PART II
Registration and Constitution of
Companies
Business purposes
3. A company may be
incorporated under this Act for any purpose not prohibited under this Act or
under any other law in force in Saint Lucia.
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Application for Registration
4. A person licensed under the
Registered Agent and Trustee Licensing Act 1999 as a licensee may singly or
jointly with others apply to the Registrar to incorporate and register a
company as an international business company by submitting to the Registrar the
memorandum and articles of the company.
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Registration
5. (1) Where an application is
made under section 4 the Registrar shall subject to subsection (3) and, upon
payment of the prescribed fee by the person making the application, register
the company as an international business company if the Registrar is satisfied
that
(a) the requirements of
this Act in respect of registration have been complied with; and
(b) the registered agent
named in the articles as registered agent certifies that the requirements of
this Act in respect of registration have been complied with.
(2) The Registrar shall retain
in either electronic or written form the memorandum and articles submitted to
him or her under section 4 and shall register the company as an international
business company in a Register to be maintained by the Registrar, and to be
known as the Register of International Business Companies.
(3) The Registrar shall not
incorporate an international business company under this Act for the purpose of
engaging in international banking business, international insurance business or
international mutual fund business unless its incorporation has been consented
to by the Minister.
(4) A person who requires the
consent of the Minister pursuant to subsection (3) shall submit a proposal to
that effect to the Minister and the Minister may consent to the incorporation.
(5) Nothing done by the
Minister pursuant to subsection (4) shall preclude the Minister from refusing
an application for a licence under the International Banks Act 1999, the
International Insurance Act 1999 or the International Mutual Funds Act 1999.
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Certificate of incorporation
6. (1) Upon the registration of
an international business company, the Registrar, shall issue a certificate of
incorporation under the Registrar's hand and seal certifying that the
international business company is incorporated.
(2) Upon the issue by the
Registrar of a certificate of incorporation of an international business
company, the company is from the date shown on the certificate of
incorporation, a body corporate under the name contained in the certificate of
incorporation with the full capacity of a person who is sui juris.
(3) A certificate of
incorporation of an international business company issued by the Registrar is
prima facie evidence of compliance by the international business company with
all requirements of this Act in respect of incorporation.
(4) A member, director or
officer of an international business company may order upon payment of the
prescribed fee to the Registrar, a duplicate copy of the certificate of
incorporation for that international business company and the Registrar shall
issue the ordered copy.
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Memorandum
7. (1) A Memorandum shall
include the following
(a) the name of the
international business company;
(b) the address within
Saint Lucia of the registered agent and registered office of the international
business company;
(c) the object or
purposes for which the international business company is to be incorporated;
(d) the currency in
which shares in the international business company shall be issued and whether
shares may be issued in more than one currency;
(e) a statement of the
authorised capital of the international business company;
(f) a statement of the
number of classes and series of shares, the number of shares of each such class
and series, and the par value of shares with par value and the shares which may
be without par value, if that is the case;
(g) a statement of the
designations, powers, preferences and rights, and the qualifications, or
restrictions of each class and series of shares that the international business
company is aurthorised to issue, unless the directors are to be authorised to
fix any such designations powers, preferences, rights, qualifications, or
restrictions and in that case, an express grant of any authority as may be
desired to grant to the directors to fix by a resolution any such designations,
powers, preferences, rights, qualifications, or restrictions that have not been
fixed by the memorandum;
(2) For the purposes of
paragraph (c) of subsection (1), if a memorandum contains a statement either
alone or with other purposes that the purpose of the international business
company is to engage in any act or activity that is not prohibited under any
law in force in Saint Lucia, the effect of that statement is to make all acts
that are not illegal part of the purposes of the company, subject to any
limitations in the memorandum.
(3) A memorandum shall be
subscribed to by the registered agent named in the memorandum.
(4) Where an international
business company is registered under section 5 its memorandum binds the
international business company and its members to the same extent as if each
member had subscribed his or her name and affixed his or her seal thereto and
as if there were contained in the memorandum, on the part of herself or
himself, his or her heirs, executors and administrators, a covenant to observe
the provisions of the memorandum, subject to this Act.
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Articles
8. (1) Articles shall
(a) prescribe
regulations for the international business company; and
(b) be subscribed to by
the registered agent named in the articles.
(2) Where an international
business company is registered under section 5, the articles bind the
international business company and its members to the same extent as if each
member had subscribed his or her name and affixed his or her seal thereto and
as if there were contained in the articles on the part of himself or herself,
his or her heirs, executors and administrators, a covenant to observe the
provisions of the articles, subject to this Act.
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Amendment of memorandum or
articles
9. (1) Subject to any
limitations in its memorandum or articles, an international business company
may amend its memorandum or articles by a resolution of members or, where
permitted by its memorandum or articles or by this Act, by a resolution of
directors.
(2) An international business
company that amends its memorandum or articles shall submit a copy of the
amendment to the Registrar, accompanied by the prescribed filing fee, and the
Registrar must retain and register the copy of the amendment.
(3) An amendment to the
memorandum or articles has effect from the time the amendment is registered by
the Registrar.
(4) An international business
company that wilfully contravenes subsection (2) is liable to a penalty of
fifty dollars for each day or part thereof during which the contravention
continues, and a director who knowingly permits the contravention is liable to
a like penalty.
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Name
10. (1) The word
"Limited"' "Corporation", "Incorporated",
"Societe Anonyme", or
"Sociedad Anonima" or the abbreviation "Ltd",
"Corp", "Inc". or "S.A", or the equivalent term
in any language must be part of the name of an international business company,
and an international business company may use and be legally designated by
either the full or the abbreviated form.
(2) A company shall not be
incorporated under this Act under a name that _
(a) is identical with
that under which a company in existence is already incorporated under this Act
or registered under the Companies Act or so nearly resembles the name as to be
calculated to deceive, except where the company in existence gives its consent;
or
(b) contains the words
"Assurance", "Bank" "Building Society",
"Chamber of Commerce", "Chartered",
"Cooperative",
"Imperial",.
