Jersey R&O 74/2002

 

Companies (Jersey) Law 1991

____________

 

COMPANIES (GENERAL PROVISIONS) (JERSEY) ORDER 2002

____________

 

                THE FINANCE AND ECONOMICS COMMITTEE, in pursuance of Articles 7, 29, 71, 188 and 219 of the Companies (Jersey) Law 1991,[1] and having consulted the Jersey Financial Services Commission, orders as follows -

 

PART 1

 

PRELIMINARY

 

Interpretation

 

                1.-(1)  In this Order, “the Law” means the Companies (Jersey) Law 1991,[2] as amended.[3]

 

                (2)     A reference in this Order to a Part, Article or Schedule by number only and without further identification is a reference to the Part, Article or Schedule of that number in this Order.

 

                (3)     A reference in an Article or other division of this Order to a paragraph, sub-paragraph or clause by number or letter only and without further identification is a reference to the paragraph, sub-paragraph or clause of that number or letter in the Article or other division of this Order.

 

                (4)     Unless the context otherwise requires, a reference in this Order to an enactment is a reference to that enactment as amended from time to time and includes a reference to that enactment as extended or applied under another enactment, including another provision of this Order.

 

PART 2

 

COMPANY FORMATION AND REGISTRATION

 

Statement to be delivered to registrar

 

                2.      In addition to complying with the requirements specified in Article 7 of the Law,[4] the statement to be delivered to the registrar along with the memorandum of association shall contain the following particulars -

 

                (a)     the name of the company;

 

                (b)     whether the company is a public company or a private company; and

 

                (c)     in the case of a public company, particulars of the period to which the first accounts of the company required by Article 104(1) of the Law[5] will relate.

 

PART 3

 

PROSPECTUSES

 

Application

 

                3.      This Part shall not apply to a prospectus relating to a company that -

 

                (a)     is an open-ended investment company; and

 

                (b)     holds a permit as a functionary of Group 1 of Part II of the Schedule to the Collective Investment Funds (Jersey) Law 1988.[6]

 

Control of borrowing

 

                4.      The provisions of this Part are in addition to and do not derogate from the requirements of the Control of Borrowing (Jersey) Order 1958.[7]

 

Circulation of prospectus

 

                5.-(1)  Subject to paragraph (3) -

 

                (a)     no person shall circulate a prospectus in the Island;

 

                (b)     no company shall circulate a prospectus outside the Island; and

 

                (c)     no company shall procure the circulation of a prospectus outside the Island,

 

unless the conditions in paragraph (2) are complied with.

 

                (2)     The conditions to which paragraph (1) refers are that -

 

                (a)     the prospectus contains the information specified in Part 1 of the Schedule;

 

                (b)     the prospectus includes the statements specified in Part 2 of the Schedule;

 

                (c)     there has been delivered to the registrar -

 

                          (i)      a copy of the prospectus, signed by or on behalf of all of the directors of the company,

 

                          (ii)     a signed copy of any report included in or attached to the prospectus, and

 

                          (iii)    such other particulars as the registrar may require; and

 

                (d)     the registrar has given his consent to the circulation of the prospectus.

 

                (3)     The registrar may give his consent to the circulation of a prospectus that does not comply in every respect with the requirements of paragraph (1) if he is satisfied that the deviation from those requirements does not affect the substance of the prospectus and is not calculated to mislead.

