may require the company to circulate a resolution that may properly be
proposed and is to be proposed as a written resolution.
(2) For the purposes of
paragraph (1) a resolution may properly be proposed as a written
resolution unless –
(a) it
would, if passed, be ineffective (whether by reason of inconsistency with any
provision of, or made under, any Law or the company’s constitution or
otherwise);
(b) it is
defamatory of any person; or
(c) it is
frivolous or vexatious.
(3) Where the members
require a company to circulate a resolution they may require the company to
circulate it with a statement of not more than 1,000 words on the subject
matter of the resolution.
(4) A company is required
to circulate a resolution and any accompanying statement once it has received
requests that it do so from members representing not less than the requisite
percentage of the total voting rights of all members entitled to vote on the
resolution.
(5) The “requisite
percentage” is 10% or such lower percentage as is specified for this
purpose in the company’s articles.
(6) A request –
(a) may
be made in hard copy form or electronic form or in such other manner as the
company’s articles may provide;
(b) must
identify the resolution and any accompanying statement; and
(c) must
be authenticated by the person or persons making it.
95ZC Circulation of written
resolution and statement[269]
(1) A company that is
required under Article 95ZB to circulate a resolution must send or submit
to every eligible member –
(a) a
copy of the resolution; and
(b) a
copy of any accompanying statement.
(2) The company must do
so –
(a) by
sending copies at the same time (so far as reasonably practicable) to all
eligible members; or
(b) if it
is possible to do so without undue delay, by submitting the same copy to each
eligible member in turn (or different copies to each of a number of eligible
members in turn),
or by sending copies to some members in accordance with
sub-paragraph (a) and submitting a copy or copies to other members in
accordance with sub-paragraph (b).
(3) The company must send
or submit the copies (or, if copies are sent or submitted to members on
different days, the first of those copies) not more than 21 days after it
becomes subject to the requirement under Article 95ZB to circulate the
resolution.
(4) A copy of the
resolution must be accompanied by a statement informing the member –
(a) how
to signify agreement to the resolution; and
(b) as to
the date by which the resolution must be passed if it is not to lapse.
(5) If the company fails to
comply with paragraph (2), (3) or (4), the company and every officer of it
in default commits an offence.
(6) A resolution which is
required to be circulated by the company by Article 95ZB lapses if it is
not passed before the end of –
(a) the
period specified for this purpose in the articles; or
(b) if
none is specified, the period of 28 days beginning with the circulation
date.
(7) The agreement of a
member to such a resolution is ineffective if signified after the end of that
period.
(8) The validity of a
resolution, if passed, is not affected by a failure to comply with this
Article.
(9) The expenses of the
company in complying with this Article must be paid by the members who
requested the circulation of the resolution unless the company resolves
otherwise.
(10) Unless the company has
previously so resolved, it is not bound to comply with this Article unless
there is deposited with or tendered to it a sum reasonably sufficient to meet
its expenses in doing so.
(11) The company is not required
to circulate a copy of a statement if, on an application by the company or any
other person, the court is satisfied that the rights conferred by Article 95ZB
and this Article are being abused.
(12) The court may order the
members who requested the circulation of the statement to pay the whole or part
of the company’s costs on an application under paragraph (11) even
if they are not parties to the application.
95A Recording of
decisions by sole member[270]
(1) If –
(a) a
private company has only one member;
(b) the
member takes a decision which may be taken by the company in general meeting
and has effect as if agreed by the company in general meeting; and
(c) the
decision is not taken by way of a resolution in writing,
the member shall provide the company with a record in writing of the
decision.
(2) If the member fails to
comply with paragraph (1), the member is guilty of an offence.
(3) Failure to comply with
paragraph (1) shall not affect the validity of the decision.
96 Proxies
(1) A member of a company
entitled to attend and vote at a meeting of it is entitled to appoint another
person (whether a member or not) as the member’s proxy to attend and vote
instead of the member; and in the case of a private company a proxy appointed
to attend and vote instead of a member has also the same right as the member to
speak at the meeting; but, unless the articles otherwise provide, a proxy is
not entitled to vote except on a poll.
(2) In every notice calling
a meeting of the company there shall appear with reasonable prominence a
statement that a member entitled to attend and vote is entitled to appoint a
proxy or, where that is allowed, one or more proxies to attend and vote instead
of the member, and that a proxy need not also be a member.
(3) In the event of failure
to comply with paragraph (2) as respects any meeting, every officer of the
company who is in default is guilty of an offence.