"Insurance", "Municipal", "Royal" or a word
conveying a similar meaning; or
(c) other word that, in
the opinion of the Registrar, suggests or is calculated to suggest
(i) the patronage of Her
Majesty or that of a member of the Royal family,
(ii) a connection with Her
Majesty's Government or a department thereof, or
(iii) a connection with a
municipality or other local authority or with a society or body incorporated by
Royal Charter; except with the approval or, in the approval in writing, of the
Registrar;
(d) is indecent,
offensive or, in the opinion of the Registrar, objectionable.
(3) An international business
company may amend its memorandum and articles to change its name.
(4) If an international
business company is incorporated under a name that
(a) is identical with a
name of another international business company in existence or a company
registered under the
Companies Act; or
(b) so nearly resembles
the name of another international business company or a company registered
under the Companies Act as to be calculated to deceive;
the Registrar may without the
consent of the international business company or company in existence, give
notice to the last registered international business company to change its name
and if it fails to do so within sixty days from the date of the notice, the
Registrar shall amend the memorandum and articles of the international business
company to change its name to a name which the Registrar is satisfied is
appropriate, and the Registrar shall publish notice of the change in the
Gazette.
(5)(a) Subject to
subsections (2) and (4), where an international business company changes its
name, the Registrar shall enter the new name on the Register in place of the
former name, and shall issue a certificate of amendment indicating the change
of name and shall cause notice of the change to be published in the
Gazette.
(b) After the issue of
the certificate of amendment under sub-paragraph (a) the memorandum of
the company to which the certificate relates is amended accordingly on the date
shown on the certificate.
(6) A change of name does not
affect any rights or obligations of an international business company, or
render defective any legal proceedings by or against a company, and all legal
proceedings that have been commenced against the international business company
by its former name may be continued against it by its new name.
(7) Subject to subsection (2)
and payment of the prescribed fee the Registrar may, upon a request made by any
person, reserve for up to thirty days a name for future adoption by an
international business company under this Act.
(8) Where under this Act an
international business company is required to lodge with the Registrar any
instrument, certificate or document or a certified copy thereof and the same is
not written in the English language, but is written in a foreign language,
alphabet, or characters, subject to the foregoing provisions of this Act the
Registrar will accept the same, provided it is accompanied by a certified
translation thereof.
(9) For the purposes of the
administration of this Act, the name of an international business company as it
appears in the certified translation shall be the name which is registered
under this Act, but for all other purposes the international business company
shall be deemed to be also registered with the name expressed in the foreign
language, alphabet or characters.
(10) Notwithstanding anything
contained in this section, an international business company that is continued
under this Act is entitled to be continued with the name it lawfully had before
that continuance provided that there is no other company registered under this
Act or the Companies Act in that name.
(11) The name of an
international business company contained in its memorandum and articles shall
end with the words "International Business Company" or the
abbreviation "IBC".
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Annual
fee
11. An international business
company shall pay the prescribed annual fee at such times and in such manner as
may be prescribed.
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Prohibitions
12. (1) An international
business company shall not
(a) carry on business
with persons resident in Saint Lucia;
(b) own an interest in
immovable property situated in Saint Lucia, other than a lease referred to in
paragraph (e) of sub-section (2);
(c) carry on
international banking business unless it is licensed to do so under the law in
force in St. Lucia relating to international financial services;
(d) carry on a banking
business with a resident whether alone or in conjunction with any other
activity, unless it is licensed to do so under the Banking Act 1991;
(e) carry on an
international insurance business unless it is licensed to do so under the law
in force in St. Lucia relating to international financial services;
(f) carry on a shipping
business with a resident whether alone or in conjunction with any other
activity, unless it has complied with an enactment relating to the carrying on
of shipping business;
(g) carry on the
business of international financial services representation;
(h) carry on
international mutual funds business unless it is licensed to do so under the
law in force in St. Lucia relating to international financial services; or
(i) carry on business in a
manner detrimental to the public interest;
(2) For the purposes of
paragraph subsection (1) (a) an international business company shall not be
treated as carrying on business with a person resident in Saint Lucia by reason
only that
(a) it makes or
maintains deposits with a person carrying on banking business within Saint
Lucia;
(b) it makes or
maintains professional contact with solicitors, barristers, management
consultants, accountants, book keepers, trust companies, administration
companies, financial and investment advisers or other similar persons carrying
on business within Saint Lucia;
(c) it prepares or
maintains books and records within Saint Lucia;
(d) it holds within
Saint Lucia meetings of its directors or members;
(e) it holds a lease of
property in Saint Lucia for use as an office;
(f) it holds shares,
debt obligations or other securities in a company incorporated under this Act
or under the Companies Act;
(g) shares, debt
obligations or other securities in the international business company are owned
by any person resident or citizen of Saint Lucia or by a company incorporated
under this Act or under the Companies Act;
(h) it owns a vessel
registered in Saint Lucia in accordance with the Shipping Act, 1994;
(i) it employs a
resident, or leases or purchases property (other than real property) in Saint
Lucia in connection with its operations; or
(j) a ship or vessel
owned by the international business company does business with a resident in
the course of its operations.
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Penalty
13. Subject to section 99, an
international business company that wilfully contravenes section 12 is liable
to be struck off the Register and to a penalty of one hundred dollars for each
day or part thereof during which the contravention continues, and a director
who knowingly permits the contravention is liable to a like penalty.