 

PART 4

 

ADMINISTRATION

 

Annual return

 

                6.-(1)  In addition to complying with the requirements of Article 71 of the Law,[8] the annual return of a company shall state, as at 1st January of the year to which the return relates -

 

                (a)     if it is a par value company -

 

                          (i)      the nominal share capital of the company,

 

                          (ii)     in respect of each class of share, the number of shares into which the class is divided and the nominal value of each share class,

 

                          (iii)    the number of shares of each class that have been issued,

 

                          (iv)    the aggregate nominal value of shares of each class that have been issued, and

 

                          (v)     the amount of the nominal value that has been paid, or credited as paid, on each share that has been issued;

 

                (b)     if it is a no par value company -

 

                          (i)      the limit (if any) on the number of shares of each class authorized to be issued; and

 

                          (ii)     the number of shares of each class that have been issued;

 

                (c)     if any person is a member of the company by reason of holding a share -

 

                          (i)      the total amount (including, in the case of a par value company, premiums) that has been received in payment of the shares that have been issued,

 

                          (ii)     the total amount of unpaid calls on shares that have been issued, and

 

                          (iii)    the number of shares (if any) that have been forfeited, the amount (if any) on those shares and the amount (if any) received by the company on the sale of any shares that have been forfeited;

 

                (d)     if it is a company having any guarantor member, the maximum amount that is guaranteed by each member in that capacity.

 

                (2)     The annual return shall include a declaration, signed by a director or the secretary of the company, to the effect that the information contained in the return is complete and accurate in all respects.

 

PART 5

 

WINDING UP OF COMPANIES

 

Qualifications of liquidator

 

                7.-(1)  This Article applies to -

 

                (a)     a public company; and

 

                (b)     a company that is being wound up in accordance with the provisions of Chapter 4 of Part XXI of the Law.[9]

 

                (2)     Subject to paragraph (3), a person is not qualified for appointment as a liquidator of a company to which this Article applies unless he is a member of -

 

                (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; or

 

                (d)     the Institute of Chartered Accountants in Ireland.

 

                (3)     The Viscount is by virtue of his office qualified for appointment as a liquidator of a company to which this Article applies.

 

                (4)     A person is disqualified for appointment as a liquidator of a company to which this Article applies if he is -

 

                (a)     a secretary or an officer or servant of the company, or a partner or employee of such a person; or

 

                (b)     a person against whom an order under Article 78 of the Law[10] is in force.

 

                (5)     A person is disqualified for appointment as a liquidator of a company to which this Article applies if -

 

                (a)     he is disqualified under paragraph (4) for appointment as a liquidator of any other body corporate that either is that company’s subsidiary or holding company or is a subsidiary of that company’s holding company; or

 

                (b)     he would be disqualified under paragraph (4) if that body corporate were a company.

 

Procedure at creditors’ meeting

 

                8.-(1)  This Article, and Article 9, apply to creditors’ meetings held pursuant to the provisions of Chapter 4 of Part XXI of the Law.[11]

 

                (2)     Subject to the provisions of this Article, every creditor who has been given notice of a creditors’ meeting shall be entitled to vote at the meeting or any adjournment of it.

 

                (3)     Votes shall be calculated according to the amount of the creditor’s debt at the date of the commencement of the winding up.

 

                (4)     A creditor shall not vote in respect of a debt for an unliquidated amount, or any debt whose value is not ascertained, except where the chairman of the meeting agrees to put upon the debt an estimated minimum value for the purpose of entitlement to vote.

 

                (5)     For any resolution to pass at the creditors’ meeting there must be a majority in excess of one-half in value of the creditors present in person or by proxy and voting on the resolution.

 

Quorum at creditors’ meeting

 

                9.      A creditors’ meeting shall not be competent to act unless there are present in person or by proxy at least 3 creditors, or all of the creditors if their number does not exceed 3, being in either case entitled to vote.

 

PART 6

 

GENERAL

 

Revocations

 

                10.    The following Orders shall be revoked -

 

                (a)     the Companies (General Provisions) (Jersey) Order 1992;[12]

 

                (b)     the Companies (General Provisions) (Amendment) (Jersey) Order 1992;[13]

 

                (c)     the Companies (General Provisions) (Amendment No. 2) (Jersey) Order 1995;[14]

 

                (d)     the Companies (General Provisions) (Amendment No. 3) (Jersey) Order 1995;[15]

 

                (e)     the Companies (General Provisions) (Amendment No. 4) (Jersey) Order 1998.[16]

 

Citation and commencement

 

                11.    This Order may be cited as the Companies (General Provisions) (Jersey) Order 2002 and shall come into force on 1st September 2002.