(4) A provision contained
in a company’s articles is void in so far as it would have the effect of
requiring the instrument appointing a proxy, or any other document necessary to
show the validity of, or otherwise relating to, the appointment of a proxy, to
be received by the company or any other person before the beginning of the
period commencing 48 hours before a meeting or adjourned meeting in order that
the appointment may be effective.[271]
(4A) In calculating the period mentioned
in paragraph (4) no account shall be taken of any part of a day that is
not a working day.[272]
(4B) For the purposes of paragraph (4A)
“working day” means a weekday (within the meaning of Part 1 of
the Schedule to the Public Holidays and Bank
Holidays (Jersey) Act 2010) other than –
(a) a day
specified in that Schedule as a day which is to be observed as a public
holiday; or
(b) a day
noted in that Schedule as a day which is by custom observed as a general
holiday.[273]
(5) If for the purpose of a
meeting of a company, invitations to appoint as proxy a person or one of a
number of persons specified in the invitations are issued at the
company’s expense to some only of the members entitled to be given notice
of the meeting and to vote at it by proxy, then every officer of the company
who knowingly and wilfully authorizes or permits their issue in that manner is
guilty of an offence; but an officer is not so liable by reason only of the
issue to a member at the member’s request in writing of a form of
appointment naming the proxy, or a list of persons willing to act as proxy, if
the form or list is available on request in writing to every member entitled to
vote at the meeting by proxy.
(6) This Article applies to
meetings of any class of members as it applies to general meetings.[274]
97 Demand for poll
(1) A provision contained
in a company’s articles is void in so far as it would have the effect
either –
(a) of
excluding the right to demand a poll at a general meeting, or at a meeting of
any class of members, on a question other than the election of the chairman of
the meeting or the adjournment of the meeting; or
(b) of
making ineffective a demand for a poll on any such question which is made
either –
(i) by not less than
5 members having the right to vote on the question, or
(ii) by
a member or members representing not less than 1/10th of the total voting
rights of all the members having the right to vote on the question.[275]
(2) The instrument
appointing a proxy to vote at such a meeting is deemed also to confer authority
to demand or join in demanding a poll; and for the purposes of paragraph (1)
a demand by a person as proxy for a member is the same as a demand by the
member.
(3) On a poll taken at such
a meeting, a member entitled to more than one vote need not, if the member
votes, (in person or by proxy) use all the member’s votes or cast all the
votes the member uses in the same way.
98 Minutes
(1) Every company shall
cause minutes of all proceedings at general meetings, meetings of any class of
its members, meetings of its directors and of committees of directors to be
entered in books kept for that purpose, and the names of the directors present
at each such meeting shall be recorded in the minutes.[276]
(2) Any such minute, if
purporting to be signed by the chairman of the meeting at which the proceedings
took place, or by the chairman of the next succeeding meeting, is evidence of
the proceedings.
(3) Where minutes have been
made in accordance with this Article then, until the contrary is proved, the
meeting is deemed duly held and convened, and all proceedings which took place
at the meeting to have duly taken place.
(4) If a company fails to
comply with paragraph (1), the company and every officer of it who is in
default is guilty of an offence.
99 Inspection of minute books
(1) The books containing
the minutes of a general meeting or of a meeting of any class of members held
after this Article comes into force shall be kept at the company’s
registered office, and shall during business hours be open to the inspection of
a member without charge.[277]
(2) A member may require,
on submission to the company of a written request and on payment of such sum
(if any), not exceeding the published maximum, as the company may require, a
copy of any such minutes and the company shall, within 7 days after the receipt
of the request and the payment, cause the copy so required to be made available
at the registered office of the company for collection during business hours.[278]
(3) If an inspection
required under this Article is refused or if a copy required under this Article
is not sent within the proper time, the company is guilty of an offence.
(4) In the case of a
refusal or default, the court may make an order compelling an immediate
inspection of the books in respect of all proceedings of general meetings, or
meetings of any class of members or directing that the copies required be
furnished to the persons requiring them.[279]
100 Filing of resolutions
(1) A printed copy of every
resolution or agreement to which this Article applies shall, within
21 days after it is passed or made, be forwarded to the registrar and
recorded by the registrar.