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Powers
14. (1) Subject to any
limitations in its memorandum or articles, this Act or any other law in force
in Saint Lucia, notwithstanding any of the provisions of the Companies Act, an
international business company has the power, irrespective of corporate
benefit, to perform all acts and engage in all activities necessary or
conducive to the conduct, promotion or attainment of the purposes of the
international business company, including the power to do the following _
(a) issue registered
shares;
(b) issue the following:
(i) voting shares;
(ii) non-voting shares;
(iii) shares that may have more
or less than one vote per share;
(iv) shares that may be voted
only on certain matters or only upon the occurrence of certain events; or
(v) shares that may be voted
only when held by persons who meet specified requirements;
(c) issue common shares,
preferred shares, limited shares or redeemable shares;
(d) issue shares that
entitle participation only in certain assets;
(e) issue options,
warrants or rights or instruments of a similar nature to acquire any securities
of the international business company;
(f) issue securities
that, at the option of the holder thereof or of the international business
company or upon the happening of a specified event, are convertible into, or
exchangeable for, other securities in the international business company or any
property owned or to be owned by the international business company;
(g) purchase, redeem or
otherwise acquire and hold its own shares;
(h) guarantee a
liability or obligation of any person and to secure any of its obligations by
mortgage, pledge or other charge, of any of its assets for that purpose;
(i) protect the assets
of the international business company for the benefit of the international
business company, its creditors and its members, and at the discretion of the
directors, for any person having a direct or indirect interest in the
international business company;
(j) issue shares in any
one or more currencies, so long as a mechanism for calculating exchange rates
into dollars is provided in its articles; and
(k) subject to sections
12 and 38 maintain offices or branches or a presence in any form whatsoever, in
any jurisdiction.
(2) For the purposes of
subsection (1), notwithstanding any other provision of this Act, or any other
law in force in Saint Lucia or any rule of law to the contrary, the directors
may cause the international business company to transfer any of its assets in
trust to one or more trustees, or to any person and with respect to the
transfer, the directors may provide that the international business company,
its creditors, its members, or any person having a direct or indirect interest
in the international business company, may be the beneficiaries, creditors,
members, certificate holders, partners or holders of any other similar
interest.
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Validity of acts of company
15. (1) An act of an
international business company or a transfer of property by or to an
international business company is not invalid by reason only of the fact that
the international business company was with out capacity or power to perform
the act, or to transfer or receive the property, but the lack of capacity or
power may be pleaded in the following cases
(a) in proceedings by a
member against the international business company to prohibit the performance
of any act or the transfer of property by or to the international business
company; or
(b) in proceedings by
the international business company whether acting directly or through a
receiver, trustee, or other legal representative, or through members in a
derivative action, against the incumbent or former directors of the
international business company for loss or damage due to their unauthorised
act.
(2) For purposes of paragraph
(a) of subsection (1), the Court may set aside and prohibit the performance of
the contract if
(a) the unauthorised act
or transfer sought to be set aside or prohibited is being, or is to be,
performed or made under any contract to which the international business
company is a party;
(b) all the parties to
the contract are parties to the proceedings; and
(c) it appears fair and
reasonable to set aside or prohibit the performance of the contract; and in so
doing the Court may, in applying this subsection, award to the international
business company or to the other parties to the contract, such compensation as
may be reasonable, except that in determining the amount of compensation the
court shall not take into account anticipated profits to be derived from the
performance of the contract.
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Personal liability
16. Subject to section 74, a
member, director, officer, agent or liquidator is not liable for any debt,
obligation or default of the international business, unless specifically
provided in this Act, or in any other law in force in Saint Lucia and except in
so far as he or she may be liable for his or her own conduct or acts under
general principles of law applicable to the same.
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PART III
Capital and Dividends
Consideration for shares
17. A share in an international
business company shall not be issued unless the consideration in respect of the
share is fully paid and when issued the share is for all purposes fully paid
and non assessable save that a share issued for a promissory note or other
written obligation for payment of a debt may be issued subject to forfeiture in
the manner prescribed by the directors.
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Kind of consideration for shares
18. Subject to limitations in
the memorandum or articles , a share in an international business company shall
be issued for money, services rendered, personal property (including other
shares, debt obligations or other securities in the international business
company), an interest in real property located outside of Saint Lucia, a
promissory note or other binding obligation to contribute money or property, or
any combination of the money or property.
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Amount of consideration for
shares
19. (1) Subject to any
limitations in the memorandum or articles of an international business company,
shares in the international business company may be issued for such amount as
may be determined by the directors, except that in the case of shares with par
value , the amount shall not be less than the par value, and in absence of
fraud, the decision of the directors as to the value of the consideration
received by the international business company in respect of the issue is
conclusive, unless a question of law is involved.
(2) A share issued by an
international business company upon conversion of, or in exchange for another
share or a debt obligation or other security in the international business
company, shall be treated for all purposes as having been issued for money
equal to the consideration received or deemed to have been received by the
international business company in respect of the other share, debt obligation
or security.
(3) Subject to any limitations
in the memorandum or articles, treasury shares may be disposed of by an
international business company on such terms and conditions as the directors
may determine.
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Fractional shares
20. Subject to any limitations
in its memorandum or articles, an international business company, may issue
fractions of a share and unless and to the extent otherwise provided in the
memorandum or articles, a fractional share has the corresponding fractional
liabilities, preferences, privileges, qualifications, restrictions, rights and
other attributes of a whole share of the same class or series of shares.
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Authorised capital in several
currencies
21. The authorised capital of
an international business company may be stated in more than one currency in
which case the par value of shares, if any, shall be expressed in the same
currencies.
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Capital and surplus accounts
22. (1) Upon the issue by an
international business company of a share with par value, the consideration in
respect of the share constitutes capital to the extent of the par value and the
excess constitutes surplus.
(2) Subject to any limitations
in the memorandum or articles, upon the issue by an international business
company of a share without par value, the consideration in respect of the share
constitutes capital to the extent designated by the directors and the excess
constitutes surplus, except that the directors must designate as capital an
amount of the consideration that is at least equal to the amount that the share
is entitled to as a preference, if any, in the assets of the international
business company upon liquidation of the international business company.
(3) Upon the disposition by an
international business company of a treasury share, the consideration in
respect of the share is added to surplus.
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Dividend of shares
23. (1) A share issued as a
dividend by an international business company shall be treated for all purposes
as having been issued for money equal to the surplus that is transferred to
capital upon the issue of the share.
(2) In the case of dividend of
authorised but unissued shares with par value, an amount equal to the aggregate
par value of the shares shall be transferred from surplus to capital at the
time of distribution.