 

                By Order of the Finance and Economics Committee,

 

                                                                                            C.M. NEWCOMBE

 

Greffier of the States.

 

7th August 2002.


SCHEDULE

 

(Article 5(2))

 

PART 1

 

INFORMATION TO BE SPECIFIED IN PROSPECTUS

 

                1.       Details relating to the offer

 

                          There shall be stated -

 

                          (a)     the names, occupations and addresses of -

 

                                    (i)      the offerors or vendors, and

 

                                    (ii)     any promoter,

 

                                    of the securities or membership of the company;

 

                          (b)     the terms applicable to the acquiring of the securities or membership of the company, and (if those terms include a price that is payable) the method, time and place of payment;

 

                          (c)     the opening and closing dates and times of the offer;

 

                          (d)     the minimum amount required to be raised by the offer;

 

                          (e)     when and how moneys will be returned in the event of the offer not being completed or any securities applied for not being allotted;

 

                          (f)      the anticipated date and forecast amount of the first dividend or interest payment on the securities that are the subject of the offer;

 

                          (g)     general particulars of any property that is to be acquired with the proceeds of the offer; and

 

                          (h)     in the case of any business that is to be acquired with the proceeds of the offer, the length of time during which that business has been carried on (if more than 2 years from the date of issue of the prospectus).

 

                2.       Capital

 

                          There shall be stated -

 

                          (a)     in the case of a par value company, particulars of the nominal, issued and paid up share capital of the company;

 

                          (b)     in the case of a no par value company, particulars of the stated capital;

 

                          (c)     in the case of an offer of securities, particulars of the securities that are the subject of the offer; and

 

                          (d)     in the case of an invitation to become a guarantor member, particulars of the amount of the guarantee,

 

                          together with details of any existing issued securities that are not part of the offer.

 

                3.       Goodwill, preliminary expenses and benefits

 

                          There shall be stated particulars of any amounts to be written off or provided for in respect of goodwill or preliminary expenses, or of any benefit given to a promoter.

 

                4.       Contracts

 

                          There shall be stated the dates of, parties to and general nature of every material contract, not being -

 

                          (a)     a contract entered into in the ordinary course of the business carried on or intended to be carried on by the company; or

 

                          (b)     a contract entered into more than 2 years before the date of issue of the prospectus.

 

                5.       Interest of directors

 

                          There shall be stated -

 

                          (a)     full particulars of the nature and extent of the interest (if any) of -

 

                                   (i)      every director of the company, and

 

                                   (ii)     every director of any body corporate that is concerned in the promotion, or from which the company proposes to acquire any property,

 

                                   and, where the interest of such a director consists of being a partner in a firm, full particulars of the nature and extent of the interest of the firm; and

 

                          (b)     details of all sums paid or agreed to be paid to any such director or firm in cash or shares or otherwise by any person to induce that director to become or to qualify him as a director, or otherwise for services rendered by the director or by the firm in connection with the promotion or formation of the company.

 

                6.       Debentures and loans

 

                          There shall be stated details of any subscriptions, allotments or options to be given, or already existing, in respect of any other securities of the company, including any that have a prior right over the securities covered by the offer to a distribution of the company’s profits.

 

                7.       Accounts and reports

 

                          The following shall be included in the prospectus -

 

                          (a)     a copy of the company’s latest accounts accompanied by a report thereon by the company’s auditors; and

 

                          (b)     any other reports of a specialist nature by any person who could be described as an expert on any aspect of the company’s business, identifying any unusual element of risk to the investor.

 

                8.       Registered office and register of members

 

                          There shall be stated the address of the company’s registered office and (if different) the address at which its register of members is kept.