(2) A printed copy of every
such resolution or agreement for the time being in force shall be embodied in
or annexed to every copy of the memorandum or articles issued after the passing
of the resolution or the making of the agreement; and a printed copy of every
such resolution or agreement shall be forwarded to a member at the
member’s request on payment of such sum (if any), not exceeding the
published maximum, as the company may require.[280]
(3) This Article applies
to –
(a) special
resolutions; and
(b) resolutions
or agreements which have been agreed to by all the members of a company but
which, if not so agreed to, would not have been effective for their purpose
unless they had been passed as special resolutions and;
(c) resolutions
or agreements which have been agreed to by all the members of any class but
which, if not so agreed to, would not have been effective for their purpose
unless they had been passed or agreed to by some particular majority or
otherwise in some particular manner, and all resolutions or agreements which
effectively bind all of the members of any class though not agreed to by all
those members,
which are passed, agreed to or entered into after this Article comes
into force.[281]
(4) If a copy of a
resolution or agreement is not delivered to the registrar as required by
paragraph (1) there shall be payable by the company when the copy is
delivered any late filing fee.[282]
(5) If a company fails to
comply with paragraph (2), it is guilty of an offence.
(6) Save as otherwise
provided by this Law, a resolution or agreement to which this Article applies
has effect notwithstanding that a copy is not delivered to the registrar as
required by paragraph (1).
101 Resolution passed at adjourned meeting
Where a resolution is passed at an adjourned meeting of –
(a) a company;
(b) any class of members of
a company; or
(c) the directors or a
committee of directors of a company,
the resolution is for all purposes to be treated as having been
passed on the date on which it was in fact passed, and is not to be deemed
passed on any earlier date.[283]
PART 16[284]
ACCOUNTS AND AUDITS
Interpretation – Part 16
102 Interpretation –
Part 16[285]
(1) In this Part, unless
the context otherwise requires –
“accounts” means accounts prepared in accordance with
Article 105;
“auditor” means –
(a) in
the case of an individual, an individual who is a member of a recognized
professional body and is permitted by that body to engage in public practice;
(b) in
the case of a partnership, a partnership that is a qualified partnership and
where each of the persons who is responsible to it for examining or reporting
on the accounts of a company pursuant to Article 113, is an individual who
is a member of a recognized professional body and is permitted by that body to
engage in public practice;
(c) in
the case of a body corporate, a body corporate that is controlled by auditors
and where each of the persons who is responsible to it for examining or
reporting on the accounts of a company pursuant to Article 113, is an
individual who is a member of a recognized professional body and is permitted
by that body to engage in public practice;
(d) in
respect of a company that is not a market traded company, an individual or firm
authorized by the Commission under Article 113D(6) to carry out an audit
of the company;
“controlled by auditors”, in respect of a body
corporate, means a body corporate where –
(a) individuals
who are members of a recognized professional body or auditors that fall within paragraph (b)
or (c) of the definition “auditor”;
(b) partnerships
accepted by a recognized professional body as being qualified for appointment
as auditors of companies incorporated in the United Kingdom;
(c) bodies
corporate accepted by a recognized professional body as being qualified for
appointment as auditors of companies incorporated in the United Kingdom;
(d) individuals
who hold a qualification to audit accounts under the law of a European Economic
Area member state other than the United Kingdom or the Republic of Ireland,
or any combination of persons mentioned in sub-paragraphs (a),
(b), (c) and (d) –
(e) constitute
more than half the number of members of the body corporate;
(f) hold
more than half the voting rights of each class of members of the body
corporate;
(g) who
are individuals, make up more than half the number of directors of the body
corporate; or
(h) hold
more than half of the voting rights in the board of directors, committee or
other management body of the body corporate;
“Directive” means Directive 2014/65/EU of the
European Parliament and of the Council of 15 May 2014 (OJ L 173,
12.6.2014. p. 349) on markets in financial instruments and amending
Directive 2002/92/EC and Directive 2011/61/EU, as amended from time
to time;
“exempt company” means –
(a) a
company that is an issuer exclusively of debt securities admitted to trading on
a regulated market –
(i) prior
to 31st December 2010, the denomination per unit of which is at least
€50,000 or, in the case of debt securities denominated in another
currency, equivalent, at the date of issue, to at least €50,000, or
(ii) on
or after 31st December 2010, the denomination per unit of which is at least
€100,000 or, in the case of debt securities denominated in another
currency, equivalent, at the date of issue, to at least €100,000; or
(b) an
open-ended investment company –
(i) that holds a
permit as a functionary specified in Group 1 of Part 2 of the
Schedule to the Collective Investment Funds
(Jersey) Law 1988,
(ii) in
relation to which a certificate granted under Article 8B of the Collective Investment Funds