(3) In the case of a dividend
of authorised but unissued shares without par value, the amount designated by
the directors shall be transferred from surplus to capital at the time of the
distribution, except that the directors must designate as capital an amount
that is at least equal to the amount that the shares are entitled to as
preference, if any, in the assets of the international business company upon
liquidation of the international business company.
(4) A division of the issued
and outstanding shares of a class, or series of shares, into a larger number of
shares of the same class or series, having a proportionally smaller par value,
does not constitute a dividend of shares.
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Increase or reduction of
authorised capital
24. (1) Subject to any
limitations in its memorandum or articles, an international business company
may, by a resolution of directors, amend its memorandum to increase or reduce
its authorised capital, and in connection therewith, the international business
company may
(a) increase or reduce
the number of shares which it may issue;
(b) increase or reduce
the par value of any of its shares; or
(c) effect any
combination under paragraphs (a) and (b).
(2) Where an international
business company reduces its authorised capital under subsection (1), then, for
purposes of computing the capital of the international business company, any
capital that immediately before the reduction was represented by shares but
immediately following the reduction is no longer represented by shares shall be
deemed to be capital transferred from surplus to capital.
(3) An international business
company shall, in writing, inform the Registrar of any increase or decrease of
its authorised capital and the Registrar shall record the same in the Register.
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Division and combination
25. (1) An international
business company may amend its memorandum
(a) to divide the
shares, including issued shares, of a class or series into a larger number of
shares of the same class or series; or
(b) to combine the
shares, including issued shares, of a class or series into a smaller number of
shares of the same class or series.
(2) Where shares are divided or
combined under subsection (1), the aggregate par value of the new shares must
be equal to the aggregate par value of the original shares.
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Nature of shares
26. Shares of an international
business company are personal property and are not of the nature of real
property.
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Share certificates
27. (1) An international
business company shall state in its articles whether or not share certificates
shall be issued.
(2) A share certificate issued
by an international business company
(a) shall be signed by
two directors or two officers, or by one director and one officer of the
international business company; or
(b) shall be under the
common seal of the international business company, with the signature of any
director or officer of the international business company; and the articles may
provide for the signatures or common seal to be facsimiles.
(3) A share certificate issued
in accordance with subsection (2) specifying a share held by a member of an
international business company is prima facie evidence of the title of the
member to the share specified in the certificate.
(4) Where the right to transfer
any shares is restricted a notification to that effect shall be given in the
share certificate issued in respect of these shares.
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Share register
28. (1) An international
business company shall keep at its registered office at all times a register to
be known as a share register containing
(a) the names and
addresses of the persons who hold registered shares in the international
business company;
(b) the number of each
class and series of registered shares held by each person;
(c) the date on which
the name of each person was entered in the share register;
(d) the date on which
any person ceased to be a member; but an international business company may
delete from its share register information relating to persons who are no
longer members.
(2) A share register may be in
any such form as the directors may approve but if it is in magnetic, electronic
or other data storage form, the international business company must be able to
produce evidence in writing of its contents.
(3) An international business
company, shall keep at its registered office a copy of its share register
commencing on the date of registration of the international business company.
(4) A share register is prima
facie evidence of any matter directed or authorised by this Act to be contained
in that share register.
(5) All shares or fractions of
shares issued by an international business company shall be registered in
accordance with this section.
(6) An international business
company that wilfully contravenes this section is liable to a penalty of five
hundred dollars for each day or part thereof during which the contravention
continues, and a director who knowingly permits the contravention is liable to
a like penalty.
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Rectification of share
register
29. (1) If -
(a) information that is
required to be entered in the share register under section 28 is entered
inaccurately or is omitted; or
(b) there is
unreasonable delay in entering the information in the share register; a person
who is aggrieved by the omission, inaccuracy or delay, may apply to the Court
for an order that the share register be rectified and the Court may either
grant or refuse the application, with or without costs to be paid by the person
making the application, or order the rectification of the share register, and
may direct the international business company to pay all costs of the
application and any damages sustained by the person making the application.
(2) The Court may, in any
proceedings under subsection (1), determine any question relating to the right
of a person who is a party to the proceedings to have his or her name entered
in or omitted from the share register, whether the question arises between
(a) two or more members
or alleged members; or
(b) between members or
alleged members and the international business company; and generally the Court
may in the proceedings determine any question that may be necessary or
expedient to be determined for the rectification of the share register.
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Transfer of registered shares
30. (1) Subject to any
limitations in its memorandum or articles, registered shares of an
international business company may be transferred by a written instrument of
transfer signed by the transferor and containing the name and address of the
transferee.
(2) In the absence of a written
instrument of transfer mentioned in subsection (1), the directors may accept
such evidence of a transfer of shares as they consider appropriate.
(3) An international business
company shall not be required to treat a transferee of a registered share in
the name of the international business company as a member until the
transferee's name has been entered in the share register.
(4) Subject to any limitations
in its memorandum or articles, an international business company shall, on the
application of the transferor or transferee of a registered share in the
international business company, enter in its share register the name of the
transferee of the share.
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Transfer
of registered shares of deceased, incompetent or bankrupt
31. (1) A transfer of
registered shares of a deceased, incompetent or bankrupt member made by the
member's personal representative, guardian or trustee, or a transfer of
registered shares owned by a person as a result of a transfer from a member by
operation of law, is of the same validity as if the personal representative,
guardian, trustee or transferee had been the registered holder of the shares at
the time of the execution of the instrument of transfer.
(2) For the purposes of
subsection (1), what amounts to incompetence on the part of a person is a
matter to be determined by the Court after having regard to all the relevant
evidence and the circumstances of the case.