 

                9.       Principal establishments

 

                          The location and nature of the company’s principal operating establishments shall be stated.

 

                10.     Directors and secretary

 

                          The following shall be stated -

 

                          (a)     the names, business occupations (if any) and addresses of the directors or proposed directors of the company; and

 

                          (b)     the name, qualifications (if any) and address of the secretary of the company.

 

                11.     Advisers

 

                          The following shall be stated -

 

                          (a)     the name and address of the company’s auditors;

 

                          (b)     the name and address of the company’s legal advisers; and

 

                          (c)     the name and address of the company’s principal bankers.

 

                12.     Additional information

 

                          There shall be included any other material information that an investor (including a person who cannot be expected to have any special knowledge of investments of the nature being offered) would reasonably require to enable him to make an informed judgment about the merits of investing in the securities offered in the prospectus.

 

                13.     Date of issue

 

                          The date of issue of the prospectus shall be stated.

 

PART 2

 

STATEMENTS TO BE INCLUDED IN PROSPECTUS

 

                1.       The following statements shall be included -

 

                          (a)     “A copy of this document has been delivered to the registrar of companies in accordance with Article 5 of the Companies (General Provisions) (Jersey) Order 200-, and he has given, and has not withdrawn, his consent to its circulation.”;

 

                          (b)     “The Jersey Financial Services Commission has given, and has not withdrawn, its consent under Article 4 of the Control of Borrowing (Jersey) Order 1958 to the issue of securities in the company.”;

 

                          (c)     “It must be distinctly understood that, in giving these consents, neither the registrar of companies nor the Jersey Financial Services Commission takes any responsibility for the financial soundness of the company or for the correctness of any statements made, or opinions expressed, with regard to it.”;

 

                          (d)     “If you are in any doubt about the contents of this document you should consult your stockbroker, bank manager, solicitor, accountant or other financial adviser.”; and

 

                          (e)     “The directors of the company have taken all reasonable care to ensure that the facts stated in this document are true and accurate in all material respects, and that there are no other facts the omission of which would make misleading any statement in the document, whether of facts or of opinion. All the directors accept responsibility accordingly.”.

 

                2.       If the prospectus is in respect of the issue of securities, the following statement shall also be included -

 

                                    “It should be remembered that the price of securities and the income from them can go down as well as up.”.



[1]  Recueil des Lois, Volume 1990-1991, pages 895, 908, 946, 1049 and 1067, Volume 1998, page 272, Volume 1999, page 526 and Volume 2002, pages 197, 208 and 239.

[2]  Recueil des Lois, Volume 1990-1991, page 875.

[3]  Recueil des Lois, Volume 1992-1993, page 63, Volume 1994-1995, page 351, Volume 1996-1997, pages 552 and 683, Volume 1998, pages 499 and 594, Volume 1999, pages 107 and 525, Volume 2000, page 746, Volume 2002, pages 177 and 439 and Nos. 8326, 8941 and 68/2002.

[4]  Recueil des Lois, Volume 1990-1991, page 895 and Volume 2002, page 197.

[5]  Recueil des Lois, Volume 1990-1991, page 974.

[6]  Recueil des Lois, Volume 1988-1989, page 164.

[7]  Nos. 3943, 7739, 8027, 8149, 8776, 8840, 9264, 9267 and 87/2000.

[8]  Recueil des Lois, Volume 1990-1991, page 946 and Volume 2002, page 239.

[9]  Recueil des Lois, Volume 1990-1991, page 1024, Volume 1998, page 269 and Volume 2002, page 295.

[10]  Recueil des Lois, Volume 1990-1991, page 953 and Volume 2002, page 244.

[11] Recueil des Lois, Volume 1990-1991, page 1024, Volume 1998, page 269 and Volume 2002, page 295.

[12]  No. 8324.

[13]  No. 8390.

[14]  No. 8782.

[15]  No. 8868.

[16]  No. 9262.


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