(Jersey) Law 1988 is in force, or
(iii) that
is an unregulated fund within the meaning of the Collective Investment Funds
(Unregulated Funds) (Jersey) Order 2008;
“firm” means an entity, whether or not a legal person,
that is not an individual and includes a body corporate, a corporation sole, a
partnership, and an unincorporated association;
“market traded company” means –
(a) a
company whose transferable securities have been admitted to trading on a
regulated market; or
(b) a company
in respect of which transferable securities have been admitted to trading on a
regulated market,
but does not include an exempt company;
“partnership” includes –
(a) a
firm of a similar character to a partnership formed under the law of a country
or territory outside Jersey; and
(b) a
limited liability partnership that is registered under the Limited Liability
Partnerships (Jersey) Law 2017 or a firm of a similar
character to a limited liability partnership formed under the law of a
jurisdiction outside Jersey,
but does not include any such partnership that is a body corporate;
“professional oversight body” means a body designated by
an Order made under Article 113N;
“qualified partnership” means a partnership –
(a) in
which more than half of its partners are any of, or any combination of, the
following –
(i) individuals who
are members of recognized professional bodies,
(ii) partnerships
that are themselves auditors as defined in paragraph (b) of the definition
“auditor”,
(iii) bodies
corporate that are themselves auditors as defined in paragraph (c) of the
definition “auditor”,
(iv) individuals
who hold a qualification to audit accounts under the law of a European Economic
Area member state other than the United Kingdom or the Republic of Ireland; and
(b) in
which more than half of the voting rights in the partnership and, if it has a
management body, in that body are held by persons specified in sub-paragraph (a);
“recognized auditor” means a firm or an individual whose
name appears on the Register of Recognized Auditors;
“recognized professional body” means any of the
following bodies –
(a) the
Institute of Chartered Accountants in England and Wales;
(b) the
Institute of Chartered Accountants of Scotland;
(c) the
Association of Chartered Certified Accountants;
(d) the
Institute of Chartered Accountants in Ireland;
“Register of Recognized Auditors” means the Register
kept by the Commission under an Order made under Article 110(1);
“regulated market” means –
(a) a UK
regulated market, within the meaning given, in the United Kingdom, by
Article 2.1(13A) of Regulation (EU) No 600/2014 of the European Parliament
and of the Council of 15 May 2014 as substituted by
regulation 26(2)(a) of the Markets in Financial Instruments (Amendment)
(EU Exit) Regulations 2018 of the United Kingdom (S.I. 2018/1403); or
(b) a
regulated market within the meaning given by Article 4.1(21) of the
Directive;
“rules”, in respect of a recognized professional body,
means the rules of the body as to –
(a) the
eligibility of persons for appointment as auditors; and
(b) the
conduct of audit work,
that are binding on persons acting as auditors under this Part and,
where Article 112(6) applies, includes rules published by the Commission in
accordance with that Article;
“transferable securities” has the same meaning as in the
Directive (see Article 4.1(44) of the Directive).[286]
(1A) In this Part, unless the context
otherwise requires, ‘partnership’ does not include an incorporated
limited partnership or a separate limited partnership.[287]
(2) For the purposes of any
Article of this Part where under or pursuant to this Part an officer of an
auditor or of a recognized auditor who is in default is guilty of an offence,
the expression “officer of the auditor in default” means any
officer, director, partner or member of the auditor or of the recognized
auditor who knowingly and wilfully authorizes or permits the default, refusal
or contravention mentioned in the Article.
(3) The Minister may, by
Order, amend a definition in this Article.
Accounts
103 Accounting
records[288]
(1) A company must keep
accounting records that are sufficient to show and explain its transactions.
(2) The records must be such
as to –
(a) disclose
with reasonable accuracy, at any time, the financial position of the company at
that time; and
(b) enable
the directors to ensure that any accounts prepared by the company under this
Part comply with the requirements of this Law.
104 Retention of
records[289]
(1) A company’s
accounting records must –
(a) be
kept at such place as the directors think fit; and
(b) be
open at all times to inspection by the company’s officers and its
secretary.
(2) If accounting records
of a public company are kept at a place outside Jersey, returns with respect to
the business dealt with in the accounting records so kept must –
(a) be
sent to, and kept in, Jersey; and
(b) be
open at all times to inspection by the company’s officers and its
secretary.
(3) The returns must be
such as to –
(a) disclose
with reasonable accuracy the financial position of the business in question at
intervals of not more than 6 months; and
(b) enable
the directors to ensure that any accounts prepared by the company under this
Part comply with the requirements of this Law.
(4) Except as provided by
Article 194 (winding up of company), the accounting records that a company
is required by Article 103 to keep must be preserved by it for at least
10 years from the date on which they are made.
105 Accounts[290]
(1) Except as provided by
paragraph (11), the directors of a company must prepare accounts for a
period of not more than 18 months –