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Seizure
32. Where a Government
authority, whether it is legally constituted or not, in any jurisdiction
outside Saint Lucia -
(a) by or in connection
with a nationalisation, confiscation, coercion, duress, or similar action; or
(b) by or in connection
with the imposition of any confiscatory tax, assessment or other governmental
charge; takes or seizes any shares or other interest in an international
business company, the international business company itself or a person holding
shares, or any other interest in the international business company, including
an interest as a creditor, may apply to the Court for an order that the
international business company disregard the taking or seizure and continue to
treat the person who would have held shares or any other interest in the
international business company, but for the taking or seizure of the share or
other interest, as continuing to hold the shares or other interest.
(2) Without affecting
subsection (1), where a person whose shares or other interests have been taken
or seized as referred to in subsection (1) is other than a natural person, the
person making the application under subsection (1), or the international
business company itself, may apply to the court for an additional Order for the
international business company to treat the persons believed by the
international business company to have held the direct or indirect beneficial
interests in the shares or other interests in the company as the holder of
those shares or other interests.
(3) The Court may, upon
application made to it under subsection (1) or (2) -
(a) grant such relief as
it considers equitable and proper; and
(b) order that any
shares of or other interests in the international business company vest in such
trustees as the Court may appoint upon such trusts and for such purposes as the
Court determines.
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Acquisition of own shares
33. (1) Subject to any
limitations in its memorandum or articles, an international business company
may purchase, redeem or otherwise acquire and hold its own shares but only out
of surplus or in exchange for newly issued shares of equal value.
(2) A purchase, redemption or
other acquisition permitted under subsection (1) shall not be made unless the
directors determine that immediately after the purchase, redemption or other
acquisition
(a) the international
business company will be able to satisfy its liabilities as they become due in
the ordinary course of its business; and
(b) the realisable value
of the assets of the international business company will not be less than the
sum of its total liabilities other than deferred taxes, as shown in the books
of account, and its capital; and, in the absence of fraud, the decision of the
directors as to the realisable value of the assets of the international
business company is conclusive, unless a question of law is involved.
(3) A determination by the
directors under subsection (2) is not required where shares are purchased,
redeemed or otherwise acquired
(a) pursuant to a right
of a member to have his or her shares redeemed or to have his or her shares
exchanged for money or other property of the international business company;
(b) by virtue of a
transfer of capital pursuant to paragraph (b) (iii) of subsection 35
(1);
(c) by virtue of the
provisions of section 83; or
(d) pursuant to an Order
of the Court.
(4) Subject to any limitations
in the memorandum or articles, shares that an international business company
purchases, redeems or otherwise acquires may be cancelled or held as treasury
shares unless the shares are purchased, redeemed or otherwise acquired by
virtue of a reduction in capital in a manner that would be a contravention of
the requirements of section 35 (3), in which case they shall be cancelled but
they shall be available for reissue; and upon the cancellation of a share, the
amount included as capital of the company with respect to that share shall be
deducted from the capital of the international business company.
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Treasury shares disabled
34. Where shares in an
international business company
(a) are held by the
international business company as treasury shares; or
(b) are held by another
international business company of which the first international business
company holds, directly or indirectly, shares having more than fifty percent of
the votes in the election of directors of the other international business
company, the shares of the first international business company are not
entitled to vote or to have dividends paid thereon and shall not be treated as
outstanding for any purpose under this Act except for purposes of determining
the capital of the first international business company.
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Increase or reduction of capital
35. (1) Subject to any
limitations in the memorandum or articles and subject to subsections (3) and
(4), the capital of an international business company may, by a resolution of
directors, be
(a) increased by
transferring an amount out of the surplus of the international business company
to capital; or
(b) reduced by -
(i) returning to members any
amount received by the international business company upon the issue of any of
its shares, the amount being surplus to the requirements of the international
business company;
(ii) cancelling any capital
that is lost or not represented by assets having a realisable value; or
(iii) transferring capital to
surplus for the purpose of purchasing, redeeming or otherwise acquiring shares
that the directors have resolved to purchase, redeem or otherwise acquire.
(2) Where an international
business company reduces its capital under subsection (1), the international
business company may
(a) return to members
any amount received by the international business company upon the issue of any
of its shares;
(b) purchase, redeem or
otherwise acquire its shares out of capital; or
(c) cancel any capital
that is lost or not represented by assets having a realisable value.
(3) A reduction of capital
shall not be effected if it reduces the capital of the international business
company to an amount that is less than the sum of
(a) the aggregate par
value of
(i) all outstanding shares with
par value; and
(ii) all shares with par value
held by the international
business company as treasury
shares; and
(b) the aggregate of the
amounts designated as capital of -
(i) all outstanding shares
without par value; and
(ii) all shares without par
value held by the international business company as treasury shares that are
entitled to a preference, if any, in the assets of the international business
company upon liquidation of the company.
(4) A reduction of capital
shall not be effected under subsection (1) unless the directors determine that
immediately after the reduction -
(a) the international
business company will be able to satisfy its liabilities as they become due in
the ordinary course of business; and
(b) the realisable value
of the assets of the international business company will not be less than its
total liabilities, other than deferred taxes, as shown in the books of account,
and its remaining capital; and, in the absence of fraud, the decision of the
directors as to the realisable value of the assets of the international
business company is conclusive, unless a question of law is involved.
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Dividends
36. (1) Subject to any
limitations in its memorandum or articles, an international business company
may, by a resolution of its directors, declare and pay dividends in money,
shares or other property.
(2) A dividend shall only be
declared and paid out of surplus.
(3) A dividend shall not be
declared and paid unless the directors determine that immediately after the
payment of the dividend
(a) the international
business company will be able to satisfy its liabilities as they become due in
the ordinary course of its business; and
(b) the realisable value
of the assets of the international business company will not be less than the
sum of its total liabilities,
other than deferred taxes, as
shown in the books of account, and its capital; and in the absence of fraud,
the decision of the directors as to the realisable value of the assets of the
international business company is conclusive, unless a question of law is
involved.
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Appreciation of assets
37. Subject to any limitations
in its memorandum or articles, an international business company may, by a
resolution of its directors, include in the computation of surplus for any
purpose under this Act the net unrealised appreciation of the assets of the
international business company, and, in the absence of fraud, the decision of
the directors as to the value of the assets is conclusive, unless a question of
law is involved.
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PART IV
Registered Office and Registered
Agent
Registered office
38. An international business
comapny shall at all times have a registered agent and a registered office in
saint Lucia.
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Registered agent
39. The registered agent of an
international business company shall be licensed pursuant to the Registered
Agent and Trustee Licensing Act 1999, and shall be the registered office of the
international business company.
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Resignation of registered
agent
40. The Registrar shall not
accept the resignation of the registered agent of an international business
company until such time as another registered agent is appointed to replace the
first registered agent.
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Change of registered
office or registered agent
41. (1) An international
business company may, by a resolution of directors, amend its memorandum or
articles to change the place of its registered office and to change its
registered agent.
(2) A change of registered
agent and registered office shall be effective upon the proper filing with the
Registrar of an amendment to the international business company's memorandum or
articles.
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PART V
Directors, Officers, Agents and
Liquidators
Management by directors
42. (1) Subject to any
limitations in its memorandum or articles, the business and affairs of an
international business company shall be managed by a board of directors that
consists of one or more persons who may be natural persons or companies.
(2) An international business
company shall keep at its registered office at all times, a register to be
known as the directors register containing
(a) the names and
addresses of persons who are directors of the international business company;
(b) the date on which
each person was appointed as a director; and
(c) the date on which
any person ceased to be a director; but an international business company may
delete from its director's register information relating to persons who are no
longer directors.
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Election, term and removal of
directors
43. (1) The first directors of
an international business company shall be elected by the subscribers to the
memorandum and thereafter, the directors shall be elected by the members for
such term as the members may determine, and where permitted by the memorandum
or articles of an international business company, the directors may also elect
directors for such term as the directors may determine.
(2) A director holds office
until his or her successor takes office or until his death, resignation or
removal.
(3) Subject to any limitations
in the memorandum or articles
(a) A director may be
removed from office by a resolution of members or by a resolution of directors;
and
(b) a director may
resign his or her office by giving written notice of his or her resignation to
the company and the resignation has effect from the date the notice is received
by the international business company or from such later date as may be
specified in the notice.
(4) Subject to any limitations
in the memorandum or articles, a vacancy in the board of directors may be
filled by a resolution of members or of a majority of the remaining directors.
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Number of directors
44. The number of directors
shall be fixed by the articles and, subject to any limitations in the
memorandum or articles, the articles may be amended to change the number of
directors.
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Powers of directors
45. The directors have all the
powers of an international business company that are not reserved to the
members under this Act or in the memorandum or articles.
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Emoluments of directors
46. Subject to any limitations
in the memorandum or articles, the directors may, by a resolution of directors,
fix the emoluments of directors in respect of services to be rendered in any
capacity to the international business company.
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Committees of directors
47. (1) The directors may, by a
resolution of directors, designate one or more committees, each consisting of
one or more directors.
(2) Subject to any limitations
in the memorandum or articles, each committee has such powers and authority of
the directors, including the power and authority to affix the common seal of
the international business company, as are set forth in the resolution of
directors establishing the committee, except that no committee has any power or
authority with respect to the matters requiring a resolution of directors under
sections 43 and 53.
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Meetings of directors
48. (1) Subject to any
limitations in the memorandum or articles, the directors of an international
business company may meet at such times and in such manner and places within or
outside Saint Lucia, as the directors may determine to be necessary or
desirable.
(2) A director shall be deemed
to be present at a meeting of directors if
(a) he or she
participates by telephone or other electronic means; and
(b) all directors
participating in the meeting are able to hear each other.
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Notice of meetings of directors
49. (1) Subject to a
requirement in the memorandum or articles to give longer notice, a director
shall be given not less than three days notice of meetings of directors.
(2) Notwithstanding subsection
(1), subject to any limitations in the memorandum or articles, a meeting of
directors of an international business company held in contravention of that
subsection is valid if all of the directors, or such majority thereof as may be
specified in the memorandum or articles entitled to vote at the meeting, have
waived the notice of the meeting, and for this purpose, the presence of a
director at the meeting shall be deemed to constitute a waiver on his or her
part.
(3) The inadvertent failure to
give notice of a meeting to a director, or the fact that a director has not
received the notice, does not invalidate the meeting.
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Quorum for meetings of directors
50. The quorum for a meeting of
directors is that fixed by the memorandum or articles, but where no quorum is
so fixed, a meeting of directors is properly constituted for all purposes if at
the commencement of the meeting one-half of the total number of directors are
present in person or by alternate.
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Consents of directors
51. Subject to any limitations
in the memorandum or articles, an action that may be taken by the directors or
a committee of directors at a meeting may also be taken by a resolution of
directors or a committee of directors consented to in writing or by telex,
telegram, cable or other electronic communication, without the need for any
notice.
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Alternates for directors
52. (1) Subject to any
limitations in the memorandum or articles, a director may, by a written
instrument, appoint an alternate who need not be a director.
(2) An alternate for a director
appointed under subsection (1) is entitled to attend meetings in the absence of
the director who appointed him or her and to vote or consent in the place of
the director.
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Officers and agents
53. (1) The directors may, by a
resolution of directors, appoint any person, including a person who is a
director, to be an officer or agent of the international business company.
(2) Subject to any limitations
in the memorandum or articles, each officer or agent has such powers and
authority of the directors, ncluding the power and authority to affix the
common seal of the international business company, as are set forth in the
memorandum or articles or in the resolution of directors appointing the officer
or agent, except that no officer or agent has any power or authority with
respect to the matters requiring a resolution of directors under this Act.
(3) The directors may remove an
officer or agent, appointed under subsection (1) and may revoke or vary a power
conferred on the officer or agent under subsection (2).
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Standard of care
54. (1) A director, officer,
agent or liquidator in performing his or her functions, shall act honestly and
in good faith with a view to the best interests of the international business
company and exercise the care, diligence and skill that a reasonably prudent
person would exercise in comparable circumstances.
(2) A provision in the
memorandum or articles of an international business company or in any agreement
entered into by the international business company shall not relieve its
director, officer, agent or liquidator from the duty to act in accordance with
the memorandum or articles or from any personal liability arising from his or
her management of the business and affairs of the international business
company.
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Reliance on records and
reports
55. A director, officer, agent
or liquidator , in performing his or her functions, is entitled to rely upon
the share register kept under section 28, the books of accounts and records and
the minutes and copies of consents to resolutions kept under section 66 and any
report made to the international business company by any other director,
officer, agent or liquidator or by any person selected by the international
business company to make the report.
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Conflicts of interest
56. (1) Subject to any
limitations in the memorandum or articles, if the requirements of subsection
(2) or (3) are satisfied, an agreement or transaction between
(a) the international
business company; and
(b) one or more of its
directors or liquidators, or any person in which a director or liquidator has a
financial interest or to whom any director or liquidator is related, including
as a director or liquidator of that other person, shall not be void or voidable
for this reason only or by reason only that the director or liquidator is
present at the meeting of directors or liquidators, or at the meeting of the
committee of directors or liquidators, that approves the agreement or
transaction or that the vote or consent of the director or liquidator is
counted for that purpose.
(2) An agreement or transaction
referred to in subsection (1) is valid if -
(a) (i) the
material facts of the interest of each director or liquidator in the agreement
or transaction and his or her interest in or relationship to any other party to
the agreement or transaction are disclosed in good faith or are known by the
other directors or liquidators; and
(ii) the agreement or
transaction is approved or ratified by a resolution of directors or liquidators
that has been approved without counting the vote or consent of any interested
director or liquidator; or by the unanimous vote or consent of all
disinterested directors or liquidators if the votes or consents of all
disinterested directors or liquidators is insufficient to approve a resolution
of directors or liquidators; or
(b) the material facts
of the interest of each director or liquidator in the agreement or transaction
and his or her interest in or relationship to any other party to the agreement
or transaction are disclosed in good faith or are known by the members entitled
to vote at a meeting of members, and the agreement or transaction is approved
or ratified by a resolution of members.
(3) Subject to any limitations
in the memorandum or articles, a director or liquidator who has an interest in
any particular business to be considered at a meeting of directors, liquidators
or members may be counted for purposes of determining whether the meeting is
duly constituted in accordance with section 50 or otherwise.
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Indemnification
57. (1) Subject to subsection
(2) and any limitations in its memorandum or articles, an international
business company may indemnify against all expenses, including legal fees, and
against all judgements, fines and amounts paid in settlement and reasonably
incurred in connection with legal, administrative, or investigative proceedings
any person who -
(a) is or was a party or
is threatened to be made a party to any threatened, pending or completed
proceedings, whether civil, criminal, administrative or investigative, by
reason of the fact that the person is or was its director, officer or
liquidator;
(b) is or was, at the
request of the international business company, serving as a director, officer
or liquidator of, or in any other capacity is or was acting for, another
company or a partnership, joint venture, trust or other enterprise.
(2) Subsection (1) applies only
to a person referred to in that subsection if the person acted honestly and in
good faith with a view to the best interests of the international business
company and, in the case of criminal proceedings, the person has no reasonable
cause to believe that his or her conduct was unlawful.
(3) The decision of the
directors of an international business company as to whether the person acted
honestly and in good faith and with a view to the best interests of the
international business company and as to whether the person had no reasonable
cause to believe that his or her conduct was unlawful is, in the absence of
fraud, sufficient for the purposes of this section, unless a question of law is
involved.
(4) The termination of any
proceedings by any judgement, order, settlement, conviction or the entering of
a nolle prosequi does not, by itself, create a presumption that the
person did not act honestly and in good faith, and with a view to the best
interests of the international business company or that the person had
reasonable cause to believe that his or her conduct was unlawful
(5) If a person referred to in
subsection (1) has been successful in defense of any proceedings referred to in
subsection (1), the person is entitled to be indemnified against all expenses,
including legal fees, and against all judgements, fines and amounts paid in
settlement and reasonably incurred by the person in connection with the
proceedings.
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Insurance
58. An international business
company may purchase and maintain insurance in relation to any person who is or
was its director, officer or liquidator, or who at the request of the
international business company is or was serving as a director, an officer or a
liquidator of, or in any other capacity is or was acting for, another company
or a partnership, joint venture, trust or other enterprise, against any
liability asserted against the person and incurred by the person in that
capacity, whether or not the international business company has or would have
had the power to indemnify the person against the liability under subsection
(1) of section 57.
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PART VI
Protection of Members and
Creditors
Meetings of members
59. (1) Subject to any
limitations in the memorandum or articles, the directors of an international
business company may convene meetings of the members of the international
business company at such times and in such manner and places within or outside
Saint Lucia as the directors consider necessary or desirable.
(2) Subject to a provision in
its memorandum or articles for a lesser percentage, upon the written request of
members holding more than fifty percent of the votes of the outstanding voting
shares in the international business company, the directors shall convene a
meeting of members.
(3) Subject to any limitations
in the memorandum or articles, a member shall be deemed to be present at a
meeting of members if -
(a) the member
participates by telephone or other electronic means; and
(b) all members
participating in the meeting are able to hear each other.
(4) A member may be represented
at a meeting of members by a proxy who may speak and vote on behalf of the
member.
(5) The following apply in
respect of a joint ownership of shares
(a) if two or more
persons hold shares jointly each of them may be present in person or by proxy
at a meeting of members and may speak as a member;
(b) if only one of them
is present in person or by proxy he or she may vote on behalf of all of them;
or
(c) if two or more are
present in person or by proxy, they must vote as one.
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Notice of meetings of members
60. (1) Subject to a
requirement in the memorandum or articles to give longer notice, the directors
shall give not less than seven days notice of meetings of members to those
persons whose names on the date the notice is given appear as members in the
share register referred to in section 28 and are entitled to vote at the
meeting.
(2) Notwithstanding subsection
(1), and subject to any limitations in the memorandum or articles, a meeting of
members held in contravention of the requirement to give notice is valid if
members holding a ninety percent majority, or such lesser majority as may be
specified in the memorandum or articles, of
(a) the total number of
shares entitled to vote on all the matters to be considered at the meeting; or
(b) the votes of each
class or series of shares where members are entitled to vote thereon as a class
or series together with an absolute majority of the remaining votes; have
waived notice of the meeting, and, for this purpose, the presence of a member
at the meeting shall be deemed to constitute a waiver on his or her part.
(3) The inadvertent failure of
the directors to give notice of a meeting to a member, or the fact that a
member has not received notice, does not invalidate a meeting.
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Quorum for meetings of members
61. The quorum for a meeting of
members for purposes of a resolution of members, is that fixed by the
memorandum or articles, but, where no quorum is so fixed, a meeting of members
is properly constituted for all purposes if at the commencement of the meeting
there are present in person or by proxy one-half of the votes of the shares of
each class or series thereon and the same proportion of the votes of the
remaining shares entitled to vote thereon.
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Voting by members
62. (1) Except as otherwise
provided in the memorandum or articles, all shares vote as one class and each
whole share has one vote.
(2) The directors may fix the
date notice is given of a meeting as the record date for determining those
shares that are entitled to vote at the meeting.
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Consents of members
63. Subject to any limitations
in the memorandum or articles, an action that may be taken by members at a
meeting of members may also be taken by a resolution of members consented to in
writing or by telex, telegram, cable or other electronic communication, without
the need for any notice.
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Service of notice on members
64. Any notice, information or
written statement required under this Act to be given by an international
business company to members must be served
(a) in the manner
prescribed in the memorandum or articles; or
(b) in the absence of a
provision in the memorandum or articles, by personal service, by mail addressed
to each member at the address shown in the share register, or by e-mail or
facsimile sent to each member at the facsimile, telephone number, or e-mail
address shown in the share register.
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Service of process
65. (1) A summon, notice,
order, document, process, information or written statement may be served on an
international business company by leaving it, or by sending it by registered
mail addressed to the international business company, at its registered office.
(2) Service of any summons,
notice, order, document, process, information or written statement on an
international business company may be proved by showing that the summons,
notice, order, document, process, information or written statement -
(a) was mailed in such
time as to admit to its being delivered in the normal course of delivery,
within the period prescribed for service; and
(b) was correctly
addressed and the postage was prepaid.
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Books, records and common seal
66. (1) An international
business company shall keep such accounts and records as the directors consider
necessary or desirable in order to reflect the financial position of the
international business company.
(2) An international business
company shall keep
(a) minutes of all meetings of
(i) directors;
(ii) members;
(iii) committees of directors;
(iv) committees of officers;
and
(v) committees of members; and
(b) copies of all resolutions
consented to by
(i) directors;
(ii) members;
(iii) committees of directors;
(iv) committees of officers;
and
(v) committees of members.
(3) The books, records and
minutes required by this section shall be kept at the registered office of the
company.
(4) An international business
company shall have a common seal and an imprint thereof shall be kept at the
registered office of the international business company.
(5) An international business
company that wilfully contravenes this section is liable to a penalty of fifty
dollars for each day or part thereof during which the contravention continues,
and a director, who knowingly permits the contravention is liable to a like
penalty.
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Inspection of books and
records
67. (1) Any member of a company
may, in person or by attorney and in furtherance of a proper purpose, request
in writing specifying the purpose to inspect during normal business hours the
share register of the international business company or the books, records,
minutes and consents kept by the international business company and to make
copies or extracts therefrom.
(2) For purposes of subsection
(1), a proper purpose is a purpose reasonably related to the member's interest
as a member.
(3) If a request under
subsection (1) is submitted by an attorney for a member, the request must be
accompanied by a power of attorney authorising the attorney to act for the
member.
(4) If the international
business company, by a resolution of directors, determines that it is not in
the best interest of the company or of any other member of the international
business company to comply with a request under subsection (1), the
international business company may refuse the request.
(5) Upon refusal by the
international business company of a request under subsection (1), the member
may, before the expiration of a period of ninety days of the member receiving
notice of the refusal, apply to the Court for an order to allow the inspection.
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Contracts generally
68. (1) Contracts may be
entered into on behalf of an international business company as follows
(a) a contract that, if
entered into between parties, is required by law to be in writing and under
seal, may be entered into by or on behalf of the international business company
in writing under the common seal of the international business company, and
may, in the same manner, be varied or discharged;
(b) a contract that, if
entered into between parties, is required by law to be in writing and signed by
the parties, may be entered into by or on behalf of the international business
company in writing and signed by a person acting under the express or implied
authority of the international business company, and may, in the same manner,
be varied or discharged; and
(c) a contract that, if
entered into between parties, is valid although entered into orally, and not
reduced to writing, may be entered into orally by or on behalf of the
international business company by a person acting under the express or implied
authority of the international business company, and may, in the same manner,
be varied or discharged.
(2) A contract entered into in
accordance with this section is valid and is binding on the international
business company and its successors and all other parties to the contract.
(3) Without affecting paragraph
(a) of subsection (1), a contract, agreement or other instrument executed by or
on behalf of an international business company by a director or an authorised
officer or agent of the international business company is not invalid by reason
only of the fact that the common seal of the company is not affixed to the
contract, agreement or instrument.
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Contracts before incorporation
69. (1) A person who enters
into a written contract in the name of or on behalf of an international
business company before the international business company comes into
existence, is personally bound by the contract and is entitled to the benefits
of the contract, except where
(a) the contract
specifically provides otherwise; or
(b) subject to any
provisions of the contract to the contrary, the international business company
adopts the contract under subsection (2).
(2) Within a reasonable time
after an international business company comes into existence, the international
business company may, by any action or conduct signifying its intention to be
bound thereby, adopt a written contract entered into in its name or on its
behalf before it came into existence.
(3) When an international
business company adopts a contract under subsection (2) -
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